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https://www.courtlistener.com/api/rest/v3/opinions/491942/	824 F.2d 978 Unpublished dispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Joe D. JORDAN, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent. Appeal No. 86-1728. United States Court of Appeals, Federal Circuit. May 19, 1987. Before MARKEY, Chief Judge, BENNETT, Senior Circuit Judge, and SMITH, Circuit Judge. PER CURIAM. DECISION 1 Petitioner appeals his demotion and reassignment by the United States Postal Service, which were upheld by a final decision of the Merit Systems Protection Board on July 23, 1986, Docket No. PH07528610130, when it declined review of the presiding official's decision of March 18, 1986. We affirm. OPINION 2 Effective November 23, 1985, petitioner was demoted from his position as postmaster, South Hill, Virginia, to that of distribution clerk and was reassigned to the Petersburg, Virginia, postal facility. The agency action brought against him was based on several specifications of sexual harassment of employees at the post office and conduct unbecoming a postal employee. After a hearing, the presiding official held that the misconduct charged in the majority of specifications was sustained by a preponderance of the evidence and that petitioner's demotion and reassignment were warranted to promote the efficiency of the service. 5 U.S.C. Sec. 7513 (1982). In reaching this decision, the presiding official made credibility determinations which must be sustained on the record before the court. None of the defenses was found sufficient to mitigate the penalty imposed. We have reexamined those defenses, which are treated in detail in the board's opinion, and find no demonstrable prejudicial errors in the proceeding. Our scope of review is limited. Petitioner has not met his burden of showing that the action taken against him was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or otherwise not according to law. 5 U.S.C. Sec. 7703(c) (1982). See Hayes v. Department of the Navy, 727 F.2d 1535 (Fed.Cir.1984).	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/1873076/	752 N.W.2d 33 (2008) M.B. CONST., INC. v. MID-STATES EXPRESS, INC. No. 07-0381. Court of Appeals of Iowa. February 27, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2592641/	57 N.Y.2d 116 (1982) In the Matter of the Claim of Grace Valvo, Respondent. Philip Ross, as Industrial Commissioner, Appellant. In the Matter of the Claim of Debra Loll, Respondent. Philip Ross, as Industrial Commissioner, Appellant. In the Matter of the Claim of Josephine Polvino, Respondent. Philip Ross, as Industrial Commissioner, Appellant. Court of Appeals of the State of New York. Decided September 14, 1982. Robert Abrams, Attorney-General (Iris A. Steel of counsel), for appellant in the first, second and third above-entitled matters. Stephen S. Joy for respondent in the first above-entitled matter. Andrew M. Rothstein for respondent in the second above-entitled matter. Paul M. Aloi for respondent in the third above-entitled matter. Chief Judge COOKE and Judges JASEN, JONES, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part. 119WACHTLER, J. In these three cases recipients of unemployment insurance failed to report that they had performed occasional services of a business nature for friends or family members during periods of claimed unemployment. The agency found that these services constituted employment, that claimants had therefore made false statements of unemployment and that the statements were wilfully made. In each case a penalty was imposed and the claimants were also directed to repay the benefits received. On three separate appeals the Appellate Division, Third Department, modified by annulling the penalty and repayment provisions after concluding that proof of the element of wilfulness was lacking. The Appellate Division also rejected the agency's contention that a portion of the benefits are recoverable pursuant to subdivision 4 of section 597 of the Labor Law on the theory that claimant had made a false statement unintentionally. The agency appeals on the basis of the modifications.[1] VALVO CASE Claimant, Grace Valvo, is employed by Tambe Oil, which delivers heating oil to homes and a few businesses during the winter months. From late spring to early fall it is dormant. The corporation is owned and operated by Anthony Tambe, the father-in-law of one of the claimant's close friends. Mr. Tambe was formerly employed as a truck driver. He went into business for himself in September, 1976. The business presently consists of a truck and a garage with a small office in the garage. The owner personally delivers the oil, and in the beginning also attended to the clerical matters. However, he had so much difficulty balancing his checking account that his credit rating was soon impaired and he was on the verge of going out of business. When he mentioned this to his daughter in claimant's presence, claimant volunteered to help. From October, 1976 to November, 1977 claimant wrote his checks and balanced the checkbook as a favor, without compensation. During this period she was receiving unemployment benefits. 120In November, 1977 Mr. Tambe hired claimant as a secretary to write checks, send out the bills, record all financial transactions and answer the phone at the office. In this capacity she worked 40 hours a week at the office. During the summer months in 1978 and 1979 she was officially laid off and collected unemployment benefits. However, if a bill had to be paid for monthly utilities or outstanding loans Mr. Tambe would call claimant and ask her to write a check. He would then pick it up at her home, sign it and mail it. Claimant received no compensation for these services. In June, 1980 the agency informed claimant that her uncompensated check-writing activities constituted employment under the Labor Law,[2] that she had therefore made false statements when she claimed to be unemployed during the off-season, and also during the period she wrote the company's checks on a volunteer basis before she was hired in November, 1977. It further concluded that the statement had been wilfully made and that claimant should therefore be penalized by forfeiting 664 days of future eligibility and must also repay all benefits received in the amount of $6,019. Claimant requested a hearing which was held in July, 1980. After the hearing the administrative law judge concluded that the initial determination assessing a penalty and requiring repayment of benefits should be set aside primarily because there was no evidence of fraud or wilful misrepresentation on claimant's part. He stated: "While claimant did perform check writing functions for this employer during the period prior to the time when she went on the payroll in November of 1977 and also during the off season of 1978, claimant could reasonably have believed that there was no employer employee relationship since she was not reporting to the employer's establishment during the periods when she was writing such checks and she was performing no other services. This is especially the case in the period prior to her going on the 121 payroll in November of 1977. With respect to the off season of 1978, claimant's activities were so substantially different from her regular work assignments that even here she could reasonably have believed that she was not performing as an employee * * In addition, she was clearly not self employed and since the amount of time required to write the checks was minimal the activity of writing the checks as such did not establish a lack of total unemployment." The appeal board reversed the decision of the administrative law judge and reinstated the initial determination. The board summarily concluded that claimant's weekly certifications of unemployment "were false and known by her to be false when made" and therefore constituted wilful misrepresentations. The board also found that claimant's statements were false in fact because "claimant performed substantial services for her employer of a similar nature to those she performed when concededly in employment". Claimant appealed to the Appellate Division to have the board's determination set aside. In support of its determination the agency claimed that there was substantial evidence of wilfulness and that it was therefore authorized to impose the penalty and require repayment pursuant to section 594 of the Labor Law.[3] In the alternative the agency urged that pursuant to subdivisions 3 and 4 of section 597 of the Labor Law, it could recover a portion of the benefits (i.e., those paid during the year preceding discovery of the overpayment) whenever the claimant has made a false statement of unemployment even unintentionally.[4] 122The Appellate Division unanimously modified by reversing that portion of the determination which imposed the penalty and ordered repayment of benefits. The court accepted the board's determination that claimant's check-writing activities constituted employment but found nothing in the record to support the board's determination of wilfulness. With respect to the board's right to recover a portion of the benefits pursuant to subdivisions 3 and 4 of section 597 of the Labor Law on the theory that she had made a false statement the court held that "the term `false statement' in the statute refers to a false factual statement" and not to an erroneous conclusion of law. (83 AD2d, at p 346.) In this case the court found that "the requirement that claimant weekly `report and certify as to his unemployment' (12 NYCRR 473.2 [a]) obligated claimant to draw a legal conclusion whether her uncompensated check-writing activities constituted employment within the meaning of the Labor Law rather than provide factual data". (83 AD2d, at p 347.) The court distinguished our recent decision in Matter of Maguire (Ross) (54 N.Y.2d 965) on the ground that the petitioner's activities in that case obviously constituted employment. LOLL CASE In March, 1978 claimant, Debra Loll, was laid off from her job as a clerk cashier at Stop & Go in Elmira. She was rehired in September of that year. In the interim she collected unemployment benefits. At an unemployment interview on July 7, 1978 she had stated that she occasionally helped out at her father's drugstore, but received no compensation for these services. Toward the end of the month the agency sent her a letter warning her that any services performed for her father at his store would constitute employment even if she did not receive any compensation. On August 8, the manager of the unemployment 123 office who was a regular customer at the drugstore saw the claimant behind the counter. In October the agency made an initial determination that petitioner was ineligible to receive benefits for two days out of each week during the period of claimed unemployment, representing the days she helped her family at the drugstore. Her weekly certifications of unemployment were characterized as false and wilful misrepresentations. As a result claimant was penalized 96 effective days and was directed to repay $564 representing the benefits she received on the days she was employed at her father's drugstore. Claimant demanded a hearing which was held in February of 1979. At the hearing she testified that she went to her father's store nearly every day during the period she claimed unemployment, so that she could borrow his car or have a family member babysit for her three-year-old son while she looked for a job. On occasion she would take care of a customer or deliver a prescription if her father or brother were busy or wanted to take a break. She usually only helped out for a few minutes one or two days a week during the evening or on a Saturday and on rare occasions worked for a few hours. These activities ceased after being warned of the consequences in July. However, she continued her daytime visits and during one of them might have assisted her family at the store for a few minutes because she had done so automatically throughout her life. She received no compensation for the help she provided at the store. At the conclusion of the hearing the administrative law judge held that claimant's activities at her father's store constituted employment. He also stated that "the record is clear that the claimant was not candid with the local office and did not advise them of her activities". Thus he sustained the initial determinations. The appeal board affirmed adopting both the findings of fact and opinion of the administrative law judge. The case was heard by the Appellate Division in November, 1980, a year before its decision in the Valvo case. In a brief memorandum the court held that the record supported 124 the board's finding that claimant had made false statements but not its finding of wilfulness. The court modified by reversing so much of the agency's determination as assessed a penalty of 96 effective days. At the time of its decision in Valvo the Appellate Division granted reargument in this case. In another brief memorandum, relying upon Valvo, the court further modified by reversing so much of the agency's determination as directed claimant to repay benefits received. POLVINO CASE From 1974 to 1977 claimant Josephine Polvino was intermittently employed by a small construction company owned and operated by her two sons, one of whom resides at home with his parents. The company does general construction work but specializes in paving driveways in the summer and removing snow in the winter. The company's office is located in a trailer on property where the equipment is stored. However, company business is frequently conducted at claimant's residence. Claimant performed clerical duties at the office of a general and unskilled nature including answering phones, writing checks and keeping some company records. She was laid off and collected unemployment benefits on several occasions: March 4 to July 14, 1974; December 23, 1974 to June 13, 1976, and August 8, 1977 to May 14, 1978. According to claimant and her sons this was due to a lack of work. However during these periods she continued on occasion to answer phone calls from customers, write checks and keep some company records at her residence without compensation. In March of 1979 the agency sent claimant a notice of initial determination stating that she had been found to be ineligible for unemployment benefits during the periods of claimed unemployment listed above because she had continued to perform "services for Polvino Construction Corporation". She was directed to make repayment in the amount of $8,834. The agency also imposed a penalty of 208 effective days for wilful misrepresentation "because you failed to divulge your association and activities for Polvino Construction Company". 125Claimant demanded a hearing at the conclusion of which the administrative law judge sustained the initial determination. He noted that claimant had been employed by her sons' company where the services she performed were somewhat vague. He stated: "In a situation where a claimant is employed by a closely held corporation whose principal officers and shareholders are related to her, the closest scrutiny must be given to a claim for benefits. In the instant case the pattern of her claims over several years makes it appear obvious that the employer controlled her periods of employment. Because of the control exercised over the periods of her employment, the undersigned cannot accept claimant's eligibility for benefits during these several periods when, by her own admission, claimant performed some services for the corporation." That decision was in turn affirmed by the appeal board which adopted the findings of fact and opinion of the administrative law judge. The Appellate Division modified the agency's determination by reversing the penalty and repayment provisions. In its memorandum the court held that there was substantial evidence to support the board's determination that petitioner was unavailable for employment. The court also found no "reason for disturbing the board's determination that claimant was not totally unemployed". The court then stated: "We are of the opinion, however, that there is insufficient evidence to support the board's determination on the issue of wilfull misrepresentation. Claimant's activities did not obviously constitute employment as the situation was found to be in Matter of Maguire (Ross) (54 N.Y.2d 965, supra). Although claimant may be found to have been employed in the technical sense of the Labor Law, there is no evidence of wilfulness in her certifications to total unemployment on her weekly reports. Consequently, the imposition of a forfeiture of effective days and the recovery of overpayments pursuant to section 594 of the Labor Law are not warranted in the present case (see Matter of Valvo [Ross], supra; Matter of Smalt [Ross], 82 AD2d 958). In addition, under the circumstances presented herein, there may be no recovery of a portion of the benefits pursuant to 126 subdivision 4 of section 597 of the Labor Law (see Matter of Valvo [Ross], supra)." (85 AD2d, at p 807.) The order of the Appellate Division should be affirmed in the first case (Valvo) and reversed in the other two (Loll and Polvino). Initially we note that at this stage no one challenges the agency's determination that the petitioners' activities technically constitute employment within the meaning of the statute. The appeals are limited to the following issues: (1) did the petitioners make false statements when they stated that they were unemployed and (2) did they act wilfully. In addition the agency concedes that in order to sustain a finding of wilfulness the evidence must show that the petitioners knew that their actions constituted employment. The problem is that the agency's interpretation of the statute defining employment (Labor Law, § 522) although rational, does not reflect the common understanding of employment. As a result laymen, particularly unskilled laymen who undoubtedly represent the majority of claimants for unemployment benefits, may not realize that occasionally helping a friend or relative may constitute employment even though they are not paid for it. The agency claims that its information booklet provides a kind of constructive notice when it states: "You are considered employed on any day when you work even an hour or less in self-employment, on a free lance basis, or for someone else. It makes no difference whether * * you get paid for that day". The agency, however, has omitted the next sentence which states: "For example, work on a straight commission basis is employment even though you may not receive the commission until some time later or make no sale at all". This gloss leaves the impression that the term employment includes activities that are generally perceived as employment regardless of the technicalities. The agency is on firmer ground when it relies on the facts of the particular cases. In the Polvino case, for instance, where the claimant worked for her sons, the evidence shows that she performed essentially the same limited services while allegedly unemployed as she did while 127 allegedly employed. The only significant difference is that she received unemployment benefits instead of wages. In addition, as the agency notes, her periods of unemployment were never satisfactorily explained. It was appropriate for the agency to closely scrutinize this situation as it did, because of the possibility that the periods of employment and unemployment were manipulated in order to claim unemployment benefits. Under the circumstances the agency could conclude that if she understood that the services she performed for her sons constituted employment when she was on their payroll, she also realized that they constituted employment when she was technically laid off. The Loll case presents a more sympathetic situation but nevertheless there is substantial evidence to sustain the agency's finding that she acted wilfully. The evidence shows that she was warned that her services at her father's drugstore constituted employment. When, despite this warning, she was later observed behind the counter, the agency could reasonably infer that her activities throughout the period were not the result of ignorance of the law. Notably in this case she was not required to repay all benefits received but only those relating to the days on which she was actually working at the store. In the Valvo case, on the other hand, there is nothing in the record from which it can be reasonably inferred that she realized that her writing of a few monthly checks during a long period of seasonal unemployment would constitute employment disqualifying her from all benefits throughout the entire period. Although she worked for the father-in-law of a close friend, there is no suggestion that her employment was not legitimate and the obvious seasonal nature of the business and genuine lack of work during the period of claimed unemployment is undisputed. Thus the agency's finding of wilfulness was arbitrary. With respect to the agency's alternative argument that claimant Valvo should be required to repay a portion of the benefits for making a false statement within the meaning of subdivision 4 of section 597 of the Labor Law, the Appellate Division correctly held that the statute only applies to false statements of fact and that petitioner's 128 certification of unemployment represented an error of law. This does not mean, as the agency suggests, that wilful misrepresentation is now required under this section and section 594 thus rendering one of the sections meaningless. It should be clear from the Appellate Division's decision that section 597 permits recovery of benefits received within the past year when the claimant has made a false statement of fact even though unintended. However, when claimant has in good faith received benefits to which he or she was not entitled because of a mistake of law on the part of the claimant or the agency, none of the benefits may be recovered. This interpretation is required by the wording of the statute, and supported by its legislative history, which shows that it was designed to provide relief to claimants when an overpayment or erroneous payment of benefits resulted from an honest mistake, and to preclude all recovery when the claimant was not in any way responsible for the error (see, e.g., Industrial Comm Memorandum of April 9, 1942 on Assembly Int No. 1804, Print No. 2455). Accordingly, the order of the Appellate Division should be affirmed in Matter of Valvo, and reversed in Matter of Loll and Matter of Polvino. In the latter two cases the determination of the appeal board should be reinstated. In Matter of Valvo: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. In Matter of Loll and Matter of Polvino: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), orders reversed, without costs, and decisions of the Unemployment Insurance Appeal Board reinstated. NOTES [1] Disposition of these appeals has been expedited pursuant to 22 NYCRR 500.2(g). [2] Section 522 of the Labor Law states: "`Total unemployment' means the total lack of any employment on any day. The term `employment' as used in this section means any employment including that not defined in this title." [3] The relevant portion of section 594 of the Labor Law states: "A claimant who has wilfully made a false statement or representation to obtain any benefit * * * shall forfeit benefits for at least the first four but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense * * * A claimant shall refund all moneys received because of such false statement or representation made by him." [4] The relevant portions of section 597 of the Labor Law state: "3. Limitation on review of determinations. Any determination regarding a benefit claim may, in the absence of fraud or wilful misrepresentation, be reviewed only within one year from the date it is issued because of new or corrected information * * * "4. Effect of review. Whenever a new determination in accordance with the preceding subdivision or a decision by a referee, the appeal board, or a court results in a decrease or denial of benefits previously allowed, such new determination or decision * * * shall not affect the rights to any benefits already paid * * * provided they were accepted by the claimant in good faith and the claimant did not make any false statement or representation and did not wilfully conceal any pertinent fact in connection with his claim for benefits."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895036/	NO. 07-07-0158-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D OCTOBER 5, 2007 ______________________________ SHEA F. RAYMOND, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY; NO. 2005-496,325; HONORABLE LARRY B. “RUSTY” LADD, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. ABATEMENT AND REMAND Following a plea of not guilty, Appellant, Shea F. Raymond, was convicted by a jury of driving while intoxicated. Punishment was assessed at 180 days confinement and a $2,000 fine, suspended in favor of eighteen months community supervision. Appellant timely perfected this appeal. Failure of Appellant to File Brief The clerk’s record was filed on May 31, 2007. On June 20, 2007, this Court directed Appellant’s counsel to certify in writing, on or before July 10, 2007, that he had complied with Rule 34.6(b) (designation of record and request for preparation) and Rule 35.3(b) (payment of reporter’s fee). (footnote: 1) Counsel was further advised that failure to comply with this order would result in the deadline for Appellant’s brief being set. No response having been received, on July 20, 2007, this Court deemed the reporter’s record as having been filed, thereby making Appellant’s brief due on August 20, 2007. Appellant did not file a brief, and on September 10, 2007, Appellant was notified of the deficiency and advised that unless the brief or an appropriate response was received on or before September 20, 2007, the appeal was subject to being abated and the cause remanded. Appellant did not respond and the brief remains outstanding. Motion to Withdraw On August 7, 2007, Appellant’s retained counsel filed a Motion to Withdraw in which he represented that, despite diligent attempts, Appellant failed to remain in contact with him and also failed to make arrangements to pay for the appellate record. Counsel’s motion was granted by this Court pursuant to Rule 6.5 of the Texas Rules of Appellate Procedure; however, at that time no arrangements were made for the substitution of counsel. Failure to File Appellant’s Brief Does Not Authorize Dismissal or Consideration Without Briefs Notwithstanding Appellant’s apparent disregard for the merits of his appeal, Rule 38.8(b)(1) provides that an appellant’s failure to file a brief does not authorize either dismissal of the appeal or consideration of the appeal without briefs, unless the trial court has found either (1) that the appellant no longer desires to prosecute the appeal, or (2) that the appellant is not indigent but has not made the necessary arrangements for filing a brief. Therefore, we abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(4). Upon remand, the trial court shall utilize whatever means necessary to determine the following: 1. whether Appellant desires to prosecute the appeal; whether Appellant is indigent and entitled to appointed counsel; and whether Appellant is not indigent but has not made the necessary arrangements for filing a brief. On remand, if Appellant fails to appear for a hearing after being notified of the date, time and place of hearing, the trial court is authorized to presume that Appellant (1) does not desire to prosecute this appeal, (2) is not indigent and not entitled to appointed counsel; and, (3) that Appellant has not made necessary arrangements for filing a brief. Notice of that hearing shall be made to the Appellant in person or by mail to Appellant’s last known address by both certified and regular mail. For purposes of this notice Appellant’s last known address is presumed to be the last known address contained in Appellant’s counsel’s Motion to Withdraw, to-wit: 4317 53 rd Street, Apt. A, Lubbock, Texas 79413. Should it be determined that Appellant does want to prosecute this appeal and the court determines that he is indigent and entitled to appointed counsel or has retained new counsel, the name, address, telephone number, and state bar number of the newly-appointed or newly-retained counsel shall be provided to the Clerk of this Court. Finally, the trial court shall execute findings of fact, conclusions of law, and any necessary orders it may enter regarding the aforementioned issues and cause its findings, conclusions, and orders, if any, to be included in a supplemental clerk's record to be filed with the Clerk of this Court by Friday, November 9, 2007. It is so ordered. Per Curiam Do not publish. FOOTNOTES 1:All references to the Rules herein are references to the Texas Rules of Appellate Procedure.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/2895056/	NO. 07-06-0249-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 4, 2007 ______________________________ BRIAN EVERETT BRANDON, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 108 TH DISTRICT COURT OF POTTER COUNTY; NO. 48,036-E; HONORABLE ABE LOPEZ, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Appellant was placed on deferred adjudication for a period of 10 years after entering a plea of guilty, pursuant to a plea bargain, to the offense of aggravated kidnapping. The State subsequently filed a motion to proceed with adjudication alleging that appellant committed the new offense of assault. The trial court subsequently conducted a hearing and found the appellant guilty of aggravated kidnapping and, after receiving evidence regarding punishment, assessed appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 15 years. We affirm. Appellant’s attorney has filed an Anders brief and a motion to withdraw. Anders v. California , 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Id . at 744-45. In compliance with High v. State , 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State , 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Although, appellant requested and was granted an extension of time to file a pro se response, appellant has not filed a response. By his Anders brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous. We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio , 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State , 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous. Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s judgment is affirmed. (footnote: 1) Mackey K. Hancock Justice Do not publish. FOOTNOTES 1:Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. See Tex. R. App. P. 48.4.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/2612939/	875 P.2d 1190 (1994) 128 Or. App. 415 CITY OF EUGENE, Respondent, v. Kathy Kay KRUK, Appellant. 91-50006; CA A71272. Court of Appeals of Oregon. Submitted on Remand June 23, 1993. Decided June 8, 1994. 1191 Edmund J. Spinney, Eugene, argued the cause and filed the brief for appellant. Jens Schmidt, Eugene, argued the cause for respondent. With him on the brief were Floyd F. Prozanski, Jr., and Harrang Long Watkinson Arnold & Laird, P.C. Before WARREN, P.J., and EDMONDS and LANDAU, JJ. LANDAU, Judge. Defendant appeals her conviction under Eugene Municipal Code § 4.907 (EC § 4.907), which prohibits conduct that interferes with a police officer's lawful performance of a duty. We reversed the conviction on the ground that the ordinance was preempted by state law. City of Eugene v. Kruk, 115 Or.App. 494, 839 P.2d 250 (1992). On review, the Supreme Court vacated our opinion and remanded for reconsideration in the light of City of Portland v. Jackson, 316 Or. 143, 850 P.2d 1093 (1993). City of Eugene v. Kruk, 316 Or. 436, 851 P.2d 1140 (1993). On reconsideration, we again reverse. Plaintiff City of Eugene (the city) charged defendant with violating EC § 4.907. Defendant demurred, arguing that the facts alleged in the complaint failed to constitute an offense, because EC § 4.907 is unconstitutional on its face under Article XI, section 2, of the Oregon Constitution, which prohibits local governments from enacting legislation that conflicts with state criminal laws.[1]City of Portland v. Jackson, supra, 316 Or. at 146, 850 P.2d 1093. According to defendant, EC § 4.907 conflicts with ORS 162.235 and ORS 162.315. The trial court overruled her demurrer. On appeal, defendant assigns error to the trial court's decision. In Jackson, the Supreme Court summarized the proper procedure for determining whether an ordinance is invalid under Article XI, section 2: "[W]e first must examine the ordinance and statutes that the parties claim are in conflict. Next, we determine what conduct the ordinance prohibits. Third, we look to see whether the applicable statute or statutes permit that conduct, either by an express legislative decision, by a decision apparent in the legislative history, or otherwise. If the ordinance prohibits conduct that the statute permits, the laws are in conflict and the ordinance is displaced under Article XI, section 2." 316 Or at 151, 850 P.2d 1093. We proceed, then, with an examination of defendant's challenge in accordance with the three steps described in Jackson. We begin with the texts of the ordinance and the relevant statutes. EC § 4.907 generally prohibits any interference with a police officer in the lawful performance of duties, if the conduct was done intentionally to interfere or with reckless disregard for its interference: "It shall be unlawful for any person, intentionally or with reckless disregard thereof, to interfere with a police officer in the officer's lawful performance of his or her duties. To interfere with as used in this section shall mean any physical act, including a refusal to leave a particular area in response to a lawful order from a police officer, that prevents or could reasonably be expected to prevent a police officer from performing his or her duties." EC § 4.907. Under ORS 162.235, certain conduct is unlawful if it is intentionally done to interfere with the administration of any governmental or judicial function, other than the making of an arrest. It provides, in part: "(1) A person commits the crime of obstructing governmental or judicial administration if the person intentionally obstructs, impairs or hinders the administration 1192 of law or other governmental or judicial function by means of intimidation, force, physical or economic interference or obstacle. "(2) This section shall not apply to the obstruction of unlawful governmental or judicial action or interference with the making of an arrest." Under ORS 162.315, intentional resistance to arrest is unlawful if the actor knows that the person resisted is a peace officer making an arrest. It provides, in part: "(1) A person commits the crime of resisting arrest if the person intentionally resists a person known by the person to be a peace officer in making an arrest. "(2) `Resists,' as used in this section, means the use or threatened use of violence, physical force or any other means that creates a substantial risk of physical injury to any person and includes behavior clearly intended to prevent being taken into custody by overcoming the actions of the arresting officer. The behavior does not have to result in actual physical injury to the arresting officer. Passive resistance does not constitute behavior intended to prevent being taken into custody. "(3) It is no defense to a prosecution under this section that the peace officer lacked legal authority to make the arrest, provided the peace officer was acting under color of official authority." The statute applies to a person who resists the arrest of another, as well as to a person who resists his or her own arrest. State v. Brandon, 35 Or.App. 661, 663, 582 P.2d 52, rev. den. 284 Or. 235 (1978). In accordance with Jackson, we determine what conduct EC § 4.907 prohibits. By its terms, the ordinance makes unlawful "any physical act * * * that prevents or could reasonably be expected to prevent a police officer from performing his or her duties." The forbidden conduct can be either active or passive, because the ordinance expressly includes a prohibition against any "refusal to leave a particular area in response to a lawful order from a police officer." Finally, we determine whether ORS 162.235 or ORS 162.315 permits conduct that EC § 4.907 prohibits. The Supreme Court explained that statutory permission may be found in the express language of the statute, or it may be "apparent in the legislative history, or otherwise." 316 Or at 151. In this case, we conclude that both the text and the legislative history of the relevant statutes reflect an unmistakable intent to permit what EC § 4.907 prohibits. ORS 162.235, enacted in 1971, provides that the crime of obstructing governmental or judicial administration does not apply to interference with the making of an arrest. The commentary to the Proposed Oregon Criminal Code of 1971 explains that ORS 162.235 "requires that the prohibited conduct be manifested by threats, violence or physical interference, a limitation that recognizes certain constitutional safeguards, e.g., freedom of speech and assembly. "* * * * * "It would be inconsistent to prohibit in this section all activities intended to obstruct governmental administration, since broadly generalized prohibitory language might be construed as a restriction upon the lawful exercise of political agitation in opposition to governmental policy." See also Commentary to Proposed Oregon Criminal Code 199 (1970); Commentary to Oregon Criminal Code of 1971, 99 (1975). Consistent with that concern, in 1989 the legislature amended ORS 162.315 expressly to exclude passive resistance from the crime of resisting arrest. Or.Laws 1989, ch. 877, § 1. EC § 4.907 expressly prohibits "any physical act, including refusal to leave a particular area in response to a lawful order from a police officer." By its terms, it prohibits passive resistance to arrest. In other words, the statutes permit what the ordinance prohibits. Under Jackson, therefore, EC § 4.907 is invalid. The city insists that the ordinance does not prohibit conduct that the statute permits, because "the ordinance and the statute regulate different conduct." It argues that "the ordinance regulates interference with a police officer in any type of setting where 1193 the officer is attempting to perform his or her lawful duties, while the statute is limited to the situation of an officer attempting to make an arrest." The city's explanation of the coverage of the two provisions is correct, but its conclusion that they regulate different conduct is not. The ordinance expressly prohibits refusing to leave a particular area when that conduct interferes with an officer's lawful performance of any duty. A police officer is performing a duty when he or she makes an arrest. Therefore, the language of the ordinance prohibits, among other things, refusing to leave a particular area, when that refusal interferes with an officer making an arrest. The ordinance does not distinguish between a refusal to leave an area that is communicated by force or violence and a refusal to leave that is communicated by passive resistance. Therefore, the ordinance and the statute do not regulate different conduct; rather, the conduct that the statute regulates is a subset of the conduct that the ordinance regulates. In short, the ordinance broadly prohibits all activities that obstruct a police officer's administration of his or her duties in a manner that the legislature expressly rejected, because "broadly generalized prohibitory language might be construed as a restriction upon the lawful exercise of political agitation in opposition to governmental policy." Commentary to Proposed Oregon Criminal Code 199 (1970); see also Commentary to Oregon Criminal Code of 1971, 100 (1975). Because the statute permits passive resistance to an officer making an arrest and the ordinance prohibits the same conduct, "the laws are in conflict and the ordinance is displaced under Article XI, section 2." City of Portland v. Jackson, supra, 316 Or. at 151, 850 P.2d 1093. Accordingly, defendant's demurrer should have been allowed. Her other assignments of error require no discussion. Reversed. NOTES [1] Article XI, section 2, provides, in part: "The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon * *." (Emphasis supplied.)	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612941/	178 Ariz. 539 (1994) 875 P.2d 198 STATE of Arizona, Appellee/Respondent, v. Ruben Allen ALVARADO, Appellant/Petitioner. Nos. 1 CA-CR 91-0537, 1 CA-CR 92-1168 PR. Court of Appeals of Arizona, Division 1, Department E. March 8, 1994. Review Denied June 21, 1994.[] 540 Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, Susanna C. Pineda, Asst. Atty. Gen., Phoenix, for appellee/respondent. Dean W. Trebesch, Maricopa County Public Defender by Lawrence S. Matthew, Phoenix, for appellant/petitioner. Ruben Allen Alvarado, in pro. per. OPINION NOYES, Judge. Appellant was found guilty of offering to sell marijuana, a class three felony in violation of A.R.S. section 13-3405, with one prior felony conviction. After being sentenced to a presumptive term of 7.5 years in prison, Appellant filed a direct appeal. He later filed a 541 petition for post conviction relief, which was denied by the trial court. Appellant then filed a petition for review of that denial. We consolidated the appeal with the petition for review. We have jurisdiction pursuant to A.R.S. sections 12-120.21(A)(1) (1992), 13-4031 (1989), and -4033(A) (Supp. 1992). In the appeal, Appellant argues that his motion for judgment of acquittal should have been granted because there was no substantial evidence to support the conviction. See Ariz.R.Crim.P. 20. We conclude otherwise, but we also conclude that the case must be reversed and remanded for a new trial because the main legal theory argued by the State to support the conviction was an incorrect proposition of law regarding the mens rea element of the crime. Because the relief granted on the appeal moots the issues raised in the petition for review, we deny review. I. The trial was to the court, Appellant having waived his right to a jury trial. The State's case was based on conversations Appellant had with undercover officer Flores. Both Flores and Appellant testified at trial. Viewed in a light most favorable to sustaining the conviction, the evidence is fairly summarized in this passage from the State's final argument: Mr. Alvarado said to Officer Flores if you give me $5,000 I will do the following. I will go to Douglas. I will free up a load of marijuana from Roberts. I will have that marijuana brought back to Phoenix on the Memorial Day weekend. I will sell the marijuana [to unnamed third parties], give you a hundred percent return on your investment and then I will give you an option on another 500 pounds of marijuana. In his testimony, Flores explained the "option" part of the proposal as follows: Once he returned my money after a ten-day period $5,000.00 plus an additional $5,000.00 he would go back to Douglas and pick up another load between two and four hundred pounds of marijuana. Once he brought it to Phoenix he said I would have the option. We already negotiated purchasing for $575.00 a pound and I would have the option of buying the marijuana for that price. The State later became concerned that Appellant might disappear if given $5,000, so Flores gave no money to Appellant, and Appellant was arrested based on the evidence summarized above. The State originally charged Appellant with conspiracy to sell marijuana, but later dismissed that complaint and filed a new one charging Appellant with offering to sell marijuana. The State changed theories because it thought the evidence insufficient to prove an agreement between Appellant and Flores, but sufficient to prove an offer to sell marijuana even if, as anticipated, Appellant's defense was that he never intended to sell marijuana. The State reasoned that offering to sell marijuana is a strict liability crime and that the speaker's intentions are irrelevant. As anticipated by the State, Appellant's defense at trial was that he had no intention of selling marijuana to Flores, his intention was to defraud Flores of $5,000 by taking his money and disappearing. This defense was weakened by circumstantial evidence, including Appellant's testimony that he had sold large quantities of marijuana in the past. II. A motion for a judgment of acquittal should be granted if the State has failed to produce "substantial evidence to warrant a conviction." See Ariz.R.Crim.P. 20. Substantial evidence is evidence that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). In considering the sufficiency of the evidence, we evaluate the entire record, including Appellant's testimony. See State v. Nunez, 167 Ariz. 272, 279, 806 P.2d 861, 868 (1991). To set aside a verdict for insufficient evidence, "it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the [trier-of-fact]." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). 542 Although the State relied at trial and on appeal mainly on its strict liability theory, it has also argued the backup theory that Appellant did, in fact, make a "real" offer to sell marijuana to Flores and was therefore guilty on that basis as well. Because the court provided no explanation for the verdict, we consider all theories argued by the State in support of that verdict. A. A.R.S. section 13-3405(A)(4) provides: "A person shall not knowingly ... offer to sell or transfer marijuana." The State's main theory is that, if the speaker knows what he says, and if what he says sounds to a reasonable person like an offer to sell marijuana, the speaker is guilty of offering to sell marijuana no matter what his intentions. This theory lacks a necessary mens rea because it would criminalize mere words, even those spoken without criminal intent. See, e.g., State v. Williams, 144 Ariz. 487, 488, 698 P.2d 732, 733 (1985) (holding that the general rule is that state must demonstrate some degree of wrongful intent in criminal cases); Spitz v. City of Phoenix, 127 Ariz. 405, 407, 621 P.2d 911, 913 (1980) (stating that requirement of mens rea in criminal cases is rule rather than exception). "Knowingly" is defined in A.R.S. section 13-105(7)(b) (Supp. 1993), which provides: "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission. The word "conduct" in the definition of "knowingly" refers to something more than the mere utterance of words. See State v. Padilla, 169 Ariz. 70, 72, 817 P.2d 15, 17 (App. 1991). To commit the crime of offering to sell marijuana, a person must be aware or believe that he has made an offer to sell the substance, not that he has told a lie or made a joke. Division Two of this Court recently reached this same conclusion in State v. Strong, 178 Ariz. 507, 508, 875 P.2d 166, 167 (App. 1993): The conduct proscribed by the statute in question here is an offer to sell narcotic drugs. To be convicted, a defendant must be aware or believe that he or she is making such an offer. This clearly would not include the sort of ["fraudulent, insincere, or made in jest"] conduct described by appellant. See also State v. Douglas, 120 Ariz. 613, 615, 587 P.2d 1190, 1192 (App. 1978) (stating that "[i]f appellants knew their offer was false, the requisite intent to sell a narcotic drug would be lacking"). Although the State argued otherwise, Appellant could not be convicted of offering to sell marijuana to Flores if his only intention was to take Flores' money and disappear. B. One theory of liability argued by the State that we will mention parenthetically, because the theory was properly abandoned prior to trial, was that the offerees were those unnamed third parties to whom Appellant would deliver the marijuana "freed up" by the $5,000 from Flores. This argument was based upon the assumption that Appellant meant what he said to Flores about marijuana. Even so, this theory lacks a corpus delicti and, therefore, the evidence to support this theory is insufficient as a matter of law. See State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983) ("An accused may not be convicted on his own uncorroborated confessions."). It is correct to say that when statements constitute a crime, as they do in an "offer to sell" case, there need be no evidence other than the statements themselves and criminal intent. See State v. Daugherty, 173 Ariz. 548, 552, 845 P.2d 474, 478 (App. 1992). In this case, however, the State did not have any evidence of Appellant's "offer" to unnamed third parties, it only had evidence of Appellant's statements to Flores. Appellant cannot be convicted of offering to sell marijuana to one party when the only evidence of that offer is his "uncorroborated confession" to some other party. 543 C. The backup theory relied on by the State at trial as an alternative to the "strict liability" theory is that if Appellant meant what he said to Flores about marijuana, that conduct was an offer to sell marijuana to Flores. Although it is a close question, we agree that the evidence was sufficient to support a guilty verdict based on this theory of liability. An "offer" is a proposal to enter into a contract on the terms contained in the offer, see, e.g., K-Line Builders, Inc. v. First Fed. Sav. & Loan Ass'n, 139 Ariz. 209, 212, 677 P.2d 1317, 1320 (App. 1983), and that is what Appellant did here. He made a proposal to Flores, one of the terms of which was the sale of marijuana to Flores. Although what Appellant said here would not support a lawsuit for specific performance, his proposal did contain all terms necessary to support a conviction for offering to sell marijuana. The product and the price were clearly stated, marijuana at $575.00 per pound. The time for the sale was not precisely stated, but a reasonable time could fairly be inferred from the proposal. The weight of marijuana was not precisely stated, but precise weight is not an element of this crime, and the offer definitely involved some real weight, 200 to 400 pounds. If the trial court found that Appellant meant what he said to Flores about marijuana, the trial court could also have found Appellant guilty of offering to sell marijuana to Flores. To this extent, then, we find substantial evidence to support the verdict. III. We now address whether the State's strict liability theory taints the conviction. The State argued two alternative legal theories at trial, and its main theory was based on a misunderstanding about the mens rea element of the crime. The trial court's general verdict does not indicate on which legal theory it was based. If this had been a jury trial, we could look at the record made in settling jury instructions, and at the instructions themselves, and know the court's ruling on the elements of the crime. If the court had instructed the jury on the strict liability theory urged by the State, we would reverse and remand for a new trial, regardless of the other instructions, because the verdict could have been based on an incorrect statement of the elements of the crime. Cf. State v. Rea, 145 Ariz. 298, 299, 701 P.2d 6, 7 (App. 1985) (reversing and remanding for new trial when jury was instructed on an improper legal theory and was not instructed on proper theory). Because there are no jury instructions in this case, we look to the record to find any indication of whether the court was misled by the State's strict liability theory. We begin our inquiry with the presumption that the court applied the proper legal theory in the case. "Trial judges are presumed to know the law and to apply it in making their decisions." Walton v. Arizona, 497 U.S. 639, 653, 110 S. Ct. 3047, 3057, 111 L. Ed. 2d 511 (1990). This presumption notwithstanding, we cannot conclude that the trial court rejected the strict liability theory in this case. First, the State placed great reliance on that incorrect theory, arguing it extensively in the pre-trial, mid-trial, and post-trial stages of the case. On each occasion, Appellant's counsel responded with argument and authority in opposition. Because so much of the battle at trial was about the elements of the crime, we find it probable that the verdict, which was the one sought by the State, was based on the legal theory argued most vigorously by the State, the strict liability theory. We also find it significant that the record contains no expression by the trial court of acceptance or rejection of the State's strict liability theory. We find it probable that, if the court had ever been persuaded that the State's strict liability theory was an incorrect proposition of law, it would have so advised the parties of that conclusion, if for no other reason than to eliminate further waste of time on a bad legal argument about the elements of the crime. The State made the strict liability theory the main issue in the case, and the trial court never expressed rejection of that theory. Although we are not advised on which legal theory the verdict was based, this record erodes any presumption 544 that it was based on the proper legal theory. We have considered remanding the case with directions that the trial court think back to the verdict and specify the legal theory on which it was based. If the verdict was based on strict liability, the court would enter a judgment of acquittal; if it was based on proper mens rea, it would re-affirm the verdict and sentence. Remands of this type have been sanctioned to resolve ambiguities in sentencing proceedings. See, e.g., State v. Ojeda, 159 Ariz. 560, 562, 769 P.2d 1006, 1008 (1989) (remanding for new disposition hearing unless record "clearly shows the trial judge would have made the same disposition even without consideration of the violations set aside on appeal"); State v. Weaver, 158 Ariz. 407, 410, 762 P.2d 1361, 1364 (App. 1988) (remanding for resentencing because trial court erroneously thought consecutive sentences were mandatory, not discretionary). We have not found any authority for a post-judgment remand with directions that a trial court state the legal theory on which it based a guilty verdict in a criminal case. We conclude that such a remand would be unwise, if not unconstitutional, on the record before us. No matter how high our regard for the knowledge and integrity (and memory) of the trial court, a remand in this case with directions to specify whether the verdict was based on the right or the wrong legal theory argued by the State would have the appearance of giving the State a second try at convicting Appellant without giving Appellant the due process of a second trial. We conclude that the proper resolution here is to give each party the opportunity to have a second trial, one in which there is no confusion about the mens rea element of the crime. The judgment and conviction are reversed, and the matter is remanded for a new trial. CLABORNE, P.J., concurs. KLEINSCHMIDT, Judge, dissenting in part. I agree with the majority in all respects except as to the remedy. I believe that a new trial is unnecessary. I would remand to the trial judge with directions, not to reconsider the case in light of the law set out in this opinion, but simply and solely to state the basis for the verdict he entered. If the trial judge accepted the State's theory that all it needed to do was prove that the Appellant said the words that constituted the offer to sell and found the Appellant guilty on that basis, the Appellant is entitled to be acquitted. If he found the Appellant guilty because he believed the Appellant really intended to offer to sell marijuana and was not just trying to defraud Flores, the conviction should stand. NOTES [*] Martone, J., of the Supreme Court, voted to grant the petition for review.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612957/	74 Wash. App. 727 (1994) 875 P.2d 693 In the Matter of the Custody of B.S.Z.-S. ANNIE ZINK ROBINSON, Appellant, v. LOREN ZINK, ET AL, Respondents. No. 31725-3-I. The Court of Appeals of Washington, Division One. July 5, 1994. Sidney S. Rodabough, for appellant. Osgood S. Lovekin, Jr., and Shorett, Hardman, Lovekin & Young, for respondents. GROSSE, J. Annie Zink Robinson (Annie) appeals the summary judgment granted to Loren and Karen Zink (the Zinks), her former husband and his current wife. The judgment denied Annie's petition for the scheduled and enforceable visitation of her granddaughter, B. The trial court held 728 that Annie had no standing to continue her petition for visitation after B was adopted by the Zinks. See Bond v. Yount, 47 Wash. App. 181, 734 P.2d 39 (1987). B was born on May 4, 1984, to Martin Zink and Terri Struss.[1] Martin Zink and Terri Struss never married, but paternity was established. Martin Zink had no interest in raising B, who lived with Terri Struss and her boyfriend. In 1990, Terri Struss died. B continued to live with her mother's boyfriend for a short time until she was placed with Loren and Karen Zink, her paternal grandfather and stepgrandmother. Shortly thereafter, the Zinks petitioned for custody of B. Martin Zink consented to the custody decree and the petition was not contested by anyone, including Annie. An amended decree of custody was entered in January of 1991. In March 1991, the Zinks petitioned for adoption of B. Again, her father consented. However, the adoption was delayed while Child Protective Services (CPS) Adoption Services investigated Annie's claim that Loren Zink had a prior history of molesting children. As a result of these allegations, the Zinks and B participated in various psychological evaluations. Loren Zink also underwent a sexual deviancy evaluation. CPS Adoption Services found the allegations to be baseless. Later, in July 1991, Annie filed a petition for grandparent visitation. Two Court Appointed Special Advocate Program (CASA) evaluations ensued. The initial report recommended that Annie receive regularly scheduled visitation on the second weekend of each month. The second report recommended visitation not more than once every 3 months. Before the adoption became final, Annie filed a motion for default judgment on her visitation petition. Subsequent to the filing of the motion and before a hearing on it was held, a decree of adoption was entered. Counsel for the Zinks notified opposing counsel that the adoption was final and indicated his belief that Annie no longer had standing to 729 bring the motion. Annie's counsel went forward with the motion and on the hearing date counsel for the Zinks failed to appear. A default judgment was entered. The default judgment granted visitation of two weekends a month to Annie. Subsequently the default was vacated. A trial date was set. The Zinks brought on a motion for summary judgment seeking dismissal of the petition for visitation. Annie sought visitation similar to that asked by a natural parent in the course of a dissolution action. The Zinks, now the parents, opposed such a specific visitation schedule. They asserted that visits should be allowed occasionally, whenever B desired to visit and when it was mutually convenient. Based on the decisions of Bond v. Yount, supra, and Mitchell v. John Doe, 41 Wash. App. 846, 706 P.2d 1100 (1985), a superior court commissioner held that Annie had no standing to petition for visitation with B once the adoption was final. Annie appeals the order and claims: (1) that the order on summary judgment failed to comply with CR 56(h); (2) that the Bond and Mitchell cases are not controlling and/or should be overruled; and (3) that the test in determining visitation should be the "best interests of the child", not the privacy of adoption. We affirm the trial court's decision on the ground that, as a matter of law under applicable statutes and case law, Annie Zink Robinson lacked standing to petition for visitation once the adoption became final.[2] [1] Annie urges this court to reconsider its holding in Bond v. Yount, supra, by declining to follow it, or by restricting its holding. The facts of the case before us are remarkably similar to those in Bond, and we will not restrict the holding of that case: a grandparent has no standing to petition for visitation rights subsequent to adoption of the grandchild by others, whether strangers or relatives. The 730 Zinks' formal adoption of B terminated any visitation rights which her biological paternal grandmother may have had. Bond v. Yount, supra. In Bond, the maternal grandparents adopted a child and the biological paternal grandparents petitioned for visitation. As here, the grandparents seeking visitation already had a relationship with the child. The trial court in Bond originally ordered visitation rights under former RCW 26.09.240, the statute in effect at the time.[3] We reversed, holding that the adoption terminated any visitation rights of the biological paternal grandparents. Our opinion held that in enacting RCW 26.09.240, the Legislature did not intend "to chip away the strong policy holding the privacy of adoption to be sacrosanct." Bond, 47 Wn. App. at 183. Further, the Bond court cited Mitchell v. John Doe, supra, which held that grandparents have no standing to petition for visitation with a grandchild who has been adopted by strangers. Bond extended the Mitchell holding to visitation to blood relatives, stating: The only factual difference between Mitchell and the case at bar is that this child was not adopted by strangers but by the maternal grandparents. We do not find this distinction sufficient to outweigh the policy underlying adoptions. Bond, 47 Wn. App. at 183. In arguing that Bond should be reversed, Annie contends that the mere fact of adoption should not automatically circumscribe the class of persons who might contribute to the 731 best interests of the child. She acknowledges that Bond is the law, but attempts to circumvent it by claiming that, under RCW 26.10.160(3), a trial court may still decide whether it is in the best interest of a child to allow the visitation.[4] However, RCW 26.10.160(3) involves nonparental actions for child custody and the limitations on visitation rights therein. That statute also contains language similar to former and current RCW 26.09.240. In contrast to other jurisdictions, Washington does not statutorily recognize the rights of grandparents to visitation, except that they have rights in the context of a child custody proceeding pursuant to RCW 26.10, or in the context of a proceeding for dissolution pursuant to RCW 26.09. RCW 26.09 pertains to custody as between parents and presumes that the child will continue to reside with one or both of those parents. The chapter does its best to continue some semblance of a family relationship for the children of a broken marriage, and in that context the best interests of the children may well encompass visitation with grandparents or others with an ongoing relationship with the children. RCW 26.10 is limited to circumstances where custody is at issue and the child does not reside with a parent or where it is alleged that the parents are not suitable custodians. Again, that statute does its best to preserve family relationships and the provision for petitions for visitation by any person makes sense in that context. 732 [2, 3] Unlike those statutes, the adoption statute has a contrary purpose, at least in the context of an adoption by a new family unit; that is, the creation of that new family. As discussed previously in footnote 3, this could be qualified in the context of an adoption by a new spouse of a natural parent with whom the child resides, but those facts are not present here. Open adoption agreements are statutorily recognized under RCW 26.33.295, but only in specific circumstances.[5] Grandparent visitation is not included within these circumstances. The statutory maxim that by the expression of one thing the Legislature meant to exclude the other could be applied. However, we consider it equally noteworthy that the decisions in Mitchell and Bond have been on the books for many years and the Legislature has not acted to change them, even while approving the open adoption provisions in 1990. Thus, we see in this a legislative policy determination that an adoption, in the context such as we have before us, constitutes a fresh beginning for a new family that should be free from interference from third parties. We are not saying the Legislature could not make a different choice, as the competing policy interests are quite compelling. Grandparents can and do play an important role in the development of a child, and severing that role through adoption might not be in the best interests of the child. However, the ultimate policy is one for the Legislature to determine. Certainly the Legislature could add grandparents to the open adoption provisions should it choose to do so. Even so, it has not yet chosen to permit continued relationships after adoption except by agreement. Therefore we are not in a position to go further and grant standing to a grandparent to interfere with the finality and sanctity of an adoption decree. 733 The decision of the trial court is affirmed. COLEMAN and AGID, JJ., concur. NOTES [1] Martin is the son of Loren Zink and Annie Zink Robinson, who were formerly married. [2] Due to the basis of our decision, Annie's other claims do not require discussion. The documents and evidence that were before the commissioner are of little moment considering the initial decision that as a matter of law Annie had no standing to bring a visitation petition. Similarly we need not address the "best interest of the child" rule, because the issue of visitation is never reached. [3] Former RCW 26.09.240 stated in part: "The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances. "Any person may petition the court for visitation rights at any time." Laws of 1987, ch. 460, § 18. Since Bond, the Legislature amended RCW 26.09.240 through Laws of 1989, ch. 375, § 13, effective May 12, 1989. Although quite similar, the revised statute now reads in pertinent part: "The court may order visitation rights for a person other than a parent when visitation may serve the best interest of the child whether or not there has been any change of circumstances. "A person other than a parent may petition the court for visitation rights at any time." [4] Although not cited, there is authority for this proposition. Bond was critically viewed by the Colorado Court of Appeals in In re Marriage of Aragon, 764 P.2d 419 (Colo. Ct. App. 1988). There, a paternal grandparent appealed from a determination of the court that the grandparent visitation statute operated automatically to terminate a grandparent's right to visitation following final adoption of a grandchild by a stepparent. The court held that a grandparent's visitation rights were not subject to statutory exclusion, and further that a grandparent's visitation rights were statutorily derived and thus not divested by adoption. The case is interesting in contrast to the one before us. First, Colorado statutes recognized grandparent visitation rights but not specifically with respect to adoptions, thus the court did not have to reach as far as we are being asked to reach. Second, the child in that case was adopted by a new spouse of the natural mother and the court likened this to dissolution and custody situations where the grandparent had the clear statutory right to visitation; in fact it had been previously ordered. Faced with similar facts and statutes we might agree. [5] RCW 26.33.295(1) provides as follows: "Nothing in this chapter shall be construed to prohibit the parties to a proceeding under this chapter from entering into agreements regarding communication with or contact between child adoptees, adoptive parents, and a birth parent or parents."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2894924/	NO. 07-07-341-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 24, 2007 ______________________________ EFRAIN ARANDA, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B13671-0003; HONORABLE ED SELF, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ORDER OF ABATEMENT AND REMAND Appellant, Efrain Aranda, has given notice of appeal from a conviction and sentence in the 242nd District Court of Hale County, Texas (the trial court), for Possession of Marihuana. The clerk of the court of appeals received and filed the trial court clerk's record on August 29, 2007. The trial court reporter's record was due to be filed no later than August 31, 2007. The clerk of this court is in receipt of a letter from the trial court reporter dated September 17, 2007, which advises appellant has not made any designation of the record on appeal. No reporter's record has been filed. By letter dated September 20, 2007, the clerk of this court advised counsel for appellant that Texas Rules of Appellate Procedure 34.6(b)(1) and 35.3(b)(2) were to be complied with and that such compliance should be confirmed in writing to this court no later than October 10, 2007. No response has been received from appellant's counsel, and the clerk's record in this court reflects no further action by any party to the appeal to prosecute the appeal. Accordingly, this appeal is abated and the cause is remanded to the trial court. TEX . R. APP. P. 37.3(a)(2). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter conduct a hearing to determine the following: 1. whether appellant desires to prosecute the appeal, and if so, 2. (a) whether appellant's counsel of record continues to represent him and what steps need to be taken to ensure a diligent pursuit of the appeal; or (b) whether counsel for appellant has abandoned the appeal; 3. whether appellant has been deprived of a reporter's record because of ineffective assistance of counsel or for any other reason; and 4. if appellant desires to prosecute this appeal, whether appellant's present counsel should be replaced. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney. The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be 2 transcribed and included in a reporter's record; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than November 26, 2007. It is so ordered. Per Curiam Do not publish. 3	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/1039293/	REVISED August 28, 2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 8, 2013 No. 12-10312 Lyle W. Cayce Clerk NATASHA WHITLEY, Plaintiff-Appellant v. JOHN NICK HANNA; ROBERT BULLOCK; MICHAEL MURRAY; ROBERT GRUBBS, Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas Before KING, DAVIS, and ELROD, Circuit Judges. KING, Circuit Judge: Plaintiff-Appellant Natasha Whitley appeals the dismissal of her 42 U.S.C. § 1983 action and the denial of her motion to amend her complaint. Whitley’s claims arise out of former City of Brownwood police sergeant Vincent Ariaz’s sexual abuse of her. Defendants-Appellees John Hanna, Robert Bullock, Michael Murray, and Robert Grubbs were state officers involved in the investigation and arrest of Ariaz. Whitley argues that Appellees failed adequately to protect her from Ariaz, and used her as “sexual bait” to strengthen their prosecutorial case against him. The district court granted Appellees’ motions to dismiss after No. 12-10312 finding that Whitley failed to state a § 1983 claim and that Appellees would be entitled to qualified immunity. It also denied Whitley’s motion to amend her complaint. For the following reasons, we AFFIRM the district court’s judgment. I. FACTUAL AND PROCEDURAL BACKGROUND In 2000, the City of Brownwood created Explorer Post 1150 as part of the “Explorers” program—a school- and work-based program to introduce young people to various vocations. Explorer Post 1150 was established to teach participants about law enforcement, including police training and operations. Vincent Ariaz, a then-sergeant with the City of Brownwood Police Department, acted as Explorer Post 1150’s advisor. In January 2007, Ariaz was investigated for alleged abuse of one of the program’s female participants (“A.M.”). A Brownwood police officer, together with appellee Texas Ranger John Hanna, conducted the investigation. Hanna interviewed A.M., and learned that Ariaz would use her as an example for activities like handcuffing and have her stay late when no one else was around. Hanna also discovered from A.M. that Ariaz would rub his body against hers and ask her about her sexual experiences. A.M. further informed Hanna of an incident in which she and Ariaz were alone in a storeroom. Ariaz allegedly closed the door, turned off the lights, and proceeded to kiss A.M. and fondle her breasts. Despite A.M. telling him to stop, Ariaz continued until she was able to make noise and escape. A.M.’s mother and her then-boyfriend also told Hanna that Ariaz had sent A.M. numerous sexually suggestive text messages, including proposing having sex in a motel room. The boyfriend also lodged a complaint against Ariaz, to no apparent effect. An affidavit by another police officer stated that Ariaz had expressed a desire to engage in different sexual acts with a young girl. Whitley’s allegations do not disclose what action, if any, the City of Brownwood or the Brownwood Police Department took in response to Hanna’s 2 No. 12-10312 investigation or Ariaz’s conduct. We do know that Ariaz continued as a police officer for the City of Brownwood. Hanna, following his investigation, notified his lieutenant, appellee Robert Bullock, that he had obtained a “written statement detailing a pattern of sexual harassment, text messages of [a] sexual nature, and one incident of sexual contact.” The report was approved by Bullock on February 19, 2007, and stated that the investigation “would remain active.” Sometime thereafter, Ariaz’s attention shifted to another Explorers participant—fifteen-year-old appellant Natasha Whitley. Ariaz began “grooming” Whitley by giving her gifts, promoting her to the highest position in the Explorer post, repeatedly using her as his example in class, and writing her love notes that she kept in her Explorers locker. Ariaz’s advances grew progressively more intimate and eventually became sexual around June 2007. Although various individuals were aware that Ariaz was engaging in suspicious conduct, it does not appear that Hanna learned of this until July 3, when another member of the Brownwood Police Department, Richard Williams, noticed Whitley driving Ariaz’s truck and questioned her. In the course of speaking with her, Williams learned that Ariaz and Whitley drove together on a nightly basis. Williams thereupon contacted Hanna, who resumed his investigation and quickly confirmed that Ariaz allowed Whitley to drive his vehicle, rode with her almost every night, and spent hours with her parked in locations that were secluded or known “make out” areas. On July 9, Hanna met with the Brown County District Attorney, appellee Michael Murray, and the Brown County Sheriff, appellee Bobby Grubbs. Also present were Brown County’s Assistant District Attorney, a District Attorney investigator, the Brown County Chief Deputy, a sergeant with the Texas Department of Public Safety, a Brownwood police sergeant, and members of the West Central Interlocal Drug Task Force. The group discussed Hanna’s investigation into Ariaz’s conduct and agreed that Hanna would continue 3 No. 12-10312 monitoring Ariaz to catch Ariaz in the act of abusing Whitley, and thus strengthen the prosecutorial case against him. Bullock endorsed the plan after Hanna informed him of the July 9 meeting. Hanna proceeded to install video surveillance cameras in the hallways of the Brownwood Annex building—one of the locations Ariaz was known to take Whitley. Hanna also initiated GPS surveillance of Ariaz’s car. On July 10 and 11, Ariaz was observed with Whitley in the Annex building. Ariaz repeatedly hugged and kissed Whitley. Ariaz also was observed entering an Annex building courtroom where Whitley was waiting, and later exiting without his belt, followed by Whitley, who emerged adjusting her shirt. Ariaz and Whitley were known to spend lengthy periods of time in the Annex building courtroom. Hanna informed Bullock, Murray, and Grubbs of these events. On July 12, Hanna assembled three two-man teams to surveil Ariaz and Whitley. Over the following days, Ariaz and Whitley repeatedly were observed engaging in the previously documented conduct. On July 17, Hanna and another investigator hid themselves in the closet of the courtroom Ariaz and Whitley previously had entered. Sometime after 2:30 a.m., Hanna witnessed Whitley sitting or lying on a table with Ariaz positioned over her. Ariaz and Whitley then left, but returned at 6:13 a.m. Whitley lay down, and Ariaz proceeded to kiss her for several minutes. He then placed his head in Whitley’s “crotch area,” whereupon Hanna exited the closet and intervened. Ariaz was arrested and indicted on more than twenty-five counts of sexual assault of a child and two counts of indecency with a child.1 He ultimately pleaded guilty to two counts of sexual assault of a child and no contest to indecency with a child. Ariaz currently is serving a twenty-year prison sentence. 1 The indecency with a child counts appear related to Ariaz’s conduct with A.M. in January 2007. 4 No. 12-10312 On November 3, 2008, Whitley’s parents filed suit in federal district court against, among others, the City of Brownwood, the Brownwood Police Department, the Brownwood Chief of Police, and the Boy Scouts of America, in an action styled Whitley v. Ariaz, et al., No. 6:08-CV-85-C. That lawsuit was dismissed upon settlement. On August 19, 2011, Whitley herself filed suit against Hanna and Bullock, in their individual capacities, and against Murray and Grubbs in their individual and official capacities (collectively, “Appellees”). Whitley also sought declaratory and injunctive relief against Appellees in their official capacities. Her complaint primarily contended that Appellees violated her constitutional rights by failing timely to intervene to stop Ariaz’s abuse of her. Murray and Grubbs filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on September 13. On the same day, Hanna and Bullock filed a separate motion to dismiss for failure to state a claim under Rule 12(b)(6), in which they asserted qualified immunity. Subsequently, Murray and Grubbs filed an original answer in which they also raised a qualified immunity defense. Following the filing of Appellees’ motions to dismiss, Whitley filed a motion to amend her complaint. In an order entered on February 21, 2012, the district court granted both motions to dismiss and denied Whitley’s motion to amend her complaint. The district court began by reviewing the proposed amended complaint and concluded that the amendments were “nothing more than reiterations of the original § 1983 claim premised upon substantive due process rights.” The court viewed the proposed amendments only as alleging that Appellees engaged in a conspiracy to deprive Whitley of her constitutional rights, a claim that was not actionable under § 1983 without an underlying constitutional violation. Further, it found that “the proposed additional facts that [Whitley] wishes to add to her pleadings do nothing to change the claims brought by [her].” Accordingly, the 5 No. 12-10312 district court held that granting Whitley’s motion to amend her complaint would be futile and denied her motion. Turning to Appellees’ motions to dismiss, the district court found that dismissal was warranted. “At the heart of the allegations is [Whitley’s] claim that the [Appellees] should have concluded their investigation sooner and arrested Ariaz sooner, thus preventing further sexual acts against her.” The court determined that Whitley’s § 1983 claims failed because there was no constitutional right to have criminal charges filed against someone or to have that person investigated. The district court likewise was unpersuaded by what it construed as Whitley’s attempts to establish supervisory liability over Appellees. First, to the extent Appellees were involved in Ariaz’s misconduct, the district court found that they actively were investigating him and thus their behavior did not fall within the purview of cases that permitted claims against state actors who failed to protect victims from harm. Second, the district court noted that Appellees did not supervise Ariaz and actually were employed by completely separate entities. Properly construed, the district court reasoned, Whitley’s allegations really fell under a “state-created-danger theory,” because Appellees—as state actors—allegedly acted with deliberate indifference in creating or increasing a danger to her. But such a theory also requires that the state actors create an opportunity that otherwise would not have existed, which the district court found was not the case. Further, it noted that this circuit has declined to adopt a state-created-danger theory to trigger affirmative duties under the Due Process Clause. The district court thus granted Appellees’ motions to dismiss. Whitley timely filed a notice of appeal on March 15, 2012, asserting that the district court erroneously granted Appellees’ motions to dismiss her § 1983 claims and denied her motion to amend her complaint. 6 No. 12-10312 II. STANDARD OF REVIEW This court reviews a district court’s grant of a motion to dismiss de novo. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir. 2012). The grant of a motion to dismiss based on qualified immunity similarly is reviewed de novo. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). We accept all well-pleaded facts as true and view those facts in the light most favorable to the plaintiff. Bowlby, 681 F.3d at 219 (citation omitted). The facts taken as true must, however, “state a claim that is plausible on its face.” Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is insufficient if it offers only “labels and conclusions,” or “a formulaic recitation of the elements of a cause of action.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). We review a district court’s denial of a motion for leave to file an amended complaint for abuse of discretion. City of Clinton, Ark. v. Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010). However, where a district court’s denial solely was based on futility, this court applies a de novo standard identical, in practice, to the standard used for reviewing a motion to dismiss for failure to state a claim. See Wilson v. Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010). III. APPLICABLE LAW A. Section 1983 Section 1983 provides a claim against anyone who “under color of any statute, ordinance, regulation, custom, or usage, of any State” violates another’s constitutional rights. 42 U.S.C. § 1983. “To state a section 1983 claim, ‘a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was 7 No. 12-10312 committed by a person acting under color of state law.’” James v. Tex. Collin Cnty., 535 F.3d 365, 373 (5th Cir. 2008) (quoting Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 874 (5th Cir. 2000)). B. Qualified Immunity “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011) (en banc). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), and courts will not deny immunity unless “existing precedent . . . placed the statutory or constitutional question beyond debate,” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). Therefore, a plaintiff seeking to overcome qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Id. at 2080 (citation omitted). A court has discretion to decide which prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). IV. DISCUSSION On appeal, Whitley presents two theories of liability she asserts warrant reversal of the district court’s decision. First, relying on our decision in Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (en banc), Whitley argues that Appellees are liable under § 1983 for acting with deliberate indifference to her constitutional rights by engaging in an investigation premised on catching Ariaz (the primary constitutional wrongdoer) in the act of abusing her. Second, citing to Hale v. Townley, 45 F.3d 914 (5th Cir. 1995), Whitley asserts that Appellees are liable under § 1983 under a theory of bystander liability because they failed to stop Ariaz, a fellow officer, from 8 No. 12-10312 violating Whitley’s fundamental liberty interest in her bodily integrity.2 Lastly, Whitley contends that the district court erred in denying her motion to amend her complaint. We address each of her theories below, and conclude that Whitley fails to state a claim under either her deliberate indifference or bystander liability theory.3 Our conclusion that Whitley fails to state a claim as to any of the Appellees also resolves the question of qualified immunity raised in Hanna and Bullock’s motion to dismiss.4 See Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 410 (5th Cir. 2009) (“If we determine that the alleged conduct did not violate a constitutional right, our inquiry ceases because there is no constitutional violation for which the government official would need qualified immunity.”); 2 Whitley also asserts that she has sufficiently stated a constitutional violation under Rochin v. California, because Appellees’ conduct shocked the conscience. See 342 U.S. 165, 166, 172–74 (1952) (conduct “shock[ed] the conscience” and violated the Due Process Clause where arresting police officers ordered doctors to pump suspect’s stomach to induce him to vomit two morphine capsules). During oral argument, Whitley expressly limited the grounds on which she sought relief and it thus is unclear whether she is still pursuing a claim under Rochin’s shocks-the-conscience standard. As will be discussed, however, the alleged facts do not rise to the level of shocking the conscience: Whitley has not alleged that Appellees themselves sexually abused her; at best, she has shown that Appellees conducted a deficient investigation and failed to intervene earlier. Such circumstances do not conform to the extreme cases in which the shocks-the-conscience standard typically has been satisfied. See, e.g., Morris v. Dearborne, 181 F.3d 657, 668 (5th Cir. 1999) (teacher fabricated sexual abuse charges against a student’s father); Rogers v. City of Little Rock, Ark., 152 F.3d 790, 797 (8th Cir. 1998) (police officer raped woman in her house after stopping her for traffic violation). 3 To the extent Whitley asserts claims against Appellees in their official capacities, we find such claims also fail for lack of an underlying constitutional violation. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (municipal liability under § 1983 requires “a policymaker; an official policy; and a violation of constitutional rights whose ‘moving force’ is the policy or custom.” (citation omitted)). 4 The district court seemingly conflated Appellees’ motions to dismiss as “Motions to Dismiss Based Upon Qualified Immunity,” despite only Hanna and Bullock asserting qualified immunity in their motion. Importantly, however, the district found that Whitley “failed to state a claim under § 1983 against the [Appellees], and certainly not such that would overcome their assertion of qualified immunity.” Accordingly, it appears that the district court sufficiently addressed both motions to dismiss. 9 No. 12-10312 Hampton v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007). Finally, we hold that the district court correctly denied Whitley’s motion to amend her complaint. A. Deliberate Indifference Whitley’s first basis for establishing liability under § 1983 is “the decision by [Appellees] as part of their investigation, to knowingly allow Whitley to be repeatedly raped by another police officer.” Put another way, Appellees purportedly acted with deliberate indifference by agreeing on a plan that would allow Ariaz to continue sexually abusing Whitley for the sake of gathering additional evidence to secure his conviction.5 In support, Whitley primarily relies on our decision in Taylor, 15 F.3d 443.6 In Taylor, we considered whether a school’s principal and the district’s superintendent could be held liable under § 1983 for failing to prevent a high school coach from manipulating a fifteen-year-old student over several months into repeatedly having sexual intercourse with him. Id. at 446–49. In affirming 5 Whitley’s allegations resemble—and the district court actually understood her to assert—a claim under a state-created-danger theory of liability, by which state actors may be held liable when “the state actor played an affirmative role in creating or exacerbating a dangerous situation that led to the individual’s injury.” McClendon v. City of Columbia, 305 F.3d 314, 324 (5th Cir. 2002). Given Whitley’s allegation that Appellees put her in harm’s way in order to secure Ariaz’s conviction, the district court’s interpretation is understandable. However, this court has not adopted the state-created-danger theory, Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 865 (5th Cir. 2012) (en banc), and Whitley wisely has disclaimed reliance on it. 6 Whitley also relies on the Supreme Court’s decision in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). Whitley first refers to this case in her reply brief and then only for the proposition that “a § 1983 case should not be dismissed when the allegation is that a prosecutor and police officers made decisions and carried out actions as part of a criminal investigation that violated constitutional rights.” The problem with Whitley’s argument is that it assumes the very thing she seeks to prove—that it was a constitutional violation for Appellees to delay removing Whitley from Ariaz’s presence to collect additional evidence. By contrast, the county prosecutor in Pembaur ordered deputy sheriffs to forcibly enter a clinic in violation of a doctor’s Fourth Amendment rights. Id. at 484. 10 No. 12-10312 the district court’s denial of qualified immunity to the principal, but reversing the denial of qualified immunity to the superintendent, we held that: A supervisory school official can be held personally liable for a subordinate’s violation of an elementary or secondary school student’s constitutional right to bodily integrity in physical sexual abuse cases if the plaintiff establishes that: (1) the defendant learned of facts or a pattern of inappropriate sexual behavior by a subordinate pointing plainly toward the conclusion that the subordinate was sexually abusing the student; and (2) the defendant demonstrated deliberate indifference toward the constitutional rights of the student by failing to take action that was obviously necessary to prevent or stop the abuse; and (3) such failure caused a constitutional injury to the student. Taylor, 15 F.3d at 454. Subsequently, in Doe v. Rains County Independent School District, 66 F.3d 1402 (5th Cir. 1995), we expanded our holding in Taylor to include non- supervisory state officers. We determined that “once . . . a constitutional violation has occurred, we are no longer barred from finding another person liable under § 1983 for committing a state-law breach that caused the constitutional injury, even if the breach itself does not independently satisfy the elements of a constitutional claim.” Id. at 1409. We reached this conclusion by “ask[ing] what it is about a supervisor’s duties and functions that renders a state supervisory official liable for a constitutional deprivation by a subordinate.” Id. at 1410. We concluded that “it is state law’s grant of a right of legal control over the immediate perpetrator of an injury that establishes that a state supervisor possessed and exercised state authority.” Id. at 1413. The “critical question” in determining whether a non-supervisory state actor may be held liable thus is “whether state law has reposed in a defendant enough responsibility for the underlying conduct that she can be said to have caused the injury herself.” Id. at 1408. 11 No. 12-10312 Accordingly, Whitley must show that (1) Appellees knew of a pattern of constitutional deprivations; (2) the abuse was caused by a state actor over whom they had supervisory authority or a state-law created right of legal control; (3) Appellees’ failure to act demonstrated deliberate indifference to the victim’s constitutional rights; and (4) their failure to act resulted in a constitutional injury. Because we conclude that Appellees were not deliberately indifferent, we limit our analysis to the third element, and hold that Whitley’s § 1983 claims fail under her deliberate indifference theory.7 “The deliberate indifference standard is a high one.” Doe v. Dall. Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998). “To act with deliberate indifference, a state actor must ‘know[] of and disregard[] an excessive risk to [the victim’s] health or safety.’” McClendon, 305 F.3d at 326 n.8 (alterations in original) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “The state actor’s actual knowledge is critical to the inquiry”—a “failure to alleviate ‘a significant risk that he should have perceived but did not,’ while ‘no cause for 7 Although disposing of this case on deliberate-indifference grounds, we note that Appellees seriously call into question whether law enforcement officers in cases like the one sub judice can be said to have what we term “the linchpin in all cases in which we have found § 1983 liability based on breach of a duty to act” namely, “the existence of a legal right of control,” i.e., state-conferred control “over the persons or events giving rise to the injury complained of.” Rains, 66 F.3d at 1414–15; see also Taylor, 15 F.3d at 452 n.6 (the “mere right to control without any control or direction having been exercised and without any failure to supervise is not enough to support § 1983 liability” (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n.58 (1978)). Appellees forcefully argue that the Supreme Court’s decision in Town of Castle Rock v. Gonzales, entirely forecloses Whitley’s deliberate indifference theory of liability because, although Gonzales denied an individual’s purported entitlement to police enforcement of a restraining order against a private party, the same principle should apply where the violative agent is a state actor. See 545 U.S. 748, 768 (2005) (“In light of today’s decision . . . the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations.”). To do otherwise, they assert, would deprive law enforcement officers of the very discretion the Supreme Court repeatedly has recognized them to possess. See id. at 760 (“A well established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”). Expressing no opinion, we leave for another day the extent to which Gonzales supplements or supplants our analysis under Rains. 12 No. 12-10312 commendation,’ does not rise to the level of deliberate indifference.” Id. (quoting Farmer, 511 U.S. at 837). While we previously have observed that the terms “gross negligence” and “deliberate indifference” are sometimes used interchangeably, understood properly, “the former is a ‘heightened degree of negligence,’ [while] the latter is a ‘lesser form of intent.’” Taylor, 15 F.3d at 453 n.7 (citation omitted). In this case, the district court found that Appellees did not act with deliberate indifference because they were “acting on facts and investigating Ariaz.” Whitley contends that the district court’s finding was erroneous because Appellees’ investigation clearly was flawed, and identifies multiple indicators Appellees had that Ariaz—even before meeting Whitley—was engaging in sexual misconduct. Whitley also highlights purported deficiencies in the investigation itself. We agree with the district court that neither Hanna and Bullock, nor Grubbs and Murray, were deliberately indifferent. 1. Hanna and Bullock a) Hanna We begin our analysis by considering Hanna’s investigation, which, while possibly subject to criticism and charges of deficiency, cannot be said to have been conducted with deliberate indifference. Hanna began investigating Ariaz in January 2007, and spoke with A.M., A.M.’s mother, and her boyfriend. Although the investigation did not, at that time, result in the arrest and prosecution of Ariaz, the investigation remained open. Over the next several months, there were numerous incidents indicating that Ariaz’s attention had shifted to a new victim—Whitley. Ariaz repeatedly used Whitley as his example in class, and made her his Explorers captain. He also ate with Whitley in view of other Brownwood Police Department officers. It apparently was well-known that Ariaz and Whitley would ride together during 13 No. 12-10312 the night shift. But while the Brownwood Police Department may have been aware of Ariaz’s conduct, Hanna was not. Hanna had no reason to think that the Brownwood Police Department, as Ariaz’s supervisor, would fail to respond to evidence that Ariaz again was targeting a minor, including sharing such evidence with Hanna.8 Hanna’s failure to discover Ariaz’s new relationship earlier thus is no ground for finding him deliberately indifferent. In Taylor, we found a school superintendent not deliberately indifferent partly because he reacted promptly to new evidence of a high school coach’s sexual misconduct. 15 F.3d at 457–58. Similarly here, when Hanna received word that Ariaz again was seen with a minor, he immediately resumed his investigation. From that point on, Hanna undertook a series of measures that appropriately responded to the evidence available to him, including: • learning that Ariaz was riding with Whitley almost every night, and allowing her to drive his vehicle; • discovering that Ariaz, accompanied by Whitley, would park for two to three hours in remote areas such as the Brownwood airport, a wooded area by the Brownwood Hospital, and an old police department; • meeting with Murray, the Brown County District Attorney, and Grubbs, the Brown County Sheriff, and others to discuss Ariaz’s behavior; • installing video surveillance cameras in the Brownwood Annex building, one of the isolated locations Ariaz was known to take Whitley; • placing GPS surveillance on Ariaz’s vehicle, despite Ariaz previously having requested vehicles without GPS tracking; • assembling three two-man teams to surveil Ariaz and Whitley; • organizing a sting operation that resulted in the arrest and prosecution of Ariaz. 8 We again note that the Brownwood Police Department would later be involved in a suit brought by Whitley’s parents resulting in a settlement. 14 No. 12-10312 Whereas Hanna’s previous investigation into Ariaz did not result in a prosecution, Hanna’s actions upon learning that Ariaz was seen with Whitley demonstrate that, while the Brownwood Police Department apparently had been unable to stop Ariaz, Hanna was committed to putting an end to Ariaz’s abuses once and for all. Whitley criticizes various aspects of Hanna’s investigation, but these do not amount to a showing of deliberate indifference. She accuses Hanna of improperly placing surveillance cameras in the Brownwood Annex building’s hallways, instead of in its courtroom. But the mere “haphazard” or “negligent” deployment of security measures does not establish deliberate indifference. Johnson v. Dall. Indep. Sch. Dist., 38 F.3d 198, 202 (5th Cir. 1994). Whitley also criticizes Hanna for conducting an excessively long investigation. Yet, in light of Ariaz’s persistent conduct, even in the face of other members of the Brownwood Police Department knowing of the suspicious activity, we cannot fault Hanna for wanting to ensure that this time the investigation would conclude with Ariaz’s successful prosecution. At most, Whitley has shown that Hanna’s actions were comparable to those of Taylor’s superintendent. After observing that the superintendent had directed the principal to talk with the coach suspected of sexual abuse, contacted parents, spoken with the victim, and verbally reprimanded the coach, we determined that although the superintendent’s actions had been “ineffective,” they were not “deliberately indifferent.” 15 F.3d at 457–58. As in that case, although we do not deny the possibility that Hanna could have conducted the investigation differently, perhaps even gathering enough evidence to make an arrest in less than the two weeks it took him, Hanna’s failure to immediately end the abuse does not make him deliberately indifferent. See Dall. Indep. Sch. Dist., 153 F.3d at 219 (“Actions and decisions by officials that are merely inept, erroneous, ineffective, 15 No. 12-10312 or negligent do not amount to deliberate indifference and thus do not divest the official of qualified immunity.”).9 Hanna had to decide what evidence would suffice to secure a conviction. His decision to wait two or three days longer to make a stronger case to permanently stop Ariaz’s misconduct does not bring this case within Taylor’s fact pattern, where we denied qualified immunity to a school principal on the ground that he “fail[ed] to take action that was obviously necessary to prevent or stop” the sexual misconduct of a subordinate high school coach. 15 F.3d at 457. Far from failing to take action, Hanna led an ongoing effort to put Ariaz out of business. In this, Hanna was successful. His failure to be successful earlier does not make him deliberately indifferent to Whitley’s plight. Whitley also appears, however, to allege that Hanna was deliberately indifferent because he failed to intervene when Ariaz sexually abused her in Hanna’s presence. This argument refers to Hanna’s failure immediately to emerge from his courtroom hiding place upon witnessing Ariaz positioned atop her the morning of July 17, 2007. We find it worthwhile to quote this part of Whitley’s complaint in its entirety: 9 Instead of looking to whether Hanna’s conduct was appropriate in light of the available evidence, see Rains, 66 F.3d at 1413 (school official “fail[ed] to take appropriate action to prevent or stop the abuse”); Taylor, 15 F.3d at 458 (superintendent “responded appropriately”), the concurrence instead would look to whether “the purpose of [the defendant’s] actions was to interfere with the alleged abuse,” and criticizes us for suggesting that Hanna faced a “binary choice: arrest Ariaz, or do nothing to intervene in the absence of conclusive evidence of abuse.” We do not dispute that Appellees had other options available to them, but we refuse to find Appellees deliberately indifferent for choosing one permissible course of action—conducting an investigation intended to effectuate the arrest of Ariaz—over another. Cf. Taylor, 15 F.3d at 457–58 (describing superintendent’s investigation into alleged abuse as sufficient based on the available evidence); Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 256 (5th Cir. 2005) (deliberate indifference sufficiently alleged where defendants allegedly knew that a dangerous drug was missing and patients were dying at an unusually high rate, but failed to investigate or change hospital policy). Even applying the concurrence’s standard, and accepting that better policing might have led to a speedier conclusion to the investigation, we are hard-pressed to see how the arrest and prosecution of Ariaz cannot be said to have had the purpose of “interfer[ing] with” the alleged abuse. 16 No. 12-10312 • At approximately 2:30 a.m. on July 17, 2007, Hanna hid in the courtroom’s closet with another investigator. • He observed [Whitley] sitting or lying on a table with Ariaz positioned over her in a clearly inappropriate and sexual manner. • Yet Hanna still did not intervene. • Instead, he let Ariaz continue and then let them leave. • According to Hanna, he remained at the Annex so that he would be more ready the next time to catch Ariaz in the midst of a more prolonged act. • Then, according to Hanna, Ariaz and [Whitley] arrived back at the Annex at 6:13 a.m. Ariaz began kissing [Whitley] in the courtroom for several minutes while [Whitley] was lying down. Then, Hanna observed him place his head in [Whitley’s] “crotch area.” Whitley’s proposed amended complaint, which we separately address infra, elaborates only slightly on these facts: “[Hanna] observed Plaintiff sitting or lying on a table with Ariaz positioned over her in a clearly inappropriate and sexual manner. Ariaz was touching Plaintiff’s genitalia.” Hanna ultimately emerged and arrested Ariaz when he observed Ariaz placing his head in Whitley’s genital area after the two returned at 6:13 a.m. Several aspects of Whitley’s complaint, as well as the relevant parts of her proposed amended complaint, draw our attention. Although Whitley’s brief repeatedly describes Appellees as exposing Whitley to statutory rape (even going so far as accusing them of effectively raping Whitley herself by failing to act), the closest Hanna came to actually seeing Ariaz sexually abuse Whitley was to observe her sitting or lying while Ariaz was positioned over her. Whitley does not describe what Ariaz was doing other than to say it was “clearly inappropriate” and done in a “sexual manner.” Additionally, while specifically describing what Hanna observed in every part of her complaint, Whitley noticeably omits in her proposed amended complaint whether or not Hanna 17 No. 12-10312 observed Ariaz touching her genitals.10 Hanna apparently could not even see whether Whitley was sitting or lying down. While we must view the facts in the light most favorable to Whitley, we also cannot ignore what she has, and has not, pled. Nor can we ignore that Hanna, after tracking Ariaz by camera, GPS, and officer surveillance, emerged from cover to arrest Ariaz after observing him engage in a clearly sexual act. Whitley may have alleged facts sufficient to show that Hanna made an error of judgment, but we refuse to find that Hanna’s failure to act, after viewing some unspecified conduct that was “clearly inappropriate,” transformed his otherwise proper investigation into one that was deliberately indifferent. See Callis v. Sellars, 931 F. Supp. 504, 519 (S.D. Tex. 1996) (officers’ failure to timely intervene in sting operation amounted to isolated instance of negligence or error of judgment that did not amount to deliberate indifference). Whitley thus has failed to allege facts sufficient to show that Hanna was deliberately indifferent. b) Bullock Having found that Hanna did not act deliberately indifferent, we similarly conclude that Whitley has not demonstrated that Bullock was deliberately indifferent in entrusting the investigation to Hanna. As with Hanna, the Brownwood Police Department’s failure to notify the Texas Rangers of Ariaz’s renewed involvement with a minor cannot be imputed to Bullock. Indeed, Bullock’s involvement in the investigation was limited to receiving updates from Hanna on how the investigation was progressing, and approving Hanna’s continuation of that investigation. Bullock was not even involved in the meeting in which Hanna, Murray, and Grubbs discussed Ariaz, and which resulted in the 10 The proposed amended complaint also states that Ariaz “had his hand in [Whitley’s] crotch area for several minutes while [she] was lying down,” but again does not state that Hanna could observe this conduct. 18 No. 12-10312 decision to continue surveilling Ariaz until there was actual evidence of sexual abuse. Whitley has alleged no facts suggesting that Bullock knew Hanna was acting improperly in seeking to collect additional evidence, especially as the prior investigation into Ariaz’s conduct towards A.M. had not resulted in a prosecution. Whitley thus also has failed to show that Bullock was deliberately indifferent. 2. Grubbs and Murray Whitley’s primary reason for claiming Grubbs and Murray acted with deliberate indifference is that they participated in formulating, and endorsed, a plan dependent on catching Ariaz in the act of committing an act of sexual abuse. However, far from being the product of deliberate indifference, this plan was responsive to the requirements of the Texas penal code. Ariaz eventually was charged with sexual assault of a child and indecency with a child. Under Texas law, the crime of sexual assault requires sexual contact or penetration. Tex. Penal Code Ann. § 22.011(a)(1)–(2). Similarly, the offense of indecency with a child requires exposure or “sexual contact,” defined as “(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.” Id. § 21.11. Video evidence only showed Ariaz hugging and kissing Whitley, actions which Appellees could not be certain a jury would find sufficient to violate the applicable criminal statutes. As Whitley acknowledges, Appellees only “had video proof that [Whitley] was likely being abused.” Grubbs and Murray also did not ignore Whitley’s plight—to the contrary, they agreed that Hanna would investigate allegations of Ariaz’s sexual misconduct in order to prosecute Ariaz. They were aware that Hanna was pursuing the investigation by setting up surveillance cameras, tracking Ariaz’s 19 No. 12-10312 movements, and devoting three two-man teams to surveilling him. Moreover, Grubbs and Murray were not telling Hanna to allow Ariaz to abuse Whitley, but rather to gather evidence and stop Ariaz from doing so. Although Whitley alleges that, based on the evidence available to them, Grubbs and Murray must have known that Ariaz was sexually abusing her, there is no allegation that they actively facilitated Ariaz’s behavior in order to gather more evidence. Accordingly, although the decision to gather additional evidence may have been imprudent in light of that already available, we cannot say that Grubbs and Murray were deliberately indifferent to Whitley’s peril. It is unclear, for example, what they should have done that was any more certain to safeguard Whitley’s well-being or result in a favorable outcome to the investigation. They did not supervise Ariaz. They also did not have the authority to order the Brownwood Police Department to remove Ariaz from duty. At oral argument, Whitley’s counsel admitted that Appellees, including Grubbs and Murray, also lacked the power to end the Explorers program. Further, while Grubbs and Murray arguably had the power to effectuate the arrest of Ariaz earlier in the investigation, Whitley has made clear that she is not premising her claim on Appellees’ arresting Ariaz. Thus, although we easily can imagine some alternatives to the choice that Appellees made—including confronting Whitley or contacting her parents—the fact remains that Appellees successfully brought about Ariaz’s arrest approximately two weeks after Hanna first learned of a potential relationship between Ariaz and Whitley. We conclude that Whitley has not alleged facts sufficient to establish that Grubbs and Murray acted with deliberate indifference. B. Bystander Liability Whitley’s second basis for establishing liability under § 1983 is Appellees’ “failure . . . to attempt to intercede to protect [her] from further abuse at the hands of another officer.” Whitley cites this court’s decision in Hale, 45 F.3d 914, 20 No. 12-10312 for the proposition that Appellees were required to intervene and stop Ariaz from further sexually abusing her. In Hale, a plaintiff brought a § 1983 action for, inter alia, the use of excessive force during a search and arrest. Id. at 916. One of the police officer defendants allegedly stood by, laughed, and shouted encouragement while another officer assaulted the plaintiff. Id. at 919. Characterizing the plaintiff’s claim as one of bystander liability, this court agreed that “an officer who is present at the scene and does not take reasonable measures to protect a suspect from another officer’s use of excessive force may be liable under section 1983.” Id. We further observed that the fact that the police officers “were from different law enforcement agencies does not as a matter of law relieve [an officer] from liability for a failure to intervene.” Id. In light of the allegations and evidence in that case, we concluded that there was sufficient evidence to create a genuine issue of material fact concerning the bystanding officer’s “acquiescence in the alleged use of excessive force.” Id. Our holding in Hale is consistent with other circuits’ determination that an officer may be liable under § 1983 under a theory of bystander liability where the officer “(1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.”11 Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 204 (4th Cir. 2002) (footnote omitted); see, e.g., Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009); Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir. 2002); see also 11 Although Hale most often applies in the context of excessive force claims, other constitutional violations also may support a theory of bystander liability. See Richie v. Wharton Cnty. Sheriff Dep’t Star Team, No. 12-20014, 2013 WL 616962, at *2 (5th Cir. Feb. 19, 2013) (per curiam) (unpublished) (noting that plaintiff failed to allege facts suggesting that officers “were liable under a theory of bystander liability for failing to prevent . . . other member[s] from committing constitutional violations”); accord Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“[A]ll law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.”). 21 No. 12-10312 Nowell v. Acadian Ambulance Serv., 147 F. Supp. 2d 495, 507 (W.D. La. 2001). However, liability will not attach where an officer is not present at the scene of the constitutional violation.12 See Snyder v. Trepagnier, 142 F.3d 791, 801 n.11 (5th Cir. 1998) (citing Hale, 45 F.3d at 919); see also Gilbert v. French, 364 F. App’x 76, 83 (5th Cir. 2010) (per curiam) (unpublished); Ibarra v. Harris Cnty. Tex., 243 F. App’x 830, 835 & n.8 (5th Cir. 2007) (per curiam) (unpublished) (“A bystander liability claim requires the plaintiffs to show that the officer was present at the scene and did not take reasonable measures to protect a suspect from excessive force.”). In resolving whether a plaintiff has sufficiently alleged a bystander liability claim we also consider whether an officer “acquiesce[d] in” the alleged constitutional violation. Hale, 45 F.3d at 919; see Baker v. Monroe Twp., 50 F.3d 1186, 1193–94 (3d Cir. 1995) (premising liability on senior officer’s knowledge of, and acquiescence in, treatment of victim); see also Peavy v. Dall. Indep. Sch. Dist., 57 F. Supp. 2d 382, 390 n.4 (N.D. Tex. 1999) (Hale inapplicable where defendant did not acquiesce in any conduct violating plaintiff’s constitutional rights). Applying this analysis to each of the Appellees, Whitley has failed to state a claim of bystander liability. 1. Hanna and Bullock 12 Whitley disputes that this is a requirement for bystander liability. In support, Whitley’s counsel referred us during oral argument to a case not cited in Whitley’s briefs—United States v. McKenzie, 768 F.2d 602 (5th Cir. 1985). In that case, defendant police officers appealed their convictions for conspiring to deprive citizens of their civil rights and for illegally depriving one victim of his liberty, as well as failing to keep him free from harm while in official custody. Id. at 604. In addressing whether the evidence was sufficient to support a jury’s guilty verdict as to one defendant, we observed that the defendant “admitted that he was in and out of the room while [the victim] was being interrogated,” and found that this was “sufficient to support the conclusion that he was aware of what was transpiring and did not stop it.” Id. at 605. McKenzie, however, was a criminal case and did not address bystander liability. Moreover, the detective in that case was in and out of the room, and thus arguably could be said to have been present while the alleged constitutional violation took place. See id. 22 No. 12-10312 We observe at the outset that Whitley has failed to state a claim against Bullock because she has not alleged that he was in Ariaz’s presence when Ariaz was sexually abusing Whitley. As a result, Bullock is not within the scope of a bystander liability claim. See Hale, 45 F.3d at 919; Ibarra, 243 F. App’x at 835 & n.8. Even were we merely to require knowledge, Bullock still would not be liable because he acted reasonably in entrusting Hanna with investigating and arresting Ariaz. Turning to Hanna, although Whitley has alleged that Hanna was in Ariaz’s presence (unbeknownst to Ariaz) the morning of July 17, she nevertheless has failed to state a claim because she has not alleged that Hanna acquiesced in Ariaz’s conduct. Hanna was investigating Ariaz with the intent of gathering evidence to secure Ariaz’s conviction for sexual abuse of a minor. Far from being a bystander to Ariaz’s conduct, Hanna was accumulating evidence for Ariaz’s prosecution. This is in no way comparable to the factual scenario in Hale, where there was a genuine dispute over whether an officer’s laughing and shouting encouragement to another officer who was committing a constitutional violation constituted acquiescence in the latter’s conduct. Hanna’s subsequent arrest of Ariaz after Ariaz began to engage in a clearly sexual act dispels all doubt as to whether Hanna acquiesced in Ariaz’s misconduct. Cf. Randall, 302 F.3d at 204 n.24 (“The rationale underlying the bystander liability theory is that a bystanding officer, by choosing not to intervene, functionally participates in the unconstitutional act of his fellow officer.”). Accordingly, we reject Whitley’s bystander liability claims against Hanna and Bullock.13 13 Even if bystander liability did apply, we nevertheless would be compelled to affirm the district court’s judgment as to Hanna and Bullock on the second prong of the qualified immunity analysis because Whitley has failed to identify clearly established law requiring an officer immediately to intervene while engaged in covert surveillance of a perpetrator. See Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc) (central concept of second prong 23 No. 12-10312 2. Grubbs and Murray Like Bullock, neither Grubbs nor Murray was in Ariaz’s presence during Ariaz’s abusive conduct. They thus also are not bystanders for purposes of a bystander liability claim. See Hale, 45 F.3d at 919; Ibarra, 243 F. App’x at 835 & n.8. Further, they acted reasonably in attempting to stop Ariaz from further abusing Whitley and other minors by endorsing a plan that would lead to the arrest of Ariaz. As discussed supra, it is unclear exactly what other actions Whitley would have required from Grubbs and Murray that were more certain to permanently remove her and others from Ariaz’s reach. For these reasons, we reject Whitley’s bystander liability claims as to Grubbs and Murray. C. Motion to Amend the Complaint Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend should be freely given “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A motion to amend ordinarily should be granted absent some justification for refusal. Foman v. Davis, 371 U.S. 178, 182 (1962). The liberal amendment policy underlying Rule 15(a) affords the court broad discretion in granting leave to amend and, consequently, a motion for leave to amend should not be denied unless there is “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments of qualified immunity analysis is whether law provided “fair warning” that the conduct at issue violated constitutional rights). Whitley cites no case that would put Appellees on notice that they were required to intervene in some unspecified way before arresting Ariaz. Cf. Callis, 953 F. Supp. at 799 (S.D. Tex. 1996) (“Even today, the application of the doctrine of bodily integrity to voluntary civilian participants in a ‘sting’ is an untrodden area of the law.”). The only case she cites is Hale, but, as discussed, that case is factually inapposite. See 45 F.3d at 919; see also Deshotels v. Marshall, 454 F. App’x 262, 264, 269 (5th Cir. 2011) (per curiam) (unpublished) (distinguishing facts in Hale from case in which law enforcement officers failed to stop another officer from using a stun weapon to subdue an arrestee the officers were attempting to restrain). We do not find that Hale put Hanna and the other Appellees on notice that they could not solidify their evidence against Ariaz to secure a conviction by surveilling him and arresting him upon commission of a felony. 24 No. 12-10312 previously allowed [or] undue prejudice to the opposing party by virtue of allowance of the amendment, . . .” United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336 F.3d 375, 386 (5th Cir. 2003) (alteration in original) (citation omitted). Leave to amend also may be denied when amendment would be futile. Id. at 387. We find that, even under Rule 15’s liberal standard, the district court appropriately denied as futile Whitley’s motion to amend her complaint. First, the amended complaint adds no new substantive factual allegations. As already discussed, even if we read her complaint to allege that Hanna witnessed Ariaz sexually abusing Whitley, liability would not extend to Hanna—nor the other Appellees because Hanna was not deliberately indifferent and did not acquiesce in Ariaz’s conduct. Second, the amended complaint’s new causes of action are meritless. Whitley adds supervisory liability claims, including for inadequate supervision and failure to train. She also adds policy, custom, and practice claims, alleging, inter alia, that it was “the practice of the Texas Rangers to permit minor sexual assault victims to be used as bait to catch their assailants.” Finally, the amended complaint adds a series of “Secondary Liability Claims” including “Assisting and Encouraging / Aiding and Abetting sexual abuse and invasions of bodily integrity,” “Assisting and Participating in violations of bodily integrity and sexual abuse,” and “Conspiracy to violate Plaintiff’s right to be free from violations of her bodily integrity and . . . sexual abuse,” all in violation of § 1983. All of Whitley’s inadequate supervision, failure to train, and policy, practice, or custom claims fail without an underlying constitutional violation. See Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir. 2010) (“Because [plaintiff] has alleged no constitutional injury attributable to the Officers, [plaintiff] has failed to state a claim that a City policy was the moving force behind a violation of his constitutional rights.”). Even if we assume that Whitley 25 No. 12-10312 has sufficiently alleged a § 1983 claim, her municipal liability claims still would fail. “To establish municipal liability under § 1983, a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 847 (5th Cir. 2009). The proposed amended complaint makes no specific factual allegations of the county’s policies and simply adds the words “policies, practices, and/or customs” to Whitley’s perceived wrongs. Such allegations are insufficient to survive dismissal. See Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 167 (5th Cir. 1997) (conclusory description of policy or custom insufficient). Her secondary liability claims similarly fail for lack of a § 1983 violation by Appellees. See Hale, 45 F.3d at 920 (“[A] conspiracy claim is not actionable without an actual violation of section 1983.” (internal quotation marks and citation omitted)). Additionally, her aiding and abetting, assisting and participating, and conspiracy claims merely restate her § 1983 allegations. For the same reasons we are unpersuaded by her § 1983 claims, we also reject her secondary liability claims. We agree with the district court that amendment of her complaint would be futile and that Whitley’s motion to amend correctly was denied. V. CONCLUSION For the aforementioned reasons, the district court’s judgment is AFFIRMED. 26 No. 12-10312 JENNIFER WALKER ELROD, Circuit Judge, concurring only in the judgment: I write separately to address Whitley’s § 1983 deliberate-indifference claim against Ranger Hanna. Taking Whitley’s allegations as true, Hanna made a conscious decision to allow a fifty-five-year-old law enforcement official to engage in predictable, preventable, and yet repeated sexual assaults on a fifteen- year-old participant in a law-enforcement-learning program. Thus, at this early stage of the case, I would hold that Whitley states a plausible § 1983 claim. I concur in the judgment, however, because Whitley cannot overcome Hanna’s assertion of qualified immunity. I. We must take Whitley’s allegations as true at this 12(b)(6) stage of the case. Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). Although the majority opinion offers a careful and thorough description of the complaint, some critical points bear repeating and, in some respects, reframing in the light most favorable to Whitley. By January 2007, Hanna knew that Ariaz was a threat to the young female participants in the Explorer program. Although Hanna obtained credible evidence that Ariaz had kissed, fondled, sent numerous sexually suggestive text messages to, and expressed an intent to engage in “several different sexual acts” with his first victim (A.M.), Whitley alleges that Hanna “essentially stopped investigating.” Over the next several months, Whitley asserts that Hanna did nothing “to protect any of the young girls Ariaz was supervising.” Shortly after A.M.’s complaint, Ariaz began “grooming” Whitley, a fifteen- year old Explorer student, to be his next victim. The relationship turned sexual in June 2007. Whitley alleges that, had Hanna “actually investigated Ariaz . . . [he] would have learned what Ariaz was up to and would have prevented him from abusing” her. But Hanna did not, in fact, learn of Ariaz’s conduct until July 3, 2007, when an officer with the Brownwood Police Department reported 27 No. 12-10312 suspicious activity. Hanna quickly confirmed that Ariaz was “spending hours at a time alone with [Whitley] in the middle of the night,” often parked in known “make out” areas. Yet, says Whitley, Hanna did not seek “to separate the predator from his prey.” To the contrary, Hanna decided to continue monitoring Ariaz to “catch him in the act of abuse.” To accumulate evidence for an eventual prosecution, Hanna and a Brownwood officer placed a GPS-tracking device on Ariaz’s car and installed surveillance cameras in the hallways of the Brownwood Annex, a common meeting place for Whitley and Ariaz. By July 12, 2007, Hanna had “video proof that [Whitley] was likely being abused.” Specifically, Hanna observed Ariaz kissing and hugging Whitley several times in the Annex hallway, entering a courtroom where Whitley was waiting, and exiting the same courtroom without his duty belt thirteen minutes later. Despite this knowledge, Hanna allegedly made no effort to “put a stop to the abuse.” Rather, says Whitley’s complaint, Hanna “continued to use [her] as bait to catch Ariaz in the act of sexual offense,” and thereby “knowingly allowed and provided substantial assistance to a fifty-five year old man to abuse a fifteen year old to better [his] chance at a conviction and make [his] investigation easier.” Ariaz continued to abuse Whitley for days, with bits and pieces of his inappropriate conduct captured on Brownwood Annex video cameras. In the early morning of July 17, 2007, Hanna hid in the courtroom closet with another investigator, where he observed Ariaz positioned over Whitley in a “clearly inappropriate and sexual manner.” Hanna did not intervene to stop Ariaz’s conduct, but “remained at the Annex so that he would be more ready the next time to catch Ariaz in the midst of a more prolonged act.” Ariaz left the Annex with Whitley at around 2:30 in the morning. Hours later, at 6:13 a.m., Ariaz returned with Whitley; Hanna observed Ariaz kiss her for several minutes while 28 No. 12-10312 she was lying down, and ultimately place his head in Whitley’s “crotch area.” Only then did Hanna emerge from the closet and place Ariaz under arrest. Taking these allegations as true, I would conclude that Hanna plausibly acted with deliberate indifference to Whitley’s constitutional right to bodily integrity. II. As a threshold matter, there is no reasonable debate that Ariaz violated Whitley’s constitutional rights when he sexually assaulted her. We have long held that the Fourteenth Amendment affords a person “[t]he right to be free of state-occasioned damage to . . . bodily integrity.” Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450–51 (5th Cir. 1994) (en banc) (quoting Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981)).1 Sexual abuse by a state official is an undeniable violation of this liberty interest. See Taylor, 15 F.3d at 451 (“[S]urely the Constitution protects a schoolchild from physical sexual abuse—here, sexually fondling a 15-year old school girl and statutory rape—by a public schoolteacher. . . . Thus, Jane Doe clearly was deprived of a liberty interest recognized under the substantive due process component of the Fourteenth Amendment.” (footnote omitted)). We have called it “incontrovertible” that a state actor violates bodily integrity when s/he sexually abuses a child; “such 1 As the Fourth Circuit explained, “[t]he existence of this right to ultimate bodily security . . . is unmistakably established in our constitutional decisions as an attribute of the ordered liberty that is the concern of substantive due process. Numerous cases in a variety of contexts recognize it as a last line of defense against those literally outrageous abuses of official power . . . .” Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980). For example, in a case involving rape by a police officer after a traffic stop, the Eighth Circuit emphasized that the officer’s sexual assault “was a violation of the most intimate kind of bodily integrity,” and concluded that the district court did not err in concluding that the officer’s “egregious sexual violation” deprived the victim of a due process right. Rogers v. City of Little Rock, 152 F.3d 790, 796 (8th Cir. 1998). In a case with nearly identical facts, the Fourth Circuit described the due process right at issue as a “right . . . not to be subjected by anyone acting under color of state law to the wanton infliction of physical harm.” Jones v. Wellham, 104 F.3d 620, 628 (4th Cir. 1997). 29 No. 12-10312 misconduct deprives the child of rights vouchsafed by the Fourteenth Amendment.” Id. (footnotes omitted). Critically, the existence of an underlying constitutional violation differentiates this case from Gonzalez and DeShaney, which examined the scope of a state official’s duty to interfere with private violence. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 750–51 (2005) (analyzing whether an individual had a constitutionally protected property interest in the enforcement of a state- law restraining order against a private party); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195–96 (1989) (analyzing whether a child had a substantive due process right to protection from violent physical abuse by his father). As the Supreme Court explained in DeShaney, the Fourteenth Amendment was enacted to “protect the people from the State, not to ensure that the State protected them from each other.” 489 U.S. at 196. Thus, although the substantive component of the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors,” it does protect against “state-occasioned damage to a person’s bodily integrity.” Id. at 195; Taylor, 15 F.3d at 450–51 (citing Shillingford, 634 F.2d at 265) (emphasis added).2 2 The Supreme Court has cautioned that the Due Process Clause “does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998). Instead, for the conduct of a state actor to give rise to liability under the Due Process Clause, “the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8 (citing Washington v. Glucksberg, 521 U.S. 702 (1997)). In many contexts, what shocks the conscience is “deliberate indifference.” Id. at 851; see Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004) (“Consistent with those principles [in Lewis], we have generally required plaintiffs to demonstrate that ‘the defendant state official at a minimum acted with deliberate indifference toward the plaintiff.’” (citation and internal quotation marks omitted) (collecting cases)). “As the very term ‘deliberate indifference’ implies, the standard is sensibly employed only when actual deliberation is practical.” Lewis, 523 U.S. at 851 (citing Whitley v. Albers, 475 U.S. 312, 320 (1986)); see Brown v. Nationsbank Corp., 188 F.3d 579, 592 (5th Cir. 1999) (applying a deliberate- indifference standard where “the FBI made decisions which harmed the Plaintiffs after ample 30 No. 12-10312 Where, as here, a case involves an underlying constitutional violation like state-occasioned violence, the court must ask whether the state actor treated the violation with deliberate indifference. See Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1413 (5th Cir. 1995) (noting that, in Taylor, “the supervisor’s failure to act, coupled with his deliberate indifference, was tantamount to a conscious decision to allow the alleged constitutional injury to occur or persist”); see also Taylor, 15 F.3d at 463 (Higginbotham, J., concurring) (“An omission that evinces deliberate indifference toward the violation of an individual’s constitutional rights may amount to an act that causes the violation.”).3 My primary concern here is with the majority opinion’s approach to the deliberate indifference inquiry. III. The deliberate indifference standard is a high bar, but it is not insurmountable. At this stage, Whitley must plausibly allege that Hanna made a “‘conscious’ choice to endanger [her] constitutional rights.” Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir. 2008) (quoting Snyder v. Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998)). Taking Whitley’s allegations as true, that is precisely what happened here: Hanna decided to allow Ariaz, a state official, to continue opportunity for cool reflection”). 3 For example, in the context of alleged abuse to foster children, we have held that “an obvious showing that state social workers exhibited a conscious disregard for known severe physical abuses in a state-licensed foster home by itself sufficiently demonstrates deliberate indifference to a child’s right to personal security.” Hernandez, 380 F.3d at 881 (concluding that two social workers did not act with deliberate indifference where, after an investigation, both concluded that there was no substantial risk to the children at issue). We have allowed a deliberate-indifference claim against hospital officials who turned a blind eye to a subordinate’s alleged intentional poisoning of patients. Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 256 (5th Cir. 2005) (holding that plaintiffs sufficiently pled deliberate indifference against two supervisors who allegedly “knew both that a dangerous drug was missing and that patients were dying at an unusually high rate,” and noting that although they “could have investigated the deaths and missing drugs or changed hospital policy, they did nothing for a considerable period of time”). 31 No. 12-10312 sexually assaulting Whitley in the hopes of obtaining stronger evidence against Ariaz. Whitley contends that Hanna was well-aware of the risk to her at the time; the plan was predicated on the fact that Ariaz had abused, and would continue to abuse, his young Explorer student.4 In other words, Hanna allegedly knew that Ariaz was “highly likely to inflict the particular injury” that Whitley suffered, and Hanna chose not to act. Cf. Brown v. Bryan Cnty., Okla., 219 F.3d 450, 461 (5th Cir. 2000) (citation omitted). Moreover, Hanna’s alleged conduct goes beyond mere haphazard or negligent investigation. The majority opinion analogizes Hanna’s behavior to that of the superintendent in Taylor, highlighting that Hanna immediately resumed his investigation (after months of stagnation) when he learned that Ariaz was cavorting with another minor in the Explorers program.5 But Hanna’s conduct here is fundamentally different from that of the Taylor superintendent. In Taylor, the superintendent took affirmative, albeit ineffective, steps to end the abuse. 15 F.3d at 457–58. He directed the principal to talk with the coach suspected of sexual abuse, contacted the victim’s parents, spoke with the victim, and verbally reprimanded the coach. Id. The purpose of these actions was to interfere with the alleged abuse, thereby mitigating the risk of continued constitutional injury. Id. Indeed, we distinguished the Taylor superintendent’s 4 This is especially true in light of A.M.’s prior complaints about Ariaz’s conduct and the information Hanna obtained in the very early stages of his investigation regarding Whitley. Moreover, Hanna himself observed Whitley and Ariaz engaging in sexually suggestive behavior at the Brownwood Annex. Thus, there is no question that Hanna was aware of the risk to Whitley’s constitutional rights. 5 The majority opinion emphasizes that Hanna could have conducted the investigation differently by, for example, moving at a faster pace, or placing video cameras in the courtroom (rather than the public hallway) of the Brownwood Annex. But it concludes that such mistakes are not enough to plausibly support § 1983 liability. If Whitley’s claim turned on arguably minor investigatory failures in a typical criminal investigation, I would agree wholeheartedly. But it does not. Rather, Whitley’s allegations center on Hanna’s deliberate choice to prolong the risk of constitutional injury for the perceived greater good of Ariaz’s conviction. 32 No. 12-10312 actions from those of the deliberately-indifferent school principal, who “failed to take action that was obviously necessary to prevent or stop” the abuse.6 Id. at 457. We focused on the principal’s failure to take actions that may have “derailed the relationship.” Put another way, the constitutional violations would not have been as “severe or prolonged” absent his deliberate choice not to act. Id. If the Taylor principal’s nonfeasance is sufficient to show deliberate indifference, then Hanna’s allegedly purposeful subrogation of Whitley’s constitutional rights must be enough to survive 12(b)(6) dismissal. The implicit message in the majority opinion’s deliberate-indifference analysis is that an officer can escape § 1983 liability for a conscious endangerment of a victim’s constitutional rights, provided that he acted with good intentions. For example, the majority opinion emphasizes that Hanna “had to decide what evidence would suffice to secure a conviction,” and notes Hanna’s commitment “to putting an end to Ariaz’s abuses once and for all.” But this ignores the fact that, in his zeal to put Ariaz behind bars for good, Hanna allowed—in fact, expected7—Whitley to suffer additional instances of sexual abuse at the hands of a fifty-five year old police officer. No matter how well- intended, investigatory and prosecutorial strategies must yield to the inviolable 6 Moreover, the Taylor superintendent was new to the school, and had no prior knowledge of the teacher’s behavior. Still, he acted immediately when he learned of the abuse. Here, on the other hand, Hanna declined to complete his investigation of A.M.’s complaint and then, after learning that Ariaz was likely abusing Whitley, decided to allow the abuse to continue. 7 Indeed, Hanna’s plan did more than just allow Ariaz to continue to abuse Whitley; rather, it required further acts of sexual abuse before Hanna would arrest Ariaz or directly intervene. For example, Whitley alleges that “[Hanna] observed Plaintiff sitting or lying on a table with Ariaz positioned over her in a clearly inappropriate and sexual manner” at or near 2:30 a.m. on July 17, 2013. The majority opinion’s fine parsing of this allegation extends beyond the requirements of Twombly and Iqbal. Certainly, Hanna was aware of a substantial risk to Whitley’s constitutional rights when he saw Ariaz positioned over Hanna in a “clearly inappropriate and sexual manner.” Whitley alleges that, despite this known risk, Hanna allowed the contact to continue. 33 No. 12-10312 constitutional rights of those involved (typically the defendant, but here the victim).8 “While the difficulties of law enforcement are great, police investigations cannot be allowed to subordinate the rights of men and women under our Constitution. This principle runs deep in our jurisprudence, and we will stand by it until time has tolled its last bell.” Melear v. Spears, 862 F.2d 1177, 1186–87 (5th Cir. 1989). Moreover, the majority opinion’s deliberate-indifference analysis suggests that Hanna faced a binary choice: arrest Ariaz, or do nothing to intervene in the absence of conclusive evidence of abuse. See, e.g., Op. at 16 (“Hanna had to decide what evidence would suffice to secure a conviction.”).9 It focuses on the fact that Hanna had only “[v]ideo proof that [Whitley] was likely being abused,” which may not have been sufficient to obtain a conviction under the Texas Penal 8 As Whitley’s counsel rightly noted at oral argument, there are many tactics that an officer could employ to secure stronger evidence in the course of an investigation: a coerced confession, an illegal search, an improper wiretap, and so on. See, e.g., Crawford v. Washington, 541 U.S. 36, 69 (2004) (reversing the judgment of the Washington Supreme Court based on the unconstitutional denial of a defendant’s Sixth Amendment right to confront a witness against him); Kyles v. Whitley, 514 U.S. 419, 454 (1995) (reversing a defendant’s conviction and remanding for a new trial based on the state’s unconstitutional failure to turn over exculpatory evidence); Blackburn v. Alabama, 361 U.S. 199, 211 (1960) (reversing a robbery conviction of a mentally incompetent defendant after his confession was found to be involuntary and in violation of the Fourteenth Amendment); Giordenello v. United States, 357 U.S. 480, 488 (1958) (reversing a conviction for the possession of narcotics when the arrest warrant lacked probable cause in violation of the Federal Rules of Criminal Procedure); see also Wilson v. Lawrence Cnty., 260 F.3d 946 (8th Cir. 2001) (holding that a defendant could state a § 1983 claim where “a reasonable factfinder could determine that Defendants recklessly or intentionally chose to force Wilson to confess instead of attempting to solve the murder through reliable but time consuming investigatory techniques designed to confirm their suspicions,” and noting that there is “no counterveiling equally important governmental interest that would excuse the appellants from fulfilling their responsibility”). We bar law enforcement from this conduct because, no matter how valuable the conviction, the constitutional rights at issue are paramount. See Blackburn, 361 U.S. at 206 (“As important as it is that persons who have committed crimes be convicted, there are considerations which transcend the question of guilt or innocence.”). 9 See also Op. at 20 (“Thus, although we easily can imagine some alternatives to the choice that Appellees made—including confronting Whitley or contacting her parents—the fact remains that Appellees successfully brought about Ariaz’s arrest approximately two weeks after Hanna first learned of a potential relationship between Ariaz and Whitley.”). 34 No. 12-10312 Code. But whether Hanna could or should have arrested Ariaz is an entirely different question from whether Hanna’s failure to intervene in state-occasioned violence constitutes deliberate indifference. The deliberate-indifference standard requires only conscious disregard to a “risk that a violation of a particular constitutional right . . . will follow the decision.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 411 (1997) (emphasis added) (analyzing the deliberate-indifference standard in the context of municipal liability, and evaluating whether a police officer’s use of excessive force would have been a plainly obvious consequence of the sheriff’s hiring decision). In other words, as soon as Hanna knew that Whitley was in danger of further sexual abuse, he could not choose to ignore the risk, regardless of whether he had direct evidence for a conviction. In short, while Hanna may have preferred perfect proof of Ariaz’s sexual abuse, video or eyewitness evidence was by no means a mandatory prerequisite to Whitley’s rescue. I would hold at this preliminary stage that Hanna’s alleged deliberate choice to prioritize Ariaz’s eventual prosecution over Whitley’s immediate safety plausibly constitutes deliberate indifference to a known risk of constitutional violations. IV. Of course, the inquiry does not end with the plausibility of Whitley’s § 1983 claim, as Hanna asserted a qualified-immunity defense. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Relevant here is the second prong of the inquiry: whether the constitutional right at issue was “clearly established” at the time of the challenged conduct. Id. In considering this prong, the court asks whether the 35 No. 12-10312 law so clearly and unambiguously prohibited his conduct that “every ‘reasonable official would understand that what he is doing violates [the law].’” Id. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The court will not deny immunity unless “existing precedent . . . placed the statutory or constitutional question beyond debate.” Id. at 2083. This doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The “clearly established” requirement does not depend on the existence of a case directly on point, however. See al-Kidd, 131 S. Ct. at 2083; see also Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 377 (2009) (“To be established clearly, however, there is no need that the ‘very action in question [have] previously been held unlawful.’” (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999))). “Rather, ‘[t]he central concept is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’” Morgan v. Swanson, 659 F.3d 359, 412–13 (5th Cir. 2011) (en banc) (Elrod, J., dissenting) (quoting Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004) (en banc)) (internal quotation marks omitted). The fair notice requirement is satisfied if controlling authority—or a “robust ‘consensus of persuasive authority’”—defines the contours of the right in question with a high degree of particularity. See al-Kidd, 131 S. Ct. at 2083 (quoting Wilson, 526 U.S. at 617). Here, I would hold that Hanna lacked fair notice that his conduct would amount to a constitutional violation.10 Although there is no debate that a child 10 The court looks not to whether the underlying constitutional violation is clearly established, but rather to whether an officer would have known that his conduct in addressing—or failing to address—the underlying violation, in and of itself, creates a 36 No. 12-10312 has an inviolable right to bodily integrity, see supra Part II, our case law regarding an individual’s obligation to intervene in incidents of child sexual abuse arises almost exclusively in the context of school officials. See Taylor, 15 F.3d at 450–51; Rains, 66 F.3d at 1413. The other analogous body of law arises in bystander-liability cases, in which we require both actual presence at and acquiescence in the underlying constitutional violation. See Hale v. Townley, 45 F.3d 914 (5th Cir. 1995). There simply is not enough controlling or persuasive authority to conclude that every reasonable official in Hanna’s position would understand that what he was doing violated the law. For that reason, Hanna is entitled to qualified immunity. V. This case is about a state actor’s knowing, deliberate choice not to intervene despite a substantial risk of continued statutory rape by a public official, in hopes of obtaining direct evidence for a conviction. While the underlying law-enforcement goal may be laudable, it must bend where a constitutional right is in play. Therefore, I would hold that Whitley states a plausible deliberate-indifference claim under § 1983. Nevertheless, I concur in the judgment because Hanna is entitled to qualified immunity. constitutional injury. See, e.g., al-Kidd, 131 S. Ct. at 2084 (explaining that “[t]he general proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established” (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001); Wilson, 526 U.S. at 615)). 37	01-03-2023	08-29-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873078/	241 S.W.3d 655 (2007) Rox COVERT, Duke Covert and Danay Covert, Appellants v. WILLIAMSON CENTRAL APPRAISAL DISTRICT, Appellee. No. 03-06-00218-CV. Court of Appeals of Texas, Austin. November 30, 2007. 656 David M. Hugin, James Popp, Popp, Gray & Hutcheson, LLP, Austin, for Appellants. Sandra M. Griffin, Robert A. Mott, Joseph T. Longoria, Perdue Brandon Fielder Collins & Mott, LLP, Austin, for Appellee. Before Chief Justice LAW, Justices PURYEAR and HENSON. OPINION DIANE HENSON, Justice. In this appeal, we decide whether a taxpayer is entitled under section 42.26 of the tax code to challenge only the land component of an ad valorem property tax appraisal of improved land, without claiming that the total appraised value of the property is unequal. See Tex. Tax Code Ann. § 42.26(a)(3) (West Supp.2007).[1] Appellants Rox Covert, Duke Covert and Danay Covert sued Williamson Central Appraisal District ("WCAD")[2] in district court, challenging WCAD's appraisal of five separate tracts of land, three of which are improved with car dealerships, on the grounds that they were not appraised equally and uniformly. See Tex. Const. art. VIII, § 20; Tex. Tax Code Ann. § 42.26(d) (West 2001). WCAD filed a special exception, contending that the Coverts' pleadings failed to state a cause of action with respect to the three improved properties because the Coverts had alleged that only the land components, and not the entire properties, had been appraised unequally. The trial court granted WCAD's special exception and ordered the Coverts to replead. The Coverts refused, and their case was dismissed. The sole issue on appeal is whether the trial court erred in granting WCAD's special exception and in dismissing the claims after ruling that the Coverts had omitted an element of their cause of action, namely that their property was appraised unequally under section 42.26 of the tax code. Holding that the trial court did not err because the statute requires a taxpayer to challenge the appraised valuation of the entire improved property and not merely its component values, we affirm. BACKGROUND The properties involved in this litigation are five tracts ranging from approximately 657 5 to 87 acres, three of which are improved with Covert car dealerships, located on Highway 79 in Williamson County.[3] Each property was listed on WCAD's appraisal roll in a separate account. For each of the improved properties, WCAD separately listed values for the land and for the improvements in its records, as is required by section 25.02 of the tax code. See Tex. Tax. Code Ann. § 25.02(a) (West 2001). Deposition testimony from WCAD appraisers explained that all three improved properties had extensive "site improvements," including parking lots and landscaping, that were constructed in order to prepare the properties for use as car dealerships. WCAD offered further testimony that it includes site-improvement values in its computation of the land component of an appraisal. This case began when the Coverts filed suit in district court challenging WCAD's valuations of the five tracts for the 2001 tax year. The next year, while the 2001 case was pending, the Coverts filed an amended petition adding a challenge to the valuations for the 2002 tax year. In a different case later consolidated with the original, the Coverts appealed for tax years 2003 and 2004. Therefore, the case before us involves four tax years. Following consolidation, the Coverts' second amended petition modified their challenge to appeal the valuation of "the land portion only" of each of the properties. They argued that, when compared to other vacant, unimproved parcels of land along Highway 79, the land underlying their car dealerships had been appraised unequally. WCAD responded by filing a special exception, alleging that the tax code does not provide a remedy for a taxpayer who claims unequal appraisal only as to the land portion of an improved property and that, because the Coverts had abandoned their claim that the entire properties were unequally appraised, their pleadings failed to state a cause of action with respect to the three improved properties. The trial court granted WCAD's special exception and ordered the Coverts to replead their cause of action that the subject property"the entire property"is appraised unequally under section 42.26 of the tax code. Upon the Coverts' refusal to replead, the trial court dismissed the case.[4] DISCUSSION Standard of review The Coverts argue on appeal that the trial court erred in dismissing their case upon granting WCAD's special exception. When a trial court dismisses a case upon special exceptions for failure to state a cause of action, we review that issue of law de novo. Butler Weldments 658 Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654, 658 (Tex.App.-Austin 1999, no pet.). In so doing, we must accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the respondent's pleadings. Id. If a pleading does not state a cause of action, the trial court does not err in dismissing the entire case. Id. In this case, both the trial court's ruling on the special exception and its dismissal of the Coverts' claim were premised on its interpretation that section 42.26 requires a taxpayer to challenge the entire appraisal of improved property. Addressing whether this was the intent of the legislature is a matter of statutory construction, which we review de novo. See Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). Plain meaning of section 42.26 The issue of whether section 42.26 authorizes a taxpayer to challenge a single component of the assessor's appraisal of improved land is one of first impression.[5] In our interpretation of this section, we are bound by well-settled rules of statutory construction. First and foremost, we are required to follow the plain meaning of the statute. Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex.App.-Austin 1994, writ denied). If the language of the statute is unambiguous, then we must seek the legislative intent as found in the plain and common meaning of the words and terms used. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex.1994). In applying the plain and common meaning of the language, we may not enlarge the meaning of any word in the statute beyond its ordinary meaning; such implication is inappropriate when intent may be gathered from a reasonable interpretation of the statute as it is written. Id. at 241. Section 42.26 provides: The district court shall grant relief on the ground that a property is appraised unequally if the appraised value of the property exceeds the median appraised value of a reasonable number of comparable properties appropriately adjusted. Tex. Tax Code Ann. § 42.26(d) (West 2001). The Coverts argue that nothing in the language of 42.26 requires them to challenge the appraised value of every item that comprises "property" in order to state a claim under that section. Noting that the indefinite article "a" precedes the first mention of the word "property" in section 42.26, but that the definite article "the" comes before the second mention, the Coverts conclude that the clear intent of the legislature was to narrow the median test "to whichever matter or thing was selected for challenge by the property owner." In other words, if a property owner elects to challenge as "a" property only the land portion of improved property, then the median test must be applied exclusively to the land as "the" property in issue. We do not agree, however, that the choice of article antecedent to the word "property" in section 42.26 is clear evidence of the legislature's intent in this regard. Rather, we conclude from the plain language of the statute that whatever property is appraised must be valued equally in relation to other comparable properties. In the case of an improved property, such as one of the Covert car dealerships, a single appraised value is given to the entire property, which represents 659 the total value of the land, the buildings, and the various site improvements, including all parking lots, curbing, and landscaping. So long as that valuation is an equal and uniform assessment, we cannot support overturning it because the land component is valued too high or the improvement component too low. While evidence that only the land or only the improvements were assessed unequally is certainly relevant to the taxpayer's challenge, he cannot prevail unless he can show that the appraised value of the improved property is not equal or uniform. In deposition testimony read at the hearing on the special exception, the Coverts' independent appraiser admitted that even if the land component of a property is appraised unequally, the entire property is "not necessarily" appraised unequally. We agree with the trial court that completely fair appraisals should not be overturned simply "because one component or the other is subject to attack without some showing that the overall appraisal is incorrect." We emphasize, however, that a taxpayer need not bring evidence concerning every component in a challenge under section 42.26; rather, he may take issue only with the value given to the land or only with the value given to the improvement, so long as he can show that, as a result, his entire improved property was appraised unequally in violation of the statute. In support of their position, the Coverts point to a provision in the tax code wherein the appraisal district is required to separately list values for land and improvements in its own records as evidence that the legislature contemplated allowing separate challenges to these component values. See id. § 25.02(5), (6) (West 2001). They also argue that the predecessor statute to section 25.02, which did not require the separate listing of the land and improvement components on the appraisal roll, should be viewed as evidence that the legislature intended for each appraised component value to give rise to a separate challenge. Again, however, we note that although the appraisal roll may contain two or more component values in its record for a single property, there is only one assessed value to which the taxpayer may bring a challenge. The separate values for land and improvements are not certified to the taxing units that impose the tax, nor are they included in the tax bill to the property owner. See id. §§ 26.01(c), 31.01 (West 2001). Although the land and improvement values may present contestable issues, we hold that the total improved property valuewhich includes both the land and improvement componentsis the only appraised value that the taxpayer may appeal.[6] In support of our reading of the plain language of section 42.26, we note that under the tax code, "appraised value means the value determined as provided by Chapter 23 of this code." Id. § 1.04(9) (West 2001). Chapter 23 dictates that all taxable property is appraised at its market value. Id. § 23.01(a), (b). Moreover, each property shall be appraised based upon the individual characteristics that affect the property's market value. Id. § 23.01(b). Land that is improved with a car dealership, as well as other site improvements, has different individual characteristics affecting its market value than 660 undeveloped, "raw" land. Because section 42.26 uses the "appraised value" of the subject property as the basis for comparison and, by statute, appraised value is market value, we do not agree with the Coverts that the legislature intended to allow taxpayers to challenge the component values of their property in isolation from a consideration of the total assessed value of the property. In holding that "appraised value" encompasses both the land and the improvement value for the purpose of challenges brought under section 42.26, we find persuasive the reasoning of the Dallas court in its interpretation of "appraised value" under section 23.23 of the tax code. See Bader v. Dallas Central Appraisal Dist., 139 S.W.3d 778 (Tex.App.-Dallas 2004, pet. denied). Bader concerned the application of that section's ten percent cap on appraised valuation, which provides that the appraised value of a residence homestead may not increase more than ten percent annually. See Tex. Tax Code Ann. § 23.23 (West Supp.2007). Bader had argued that the cap ought to be applied separately to the land and the improvement components of his property, claiming that section 23.23 must be read in conjunction with the definitions of "property" in section 1.04 and in light of the separate listing requirement of section 25.19(f). Bader, 139 S.W.3d at 781. Rejecting this interpretation, the Dallas court held that the legislature did not intend the cap to be applied separately to the land and the improvements, despite the fact that the legislature required the separate listing of land and improvement values in the notice of appraised value under section 25.19(f). Id. The court found no language linking section 25.19(f) to the cap provisions in section 23.23 and concluded that the separate listing requirement in section 25.19(f) exists only so that the property owner can identify the value set for the component parts of his real property to determine whether he should contest an appraised value set by the appraisal district. Id. at 781-82. "That purpose, to give `notice' of the appraised value, does not translate into a requirement that an appraisal district apply the ten percent cap separately to the land and then to the improvements." Id. Likewise, there is no evidence in this case that the legislature intended the separate listing requirement contained in section 25.02 to have any effect on challenges to appraised value brought under section 42.26. There is no language linking section 25.02 to section 42.26, and section 25.02 itself appears to be only an administrative provision addressing the "form and content" of records maintained by the appraisal district. See Tex. Tax Code Ann. § 25.02 (West 2001). The Coverts cite to no authority suggesting that section 25.02 provides a basis for bringing separate challenges to land and improvement values as separate "appraised values" under section 42.26 or that section 25.02 is anything but a clerical or administrative requirement. The Coverts further argue that this construction of section 42.26 will lead to absurd results with regard to the appraisal of mineral interests and timber. They allege that someone who owns such an interest would never be able to challenge the equality and uniformity of the tax assessment of the minerals or timber without also having to challenge the land and any improvements on the land. We disagree. The tax code provides that where timber or mineral interests are held as separate estates by someone other than the landowner, they are listed separately on the tax rolls in their respective owner's name. See id. §§ 25.10, .12. It is clear that in these circumstances, the legislature contemplated that separate challenges could 661 originate from the owner of a mineral or timber interest, unrelated to an action concerning the valuation of the overlying land. Had the legislature intended the same result in the case of improved property as it did in cases involving separately-owned mineral or timber interests, it would have explicitly provided that remedy in the code. We therefore hold that a taxpayer challenging the equal and uniform assessment of an improved property under section 42.26 must allege that the overall appraised value of the property is unequal. While he is not prevented from bringing evidence that only the land or only the improvement was unequally assessed, the taxpayer must allege that the value of the improved property was appraised unequally in order to state a cause of action under section 42.26. CONCLUSION Because the trial court did not err in granting the dismissal, we affirm. NOTES [1] Both the original lawsuit and the later consolidated lawsuits were filed before the amendment to section 42.26, whereby the substantive provisions of subsection (d) were incorporated into subsection (a)(3). For the sake of clarity, we will hereafter refer to the former section 42.26(d) in force at the time the action was commenced and not the current section 42.26(a)(3). See Act of June 20, 2003, 78th Leg., R.S., ch. 1041, 2003 Tex. Gen. Laws 2998-99 (amended 2003) (current version at Tex. Tax Code Ann. § 42.26(a)(3) (West Supp.2007)). [2] We note that the name of the appraisal district is Williamson Central Appraisal District, and not Williamson County Appraisal District as indicated in the parties' briefs. [3] Besides the three tracts that are improved with car dealerships, there is also a "wraparound" tract that connects each of the three dealership properties to a back road and provides drainage for the other tracts. The largest tract is unimproved and is currently designated for agricultural use. [4] At the hearing, the parties discussed but do not appear to have resolved the issue of whether granting WCAD's special exception would have any effect on the Coverts' challenge as to the two unimproved properties. When asked by the trial court if they would pursue their claim on those two tracts, the Coverts admitted, "the money in this is in [the improved parcels]" and that without a favorable ruling allowing them to plead and prove the theory that the land component could be challenged separately, they "would be dead essentially" on their entire case. The order granting dismissal referred to all five of the properties in the consolidated case; however, because the Coverts failed to raise an appellate point concerning either the unimproved agricultural tract or the wraparound tract, they have waived error with respect to the dismissal of their appeal of those two properties. See Tex.R.App. P. 38.1(h). [5] The same claim appears to have been raised in only one other Texas case, Reliance Insurance Co. v. Denton Central Appraisal District, 999 S.W.2d 626 (Tex.App.-Fort Worth 1999, no pet.). The court did not reach the issue, however, having decided that case on other grounds. Id. at 627. [6] As mentioned above, our holding in this case does not require a taxpayer to allege that every component value is incorrect in order to state a claim under section 42.26. If the Coverts had pled that their land was valued unequally and that this resulted in an unequal assessment for the entire appraised value given to their respective car dealerships, they would have satisfied the statutory requirements. They were not required to plead and prove that both the land and the improvements were valued unequally.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2770006/	Trapani v Yonkers Racing Corp. (2015 NY Slip Op 00357) Trapani v Yonkers Racing Corp. 2015 NY Slip Op 00357 Decided on January 14, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on January 14, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. PETER B. SKELOS SHERI S. ROMAN ROBERT J. MILLER, JJ. 2013-03482 (Index No. 24810/10) [1]Mildred Trapani, respondent, vYonkers Racing Corporation, etc., et al., appellants. Kaufman Dolowich & Voluck, LLP, Woodbury, N.Y. (Kenneth B. Danielson of counsel), for appellants. Mallilo & Grossman, Flushing, N.Y. (Franceso Pomara, Jr.), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Strauss, J.), entered February 6, 2013, which denied their motion for summary judgment dismissing the complaint. ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted. The plaintiff allegedly was injured when she slipped and fell while entering a bathroom at premises owned by the defendant Yonkers Racing Corporation and operated by the defendant Yonkers Racing Association. At her deposition, the plaintiff testified that she had visited the subject premises "quite often" prior to the accident, and estimated that she had been in the same bathroom more than 20 times. The plaintiff testified that, on the date of the accident, she was looking forward as she entered the bathroom, and that, prior to her fall, she did not "feel any slipperiness on the floor." When asked whether there was any slippery substance underneath her when she fell, the plaintiff responded that "it could have been" because she "felt damp when [she] fell." The plaintiff also testified that there was no puddle underneath her and that she could not say the floor was wet. Although the plaintiff testified that it was "very dark" inside the bathroom, when asked if the lighting was different at the time of her accident than it had been during her prior visits, the plaintiff testified, "I never looked at the lighting. I don't notice those things. I don't look at lights." Following the accident, an incident report was prepared by a peace officer employed by the defendants indicating that, on the day of the accident, the plaintiff stated that she was looking in the mirror on the right side of the restroom entrance and "wasn't paying attention causing her to walk into the wall falling to the floor." "A plaintiff's inability to identify the cause of her fall is fatal to a claim of negligence in a slip-and-fall case because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (DiLorenzo v S.I.J. Realty Co., LLC, 115 AD3d 701, 702; see Rodriguez v 1790 Broadway Assoc., LLC, 122 AD3d 604; Patrick v Costco Wholesale Corp., 77 AD3d 810). Here, the the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff could not identify the cause of her fall without resorting to speculation (see Rodriguez v 1790 Broadway Assoc., LLC,122 AD3d [2]604; Dennis v Lakhani, 102 AD3d 651, 652; Curran v Esposito, 308 AD2d 428, 429; Capone v 450 Lexington Venture, LP, 300 AD2d 428, 428-429). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit submitted in opposition to the motion, in which she identified the cause of her fall as "water or cleaning liquid that was on the floor," merely raised what clearly appears to be a feigned issue of fact designed to avoid the consequences of her earlier deposition testimony (see Capasso v Capasso, 84 AD3d 997, 998; Hunt v Meyers, 63 AD3d 685, 686). Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint. RIVERA, J.P., SKELOS, ROMAN and MILLER, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court	01-03-2023	01-14-2015
https://www.courtlistener.com/api/rest/v3/opinions/1913491/	981 A.2d 323 (2009) COM. v. STURZIS. No. 2793 EDA 2007. Superior Court of Pennsylvania. June 3, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895058/	NO. 07-07-0124-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B OCTOBER 3, 2007 ______________________________ IN THE INTEREST OF M.E.R. AND Z.C.R., CHILDREN _________________________________ FROM THE 64TH DISTRICT COURT OF HALE COUNTY; NO. 8901A24508; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Paul McDaniel, father of M.E.R. and Z.C.R., filed notice of appeal from an order confirming a child support arrearage. The trial court clerk's record was filed in this Court on June 7, 2007. A reporter’s record was never filed. By letter of June 21, 2007, this Court directed McDaniel to certify by July 2, 2007, that he had requested and made satisfactory payment arrangements for the reporter’s record. The letter contained notice that failure to comply might result in the Court setting the deadline for his brief. Tex. R. App. P. 37.3(c). McDaniel made no response. By letter of July 19, 2007, this Court notified McDaniel that his appellate brief was due August 23, 2007. On July 23, 2007, this Court received a letter from McDaniel, briefly arguing why he should be excused from paying the child support arrearage confirmed by the trial court. By letter of July 30, 2007, this Court notified McDaniel that his letter, if intended as an appellate brief, did not comply with the rules of appellate procedure, and reminded him that his brief was due August 23. Tex. R. App. P. 38.1. A copy of Rule 38.1 was included in this correspondence. McDaniel filed no additional documents. By letter of September 10, 2007, this Court notified him that his appeal was subject to dismissal for want of prosecution unless his brief was filed, along with a motion for extension of time, by September 20, 2007. Again, McDaniel made no response. An appellate court may dismiss an appeal for want of prosecution if an appellant fails to timely file a brief unless the appellant reasonably explains the failure and the appellee is not significantly injured by the failure. Tex. R. App. P. 38.1(a)(1). On its own motion, with ten days notice to the parties, an appellate court may dismiss an appeal for want of prosecution or failure to comply with a notice from the clerk requiring a response or other action within a specified time. Tex. R. App. P. 42.3(b),(c). Here the record reveals appellant McDaniel has not timely filed a brief and has given us no reason for his failure to do so, despite notice requiring its filing by a specified date. We further find the Court has given the parties the required ten days notice. Accordingly, we now dismiss McDaniel’s appeal for want of prosecution and failure to comply with a directive of the Court. See Tex. R. App. P. 38.8(a)(1); 42.3(b),(c). James T. Campbell Justice 2	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/1840301/	971 So. 2d 121 (2008) RICHARDSON v. STATE. No. 1D07-2926. District Court of Appeal of Florida, First District. January 7, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2444157/	3 A.3d 1223 (2010) 203 N.J. 432 STATE of New Jersey, Plaintiff-Movant, v. Jamiyl DOCK, Defendant-Respondent, Nos. M-28 September Term 2010, 066322 Supreme Court of New Jersey. September 10, 2010. ORDERED that the motion for leave to appeal is granted.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902280/	390 So.2d 903 (1980) Jack Allen SHANK et al., Plaintiffs-Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al., Defendants-Appellees. No. 7856. Court of Appeal of Louisiana, Third Circuit. October 8, 1980. Rehearings Denied December 1, 1980. Writs Refused January 26, 1981. Stafford, Stewart & Potter, Grove Stafford, Jr., Larry A. Stewart, Alexandria, for defendant-appellant-appellee. Smith, Ford & Clark, Simon Chris Smith, III, Leesville, for intervenor-appellee-appellant. Hall, Lestage & Lestage, H. O. Lestage, III, DeRidder, for defendant-appellee-appellant. Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for intervenor-appellee. Edwin A. Cabre, Leesville, for plaintiff-appellee-appellant. Before FORET, STOKER and LaBORDE, JJ. FORET, Judge. This is a wrongful death action arising out of an automobile-pedestrian accident, in which Claudette Watts Shank sustained injuries resulting in her death. Plaintiff is Jack Allen Shank, husband of the decedent, filing suit herein on his own behalf, and on behalf of the minor children, Tammy Leigh Shank, Elizabeth Ann Shank, and Claude Wesley Shank.[1] Named defendants 904 are Reginald A. Strain and his automobile liability insurer, State Farm Mutual Automobile Insurance Company (hereinafter State Farm); Henry Fischer and his automobile liability insurer, Government Employees Insurance Company (hereinafter GEICO); State Farm and GEICO, again, allegedly as the underinsured insurers of Jack Shank[2]; intervening in the suit is Zurich Insurance Company, the workmen's compensation insurer of Robert King d/b/a Marco's Pit Grill, the employer of decedent, Claudette Shank. After trial on the merits, the trial court found that there was no negligence on the part of Reginald Strain, and therefore he and his insurer, State Farm, were not liable to the plaintiffs. However, the trial court held that Henry Fischer was negligent, such negligence being the proximate cause of the accident, and accordingly judgment was rendered in favor of plaintiffs and against Henry Fischer and his liability insurer, GEICO. The trial court also rendered judgment in favor of Zurich Insurance Company, entitling it to be paid by preference and priority over plaintiff the amount of $8,000.00 (a stipulated amount). Defendant, Henry Fischer, and his liability insurer, GEICO, prosecute this appeal and assign as error the trial court's finding of negligence on the part of this defendant.[3] The determinative issue presented by this appeal is the negligence vel non of Henry Fischer. FACTS OF ACCIDENT Henry Fischer and his wife had been traveling north on South Fifth Street shortly before the accident. This is a four-lane highway, and Fischer was traveling on the inside north-bound lane. He approached the location where the accident took place and stopped to make a left turn across the two south-bound lanes of the highway. At that time, he noticed the decedent, Mrs. Shank. He watched her cross the two south-bound lanes and stop approximately three to four feet in front of his truck on the double yellow line in the center of the highway. Henry Fischer then motioned to the decedent to get out of the way or move on. Both he and his wife testified that the decedent did nothing and in no way acknowledged the signal. The decedent proceeded to walk in front of the Fischer vehicle approximately a minute after he had signaled to her. Fischer began his left turn as soon as she had cleared the front of his truck. Both Mr. and Mrs. Fischer testified that they saw Mrs. Shank pause for a brief moment at or near the line dividing the two north-bound lanes. Fischer further testified that as he was making his turn, he saw Mrs. Shank begin to run across the outside north-bound lane. He did not see her get hit by the other vehicle. The alleged negligent conduct of which the plaintiff complains is the signal given by Fischer to the decedent. The trial judge found that Fischer may have done more than signal to the decedent. However, there is no evidence in the record on which to base such a finding. We conclude that such a finding is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find that Fischer did nothing more than signal the decedent to move on. Plaintiff argues that the decedent was entitled to rely on Fischer's signal and did in fact do so. Plaintiff has presented no evidence in support of this argument. On 905 the contrary, the evidence shows that the decedent passed safely in front of Fischer's vehicle. She then paused in between the two north-bound lanes of traffic. She then attempted to cross this lane where she was struck by the vehicle driven by Reginald Strain. Fischer did not owe decedent any duty to assure her safe passage across the remainder of the highway once she had crossed in front of his truck. Plaintiff has cited no authority for his argument that, based on his conduct, Mr. Fischer owed a duty to the decedent to assure her safe crossing of the highway. We join with our brothers of the Fourth Circuit Court of Appeal and reject the proposition that an adult may step blindly onto a highway solely in reliance upon the signal of a third party. Wille v. New Orleans Public Service, Inc., 320 So.2d 288 (La.App. 4 Cir. 1975). We hold that Fischer was not negligent in motioning to the decedent to move from the front of his vehicle. We turn now to the issue raised by the plaintiff in this appeal. Plaintiff argues that the trial judge was wrong in concluding that the defendant, Reginald Strain, was not negligent. The trial judge found that Reginald Strain did not see Claudette Shank in time to avoid the accident. He also found that Reginald Strain could not have reasonably been expected to see Mrs. Shank in time to avoid striking her. We agree with his findings. The evidence shows that the decedent appeared suddenly between the two north-bound lanes of traffic and paused briefly. She then attempted to run to the east shoulder of the highway. In Mathews v. Allstate Automobile Insurance Company, 370 So.2d 1331 (La.App. 2 Cir. 1979), writ denied, 373 So.2d 526 (La.1979), the court was concerned with a factual situation much like the one presented here. We agree with that court's proposition that Baumgartner v. State Farm Mutual Automobile Insurance Company, 356 So.2d 400 (La.1978), did not do away with the requirement that a driver must be found negligent before he can be held liable to a pedestrian whom he injures. The evidence shows that Reginald Strain was traveling at or a bit under the speed limit immediately before the accident. The evidence also shows that when Mrs. Shank appeared on the line dividing the two north-bound lanes, Strain was approximately eight feet away from the point of impact. Mrs. Shank attempted to run across the outside north-bound lane at this time. Unfortunately, she was struck by the vehicle driven by Strain. This evidence supports the trial court's finding of no negligence on the part of Strain. We therefore affirm the trial court's finding and hold that Reginald Strain is not liable to plaintiff. Accordingly, plaintiff's suit is dismissed against all defendants. All costs of this appeal are assessed against plaintiff. REVERSED IN PART AND AFFIRMED IN PART. NOTES [1] It was stipulated at trial that Elizabeth Ann Shank and Claude Wesley Shank were the only issue of the marriage between Jack Shank and decedent, and that Tammy Leigh Shank was born to decedent prior to her marriage to plaintiff, Jack Shank. The issue of the procedural capacity of Jack Shank to sue on behalf of Tammy was not raised at trial by any of the defendants, and although it is raised on appeal, we do not confront that issue because of the result which we reach herein. [2] GEICO alleged at trial and on appeal that the policy of automobile liability insurance and uninsured motorist coverage to Shank was expired on the date of the accident; again, we do not confront this issue because of the result which we reach herein. [3] The trial court also rendered judgment against State Farm Mutual Automobile Insurance Company, uninsured motorist insurer of plaintiff, Jack Allen Shank. State Farm has taken a devolutive appeal from the said judgment. For the reasons hereinafter expressed, we reverse said judgment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1118987/	730 P.2d 1260 (1986) 83 Or.App. 185 STATE of Oregon, Appellant, v. Calletano ARCE, Respondent. 153,170, CA A35400. Court of Appeals of Oregon. Argued and Submitted April 14, 1986. Decided December 31, 1986. Reconsideration Denied March 13, 1987. 1261 Kendall M. Barnes, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem. David A. Hilgemann, Salem, argued the cause and filed the brief for respondent. Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ. WARDEN, Presiding Judge. The state appeals from a pretrial order suppressing evidence seized in the execution of a search warrant. We affirm. In October, 1984, officers of the Marion County Sheriff's Office and the City of Woodburn Police Department searched a residence in Gervais, pursuant to a search warrant issued by the district court. Heroin and cocaine were seized, and defendant was arrested and charged with possession of both controlled substances.[1] The principal basis for the search warrant was a "controlled buy" of cocaine by a police informant. The informant told officers that, when he was inside the residence making the "buy," he had seen a person who was known to him as Ruben Guajardo. Officer Olson stated in his affidavit for the search warrant that he had discovered that there was an arrest warrant for Guajardo for escape in the second degree. Olson also stated that he had personal knowledge that Guajardo had assaulted police officers in the past and had resisted arrest. The warrant was executed at 8:30 a.m. by nine police officers. Some officers were in uniform; others were in plain clothes. Without warning, they simultaneously kicked open the front and rear doors of the residence and entered with drawn weapons. As they entered, they shouted in Spanish and English that they were police and that they were authorized to search the house. At the time of entry, all of the residents were asleep. The police kicked open several bedroom doors and held the occupants at gunpoint. The occupants testified that they had no idea what the commotion in the house was until the officers forcibly entered their bedrooms and ordered them to "freeze." Defendant and the other adult occupants were handcuffed and led to the kitchen area where the warrant was read to them and defendant was arrested. Defendant successfully challenged the warrant on the basis of the failure of the executing police officers to announce their identity, authority and purpose before entering the premises.[2] In State v. Tweed, 62 Or. App. 711, 715, 663 P.2d 38 (1983), we stated: "The `knock-and-announce' rule has roots in the Fourth Amendment, Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963), and is codified in ORS 133.575(2) (with respect to search warrants) * . It requires that officers executing a warrant identify themselves and state their authority and purpose prior to entering the premises." (Footnotes omitted.) The constitutional knock-and-announce requirement need not be met when the executing officers reasonably believe that doing so would lead to the destruction of evidence, permit the escape of persons within the premises or increase the risk of harm to the officers or others. State v. Miller, 43 Or. App. 421, 425, 602 P.2d 1141 (1979).[3] 1262 The courts of this state have frequently been asked to consider the constitutional knock-and-announce requirement and its exceptions, see State v. Bishop, supra n 3, and cases cited therein, but this case is unusual in that the issuing magistrate provided, on the face of the warrant, that the police were "authorized to use the degree of force as is reasonably necessary for the execution of this warrant with all practicable safety, including not giving notice of identity, authority or purpose in entering the premises." (Emphasis supplied.) Defendant argues that the issuing magistrate was without authority to authorize a no-knock entry on the basis of exigent circumstances described in the supporting affidavit; he argues that such a decision is solely the responsibility of the police officers at the scene. The judge at the suppression hearing agreed and suppressed the fruits of the search. The problem is more basic than defendant suggests. A magistrate has no authority to abrogate the required procedures for executing a warrant; "knock-and-announce" is one of those procedures. See n 3, supra. The limited exceptions to the constitutional knock-and-announce requirement are based on the circumstances as they exist at the time when a warrant is executed, and they necessarily involve a violation of Oregon statutory law. A magistrate cannot validly authorize a statutory violation. Although the police violated the statute, that violation does not require suppression in this case.[4] We therefore turn to whether there was a constitutional violation. That question depends on whether, at the time when the warrant was executed, the officers had a reasonable belief that exigent circumstances then existed. Exigent circumstances exist when the executing officers reasonably believe that announcement could lead to the destruction of evidence, result in an escape or increase the danger to the officers or others. State v. Miller, supra, 43 Or. App. at 425, 602 P.2d 1141. The trial court found that "failure to make an announcement prior to entry was not justified by any belief that evidence would be destroyed or that the object of the search would escape." However, the trial court did not discuss the "danger to officers and others" exception. 1263 The state argues that the escape charge against Guajardo and his history of assault and resisting arrest were sufficient to justify the police in entering without "knocking and announcing," irrespective of the authorization in the warrant. The state made the same argument to the trial court, but that court granted defendant's motion to suppress without making a finding on that issue. If findings are not made on all fact issues, and there is evidence from which they could be decided more than one way, we will presume that the fact issues were decided consistently with the trial court's ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Because the trial court concluded that the evidence must be suppressed, we will presume that it found that the known pending charge against Guajardo and of his criminal history was insufficient to show that he represented a danger to the police or to others that constituted exigent circumstances. Affirmed. VAN HOOMISSEN, Judge, dissenting. I would reverse the pretrial order suppressing evidence. Therefore, I respectfully dissent. The trial court found: "1. Gregory Olson of the Marion County Sheriff's office applied for and was granted a search warrant to search a residence in Gervais, Oregon for controlled substances and the body of an alleged escapee. "2. The warrant was served the same day it was obtained. The warrant was served at approximately 8:30 AM. "3. Officers did not give notice of their identity, authority and purpose to the persons in apparent control of the premises searched until after they had entered the premises. "4. The search warrant was endorsed on its face by the issuing magistrate with the following statement: "`You are further authorized to use that degree of force as is reasonably necessary for the execution of this warrant with all practicable safety, including not giving notice of identity, authority or purpose in entering the premises.'" The court concluded: "1. No statutory authority exists for a magistrate to issue a warrant which purports to authorize execution without prior announcement of the officer's identity, authority and purpose. "2. Because no authority exists, the officers' failure to make an announcement prior to their entry was unlawful. "3. The failure to make an announcement prior to entry was not justified by any belief that evidence would be destroyed or that the object of the search would escape. "4. Because the entry violated ORS 133.575(2), the evidence obtained in that search must be suppressed."[1] At the outset, it is useful to identify a source of confusion in the record. There is a discrepancy between what the trial court stated orally after the evidentiary hearing and what it put in its subsequent written order. At the hearing, the court focused its attention on whether officer Olson's affidavit was sufficient to support a no-knock entry. The court did not then express any doubt about whether a no-knock entry could be authorized by the issuing magistrate. Indeed, it is implicit in the court's remarks that it assumed a magistrate had such power. The court stated: 1264 "In the ten years I have been on the bench, I have issued two no-knock warrants * * ." However, the court's subsequent written order focuses on whether the magistrate had statutory authority to authorize a no-knock entry, regardless of the sufficiency of any affidavit accompanying the application for a search warrant. The court concluded that no such statutory authority exists. Regrettably, the court stopped there; it utterly failed to address the state's alternative arguments that, notwithstanding, the executing officers had substantially complied with the requirements of ORS 133.575(2) and that, even if they had not complied, the exigencies of the moment allowed a no-knock entry. Further, at the hearing, the court focused its attention on a knock-and-announce violation of constitutional proportions. However, the court's subsequent written order mentions only a statutory violation. This confusion in the record persuades me that the trial court's analysis, which to some extent has been followed by the majority in this court, is flawed. The first question is whether a magistrate may authorize a no-knock entry in a search warrant. The majority concludes that the magistrate could not have authorized the no-knock entry because such an entry would violate the statute and a magistrate cannot validly authorize a statutory violation. 83 Or. App. 190, 730 P.2d 1263.[2] I disagree. Oregon statutes neither expressly permit nor prohibit such authorization. The legislative history shows that the legislature considered the issue now before us. The initial draft of Senate Bill 80 in 1973 included a section dealing with exceptions to the knock-and-announce requirements: "If the executing officer reasonably believes that the notice required by subsection (2) of this section would lead to the destruction of evidence, result in the escape of a suspect or increase the peril to the officer's safety or the safety of other persons, the officer may execute the warrant without prior notice." James Hennings, Director of the Metropolitan Public Defenders Office, informed the Senate Judiciary Committee that his office was opposed to letting police officers decide on the scene whether or not they should knock and announce before entering the premises. Minutes, Senate Committee on the Judiciary, February 7, 1973, at 6. The committee was then asked to consider an amendment that would require a judge to decide the "no-knock" question. The committee was referred to a New York statute that required the issuing magistrate to make an independent determination of whether or not it would be necessary to enter the premises without knocking and announcing. The motion to amend the bill to conform to the New York statute failed. The committee was then asked to consider an amendment limited to those situations only when the officer's concern was that evidence would be destroyed and leaving the decision whether to knock and announce to the officer's discretion when the issue was the officer's safety. That motion also failed. Minutes, Senate Committee on the Judiciary, March 14, 1973, at 10. However, the bill was later amended to provide that a no-knock entry could be made only when the magistrate had so endorsed the warrant or when there was danger to the life of the officer or others. Minutes, Senate Committee on the Judiciary, March 23, 1973, at 8. When the bill was considered by the House, there was concern about those limitations on no-knock entries. See Minutes, House Committee on the Judiciary, May 24, 1973, at 3. A motion to restore the knock-and-announce section to the form in which it had been originally introduced 1265 failed. Minutes, House Committee on the Judiciary, May 24, 1973, at 3. A second motion to adopt the Senate version with an amendment adding an escape clause to provide that if the officer, after presenting all the information to the magistrate, obtained some fresh information which would lead him to believe that there was going to be an escape or destruction of the evidence, he could disregard the knock-and-announce requirements, also failed. Minutes, House Committee on the Judiciary, May 28, 1973, at 5. The Conference Committee received a letter from the Oregon District Attorneys Association that provided, in part: "While I [Phil Roberts] cannot quarantee that these comments reflect the views of all Oregon District Attorneys, I am fairly confident that the following modifications to SB80 would be acceptable to the majority of them: "Knock and announce: delete any statutory reference to any exceptions to the knock and announce rule (ie, return to existing law as far as statutory language is concerned)." The Conference Committee then discussed deleting the knock-and-announce requirements: "LEE JOHNSON, Attorney General, stated that the Attorney General's office would not object to deletion of the knock and announce question. * * * "* * * "MS. REMINGTON [Executive Director of the ACLU] stated that she had seen the [District Attorneys Association] memo and agreed with it. "SENATOR BROWNE stated that the three planks that deal with eliminating from the statute on the no-knock provisions, (1) in either the warrant or warrantless arrest, (2) under search and seizure, and (3) permitting the arrest on probable cause for a Class A misdemeanor, leaving Article 8 in tact. [Sic] "REPRESENTATIVE COLE stated they needed to reinstate the statutes [Former ORS 141.110(4)[3] (search warrants); and former ORS 133.290(4)[4] (arrest warrants)] dealing with knock and announce. "DON PAILLETTE said the requirements of knocking and announcing are reinstated in the bill anyway. There are no statutory exceptions to knock and announce, just case law. "REPRESENTATIVE HAMPTON said to make it clear so that there would be no ambiguity to delete the repealers of the three existing sections and take all reference to knock and announce out so there would not be any misunderstanding. "PAILLETTE said if you delete the repealers you would have to unnecessarily rewrite the bill with respect to what an officer does when he makes an arrest and when he executes a search warrant. "REPRESENTATIVE HAMPTON asked if it would be Paillettes [sic] intent or the intent of the legislature that the existing body of case law be applied to the newly restated knock and announce requirements, in SB 80 as though we had not repealed the existing sections. "PAILLETTE said he thought so. "REPRESENTATIVE HAMPTON said he thought they should make a specific finding to that effect in the Conference Committee report if they go that route so that if that question arises on statutory construction there won't be a lot of thrashing around one way or another. 1266 "PAILLETTE stated there is no substantive difference between SB 80 and the existing statutes with respect to what is required of an officer in a knocking and announcing situation. "REPRESENTATIVE HAMPTON stated he is willing to live with what is in the bill and go ahead with the repealers of the three existing statutes but he would like to have the Conference Committee Report make a notation that that is their intent. " * * "SENATOR EIVERS said he would feel more comfortable if they took out the repealers but as long as they go the way Representative Hampton suggests, it is very clear they are retaining the existing provisions and case law, etc. "PAILLETTE asked that they turn to subsection (3) in the engrossed re-engrossed bill, page 28, and subsection (5). Subsection (5) would have to be amended to take out the exception. That would be deleted. It would read, `The arresting officer shall give appropriate notice of his identity, authority, and purpose to the person to be arrested or to the person in the apparent control of the premises'. "REPRESENTATIVE HAMPTON stated he felt that was adequate as long as the Conference Committee Report contained a brief notation that they did not intend to change existing law. "* * * "LEE JOHNSON said he didn't feel the statement of legislative intent is necessary, he felt there were other ways to handle it. "REPRESENTATIVE HAMPTON stated that his concern is that there would be something in writing for the Supreme Court to refer to, somewhere in the records, so that the claim cannot be made that the legislature, in this instance, intended by restating the law to rule out the potential for statutory exception, for case law exceptions. He asked if they could assure him that the DA's would totally accept without any question and would not give the legislature a hard time when the Court of Appeals threw out the thing. He just wants it to be on the record and not in thin air. "PAILLETTE felt that the original language in the commentary would take care of that. He said there was commentary in Article 4 under the arrest provisions and also under search and seizure with respect to the sections on how arrest is made by an officer and also how a search warrant is executed by an officer. "PAILLETTE stated that the Court has consistently referred to the Interim Report on the Criminal Code, 1971, with respect to construing the statutory provisions. "* * * "REPRESENTATIVE HAMPTON stated if they left the existing statutes on the books there would be no question that the legislature intended the existing statutes to be subject to the case law. "SENATOR EIVERS said they were repealing them. "REPRESENTATIVE HAMPTON stated that was his whole point. He said they were subject to the case law exceptions. There is no question but that they are subject to the case law exceptions. If they repeal those statutes and come back and restate in a different way, I don't want someone coming and arguing that the legislature intended it this time because they repealed those statutes and this time they stated no exceptions, they meant that there be no exceptions. If there is no concern, if the DA's are totally convinced, I will give it due consideration." Conference Committee Minutes, Senate Committee on Judiciary, June 23, 1973, at 1. (Emphasis supplied.) The legislative history shows that the exceptions to the knock-and-announce requirements of the former statutes, which existed in case law, were intended to apply to the new statute. The case law regarding the exceptions is found in State v. Valentine/Darroch, 264 Or. 54, 504 P.2d 84 (1972), cert. den. 412 U.S. 948, 93 S.Ct. 1267 3001, 37 L. Ed. 2d 1000 (1973); State v. Brothers, 12 Or. App. 435, 507 P.2d 398 (1973); State v. Newman, 12 Or. App. 266, 506 P.2d 523 (1973); State v. Larkins, 8 Or. App. 162, 493 P.2d 172 (1972); State v. Vance 7 Or. App. 566, 492 P.2d 493 (1972); State v. Gassner, 6 Or. App. 452, 488 P.2d 822 (1971); State v. Mitchell et al., 6 Or. App. 378, 487 P.2d 1156, rev. den. (1971). Those cases recognized that police officers need not knock and announce before entering premises when they reasonably believe that doing so would result in the destruction of evidence, increase the risk to the officers' safety or the safety of others or result in the escape of persons on the premises. See State v. Newman, supra, 12 Or. App. at 270, 506 P.2d 523. We have continued to recognize that exigent circumstances may justify entry without complying with the knock-and-announce requirements even after the present statute was enacted. See State v. Miller, 43 Or. App. 421, 602 P.2d 1141 (1979). Thus, it is clear that a magistrate's authorization of a no-knock entry would not amount to authorization of a statutory violation. Further, Oregon law favors judicial intervention. See United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); State v. Ingram, 251 Or. 324, 445 P.2d 503 (1968). Placing a neutral magistrate in the warrant process is intended to curb police excesses and to protect the very interests which defendant here claims were violated. Allowing a magistrate who issues a search warrant to decide whether the circumstances justify a no-knock entry is fully in accord with that policy. It is irrational that the law would encourage the police to get a warrant to search a home but preclude them from seeking judicial approval of a no-knock entry of that same home, regardless of the information available to them at the time they sought the search warrant about any conditions and circumstances that might justify a no-knock entry. Considering the heightened intrusiveness of a no-knock entry, common sense dictates that the law should encourage police to obtain, when practicable, prior judicial approval of any no-knock entry. The majority's holding results in an absurd anamoly: A police officer executing a search warrant may be able to make a decision whether to knock and announce, but the magistrate who issued that warrant is powerless to determine before-the-fact whether the officer had a factual basis to make a no-knock entry. That simply makes no sense.[5] It is clear from the legislative history that there was no legislative intent to prohibit magistrates from issuing no-knock search warrants and that the only question was whether there was sufficient reason to require predetermination by a magistrate. It is a non sequitur to argue that a decision not to require preauthorization shows legislative intent to prohibit predetermination.[6] 1268 To conclude from the fact that the search warrant statute is silent[7] on the no-knock entry question that a magistrate may not authorize a no-knock entry requires an additional inductive step: Are Oregon courts limited to putting only those provisions in orders that are expressly authorized by statute? Obviously not. Many examples exist of provisions routinely found in judicial orders that lack any express statutory authorization. The majority has cited no authority that requires express statutory authorization for every provision in a judicial order. Lacking such authority, there is no legal or logical basis for the majority's conclusion that statutory silence means a magistrate may not authorize a no-knock entry.[8] Assuming that a magistrate may endorse a search warrant to permit a no-knock entry, I next proceed to examine the affidavit in this case. Defendant in this appeal (and the other two defendants who joined in the suppression hearing) failed to file a supplementary motion and affidavit to controvert the good faith, accuracy and truthfulness of the affiant with respect to the evidence presented in the affidavit. ORS 133.693(2), provides, in relevant part: "If the evidence sought to be suppressed was seized by authority of a search warrant, the moving party shall be allowed to contest the good faith, accuracy and truthfulness of the affiant as to the evidence presented before the issuing authority only upon supplementary motion, supported by affidavit, setting forth substantial basis for questioning such good faith, accuracy and truthfulness." (Emphasis supplied.) Because defendant failed to file a motion to controvert, I would not consider his arguments going to the degree of accuracy and truthfulness of the affiant, which are based on testimony elicited at the suppression hearing. See State v. Liberman, 51 Or. App. 345, 350, 625 P.2d 678 (1981). I conclude that the affidavit is sufficient to support the magistrate's endorsement. Even if a magistrate lacks authority to authorize a no-knock entry, that does not end the inquiry. I would still hold that the entry here was lawful. First, the executing officers substantially complied with the requirements of ORS 133.575(2). They announced their identity, authority and purpose simultaneously with entry through the outer doors. They repeatedly announced their identity and purpose as they opened the interior doors. Three of the persons arrested testified that they had been asleep and that they did not hear any police announcements of identity, authority and purpose before the officers entered the bedrooms in which they were sleeping. Therefore, it would be hypertechnical to think that a pre-entry announcement seconds before would have made any real difference. In State v. Newman, supra, 12 Or. App. at 270, 506 P.2d 523, we said that the method of making an announcement, when it is required, can vary with the circumstances the officers encounter.[9] 1269 Second, the entry also was lawful, because the facts here fit into one or more of the three recognized exceptions to the knock-and-announce requirement, thus excusing any unannounced entry.[10] The trial court did not even address the exception regarding increased risk of harm to the officers or others. See State v. Larkin, supra, 8 Or. App. at 163-64, 493 P.2d 172. Further, the trial court's conclusion that "the failure to make an announcement prior to entry was not justified by any belief that evidence would be destroyed or that the object of the search would escape," is not supported by evidence in the record and, therefore, we are not bound by it. Ball v. Gladden, 250 Or. 485, 487-88, 443 P.2d 621 (1968). At the suppression hearing, the officers testified that they entered the house "without knocking and announcing their identification before they broke the door" for their own safety and that of the people inside, because they knew that Guajardo, for whom a felony escape warrant had been issued and who previously had been arrested for assault on police officers, was inside and they "didn't want to lose him," and because the occupants of the house "can flush the dope in no time." The officers also testified that they understood that persons associated with the premises owned guns. That understanding proved to be correct, for various guns were found during the course of the search. The search warrant here authorized a search for and seizure of heroin, cocaine and Guajardo. Olson's affidavit reads, in relevant part: "That I ran a check through the Law Enforcement Data Systems and National Crime Information Center and found an arrest warrant exists for Ruben Guajardo for escape in the second degree. That I called the Oregon State Correctional Institution and confirmed a warrant of arrest existed for Ruben Guajardo for Escape in the Second Degree. A check of Department of Motor Vehicles Records shows that the residence address of Ruben Guajardo is 340 First Street, Gervais, Oregon. " * * "That I have personal knowledge that Ruben Guajardo has assaulted police officers in the past and resisted arrest. This information is verified by a computerized criminal history check that shows prior arrests for Assault in the Fourth Degree and Resisting Arrest." I conclude from those averments that the executing officers reasonably believed that Guajardo presented a potential threat to their safety and that, under the totality of the circumstances, a sudden, unannounced entry would reduce the risk of harm to themselves as well as to the persons inside the house and that a prior announcement of identity, authority and purpose could have had the opposite effect. I also conclude that the officers reasonably believed that Guajardo might escape and that the evidence might be destroyed. Therefore, a no-knock entry was permissible. Finally, even if there was a statutory violation, that alone does not require suppression of the evidence. Evidence should not be excluded unless the circumstances surrounding the violation are particularly aggravated or there is a constitutional violation. See State v. Bishop, 288 Or. 349, 352-55, 605 P.2d 642 (1980); State v. Valentine/Darroch, supra, 264 Or. at 68-69, 504 P.2d 84. I agree with the majority that any statutory violation was not aggravated, because the police officers believed that they had obtained judicial authorization for the no-knock entry. 83 Or. App. 189, 730 P.2d 1262, n. 3. The officers believed that *1270 knocking and announcing might result in an increase in danger, both to themselves and to those inside the house, in the escape of Guajardo and in the destruction of the controlled substances. The trial court concluded that the failure to announce was not justified by the belief that the evidence would be destroyed or that Guajardo would escape. However, as stated above, the trial court made no findings regarding the officers' belief that announcing their entry would increase the risk to their safety. The circumstances known to the officers, Guajardo's history of escape, resisting arrest and assault, justified their belief in the increased risk to their safety by knocking and announcing. NOTES [1] Defendant was one of three persons arrested as a result of the search. All three joined in a consolidated suppression hearing, and the records of the other two defendants' cases were included in the record for this appeal. [2] As a threshold issue, the state argues that the police substantially complied with the knock-and-announce requirements by announcing their identity and purpose simultaneously with their entry. However, the trial court specifically found that the police did not give notice of their identity, authority and purpose to the persons in apparent control of the premises until after they had entered. There is substantial evidence in the record to support that finding, and we are bound by it. [3] There is also a statutory knock-and-announce rule. ORS 133.575(2) provides: "The executing officer shall, before entering the premises, give appropriate notice of the identity, authority and purpose of the officer to the person to be searched, or to the person in apparent control of the premises to be searched, as the case may be." (Emphasis supplied.) The statute is unambiguous on its face and states no exceptions. In State v. Bishop, 288 Or. 349, 352, 605 P.2d 642 (1980), the Supreme Court held that officers who did not announce their purpose before entering to make an arrest thereby violated ORS 133.235(5) and (6), which impose substantially identical requirements. We think it clear that the Supreme Court would reach the sane result concerning ORS 133.575(2). Failure to knock and announce is thus illegal. Unlike ORS 133.140(7), which allows a judge to authorize an arresting officer to enter premises without giving notice of the officer's authority and purpose, there is no statute allowing a magistrate to waive those requirements for a search. A magistrate may not authorize the police or anyone else to perform an illegal act, and the purported authorization in this warrant for a "no-knock" entry was necessarily void. In the light of the clarity of the statute and of the Supreme Court's holding in State v. Bishop, supra, we see no need to follow the dissent into the labyrinth of legislative history. It is clear that the legislature failed to enact a provision providing exceptions to the rule. Previous common law rules, whatever they were, cannot create exceptions to a clear statute. The most that the dissent shows is that some legislators believed that the courts should insert what the legislature had omitted. We cannot do that. ORS 174.010. [4] As with an arrest, we believe that a violation of the statutory knock-and-announce rule requires suppression of the evidence thereby discovered only if the violation was aggravated. See State v. Bishop, supra, 288 Or. at 352-353, 605 P.2d 642. "This does not mean that the statute need not be obeyed, but means only that the evidence is not suppressed." 288 Or. at 353, 605 P.2d 642. The violation in this case was not aggravated because the police reasonably, although incorrectly, believed that they had valid judicial authorization for the "no-knock" entry. In this case, the evidence can be suppressed only if there was a constitutional violation. The critical disagreement between us and the dissent is whether there was a constitutional violation. The dissent would hold that exigent circumstances justified the police action; we do not. [1] After of the evidentiary hearing, the court made an additional oral conclusion of law that was not included in its written order: "I'm finding that it did not justify a no-knock search warrant and in accordance with the case of Kerr [sic] v. California, 374 U.S. 23 [83 S. Ct. 1623, 10 L. Ed. 2d 726] a 1963 case State v. Miller, 43 Or App 421 [602 P.2d 1141], (1979), that I am firmly convinced that the failure to knock and announce requirement, it is applicable and it would have been applicable here, renders ensuing search and seizure unreasonable and therefore is in violation of the Fourth Amendment of the Constitution of the United States." [2] The majority refuses to look beyond the statute itself. The majority also relies on State v. Bishop, 288 Or. 349, 605 P.2d 642 (1980). 83 Or. App. 189, 730 P.2d 1262, n. 3. However, Bishop dealt with ORS 133.235, the statute on arrest warrants, not ORS 133.575, the statute on search warrants. If we look outside this statute to other statutes and caselaw for support, surely we can look to the statute's own legislative history. [3] Former ORS 141.110 provided: "In the execution or service of a search warrant, the officer has the same power and authority, in all respects, to break open any door or window, to use all necessary and proper means to overcome any forcible resistance made to him or to call any other person to his aid that he has in the execution or service of a warrant of arrest." [4] Former ORS 133.290 provided: "The officer may break open any outer or inner door or window of a dwelling house, or otherwise, to execute the warrant if, after notice of his authority and purpose, he is refused admittance." [5] It is instructive to observe that, in spite of a legislative policy that, when possible, a search warrant should be served in the daylight hours and within five days of its issuance, ORS 133.565(3) provides that a magistrate who issues a search warrant may authorize its execution at night and after five, but not more than 10 days, from the date of its issuance. Considering that the legislature has given magistrates power to issue search warrants and to endorse them for nighttime and delayed execution, is it reasonable to conclude that the legislature intended to deny magistrates power to authorize no-knock entry in a search warrant? If that was the legislature's intent, why did it permit magistrates to authorize no-knock execution of arrest warrants? Nothing in the legislative history of the two statutes indicates that the legislature intended to treat search warrants differently from arrest warrants. More importantly, the Commission's commentary clearly shows that that was not the intent of the legislature. Thus, the conclusion is inescapable the legislature intended to treat arrest warrants and search warrants alike. The difference in the statutory language does not mandate a different conclusion. Because a different conclusion is irrational, we should reject it. [6] The majority states that we cannot insert what the legislature has omitted. 83 Or. App. 189, 730 P.2d 1262, n. 3. We need not insert anything new, we are merely asked to maintain the common law as it existed at the time the statute was enacted. The common law remains the law of this state unless it has been changed by legislative action. State v. Blacker, 234 Or. 131, 136, 380 P.2d 789 (1963). The statute does not address the common law exceptions and, therefore, it did not change those exceptions. [7] It is clear that a magistrate may preauthorize a no-knock entry of premises to serve an arrest warrant. ORS 133.140(7). I see no principled reason to treat search warrants differently from arrest warrants. [8] It is interesting to note that defendant argues that the magistrate does not have the authority to do exactly what the Public Defender's Office wanted magistrates to be required to do. [9] In Newman the executing officers encountered a front door with a sign, "day sleeper." Before they announced their identity and purpose, they opened the door. We found that that was sufficient compliance with the knock-and-announce requirement: "When a residence is occupied by somebody who is asleep, an announcement made by the police in such a way that is most likely to be heard is the best way to minimize the danger of violence and to protect rights of privacy." 12 Or. App. at 271, 506 P.2d 523. The same reasoning is applicable here. The officers were executing a warrant at 8:30 a.m. It was certainly possible, as the residents of the premises searched testified later, that the occupants were asleep at that hour. Just as in Newman, the announcement made here, simultaneously with entry, was more likely to be heard than pre-entry announcement. That conclusion is confirmed by the testimony of the occupants of the premises who testified that they did not even hear the announcements the officers made as they entered. Consequently, any pre-entry announcements here would likely have been meaningless and, therefore, the failure to preannounce could not possibly have prejudiced defendant. [10] As shown by the legislative history above, the legislature intended that those exceptions continue to apply.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1039151/	Supreme Court In the Matter of James A. Currier. No. 2013-51-M.P. ORDER This disciplinary case came before the Court at its conference on February 14, 2013, pursuant to a recommendation of the Supreme Court Disciplinary Board (board) that the respondent, James A. Currier, Esquire, be disbarred from the practice of law. Article III, Rule 6(d) of the Supreme Court Rules of Disciplinary Procedure provides, in pertinent part: “If the [Disciplinary] Board determines that a proceeding * * * should be concluded by public censure, suspension or disbarment, it shall submit its findings and recommendations, together with the entire record, to this Court. This Court shall review the record and enter an appropriate order.” On January 14, 2013, we entered an order directing the respondent to appear before this Court at its conference to show cause why he should not be disciplined in accordance with the board’s recommendation. On February 6, 2013, the respondent executed an affidavit consenting to disbarment. In that affidavit the respondent acknowledges that his consent is freely and voluntarily rendered, that he is not subject to any coercion or duress, and that he is fully aware of the implications of consenting to disbarment. This affidavit was submitted to the Court on February 12, 2013, and the respondent did not appear at the conference. We accept the respondent’s consent to disbarment, and provide a summary of the board’s findings which provide the basis for that consent. On October 10, 2012 the board conducted hearings on two disciplinary complaints filed by clients of the respondent. The first matter relates to the respondent’s representation of Santos -1- Escobar, who was injured as a result of a motor vehicle accident. Escobar retained a law firm to pursue a claim for damages arising from that accident. A civil action was filed by that law firm on Escobar’s behalf in 2008. The respondent, who at that time was affiliated with that firm, provided legal services to Escobar in furtherance of the litigation. However, the respondent had not filed an entry of appearance in that matter, nor had he received any authorization from Escobar to settle his claim. Indeed, the respondent had never met or even spoken to Escobar. On October 21, 2011, the respondent appeared before the Superior Court for a scheduled pretrial conference on Escobar’s case. Escobar was not present. The respondent agreed to a settlement of Escobar’s claim in the amount of $35,000, and signed a dismissal stipulation on Escobar’s behalf, concluding the litigation. The respondent subsequently filed a motion to vacate that dismissal in which he acknowledged that he was not adequately prepared to represent Escobar, that he had no authority to settle the claim, and that Escobar had been prejudiced by that dismissal. The motion to vacate was denied, and Escobar received the settlement funds that had been negotiated by the respondent but to which he had not consented to prior to the settlement. The board concluded that the respondent’s conduct as described above violated Article V, Rules 1.1 1, 1.2(a) 2 and 1.4(a) 3, of the Supreme Court Rules of Professional Conduct. 4 We agree. 1 Article V, Rule 1.1 of the Supreme Court Rules of Professional Conduct, entitled “Competence,” provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 2 Article V, Rule 1.2 of the Supreme Court Rules of Professional Conduct, entitled “Scope of representation and allocation of authority between client and lawyer” provides, in pertinent part: “(a) * * * a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. * * * A lawyer shall abide by a client’s decision whether to settle a matter.” -2- The respondent was not adequately prepared to provide competent representation of Escobar, he failed to obtain or abide by his client’s decision whether to settle his claim, and he failed to maintain any communication with his client. His representation of Escobar fell woefully short of the level of skill, representation and communication that we and the public expect of a member of the bar. The second disciplinary matter heard by the board related to a complaint filed by Nancy Baptista. Ms. Baptista retained the respondent to pursue a claim for water damage suffered at a residence as a result of a broken water pipe. The respondent negotiated a settlement with her insurance carrier; and on, August 19, 2010, he received a check in the amount of $46,291.11 in resolution of the claim. The check was made payable to the respondent, Baptista, and a third party. The respondent did not notify Baptista that he had settled her claim or received the check. He led her to believe her claim was still pending. On April 1, 2011, after having endorsed the settlement check as attorney for Baptista and the third party, the respondent deposited the settlement check into his client’s account. The balance in his account immediately prior to this deposit was negligible. On April 12, 2011, the respondent sent correspondence to Baptista advising her that the claim had been settled and enclosing a client account check payable to Baptista in the amount of 3 Article V, Rule 1.4 of the Supreme Court Rules of Professional Conduct, entitled “Communication” provides, in pertinent part: “(a) A lawyer shall: “(1) Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent * * * is required by these Rules; “(2) Reasonably consult with the client about the means by which the client’s objective are to be accomplished; “(3) Keep the client reasonably informed about the status of the matter * * .” 4 An additional allegation that respondent had engaged in conduct involving “dishonesty, fraud, deceit or misrepresentation; in violation of Article V, Rule 8.4(c) of the Supreme Court Rules of Professional Conduct, was withdrawn at the hearing before the board, and is not before this Court. -3- $40,000. Baptista did not present that check for payment until July of 2011. The check was dishonored due to insufficient funds in the client account. In the intervening time between the check being issued and presented, the respondent wrote a check to himself for $40,000, depleting the account, and therefore causing Baptista’s check to be dishonored. On October 5, 2011, the respondent sent Baptista a check for $20,000, and advised her he would subsequently remit the remainder of her funds. However, that check was also dishonored due to insufficient funds when it was presented for payment. On February 14, 2012, Baptista filed a complaint with Disciplinary Counsel. Two weeks later, after receiving a copy of that complaint, a certified bank check for $40,000 was delivered to Baptista in payment of her settlement. Those funds were not from the respondent’s client account. In responding to the disciplinary complaint the respondent falsely claimed that he had settled Baptista’s claim in 2008, and deposited her funds into his account at that time. He further claimed that he had lost track of his account and believed the funds in the client account were his at the time he withdrew Baptista’s funds from the account. The board concluded that the respondent violated Article V, Rules 1.15(a) 5, 1.15(d) 6, 8.4(b) 7, and 8.4(c) 8 of the Rules of Professional Conduct. We agree with the board’s 5 Article V, Rule 1.15 (a) of the Supreme Court Rules of Professional Conduct provides, in pertinent part: “A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.” 6 Rule 1.15(d) provides: “Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.” 7 Rule 8.4(b) provides: “It is professional misconduct for a lawyer to: * * commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.] -4- conclusions. The respondent failed to promptly deliver to Baptista the funds which she was entitled to receive, commingled her funds with his own, and misappropriated those funds for his own use. We have previously held that “[t]he presumptive sanction for the intentional misappropriation of client funds is disbarment.” In re Amaral, 981 A.2d 1027, 1029 (R.I. 2009) (mem.) (citing In re Coningford, 815 A.2d 54, 57 (R.I. 2003) (mem.)). The board’s recommendation is fully supported by the facts, and the respondent’s consent to disbarment is manifestly appropriate. Accordingly, the respondent, James A. Currier, is hereby disbarred from the practice of law in this state, effective immediately. Entered as an Order of this Court this 1st day of March, 2013. By Order, ____________/s/_________________ Clerk 8 Rule 8.4(c) provides: “It is professional misconduct for a lawyer to: * * * engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” -5- RHODE ISLAND SUPREME COURT CLERK’S OFFICE Clerk’s Office Order/Opinion Cover Sheet TITLE OF CASE: In the Matter of James A. Currier. CASE NO: No. 2013-51-M.P. COURT: Supreme Court DATE ORDER FILED: March 1, 2013 JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. WRITTEN BY: N/A – Court Order JUDGE FROM LOWER COURT: N/A – Court Order ATTORNEYS ON APPEAL: For Petitioner: David Curtin, Esq. Chief Disciplinary Counsel For Respondent: C. Russell Bengtson, Esq.	01-03-2023	08-28-2013
https://www.courtlistener.com/api/rest/v3/opinions/1038981/	This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 MICHELLE E. GARCIA, 3 Petitioner-Appellant, 4 v. NO. 32,741 5 DANIEL S. GARCIA, 6 Respondent-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 8 James L. Sanchez, District Judge 9 Meintzer Law Firm 10 Ed Meintzer 11 Los Lunas, NM 12 for Appellant 13 Law Office of David C. Chavez 14 David C. Chavez 15 Los Lunas, NM 16 for Appellee 1 MEMORANDUM OPINION 2 WECHSLER, Judge. 3 {1} Petitioner appeals from a district court order denying her motion to reconsider 4 an order dismissing her attempt to re-open divorce proceedings three years after the 5 entry of the final decree. We issued a calendar notice proposing to affirm. Petitioner 6 has responded with a memorandum in opposition. We affirm. 7 ISSUE A 8 {2} Petitioner continues to claim that the district court erred in refusing to re-open 9 the parties’ divorce proceedings, either under Rule 1-060(B) NMRA or NMSA 1978, 10 Section 40-4-20 (1993). [MIO 1] Rule 1-060(B) states: 11 On motion and upon such terms as are just, the court may relieve 12 a party or his legal representative from a final judgment, order or 13 proceeding for the following reasons: 14 (1) mistake, inadvertence, surprise or excusable neglect; 15 (2) newly discovered evidence which by due diligence could 16 not have been discovered in time to move for a new trial under Rule 17 1-059 NMRA; 18 (3) fraud (whether heretofore denominated intrinsic or 19 extrinsic), misrepresentation or other misconduct of an adverse party; 20 (4) the judgment is void; 21 (5) the judgment has been satisfied, released or discharged, or 22 a prior judgment upon which it is based has been reversed or otherwise 23 vacated, or it is no longer equitable that the judgment should have 24 prospective application; or 25 (6) any other reason justifying relief from the operation of the 26 judgment. The motion shall be made within a reasonable time, and for 1 reasons (1), (2) and (3) not more than one-year after the judgment, order 2 or proceeding was entered or taken. . . . 3 {3} Petitioner’s May 2012 motion sought to set aside a September 2009 divorce 4 decree and also appears to have sought to set aside the property division that occurred 5 in two prior divorces between the parties. [RP 1] Petitioner’s claim that Respondent 6 committed fraud implicates reason (3) under Rule 1-060(B). [RP 8, ¶ 45] However, 7 Petitioner’s motion was filed well beyond the one-year time limit for invoking that 8 provision. To the extent that Petitioner believed that there were exceptional 9 circumstances permitting relief under Rule 1-060(B)(6), we note that this provision 10 may not be used to circumvent time limits when a party’s claims fall within the other 11 provisions of the rule. See Marinchek v. Paige, 108 N.M. 349, 351, 772 P.2d 879, 881 12 (1989); Thompson v. Thompson, 99 N.M. 473, 475, 660 P.2d 115, 117 (1983). We do 13 not believe that the district court abused its discretion in determining that Rule 1- 14 060(B)(3) applied to Petitioner’s arguments. [RP 171-72] See Martinez v. Friede, 15 2004-NMSC-006, ¶ 19, 135 N.M. 171, 86 P.3d 596 (observing that we review ruling 16 for abuse of discretion), superseded by rule on other grounds as stated in State v. 17 Moreland, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. As such, Petitioner could 18 not rely on Rule 1-060(B)(6) to circumvent the time limit. We reject Petitioner’s 19 claim [MIO 1, 6] that she is raising a subject matter challenge, because to equate a 20 fraud claim with a subject matter challenge would render meaningless the time limit 2 1 applicable to Rule 1-060(B)(3). See State v. Garcia, 2002-NMCA-050, ¶ 12, 132 2 N.M. 180, 45 P.3d 900 (rejecting an interpretation of a rule that would render part of 3 the rule meaningless). 4 {4} With respect to Section 40-4-20, that statute permits the re-opening of a divorce 5 case where there remains undivided community property. Here, the district court 6 determined that there was no undivided community property, but that Petitioner 7 simply wanted a re-division because she received a “bum deal.” [RP 170] The 8 language of the 2009 marital settlement agreement [MSA] supports the district court’s 9 determination. [RP 53] To the extent that Petitioner claimed that some property was 10 undivided, the district court could construe the broad language of the MSA to have 11 resolved the issue, and to the extent that Petitioner’s division arguments had merit, 12 they concern the execution of the prior agreements. [RP 141-142] 13 ISSUE B 14 {5} Petitioner continues to claim that the district court erred in denying her motion 15 to reconsider and attempt to amend her motion. [MIO 7-8] As we interpret 16 Petitioner’s arguments, she was essentially re-stating the claims of fraud and lack of 17 execution that were the subject of her initial motion. [RP 66] As such, we affirm for 18 the reasons set forth above. 3 1 ISSUE C 2 {6} Petitioner continues to claim that the district court should have recused at the 3 motion to reconsider stage because Petitioner believed that the court was improperly 4 impeding her attempts to satisfy the requirements of Section 40-4-20 and her attempts 5 to get the judge to change his mind. [MIO 8] As we interpret Petitioner’s arguments, 6 they essentially claim that the district court was committing errors in its rulings. These 7 rulings are subject to appellate review and do not form the basis of recusal. See In the 8 Matter of Schwartz, 2011-NMSC-019, ¶ 21, 149 N.M. 721, 255 P.3d 299 (noting that 9 improper rulings are not grounds for recusal). 10 ISSUE D 11 {7} Petitioner argues that the district court erred in refusing to disqualify 12 Respondent’s counsel because he was a witness to the alleged fraudulent conduct that 13 occurred during the divorce proceedings. [MIO 10] Petitioner states that counsel was 14 involved in the party’s two previous divorces and therefore was a witness to 15 inequitable treatment and a possible co-conspirator. Even if we assume that 16 Respondent’s counsel was a witness to fraud or inequity, this argument is only 17 relevant to the Rule 1-060(B)(3) claim, which was not timely, and therefore it was 18 never necessary to consider him as a witness. 4 1 {8} For the reasons set forth above, we affirm. 2 {9} IT IS SO ORDERED. 3 ________________________________ 4 JAMES J. WECHSLER, Judge 5 WE CONCUR: 6 ________________________________ 7 RODERICK T. KENNEDY, Chief Judge 8 ________________________________ 9 CYNTHIA A. FRY, Judge 5	01-03-2023	08-28-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873110/	241 S.W.3d 874 (2008) Brenda K. WILLIAMS, Appellant, v. STATE of Missouri, Respondent. No. WD 67662. Missouri Court of Appeals, Western District. January 8, 2008. Ruth Sanders, Appellate Defender, Kansas City, MO, for Appellant. Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, MO, for Respondents. Mary H. Moore, Asst. Attorney General, Jefferson City, MO, joins on the briefs for respondent. Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ. Prior report: 142 S.W.3d 800. Order PER CURIAM. Brenda Williams appeals the denial of her Rule 29.15 motion for post-conviction relief. Williams claims trial counsel was ineffective because he refused to allow her to testify in her own defense. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612952/	875 P.2d 534 (1994) 128 Or. App. 239 STATE of Oregon, Respondent, v. Michael GOVE, Appellant. 92-03-34749; CA A76828. Court of Appeals of Oregon. Argued and Submitted August 4, 1993. Decided May 25, 1994. 535 Wade P. Bettis, Canby, argued the cause, for appellant. With him on the brief was Bettis and Associates, P.C. Ann F. Kelley, Asst. Atty. Gen., argued the cause, for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen. Before DEITS, P.J., RICHARDSON, C.J., and De MUNIZ,[] J. De MUNIZ, Judge. Defendant is a police officer of the City of La Grande. He was charged with first degree official misconduct, ORS 162.415(1), and harassment, ORS 166.065, arising out of his requests that a 24-year old woman have sexual relations with him, along with other comments and actions of a sexual nature.[1] The events in question took place, at least in substantial part, while defendant was on duty. The woman rejected defendant's requests. In a trial to the court, defendant was convicted of official misconduct and acquitted of harassment. He appeals, and we affirm. ORS 162.415(1) provides, as pertinent: "A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another: "* * * * * "(b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties." In State v. Florea, 296 Or. 500, 503-04, 677 P.2d 698 (1984), the court defined the elements of the offense: "(1) The defendant must be a `public servant.' (2) He or she must knowingly perform an act. (3) The act must be performed `in' his or her official duties; that is to say, in the defendant's official capacity, exercising the powers or opportunities available by virtue of his or her official position. (4) The act must be an unauthorized exercise of this official capacity, power, or opportunity. (5) The act must be done `with intent to obtain a benefit or to harm another.' Neither a public servant nor a judge or jury should have a conceptual problem with the requirement that the act be performed in one's official capacity or in exercising the power of one's official position * * ." (Footnote omitted.) 536 Defendant first argues that the trial court erred by denying his motion for judgment of acquittal. He contends specifically that the evidence was insufficient to permit the inference that he intended to obtain a benefit or "knowingly performed an act which constituted an unauthorized exercise of the power or opportunities" of his official position. Defendant's argument on the latter point presupposes that the only evidence to support the finding was the police department's written policy on sexual harassment, which defendant contends was irrelevant to the charge. Even if he were correct in his view about the relevance of the evidencea matter discussed belowhe is not correct that it was the only evidence of a knowing act constituting an unauthorized exercise of the power or opportunities of his office. In State v. Moffitt, 104 Or.App. 340, 801 P.2d 855 (1990), we affirmed the official misconduct conviction of a police officer who, in the performance of his duties, came into contact with a woman and induced her to perform fellatio with him. We said: "Defendant next argues that the misconduct count fails to state a crime because a purely personal benefit (in this case, sexual gratification) for a public official does not satisfy ORS 162.415. Defendant's argument is contrary to our holding in State v. Gortmaker, 60 Or App 723, 746-47, 655 P2d 575 (1982), aff'd 295 Or 505, 668 P2d 354 (1983), cert den 465 U.S. 1066 [104 S. Ct. 1416, 79 L. Ed. 2d 742] (1984), in which the defendant, a district attorney, had his deputy and a law clerk prepare a paper for him to deliver at a seminar at the National War College. "Defendant also challenges the factual basis for his conviction. He argues, first, that the state failed to prove that he had the culpable mental state necessary to commit official misconduct and, second, that the state failed to prove that he intended to receive a benefit from his encounter with Johnson. The relevant question is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. King, 307 Or 332, 339, 768 P2d 391 (1989). We hold that there is sufficient evidence on the record to support defendant's conviction." 104 Or.App. at 344, 801 P.2d 855. Similarly, here, defendant performed an actsoliciting sexual relationswhile performing his duties. Quite apart from the evidence of the department policy, there is a permissible inference that a law officer who seeks sexual gratification from a citizen in the course of performing his duties has knowledge that that act is not an authorized exercise of his official position. Defendant attempts to distinguish this case from State v. Moffitt, supra, by suggesting that, unlike the officer's contact there, his contact with the woman in this case was all but incidental to the fact that he was a police officer. However, if we accept the evidence that is adverse to him as true, as we must, his attempt falls well short of succeeding. Defendant repeatedly came to the hospital where the woman worked, arriving late at night and staying for long periods of time. One night, defendant followed the woman home and, when confronted, explained to her that he thought she had been speeding. There was evidence that the woman felt and acted intimidated by defendant. In sum, the evidence abounded to support an inference that defendant was using his office in an unauthorized manner to advance his quest, and that he was fully aware that he was doing so. Defendant argues next that the "evidence must be sufficient to prove that defendant acted with the conscious objective to obtain a benefit and obtained it." Both the legal and the factual underpinnings of that argument are wrong. As the statute itself and State v. Moffitt, supra, make clear, it is the intent to obtain sexual gratification or another benefit, not the success of the attempt, that is the element of the crime. However, defendant maintains that the evidence did not support an inference that he intended to have sexual relations with the woman, but was only engaging in a form of mutually understood raucous humor with her and her co-workers. In advancing that theory, defendant, the party against whom the 537 facts were found, not only states the evidence most favorably to himself, but omits most of it. There was ample evidence, in addition to defendant's words themselves, to support the court's finding that he meant his invitation to have sexual relations to be taken literally. The court did not err by denying the motion for judgment of acquittal. In his next three assignments, defendant argues that the court erred by admitting exhibits pertaining to the La Grande police department's policy against sexual harassment, and by allowing the police chief and another officer to testify that a violation of the policy by conduct of the kind alleged would constitute an "unauthorized exercise in official duties." According to defendant, the department policy and the testimony were not relevant, because the "violation of the policy does not establish any element of the crime." Defendant posits that the statute is self-contained, and a violation of the policy can have no bearing on whether there has been a violation of the statute. We disagree. Nothing in the text or context of the statute supports an understanding that it amounts to a legislative abrogation of the ability of governmental employers to participate in defining what their employees are not authorized to do. Whether or not the policy is sufficient in itself to establish that defendant's act was an unauthorized exercise of his position, it is relevant to that question. Moreover, one or more of the exhibits also tended to show that defendant was familiar with the policy, and they are therefore probative of the scienter element in ORS 162.415(1)(b). For the reasons stated in our discussion of the first assignment, it is unnecessary to decide whether the evidence of the policy was enough in itself to prove the elements on which it bears, because a permissible inference was available to establish those elements, even in the absence of that evidence. Defendant also contends that the testimony of the two witnesses was inadmissible, because it amounted to "lay testimony" that he committed the crime. We do not understand the import of the testimony to be as defendant now characterizes it, and we do not read defendant's objections in the trial court to be on the same grounds that he now asserts in this argument. Defendant's remaining assignment is that the court erred by overruling his demurrer to the indictment. In the main, defendant's arguments under this assignment reassert the legal theories that we have already rejected. To the extent the argument goes beyond that, it warrants no discussion. Affirmed. NOTES [] De Muniz, J., vice Durham, J. [1] Defendant and the woman did not have sexual intercourse or, apparently, any sexual contact that was more advanced than touching and back rubbing.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2980371/	Motion to Withdraw Granted; Affirmed and Memorandum Opinion filed March 26, 2015. In The Fourteenth Court of Appeals NO. 14-13-00889-CR NOE GERARDO MORIN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 1306502 MEMORANDUM OPINION A jury found appellant guilty of murder. Appellant entered a plea of true to the enhancement paragraphs in the indictment, and the jury assessed punishment at life in prison. On September 26, 2013, the trial court sentenced appellant to confinement for life in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely notice of appeal. Appellant’s appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit.1 The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel’s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). Counsel has complied with the Anders procedures set out in Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). A copy of the appellate record was provided to appellant, and appellant was advised of the deadline to file any pro se response to counsel’s brief. Appellant was granted two extensions of time to file a responsive brief. When the second extension was granted, the court noted that no further extensions would be granted absent exceptional circumstances. As of this date, more than sixty days have passed since the extended deadline and no pro se response has been filed. We have carefully reviewed the record and counsel’s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. We need not address the merits of each claim raised in an Anders brief or a pro se response when we have determined there are no arguable grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, the judgment of the trial court is affirmed. PER CURIAM 1 Appellant’s previous appointed counsel also filed an Anders brief, but new counsel was appointed after the trial court determined that the previous counsel had not complied with the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). 2 Panel consists of Justices Christopher, Donovan, and Wise. Do Not Publish — Tex. R. App. P. 47.2(b). 3	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/8326450/	Wilkins, Douglas H., J. In this case, Barry M. Cohen alleges that he was arrested without probable cause because inadequate training led the clerk-magistrate to issue an arrest warrant in response to pressure placed upon him by members of the Newton Police Department. The defendant, Commonwealth of Massachusetts has moved to dismiss under Mass.R.Civ.P. 12(b)(6) on grounds of sovereign immunity. The plaintiff has opposed the motion. After hearing and upon consideration of the parties’ written submissions, the motion to dismiss is ALLOWED. BACKGROUND Directly or by inference, the complaint establishes the following alleged facts, which are taken as true for purposes of the motion to dismiss. On September 25, 2003, at approximately 1:15 A.M., Mr. Cohen left his parents’ home in Newton, Massachusetts to take a walk. He was wearing gloves and carrying a flashlight. After traveling approximately four blocks, while walking along Fellsmere Road, he heard rustling noises coming from a white van parked on the opposite side of the street. He saw the driver’s door on the van begin to open and heard a voice from the van calling to him to “get over here.” He began to run. While running, he looked over his shoulder and saw a man dressed in a black sweater and dark trousers running after him, carrying a badge in his hand. Upon seeing the badge, Mr. Cohen stopped and explained to the man, who was Officer Marini of the Newton Police Department (“Police”), that he was taking a walk and had run away because he was afraid he was being attacked or kidnapped. After relaying information about the plaintiff over his radio and learning that Mr. Cohen had no outstanding warrants, Officer Marini declined to arrest the plaintiff and told him that he was “free to go.” Officer Marini and the Police then prepared a false and misleading incident report about that encounter, suggesting that the plaintiff had engaged in criminal conduct. When Police Chief Jose M. Cordero learned of the incident, he became upset and ordered that the plaintiff be arrested. Later, the Police applied for an arrest warrant, knowing that no basis existed for the application. Assistant Clerk-Magistrate McEvoy denied the application. The Police re-submitted the application to Clerk-Magistrate Schultz, who issued a warrant for the plaintiffs arrest for attempted breaking and entering into a motor vehicle at night. There was, however, no probable cause to arrest the plaintiff. Nevertheless, the Police urged both magistrates to issue the arrest warrant. In a telephone call, Police Captain Boudreau urged Magistrate Schultz to issue the warrant because the then-Police chief wanted a warrant. The involvement of senior police officials in urging a magistrate to issue process is highly unusual. In these unusual circumstances, the decision to issue criminal process resulted from the Commonwealth’s improper training, supervision and oversight of Clerk-Magistrate Schultz. In the evening of September 25, 2003, Mr. Cohen heard loud knocking on the front door of his parents’ home. When he opened the door, three police officers entered and arrested him without displaying an arrest warrant. During the arrest, the officers used unreasonable and excessive force. At the station, they continued to use excessive force and harrassed, threatened and intimidated Cohen. He was placed in a cell, eventually released on bail after some delay and was arraigned the next morning on one count of attempted breaking and entering into a motor vehicle. A report of the arrest appeared in the local paper. On October 21, 2003, the Newton District Court dismissed the charges against Mr. Cohen. The plaintiff has informed the court that he prevailed before a federal jury in the United States District Court for the District of Massachusetts on his claim that Officer Marini lacked probable cause to charge Mr. Cohen with the crime of attempted breaking and entering into a motor vehicle at night. The plaintiff filed a five-count complaint in this case on September 22, 2006. On March 5, 2010, the court dismissed counts I-III and v. of the complaint, which effectively dismissed defendants Schultz, the Newton District Court and the Middlesex District Attorney’s Office as defendants. With respect to count IV, alleging negligence against the Commonwealth, the court stated that “[o]n this record it cannot be determined whether the Commonwealth’s assertion of immunity [under the discretionary function exemption of the 182Massachusetts Tort Claims Act] meets these tests.” The court invited the Commonwealth to serve a motion for summary judgment within 20 days, but withheld action on summary judgment, instead stating, on October 25, 2010, that it would “entertain a motion for reconsideration of the motion to dismiss or an additional motion to dismiss on agreement of parties.” The present motion was served on November 22, 2010 and filed on December 21, 2010.2 DISCUSSION The Commonwealth advances three arguments in support of its motion to dismiss. First, it claims that a negligence action would unlawfully circumvent the common-law principles of judicial and prosecutorial immunity. Those doctrines, however, protect officials against personal liability so that the administration of justice is not “influenced by apprehension of personal consequences.” Commonwealth v. O'Neil, 418 Mass. 760, 767 (1994) (citation omitted). They do not speak to the Commonwealth’s liability for or immunity from negligence claims. The Commonwealth also invokes the discretionary function exemption contained in G.L.c. 258, § 10(b). Not only has the court rejected this argument in this case once before, but that exemption ordinarily requires factual development to demonstrate whether the state had established guidelines from which its employees deviated. See, e.g. Audette v. Commonwealth, 63 Mass.App.Ct. 727, 730 (2005) (summary judgment granted dismissing a claim of negligent training of a police dog, where the summary judgment materials established that the trainer had discretion). The Commonwealth’s remaining argument, not previously advanced in this case, rests upon the exemption from tort liability contained in G.L.c. 258, § 10(e), which reads: The provisions of [G.L.c. 258 waiving sovereign immunity] shall not apply to:— * * (e) any claim based upon the issuance [of] any permit, license, certificate, approval, order or similar authorization; The Appeals Court has stated that “(t)his statutory language is unambiguous and we attribute to it its plain meaning” in dismissing a claim against the Registrar of Motor Vehicles for the erroneous revocation of a drivers license due to a clerical mistake. Smith v. Registrar of Motor Vehicles, 66 Mass.App.Ct. 31, 32 (2006). Smith added that “(t]he language of § 10(e) cuts a broad swath, exempting from recovery ‘any claim’ in a variety of named circumstances." Id., citing Tivnan v. Registrar of Motor Vehicles, 50 Mass.App.Ct. 96, 102 (2000). Whether this provision applies here turns upon defining the phrases, “based upon” and “order or similar authorization.” Smith used the dictionary definition to hold that “based on” refers “to any claim that is rooted in or ‘uses as a basis for’ its applicability any of the covered types of activities or events. If the gravamen of a plaintiffs complaint can be traced back to any one or more of the types of events or activities delineated in § 10(e), then the action is barred.” Id. at 33. The court found the entry and maintenance of registration data to be “central to the functions that are immunized from liability by § 10(e).” Id. The same can be said of training for one of the immunized functions. The complaint challenges the adequacy of training not generally, but specifically for the issuance of warrants by clerk-magistrates and the defense of warrants by prosecutors. The gravamen of the complaint can be traced back to the issuance of the allegedly baseless arrest warrant. That leaves the question whether issuance of a warrant is an “order or similar authorization.” Smith did not answer that question and, indeed, addressed revocation of a “license,” which § 10(e) specifically lists as an immune activity. An arrest warrant meets one definition of an “order” as “a written direction of a court or judge.” See Concise Oxford American Dictionary 623 (2006). The Supreme Judicial Court has found a search warrant to be “an order of governmental authority” for purposes of an exclusion from coverage under an insurance policy. Alton v. Manufacturers and Merchants Mut. Ins. Co., 416 Mass. 611, 613 & n.2 (1993), citing K.B. Smith, Criminal Practice and Procedure [now appearing at §3.16 (2007)]. See also Brady v. Dill, 187 F.3d 104, 113, 116 (1st Cir. 1999) (an arrest warrant is a “judicial order”). If there is any room for argument about which definition of “order” the Legislature intended to adopt, a review of the purpose of § 10(e) refutes these possible objections to immunity in this case. That exemption was among the provisions enacted in response to the Supreme Judicial Court’s pronouncement that it would abolish the so-called “public duty rule” unless the Legislature acted. See St. 1993, c. 495, §57, enacted in response to Jean W. v. Commonwealth, 414 Mass. 496 (1993). A contemporaneous account suggests that the legislature acted because of concern among public employers about a “substantial increase" in their tort exposure. See J.W. Glannon, Liability for “Public Duties” under the Tort Claims Act: The Legislature Reconsiders the Public Duty Rule, 79 Mass.L.Rev. 17, 17 (March 1994). Smith, 66 Mass.App.Ct. at 33, observed that “[g]iven the volume of persons served and records generated by RMV, § 10(e) embodies a legislative determination that even lamentable clerical errors, such as the one here, should be immunized from litigation." From this history, I infer that the Legislature intended for § 10(e) to preserve the Commonwealth’s sovereign immunity for certain *183types of acts and omissions that arguably had enj oyed immunity from suit on the doctrinally treacherous theoiy that the Commonwealth owed a duty to the public, rather than to the plaintiff. The prospect of liability for failure to train those issuing, defending or acting pursuant to arrest warrants (and presumably search warrants as well) falls well within the concerns identified to date. There is an additional concern. While the reported cases involved ministerial errors at the Registry of Motor Vehicles, the list of activities exempted by § 10(e) ultimately involve decisions by executive and judicial branch officers affecting the rights and privileges of third parties. Such decisions raise concerns articulated in a case that led to enactment of the Tort Claims Act itself: “Could a judge or jury review the conduct in question without usurping the power and responsibility of the legislative or executive branches?” Whitney v. Worcester, 373 Mass. 208, 219 (1977). A magistrate has “discretion in deciding whether probable cause exists warranting the commencement of a criminal proceeding” where “defendant was not under arrest” and the “involved an application for the issuance of process.” District Attorney for the Norfolk Dist. v. Quincy Division of the District Court Dept., 444 Mass. 176, 183 (2005), quoting Commonwealth v. Balliro, 385 Mass. 618, 620 n.2 (1982). Proving causation (and perhaps liability) on a claim of failure to train a magistrate would require inquiry into the magistrate’s understanding of the facts and rules that he or she applied in the case at issue. It would involve review by an outside fact-finder of inputs into decision-making. The resulting potential for interference with separation of powers or judicial independence raises policy concerns that the courts have recognized in other contexts. From the nature of the activities listed in § 10(e), I infer that the Legislature was responding to those concerns. Moreover, in the case of an erroneous or unlawful search warrant and other decisions falling within the scope of § 10(e), remedies already exist for erroneous decision-making (see, e.g., Brady, 187 F.3d at 111), which “tends to negate any argument that a private remedy in money damages should be inferred.” See Connerty v. Metropolitan Dist. Comm’n, 398 Mass. 140, 146 (1986). Powerful reasons demonstrate that the Legislature intended a definition of “order” that includes a search warrant. Count IV therefore must be dismissed under G.L.c. 258, § 10(e). As all other counts have been dismissed, final judgment will enter dismissing the complaint. ORDER For the above reasons, the defendants’ Motion to Dismiss is GRANTED. Final judgment shall enter dismissing the complaint. While the plaintiff maintains that the court has previously denied the arguments presented in the Commonwealth’s recent motion, the Commonwealth has followed the court’s instructions. I do not disturb the prior ruling regarding the discretionary function exemption, but the argument regarding G.L.c. 258, § 10(e) was not previously presented for decision.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/1811547/	620 So.2d 623 (1993) Gary KING, v. COLBERT COUNTY, et al. 1920102. Supreme Court of Alabama. May 7, 1993. 624 J. Steve Clem of Lucas, Alvis & Kirby, P.C., Birmingham, for appellant. Braxton W. Ashe and Benjamin H. Albritton of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellees. INGRAM, Justice. Gary King appeals from a summary judgment entered in favor of the defendants, Colbert County, the Colbert County Sheriff's Department, and John L. Aldridge, individually and in his capacity as sheriff of Colbert County. The evidence, viewed most favorably for King, suggests: On January 15, 1992, Gary King was incarcerated in the Colbert County Jail. A fellow prisoner in King's cell stepped on a metal toilet to screw a light bulb into an overhead fixture. Because the outlet was faulty, the prisoner was electrocuted. While attempting to rescue the prisoner, King was injured. He received a severe electrical shock and suffered cuts, bruises, and abrasions. As a result of his injuries, King was hospitalized for several days. King sued, alleging that his injuries were caused by negligent maintenance and wantonness on the part of the defendants. The trial court entered a summary judgment in favor of all of the defendants. A summary judgment is proper when the motion and the materials submitted 625 in support thereof "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), A.R.Civ.P. The party moving for a summary judgment initially must make a prima facie showing that there are no genuine issues of material fact. Lee v. City of Gadsden, 592 So.2d 1036 (Ala.1992). If this burden is met, the nonmovant may rebut the prima facie showing with "substantial evidence." Ala.Code 1975, § 12-21-12. To satisfy the "substantial evidence test," the nonmoving party is required to present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). "[O]n review of a summary judgment, we must view all the evidence in a light most favorable to the nonmovant and we must entertain all reasonable inferences from the evidence in favor of the nonmovant." Lee, 592 So.2d at 1038. I. The Claims Against Colbert County The sheriff of Colbert County is a constitutionally established executive officer of the State of Alabama (Ala. Const. 1901, Art. V, § 112, § 138) and is not considered an employee of the county for the purposes of imposing liability upon the county. Parker v. Amerson, 519 So.2d 442 (Ala.1987). The sheriff's authority over the jail is totally independent of the Colbert County Commission. Ala.Code 1975, § 14-6-1. Therefore, even if Aldridge can be held liable for his conduct as sheriff of Colbert County, Colbert County itself cannot be held vicariously liable for his actions or inaction. King principally argues, however, that Colbert County had a statutory duty to maintain the jail in good repair. Ala.Code 1975, § 11-14-10 provides: "The county commission shall erect courthouses, jails and hospitals and other necessary county buildings, and such county commission shall have authority to levy a special tax for that purpose. Each county within the state shall be required to maintain a jail within their county." Under § 14-6-104, the county is obligated to pay any expenses for the maintenance of the jail. While legal custody and charge of the jail is vested in the sheriff, § 14-6-1, the chairman of the county commission is authorized to enter and inspect the jail once each week. § 11-14-22. Interpreting the statute that is now § 11-14-10, this Court stated that the phrase "expense incident to the ... maintenance... of each county jail" refers to "maintenance of the building and its equipment." Holcombe v. Mobile County, 229 Ala. 77, 78, 155 So. 640, 640 (1934). In Keeton v. Fayette County, 558 So.2d 884, 886 (Ala.1989), we held that, "by using the phrase `maintain a jail' in § 11-14-10, the Legislature intended to require the county commission to keep a jail and all equipment therein in a state of repair and to preserve it from failure or decline." In his affidavit in support of Colbert County's motion for summary judgment, Charles H. Thompson, the Colbert County administrator, stated, "The maintenance and running of the county jail is not a function of Colbert County, but is a function of the Sheriff of Colbert County or his duly appointed deputy. The County of Colbert did not maintain the jail at the time alleged in the complaint and did not cause any part of the jail to become in disrepair or cause any condition which could cause an electrical shock to any inmate.... [T]he County did no [maintenance] or work inside the jail building." Because we hold that § 11-14-10 places an affirmative duty upon the County to maintain the jail and keep it in a state of repair, we conclude that the court erred in granting Colbert County's motion for a summary judgment. Colbert County's assertion that it did not actively cause a condition of disrepair cannot, independently of other evidence, save the County from liability. Colbert County had a legal duty to keep the jail in a reasonably safe state of repair. In order to prevail at trial, however, *626 King must also prove that the County breached that duty and that its breach was the proximate cause of King's injury. Considering Colbert County's motion for summary judgment and the brief and affidavits submitted in support thereof, we conclude that Colbert County failed to make a prima facie showing that there was no genuine issue of material fact with regard to these other elements. Therefore, the burden did not shift to King to present substantial evidence in support of his claims against the county.[1]Ex parte Head, 572 So.2d 1276 (Ala.1990). Accordingly, the summary judgment is reversed as to Colbert County, with regard to both the negligence claim and the wantonness claim. Rule 56(c)(3); Bird v. Auto Owners Ins. Co., 572 So.2d 394 (Ala.1990). II. The Claims Against Aldridge An action against a sheriff is "essentially a suit against the state." Montiel v. Holcombe, 240 Ala. 352, 354, 199 So. 245, 245 (1940). "[T]he State of Alabama shall never be made a defendant in any court of law or equity." Ala. Const.1901, Art. I, § 14. Accordingly, we have held: "[A] sheriff ... is immune ... from suit based on state law claims arising out of the execution of the duties of his office, except for actions brought (1) to compel him to perform his duties, (2) to compel him to perform ministerial acts, (3) to enjoin him from enforcing unconstitutional laws, (4) to enjoin him from acting in bad faith, fraudulently, beyond his authority, or under a mistaken interpretation of the law, or (5) under the Declaratory Judgment Act to seek construction of a statute if he is a necessary party for the construction of the statute." Boshell v. Walker County Sheriff, 598 So.2d 843, 844 (Ala.1992). King's claims against Aldridge do not fall within any of these exceptions. Accordingly, the summary judgment is affirmed as to Aldridge, as sheriff of Colbert County. Any acts Aldridge did or failed to do with regard to the Colbert County jail were done or omitted in his official capacity as sheriff of Colbert County rather than as an individual. Therefore, the summary judgment is also affirmed as to Aldridge, individually. III. The Claims Against the Colbert County Sheriff's Department In addition to Colbert County and Sheriff Aldridge, King's complaint named the "Colbert County Sheriff's Department" as a defendant. The Colbert County Sheriff's Department is not a legal entity. Therefore, one cannot maintain an action against it. See, White v. Birchfield, 582 So.2d 1085 (Ala.1991). CONCLUSION The summary judgment is reversed as to King's claims against Colbert County; it is affirmed as to the claims against John L. Aldridge, individually and as sheriff of Colbert County; and the case is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. NOTES [1] Because the issue is not properly before us in this case, we express no opinion on whether King presented substantial evidence of each of the elements of his negligence and wantonness claims against the county.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895023/	NO. 07-06-0099-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A OCTOBER 9, 2007 ______________________________ CHARLES RAY GIBSON, JR., APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 121ST DISTRICT COURT OF TERRY COUNTY; NO. 5273; HONORABLE KELLY G. MOORE, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. OPINION Appellant, Charles Ray Gibson, Jr., appeals his conviction for possession of a controlled substance (cocaine) and sentence of 99 years incarceration in the Institutional Division of the Texas Department of Criminal Justice. We reverse. Background On October 1, 2004 at around 11:15 p.m., Rose Waitman called the Brownfield Police Department out of concern that her daughter (C.W.), who was 15 years old at the time, had not returned home from a high school football game. Officer Carrillo was dispatched to the Waitman residence. Rose told Carrillo that C.W. may be in a blue 1989 “Pontiac Oldsmobile (sic)” and she gave him the license plate number of the vehicle. Rose requested that Carrillo find her daughter and bring her home. At approximately 11:45 p.m., Carrillo spotted a vehicle that matched the description of the vehicle given by Waitman. Carrillo could not identify its occupants or even how many occupants were in the vehicle. Carrillo pulled behind the vehicle, activated his emergency lights, and followed the vehicle to effectuate the stop. At no time after Carrillo spotted the vehicle did he observe the driver violate any traffic laws. After the vehicle stopped, Carrillo spoke with the driver, who he identified as appellant, told him that he had been stopped “for the juvenile,” and asked appellant to exit the vehicle. After appellant exited the vehicle, Carrillo asked him for his driver’s license and proof of insurance. Another officer, who was assisting Carrillo, removed C.W. from the vehicle. Appellant told Carrillo that he did not have a license or proof of insurance. Carrillo ran a license inquiry through dispatch and was able to verify that appellant did not have a valid driver’s license. As a result, Carrillo placed appellant under arrest. Following appellant’s arrest, the vehicle was searched incident to the arrest. Cocaine and marijuana were discovered in or next to the vehicle. Appellant filed a pre-trial Motion to Suppress the drugs contending that they were discovered as a result of an illegal search and seizure. A hearing was held on the motion with Carrillo being the only testifying witness. Carrillo testified that he was aware that appellant did not have a driver’s license based on a past encounter with him, however, he 2 expressly stated that he did not pull the vehicle over for this reason. Rather, Carrillo testified that he stopped the vehicle because it matched the description given by C.W.’s mother, who was concerned about her daughter’s welfare. The trial court denied the Motion to Suppress the evidence. At trial, C.W. testified regarding the events of October 1, 2004. She testified that she and appellant left the football game before it ended. Appellant stopped by a house for a brief period while C.W. waited in the car. Appellant took C.W. back to the football game, but the game had ended and C.W. could not find the person that was to give her a ride home. As a result, appellant agreed to take C.W. home. As appellant was attempting to give C.W. a ride home, Carrillo pulled appellant over. As Carrillo approached the vehicle, appellant pulled drugs out of his pocket, handed them to C.W., and told her to “chunk them out the window.” However, because another officer approached the passenger’s side window at the same time that Carrillo approached the driver’s side, C.W. testified that she laid the drugs beside the seat. Also, at trial, C.W.’s mother, Rose, testified that she called the police to look for her daughter because she was “concerned” when she did not come home with the people that she went to the game with. Rose had been informed that C.W. was with appellant, but she “didn’t want her in the car with him.” Carrillo testified that he went and spoke with Rose and that she was very concerned about her daughter. He testified that Rose told him that C.W. had left the football game around 10:20 with appellant. Carrillo spotted appellant’s vehicle driving in the direction of 3 C.W.’s home at 11:48. After Carrillo stopped the vehicle, he testified that he approached the driver, identified himself, and advised the driver that he was being stopped “for the juvenile.” At the same time, another officer made contact with C.W. on the passenger’s side of the vehicle. Carrillo asked appellant to step out of the vehicle and for his driver’s license and proof of insurance. When appellant failed to produce these documents, Carrillo called in a driver’s license check that indicated that appellant’s driver’s license had expired in 1993. As a result, Carrillo arrested appellant. After appellant was placed under arrest, his vehicle was searched and cocaine and marijuana were found on the floorboard of the front passenger’s area. At the close of evidence, the court took up the issue of the jury charge. The court’s proposed charge included an instruction that an accomplice witness’s testimony must be corroborated. The State objected to the inclusion of this instruction on the basis that the evidence was insufficient to establish that C.W. was an accomplice, but the court overruled the objection. Appellant then objected to the charge not including an instruction under Texas Code of Criminal Procedure article 38.23, which was overruled by the court. See TEX . CODE CRIM . PROC . ANN . art. 38.23 (Vernon 2005).1 The jury returned a verdict finding appellant guilty of possession of a controlled substance, cocaine, in an amount more than four grams but less than 200 grams. The indictment included enhancement allegations of two prior felony convictions to which appellant pled true. The jury heard the punishment evidence and assessed a sentence of 1 Further reference to provisions of the Texas Code of Criminal Procedure will be by reference to “article __.” 4 incarceration in the Institutional Division of the Texas Department of Criminal Justice for a period of 99 years. Appellant filed a Motion for New Trial, which was overruled by operation of law. Appellant presents four issues on appeal. Appellant’s first issue contends that the trial court erred in denying appellant’s Motion to Suppress. By his second issue, appellant contends that the evidence was insufficient to corroborate the testimony of C.W., who appellant contends was an accomplice. Appellant’s third issue contends that the trial court erred in failing to include an instruction under article 38.23 in the jury charge. Finally, by his fourth issue, appellant contends that the evidence was legally insufficient to support his conviction. We will address only appellant’s first and fourth issues. See TEX . R. APP. P. 47.1. Legality of the Stop By his first issue, appellant contends that the trial court erred in denying his Motion to Suppress the cocaine found by the police when they searched his vehicle incident to arrest because the initial stop of his vehicle was illegal in that it was not supported by reasonable suspicion. The State contends that the initial stop of appellant was justified by the community caretaking function of the officers. When reviewing a motion to suppress, we are to give great deference to a trial court’s determination of historical facts and on mixed questions of law and fact that require an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). However, mixed questions of law and fact not turning on an 5 evaluation of credibility and demeanor are reviewed de novo. Id. See also Villareal v. State, 935 S.W.2d 134, 139 (Tex.Crim.App. 1996) (McCormick, P.J., concurring) (if trial court “is not in appreciably better position” than the appellate court in deciding an issue, the appellate court may independently determine the issue while affording deference to the trial court’s finding on subsidiary factual questions). Where the facts relating to a motion to suppress are undisputed and the trial court’s ruling does not turn on the credibility of the witnesses, an appellate court reviews an order overruling the motion de novo. Johnson v. State, 146 S.W.3d 719, 721 (Tex.App.–Texarkana 2004, no pet.). While not all encounters with the police implicate the Fourth Amendment’s protection against unreasonable seizures, stopping an automobile and detaining its occupants constitutes a seizure, even though the purpose of the seizure is limited and the resulting detention brief. Del. v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App. 2002). Under the Fourth Amendment, a seizure must be objectively reasonable in light of the particular circumstances of the case. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Corbin, 85 S.W.3d at 276. Assessing the reasonableness of a search or seizure requires a balancing of the public interest and the individual’s right to be free from arbitrary interference by law enforcement. Prouse, 440 U.S. at 654; Corbin, 85 S.W.3d at 276. A seizure based on reasonable suspicion or probable cause will generally be reasonable. Whren v. United States, 517 U.S. 806, 818, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); Corbin, 85 S.W.3d at 276. However, even without reasonable suspicion or probable cause that an offense has been committed, a police officer may reasonably seize 6 an individual through the exercise of his community caretaking function. Corbin, 85 S.W.3d at 276; Wright v. State, 7 S.W.3d 148, 151-52 (Tex.Crim.App. 1999). For a seizure to be justified by the community caretaking function, it must have been primarily motivated by the need to assist and the officer’s belief that the need exists must have been reasonable. See Corbin, 85 S.W.3d at 277. As part of a police officer’s duty to “serve and protect,” an officer “may stop and assist an individual whom a reasonable person, given the totality of the circumstances, would believe is in need of help.” Wright, 7 S.W.3d at 151. However, the community caretaking function is “totally divorced” from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Corbin, 85 S.W.3d at 276-77. Thus, for the exercise of the community caretaking function to justify a seizure, its primary purpose must be for the welfare of the individual in need of assistance. Id. at 277. If it is determined that a seizure was primarily motivated to fulfill the community caretaking function, it must then be determined whether the officer’s belief that the person needed help was reasonable. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151-52. In evaluating the reasonableness of the officer’s belief that help was needed, courts may look to four non-exclusive factors (hereafter, “the Wright factors”): (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others. Id. In reviewing these factors, the nature and level of distress exhibited is entitled to the greatest weight. Corbin, 85 S.W.3d at 277. 7 In the present case, it is undisputed that Carrillo lacked reasonable suspicion or probable cause to stop appellant’s vehicle. Carrillo provided no testimony that he was aware of or suspected that appellant was involved in the commission of a crime at the time Carrillo stopped his vehicle. Further, Carrillo specifically testified that he did not observe appellant violate any traffic laws prior to the stop. Therefore, appellant contends that the initial stop was illegal and that any evidence discovered as a result of the stop was tainted by the illegality of the stop and the trial court erred in allowing this evidence over appellant’s objection. The State, however, contends that the stop of appellant’s vehicle was legal because the stop was effectuated in furtherance of the officer’s community caretaking function.2 The record reflects that C.W.’s mother contacted the police when C.W. failed to return home from the football game at the expected time. Carrillo testified that his “biggest concern” in stopping appellant’s vehicle was “[t]he child’s safety being that she was a juvenile and he was in his 30's (sic).” However, Carrillo further testified that he was aware that appellant did not have a valid driver’s license, based on prior encounters with appellant. Therefore, we conclude that this testimony raised a fact question as to the primary motivation for the stop. This fact issue was impliedly resolved by the trial court in favor of the valid exercise of the community caretaking function. In reviewing a trial court’s ruling on a motion to suppress, we may not sit as a second trier of fact determining the 2 In analysis of the trial court’s ruling on the Motion to Suppress, we will assume, without deciding, that the community caretaking function justifies a seizure of an individual other than the individual believed to be in need of assistance. But see Wright, 7 S.W.3d at 151-52 (may stop and assist the individual exhibiting distress and believed to be in need of assistance). 8 credibility and demeanor of witnesses. See State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App. 2000). Thus, we must accept the trial court’s implied determination that Carrillo effectuated the stop of appellant based on a primary motivation to fulfill his community caretaking function.3 For a seizure to be justified as an exercise of the community caretaking function, an officer’s subjective belief that the seizure is necessary to render assistance to a person in need must be shown to have been objectively reasonable. Id. In assessing the reasonableness of the officer’s belief, we look to the four Wright factors. The first, and most important, Wright factor is the nature and level of the distress exhibited by the individual. Id. In the present case, Rose testified that she was “concerned” about her daughter not returning home from the football game at the designated time and in the designated manner. Rose also testified that she told the police that she did not want her daughter in a car with appellant, but she provided no further elaboration as to why she did not want her daughter with appellant. The only evidence of the nature and level of C.W.’s distress at the time that appellant was stopped was that C.W. was no more than one and a half hours late and that, for some unstated reason, 3 While Carrillo specifically testified that he did not stop appellant’s vehicle based on his knowledge that appellant did not have a driver’s license, we agree with appellant that, at trial, this testimony was sufficient to raise a fact question as to the true motivation for the stop. Therefore, we agree with appellant’s third issue that the trial court erred in failing to submit an instruction in the jury charge in accordance with article 38.23. See Murphy v. State, 640 S.W.2d 297, 299 (Tex.Crim.App. 1982) (jury instruction required when evidence raises a fact question regarding the legality of the search or seizure). However, because we conclude that the trial court erred in denying appellant’s Motion to Suppress, the trial court’s erroneous failure to instruct the jury in accordance with article 38.23 is rendered moot. 9 Rose did not want C.W. in a vehicle with appellant. We conclude that this evidence is insufficient to establish that C.W. exhibited a nature and level of distress sufficient to independently justify the stop of appellant as an objectively reasonable exercise of the community caretaking function. However, while the first Wright factor is entitled to the greatest weight, it is not always dispositive. Id. The three remaining factors help to give more definition to the first factor and may reveal that a particular level of distress is more or less serious depending on the presence or absence of these factors. Id. In looking at the second factor, the location of the individual, the record reflects that appellant was stopped a couple of houses before he reached C.W.’s home and that Carrillo was aware of the proximity of the stop to C.W.’s home as a result of his having recently spoken with Rose at the house. The proximity of the stop to C.W.’s home and the reasonable inference that appellant was in the process of taking C.W. home mitigates against C.W. being in sufficient distress to justify the stop. The third factor asks whether the individual in distress was alone and/or had access to assistance other than that offered by the officer. As to the initial stop, Carrillo testified that he could not identify any individuals in appellant’s vehicle nor could he identify the number of individuals in the vehicle. Therefore, this factor could not support the initial stop. Finally, the fourth factor, the extent to which the individual, if not assisted, posed a danger to himself or others, weighs against the stop. The record provides no evidence of how C.W. was placed in danger by getting a ride home from appellant. To the extent that the fourth factor is to be applied to appellant, there is no evidence that appellant was driving erratically or in a manner that would pose a danger to himself or to others on 10 the roadways. Also, there was no evidence that appellant posed a threat to C.W, rather, the only evidence was that Rose did not want C.W. with appellant. Considering the Wright factors in light of the totality of the circumstances, we conclude that the evidence failed to establish that the stop of appellant’s vehicle was an objectively reasonable exercise of the community caretaking function. As the State does not dispute that the stop was not supported by probable cause or reasonable suspicion and because we conclude that the stop was not shown to have been a valid exercise of the community caretaking function, we conclude that the stop was illegal and, therefore, the cocaine which was subsequently found was the fruit of the illegal stop. See Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App. 1987). Therefore, we conclude that the trial court erred in denying appellant’s Motion to Suppress this evidence. Harm Having found error in the denial of appellant’s Motion to Suppress, we must also conduct a harm analysis to determine whether the error calls for reversal of the judgment. TEX . R. APP. P. 44.2. The harm analysis for the erroneous admission of evidence obtained in violation of the Fourth Amendment is Rule 44.2(a)'s constitutional standard. Hernandez v. State, 60 S.W.3d 106, 108 (Tex.Crim.App. 2001). Accordingly, we must reverse the trial court's judgment, unless we determine beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. TEX . R. APP. P. 44.2(a). The question is whether the trial court's denial of Appellant's Motion to Suppress and its admission of the evidence were harmless beyond a reasonable doubt. See Williams v. State, 958 S.W.2d 11 186, 194 (Tex.Crim.App. 1997). In applying the "harmless error" test, we ask whether there is a "reasonable possibility" that the error might have contributed to the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999). In the present case, the evidence obtained as a result of the illegal stop formed the basis of appellant’s conviction. After carefully reviewing the record and performing the required harm analysis under Texas Rule of Appellate Procedure 44.2(a), we are unable to determine beyond a reasonable doubt that the erroneous admission of the cocaine did not contribute to appellant’s conviction. Therefore, because the trial court’s error in denying appellant’s Motion to Suppress was harmful to appellant, we will reverse the judgment. Legal Sufficiency By his fourth issue, appellant contends that the evidence was legally insufficient to support his conviction. Appellant’s argument concerning the sufficiency of the evidence is that there were insufficient links to establish that appellant possessed the narcotics if C.W.’s testimony had been properly excluded as insufficiently corroborated accomplice testimony. However, even were we to determine that C.W. was an accomplice and her testimony was not sufficiently corroborated, an issue we need not address in this opinion due to our resolution of appellant’s challenge of the trial court’s denial of his Motion to Suppress, see TEX . R. APP. P. 47.1, we would have to consider her testimony in 12 determining whether the evidence was legally sufficient. See Green v. State, 893 S.W.2d 536, 540 (Tex.Crim.App. 1995) (when sufficiency of evidence is challenged following a jury trial, appellate courts consider all of the evidence, whether properly or improperly admitted). While not expressly challenged by his legal sufficiency issue, we must also consider the cocaine that we have previously concluded was improperly admitted in assessing the legal sufficiency of the evidence. See id. Considering all of the evidence, whether properly or improperly admitted, in the light most favorable to the verdict, we conclude that the evidence was sufficient to establish that appellant intentionally and knowingly possessed a controlled substance, cocaine, in an amount of four grams or more, but less than 200 grams. We overrule appellant’s legal sufficiency challenge. Conclusion Having determined that the trial court committed reversible error in denying appellant’s Motion to Suppress, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. Mackey K. Hancock Justice Publish. Pirtle, J., concurring. 13	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/876345/	No. 13053 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1975 MONTANA DEPARTMENT O BUSINESS REGUTATION, F MILK CONTROL DIVISION, on behalf of t h e STATE O MONTANA, e t a l . , F P l a i n t i f f s and A p p e l l a n t s , -vs - HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation, e t a l . , Defendant and Respondent. - - - - - - - - - - - - - - I - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M N A A DEPARTMENT OF BUSINESS REGULATION, OTN MILK CONTROL DIVISION, R e l a t o r and P l a i n t i f f , 'VS - BEST DAIRY FARMS, a Montana Corporation, Respondent and Defendant. Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t , Honorable ~ a c k Shanstrom, Judge p r e s i d i n g . D. Counsel of Record: For Appellants : James H. ElcFarland argued, Helena, Montana Geoffrey B r a z i e r argued, Helena, Montana For Respondents: Drysdale, McTJean 6 S c u l l y , Bozeman, Montana James J. S c r e n a r argued, Bozeman, Montana Submitted: December 10, 1975 Filed : Mr. J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court. This i s an a p p e a l from a summary judgment e n t e r e d by t h e d i s t r i c t c o u r t i n G a l l a t i n County, t h e Honorable J a c k D. Shanstrom p r e s i d i n g . The summary judgment was f o r d e f e n d a n t s i n two c o n s o l i d a t e d c a s e s . P l a i n t i f f i s t h e Montana Department of Business Regula- t i o n , Milk C o n t r o l D i v i s i o n . Defendants a r e Best Dairy Farms, a c o r p o r a t i o n , l i c e n s e d and bonded a s a d i s t r i b u t o r under t h e Montana Milk C o n t r o l Act, and i t s s u r e t i e s under t h e s t a t u t o r y milk d i s t r i b u t o r ' s bond. P l a i n t i f f and c e r t a i n named milk producers f i l e d s u i t a g a i n s t H a r t f o r d Accident and Indemnity Company and ire man's Fund under s e c t i o n 27-426,, R.C.M. 1947, t o e n f o r c e payment t o milk producers supplying Best Dairy Farms f o r t h e i r p r o d u c t . Subsequently p l a i n t i f f f i l e d s u i t a g a i n s t Best Dairy Farms and t h e c a s e s were c o n s o l i d a t e d f o r t r i a l . T r i a l was had w i t h o u t a j u r y and summary judgment was g r a n t e d t o d e f e n d a n t s and t h e c a s e d i s - missed on i t s m e r i t s . During a p e r i o d between September 1969 and A p r i l 1970, an a u d i t of t h e monthly r e p o r t s and s u p p o r t i n g p l a n t r e c o r d s of Best Dairy Farms was made by a u d i t o r s of t h e Eoard of Milk C o n t r o l . The r e s u l t s of t h i s a u d i t i n d i c a t e d t h a t t h e sum of $14,686.40 had been s y s t e m a t i c a l l y deducted from t h e payments t o 24 producers of Best Dairy Farms, and shown a s "miscellaneous d a i r y charges". The d e d u c t i o n s were based on $0.03 p e r hundredweight (from $3.00 p e r hundredweight) on all milk s o l d by t h e producers t o Best Dairy Farms. The "miscellaneous d a i r y charges" were i n f a c t an amount agreed t o by t h e producers t o r e n t a machine f o r packaging milk i n one g a l l o n c o n t a i n e r s i n o r d e r t o meet c o m p e t i t i o n and s o t h a t t h e producers would c o n t i n u e t o r e c e i v e II a b e t t e r p r i c e f o r package milk r a t h e r than cheese milk" which had a lower p r i c e . The packaging machine was l e a s e d f o r $245 per month and t h e producers o r a l l y agreed t o pay t h e l e a s e p r i c e by a d e d u c t i o n of t h e $0.03 p e r hundredweight. T h i s maneuver, a s o r t of c o o p e r a t i v e v e n t u r e by t h e d i s t r i b u t o r and i t s producers by o r a l agreement, was r e p o r t e d a s "miscellaneous d a i r y charges". I t i s t h i s deduction t h a t t h e Board determined was a d i l u t i o n of minimum p r i c e paid t o t h e producers and t h u s a v i o l a t i o n . Those d e d u c t i o n were made from May 1965 t o t h e completion of t h e a u d i t . Following a d m i n i s t r a t i v e d e t e r m i n a t i o n s , t h e d i s t r i b u t o r was o r d e r e d t o r e p a y t h e t o t a l amount of $14,686.40 t o t h e 24 producers. Best Dairy Farms met w i t h t h e producers and s u b s e q u e n t l y i s s u e d checks t o each. Only one producer o u t of t h e 24 a c c e p t e d h i s refund. The o t h e r s e i t h e r cashed t h e check and w r o t e o u t t h e i r p e r s o n a l check back t o Best Dairy Farms o r simply d i d n o t p i c k up t h e i r checks. They each f e l t morally o b l i g a t e d t o a b i d e by t h e i r o r i g i n a l agreement t o r e n t t h e packaging machine and t - d i d n o t o r a r e n o t now c l a i m i n g - a y--h i n g a g a i n s t Rest Dairy Farms o r i t s bonding companies. With t h i s remarkable s t a t e of a f f a i r s , t h e Board has pursued t h e m a t t e r a l l t h e way t o t h i s Court c l a i m i n g t h a t t h e "miscellaneous d a i r y charges" "JC JC ? ; was n o t h i n g more than an a r t f u l l y c o n t r i v e d s u b t e r f u g e whereby t h e primary means of If a c h i e v i n g t h e purpose of t h e Act were e f f e c t i v e l y circumvented. To add more t o t h e puzzle of why t h e c a s e i s h e r e , B e s t Dairy Farms s o l d o u t and i s no l o n g e r i n b u s i n e s s . The ~ o a r d ' s b r i e f on a p p e a l s t a t e s t h a t "The end r e s u l t was t h a t funds t o which some producers were e n t i t l e d under t h e Act r e p o s e among t h e a s s e t s and r e s o u r c e s of t h e d i s t r i b u t o r and have inured t o i t s b e n e f i t , a r e s u l t which none of i t s c o m p e t i t o r s i s known t o 11 enjoy. The Board u r g e s two i s s u e s on +peal, one o f which i s controlling. That i s s u e i s whether t h e d i s t r i c t c o u r t e r r e d i n g r a n t i n g summary judgment and d i s m i s s i n g t h e c a s e on i t s m e r i t s . The d i s t r i c t c o u r t i n e f f e c t found t h a t t h e r e i s no j u s t i c i a b l e i s s u e presented, N producer, a l l e g e d t o have been o s h o r t e d , has f i l e d any claim---although r e q u e s t e d t o do so a s s e c t i o n 27-426, R.C.M. 1947, provides. The s u r e t i e s a r e c l e a r l y exonerated a s provided i n s e c t i o n 30-406, R.C.M. 1947, by performance by Best Dairy Farms i n complying w i t h t h e refund order. To f i n d any j u s t i c i a b l e i s s u e i s l i k e g r a s p i n g s p a g h e t t i . The end r e s u l t i s t h e same--the d i s t r i b u t o r paid---the producers, except one---paid baclc. N one owes anyone anything. o The Board urges "public p o l i c y " a s r e q u i r i n g i t t o pursue the matter. The law does n o t r e q u i r e i d l e a c t s , s e c t i o n 49-124, R.C.M. 1947. Nor does i t r e q u i r e i m p o s s i b i l i t i e s , s e c t i o n 49-123, R.C.M. 1947. I t does d i s r e g a r d t r i f l e s , s e c t i o n 49-125, R.C.M. 1947. The purpose of t h e Milk Control Act of providing a con- t i n u o u s source of pure, wholesome milk i n t h e p u b l i c i n t e r e s t ( T i t l e 27, Chapter 4 , Revised Codes of Montana, 1947) and t o e l i m i n a t e u n f a i r and demoralizing t r a d e p r a c t i c e s i n t h e milk i n d u s t r y has been accomplished. Nothing remains. Finding no e r r o r , t h e judgment i s a f f i r m e d . 'add Justices.	01-03-2023	06-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1039501/	NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 12-4018 _____________ PIONEER AGGREGATES, INC.; THE FAMOUS BRANDS, INC., dba Simpson Solutions, Appellants v. THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; JOHN HANGER, in his individual and official capacity; KEITH BRADY, in his individual and official capacity; THOMAS CALLAHAN, in his individual and official capacity; NATHAN HOUTZ, in his individual and official capacity; MICHAEL MENGHINI, in his individual and official capacity; MICHAEL KUTNEY, in his individual and official capacity ____________ On Appeal from the United States District Court for the Middle District of Pennsylvania (No. 3-11-cv-00325) District Judge: Hon. Robert D. Mariani Submitted Pursuant to Third Circuit LAR 34.1(a) June 27, 2013 Before: FUENTES, FISHER, and CHAGARES, Circuit Judges. (Filed: August 30, 2013) ____________ OPINION ____________ CHAGARES, Circuit Judge. Pioneer Aggregates, Inc. (“Pioneer”) and Simpson Solutions (“Simpson”) filed a lawsuit against the Pennsylvania Department of Environmental Protection (“PADEP”) and individual defendants (collectively, the “defendants”) for the alleged violation of various constitutional rights that Pioneer and Simpson claim to have suffered when the defendants denied their request to use out-of-state clean-fill material to reclaim Pioneer’s active mines in Pennsylvania. For the reasons articulated below, we will affirm. I. Pioneer is a mining company that owns and operates a non-coal quarry in Laflin, Pennsylvania (the “Laflin Quarry”). Pioneer joined with Simpson, a New Jersey company, to reclaim Pioneer’s Laflin Quarry by disposing of clean fill there. Fill is “clean” if it is composed of materials designated permissible and falls at or below specified contaminant levels. Pioneer and Simpson’s deal involved identifying, securing, and transporting fill to Pioneer’s Pennsylvania mines for disposal. In order to use the fill to reclaim the Laflin Quarry, Pioneer requested that the defendants revise Pioneer’s mining permit to allow for the use of clean fill for reclamation. The Bureau of District Mining Operations (the “Mining Bureau”), a division of the office of Active and Abandoned Mine Operations, granted the revised permit on the condition that Pioneer satisfy existing clean-fill guidelines. Pioneer and Simpson (collectively, the “plaintiffs”) claim that the Bureau of Waste Management (the “Waste Bureau”) “directs and administers the statewide waste programs,” promulgating the Solid Waste Management Act (the “Waste Act”) and 2 regulations relating to disposal of fill. Pioneer Br. 12. The plaintiffs argue before this Court, as they alleged in their Complaint, that it is the Waste Bureau that “has authority to control the properties of fill material and its use” under the Waste Act. Appendix (“App.”) 21. However, the plaintiffs contend, the Mining Bureau “circumvented [its] lack of authority by drafting and imposing [its] own clean fill standard for active mine reclamation.” Pioneer Br. 11.1 This standard (the “Mining Standard”) bears some similarity to the standard promulgated by the Waste Bureau (the “Waste Standard”) but, the plaintiffs claim, the Mining Standard’s requirements are more stringent. Specifically, under the Mining Standard, incidental mine reclamation clean fill, which is 750 tons of clean fill a year or less, “may not originate from an out-of-state source because of PADEP’s limited ability to inspect and evaluate out-of-state source areas.” App. 18. Furthermore, the plaintiffs allege that the defendants “stated unequivocally that they were not going to inspect fill material outside of Pennsylvania due to significant staffing shortages,” and that they could not approve any projects for which the fill material had not been inspected. Id. 34. Therefore, the plaintiffs argue, “Defendants acknowledged a policy of arbitrarily rejecting out-of-state fill.” Pioneer Br. 16. In September 2008, Pioneer applied to use clean fill from a construction project in New York to reclaim the Laflin Quarry. The plaintiffs identified the construction of a 1 The plaintiffs elsewhere explain that the Waste Bureau has jurisdiction over inactive mines and applies the Waste Standard. Pioneer Br. 12. By contrast, “[t]he Mining Bureau administers the regulatory programs for all mining activities and has jurisdiction over reclamation activities in active and abandoned mines.” Id. 11. Although Pioneer does not so specify, we assume based on the other facts alleged that Pioneer’s Laflin Quarry is active. 3 new Willis Avenue Bridge, which connects the New York City boroughs of Manhattan and the Bronx, as the source of 4,500 tons of clean fill they wished to place above the water table at Laflin Quarry. The plaintiffs allege that they extensively tested the fill at the Willis Avenue Bridge project (the “WABP”) and determined that it was clean under the Waste Standard. However, on November 26, 2008, the plaintiffs received a deficiency letter from the PADEP explaining that the Mining Bureau had developed its own draft standard — the Mining Standard — with which the plaintiffs had failed to comply. The plaintiffs claim that they were completely unaware of the existence of the Mining Standard because it was never adopted or distributed by the PADEP, but they nevertheless responded to the PADEP letter by addressing the identified deficiencies with the WABP fill. Still, on February 27, 2009, the PADEP denied Pioneer’s Source Approval Request because the proposed WABP fill “does not meet the definition of clean fill,” as “[s]oil and groundwater at the source site are extensively contaminated with metals and petroleum hydrocarbons,” such that “[i]t cannot be proven or determined with any real certainty that the material to be placed on the mining permit is uncontaminated.” App. 52. The letter went on to inform Pioneer of its right to appeal that determination to the Environmental Hearing Board (the “EHB”). Pioneer initiated the appeals process with the EHB but moved to discontinue the appeal when it learned that its challenge was moot because the WABP fill had already been moved. Specifically, Pioneer alleges that 110,000 tons of the same WABP fill was permitted to be deposited in a different Pennsylvania mine in Coplay, Pennsylvania. The 4 Coplay Quarry is seventy miles from the Laflin Quarry, and has parts that are both inactive and active. Coplay’s request to reclaim the inactive part of the Coplay Quarry with fill from the WABP was governed by the Waste Bureau. The Waste Bureau found that the WABP fill met its standards for “clean fill,” and approved Coplay’s request. The plaintiffs allege that, because the Waste Standard and Mining Standard employ the same requirement for clean fill located above the groundwater table, and because the Coplay Quarry and the Laflin Quarry are both above the groundwater table, the same standard for clean fill was applied to the WABP in considering Pioneer’s request as was applied to Coplay’s request — but with the opposite result. The plaintiffs’ constitutional claims arise from the denial of their request to reclaim the Laflin Quarry using the WABP fill, particularly in light of the allegedly disparate treatment afforded Coplay. Realizing that Coplay had capitalized on the WABP opportunity, the plaintiffs submitted applications for disposal of clean fill from other out-of-state sources at Laflin Quarry, but they contend that the PADEP never responded. Accordingly, Pioneer abandoned its plans to reclaim the Laflin Quarry through disposal of fill, and instead reclaimed its mines by a costlier process — the sloping method. The plaintiffs raised constitutional claims under the Commerce Clause, Equal Protection Clause, and Due Process Clause through their suit under 42 U.S.C. § 1983. The District Court held that the PADEP, a state agency, is immune from suit for damages pursuant to the Eleventh Amendment and has not waived its sovereign immunity. Moreover, the District Court ruled, the individually named PADEP defendants sued in their official capacities (John Hanger, Keith Brady, Thomas Callahan, Nathan Houtz, 5 Michael Menghini, and Michael Kutney), are also immune from suit for damages pursuant to the Eleventh Amendment,2 and defendant John Hanger was dismissed because he was impermissibly sued under § 1983 on a theory of respondeat superior. The plaintiffs have not challenged these rulings. The District Court dismissed the rest of the plaintiffs’ constitutional claims because it held that the agency defendants in their individual (non-official) capacities are entitled to qualified immunity because the plaintiffs’ complaint asserted no violation of a clearly established right (or any right). On dismissing these claims, the District Court declined to exercise supplemental jurisdiction over the plaintiffs’ remaining state-law claim. The plaintiffs timely appealed. II. The District Court had jurisdiction over this matter under 28 U.S.C. § 1331 and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of the defendants’ motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). In so doing, “[w]e take as true all the factual allegations of the [complaint] and the reasonable inferences that can be drawn from them, . . . but we disregard legal conclusions and recitals of the elements of a cause of action, supported by mere conclusory statements.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) (quotation marks omitted). “[W]hen the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is 2 The District Court held that the defendants in their official capacities are not immune from suit for injunctive relief. 6 liable for the misconduct alleged,” the claim has “facial plausibility” and the complaint will survive a defendant’s motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, “[w]e review the district court’s grant of qualified immunity de novo as it raises a purely legal issue.” Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We review a district court’s denial of a motion for leave to amend the complaint for abuse of discretion. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). III. A. The plaintiffs allege that the defendants violated their rights under the Dormant Commerce Clause — that is, the “negative aspect” of the Commerce Clause that “limits the states’ power to regulate interstate commerce.” Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd. (“Cloverland I”), 298 F.3d 201, 210 (3d Cir. 2002); see also U.S. Const., art. I, § 8, cl. 3. Specifically, the plaintiffs argue that the defendants’ Mining Standard violates the Dormant Commerce Clause because it treats clean fill located out of state differently from in-state clean fill. The plaintiffs base this argument on the defendants’ denial of Pioneer’s application to use the WABP fill at the Laflin Quarry because, the plaintiffs allege, although the defendants “admitted the WABP fill was ‘clean,’ . . . they denied the Application . . . because they refuse to travel out-of-state to inspect fill sources, and they do not approve sources they cannot inspect.” Pioneer Br. 23. 7 The Dormant Commerce Clause is violated when a state “impos[es] restrictions that benefit in-state economic interests at out-of-state interests’ expense.” Cloverland I, 298 F.3d at 210. “The initial question in a dormant Commerce Clause case is whether the state regulation at issue discriminates against interstate commerce either on its face or in practical effect.” Id. (quotation marks omitted). “If so, heightened scrutiny applies.” Id. “[I]f not, then [the court] considers whether the law is invalid under the . . . balancing test” promulgated by the Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Cloverland-Green Spring Dairies, Inc. v. Pa. Milk Mktg. Bd. (“Cloverland II”), 462 F.3d 249, 261 (3d Cir. 2006). Given this framework, our analysis begins with the question of whether the state regulation at issue — the Mining Standard — discriminates in purpose or effect against interstate commerce. This Court has identified two situations wherein discrimination triggering heightened scrutiny will be found: (1) where the extraterritorial effects of a challenged regulation adversely affect economic production in other states; and (2) where the object of the challenged regulation is “local economic protectionism.” Id. at 261-62. In City of Philadelphia v. New Jersey, the Supreme Court deemed discriminatory a New Jersey law that prohibited the importation into New Jersey of waste generated outside of the state, holding that such a prohibition “imposes on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space.” 437 U.S. 617, 628 (1978). The Court held that even a state’s legitimate purpose for enacting a regulation “may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them 8 differently.” Id. at 626-27. “What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.” Id. at 628. This Court has acknowledged that, in the context of the Dormant Commerce Clause, “‘discrimination’ simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon, 538 F.3d 241, 248 (3d Cir. 2008) (quotation marks omitted). In the instant case, the plaintiffs allege in their Complaint that the “Defendants were not ‘comfortable’ approving . . . anything that they could not physically inspect,” and that the “Defendants stated unequivocally that they were not going to inspect fill material outside of Pennsylvania due to significant staffing shortages.” App. 34. Thus the plaintiffs have sufficiently alleged that the Mining Bureau’s source fill application process treats out-of-state fill differently from in-state fill because it does not afford out- of-state fill the chance to be approved. That is, they have properly alleged that the Mining Standard treats commerce from outside of Pennsylvania differently for no reason other than the commerce’s out-of-state origin. Once a plaintiff has demonstrated the existence of such discrimination, we apply the heightened scrutiny standard and “the burden then shifts to the state to prove that ‘the statute serves a legitimate local purpose, and that this purpose could not be served as well by available nondiscriminatory means.’” Cloverland II, 462 F.3d at 261 (quoting Maine v. Taylor, 477 U.S. 131, 138 (1986)). Because the defendants point to a legitimate local purpose — namely, the need to have the proposed fill inspected by PADEP officials, who 9 are located in Pennsylvania — we hold that the defendants have satisfied their burden in this case. B. The plaintiffs also allege that the defendants violated their rights pursuant to the Equal Protection Clause of the Fourteenth Amendment under three different theories: first, that the plaintiffs were treated differently from other active mine operators; second, that they, as active mine operators, were subject to a more burdensome standard for mine reclamation by fill than operators of inactive mines; and third, that the defendants inconsistently and arbitrarily applied their standards to treat Pioneer and Simpson differently from Coplay, though they are similarly situated. To state an equal protection claim under such a “class of one” theory, the plaintiffs must allege that they were “intentionally treated differently from others similarly situated by the defendant and that there was no rational basis for such treatment.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008). The District Court held that the plaintiffs failed to make out an equal protection claim because they did not sufficiently allege that Pioneer is similarly situated to any party treated differently. The District Court acknowledged that the plaintiffs claimed that Pioneer is similarly situated both to Coplay, which was permitted to reclaim the Coplay Quarry with WABP fill, and Glenn Hawbaker, Inc., whose reclamation was approved by the Moshannon District Mining Office on the condition that the clean fill used there comply with the less stringent Waste Standard, rather than the Mining Standard that Pioneer was required to follow. App. 20. As to the latter, we agree with the District Court that the plaintiffs’ Complaint failed to 10 allege sufficiently that Pioneer is similarly situated to Glenn Hawbaker, Inc., a fact that the plaintiffs acknowledge before this Court on appeal. See Pioneer Br. 45 (“Even if Plaintiffs were not specific or clear enough as to how Pioneer and Glenn Hawbaker are similarly situated, the above discussion demonstrates that they are . . . .”). We also hold that Pioneer has failed to establish that it is similarly situated to Coplay. The District Court lucidly explained that the PADEP recognizes a distinct statutory scheme for the regulation of active versus inactive mines. Moreover, the PADEP has “extensive discretion in enforcing state environmental protection laws,” and it is authorized by Pennsylvania statute “to regulate reclamation at active mine sites.” App. 345. Pioneer’s Laflin Quarry is at least partly an active mine, while the Coplay Quarry is an inactive mine. Accordingly, the District Court held that Pioneer and Coplay are not similarly situated. Even if they were, the District Court explained, a rational basis existed for the PADEP to distinguish between them since the defendants “gave Plaintiffs specific reasons as to why the clean fill at the WABP did not meet the regulatory requirements.” Id. We agree, and therefore will affirm the District Court’s denial of Pioneer’s challenge on equal protection grounds. C. We consider, finally, the District Court’s dismissal of the plaintiffs’ claim that the defendants violated their rights to substantive and procedural due process. We address each in turn. Pioneer and Simpson allege that the defendants violated their substantive due process rights under both of the “two very different threads” identified by this Court as 11 part of the “fabric of substantive due process . . . woven by our courts” — that is, substantive due process relating to legislative action and substantive due process relating to non-legislative or executive acts. Nicholas v. Pa. State Univ., 227 F.3d 133, 139 (3d Cir. 2000). The District Court held that the plaintiffs cannot make out a claim of violation of their substantive due process rights under the “legislative act” thread because one of the plaintiffs’ principal allegations is that the Mining Standard “has never been promulgated pursuant to Pennsylvania’s formal rulemaking or policymaking procedures.” App. 19. Accordingly, the District Court held, “the allegations in Plaintiffs’ Complaint admit that the Mining Clean Fill standard [the Mining Standard] is a non-legislative, executive action.” Id. 319. As the plaintiffs point out, however, we have located “the distinction between legislative acts and non-legislative or executive acts” in the fact that “executive acts, such as employment decisions, typically apply to . . . a limited number of persons, while legislative acts, generally laws and broad executive regulations, apply to large segments of society.” Nicholas, 227 F.3d at 139 n.1 (quotation marks and alterations omitted). The fact that Pioneer and Simpson challenge the Mining Bureau’s ability to promulgate its own standard does not mean that the standard’s application, which affects a large segment of society, fails to qualify as a legislative or regulatory act. Indeed, the Mining Standard is applied precisely for the purpose of regulating the way in which a mining company may reclaim its mine. We hold, nevertheless, that there is no substantive due process violation as to the legislative thread. “[A] legislative act will withstand substantive due process challenge if the government identifies a legitimate state interest that the legislature could rationally 12 conclude was served by the statute.” Id. at 139 (quotation marks omitted). In our view, the legitimate state interest supporting the Mining Standard is the PADEP’s interest in protecting the environment from contamination due to fill that is not “clean.” As for the other thread of our substantive due process inquiry, “[t]o prevail on a non-legislative substantive due process claim, a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment’s due process protection applies,” which requires a showing that the interest is of a “particular quality” that is “fundamental under the United States Constitution.” Id. at 139-40 (quotation marks omitted). Even if the state action complained of here were the kind of “intentional and unjustifiable” interference with “[t]he right to pursue a lawful business or occupation” that this Court has held to be a protected right, Small v. United States, 333 F.2d 702, 704 (3d Cir. 1964), nevertheless the conduct of the defendants is not “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience,” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 425 (3d Cir. 2006) (quotation marks omitted). This Court has acknowledged in the land-use context that setting a high standard for non-legislative substantive due process violations “prevents us from being cast in the role of a zoning board of appeals.” United Artists Theatre Cir., Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 402 (3d. Cir. 2003) (quotation marks omitted). Specifically, we acknowledged that matters of “local concern” such as land-use decisions “should not be transformed into substantive due process claims based only on allegations that government officials acted with ‘improper’ motives.” Id. Accordingly, we will affirm the District Court’s finding that because the plaintiffs have not sufficiently alleged 13 that the defendants violated their clearly established substantive due process rights, the defendants are entitled to qualified immunity on this claim. We further hold that Pioneer has not stated a claim for relief that the defendants violated its procedural due process rights. The plaintiffs allege that the defendants contravened the requirements of procedural due process by failing to give Pioneer notice and opportunity to be heard in advance of the significant deprivations of liberty and property that the defendants allegedly committed. “A procedural due process claim is subject to a two-stage inquiry: (1) whether the plaintiff has a property interest protected by procedural due process, and (2) what procedures constitute due process of law.” Schmidt v. Creedon, 639 F.3d 587, 595 (3d Cir. 2011) (quotation marks omitted). Although the Supreme Court “consistently has held that some form of hearing is required before an individual is finally deprived of a property interest,” nevertheless the Supreme Court has acknowledged that due process does not always “require[] an evidentiary hearing prior to the deprivation of some type of property interest.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). In order to identify “the specific dictates of due process” in a given context, courts must consider the following three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335. 14 The private interest affected by official action in the instant case is Pioneer’s ability to use its surface mining permit to reclaim the Laflin Quarry. However, despite this interest, we hold that the final factor of the Mathews test, the government’s interest, weighs against requiring a hearing in every case where an application for clean source fill like Pioneer’s was made. Furthermore, the availability of review of the Mining Bureau’s determination before the EHB satisfies the requirements of procedural due process. As the District Court correctly pointed out, we have held that “when a state affords a full judicial mechanism with which to challenge the administrative decision in question, the state provides adequate procedural due process.” DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 597 (3d Cir. 1995) (quotation marks omitted), abrogated on other grounds by United Artists, 316 F.3d at 392. Although Pioneer notes that it would not have been able to obtain damages pursuant to the procedures of the EHB, the Supreme Court has held that even where “state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under § 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process.” Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Therefore, we hold that Pioneer has not adequately made out its claim that the defendants violated its procedural due process claim. D. The plaintiffs also seek our review of the District Court’s denial of its motion for leave to amend the complaint. A district court does not abuse its discretion when 15 amendment of the complaint would be futile. In re Burlington Coat Factory, 114 F.3d at 1434. Because we hold that “pleading deficiencies would not have been remedied by proposed amendments” in this case, we will affirm the District Court’s denial of the plaintiffs’ motion for leave to amend the complaint.. Kanter v. Barella, 489 F.3d 170, 181 (3d Cir. 2007). IV. For the foregoing reasons, we will affirm the order of the District Court. 16	01-03-2023	08-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1039521/	Filed 8/30/13 P. v. Charter CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- THE PEOPLE, C073364 Plaintiff and Respondent, (Super. Ct. No. 13F01433) v. MICHAEL CHARTER, Defendant and Appellant. This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.) 1 BACKGROUND Because this matter was resolved by plea the facts are taken from the stated factual basis. Between February 28, 2013 and March 1, 2013, defendant willfully and unlawfully took the victim’s 1990 Honda Accord without the victim’s permission and with the intent to permanently deprive him of title and possession. A felony complaint charged defendant with vehicle theft (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)) and misdemeanor possession of burglary tools (Pen. Code, § 466). Defendant pleaded no contest to the auto theft charge and the remaining counts were dismissed. The trial court granted defendant probation for a period of five years conditioned on serving 270 days in county jail, with credit for time served of six days. The trial court ordered defendant to pay a $280 restitution fund fine (Pen. Code, § 1202.4), a $30 court facilities assessment (Gov. Code, § 70373), a $40 court security fee (Pen. Code, § 1465.8, subd. (a)(1)), and a $25 urinalysis testing fee. The trial court reserved jurisdiction on the issue of direct victim restitution. The trial court imposed and the defendant accepted additional terms and conditions of probation, as stated in the probation report. Defendant appeals. He did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.) We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and, pursuant to Wende, supra, 25 Cal.3d 436, requesting the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant. We have undertaken an examination of the entire record pursuant to Wende, and we find no arguable error that would result in a disposition more favorable to defendant. 2 DISPOSITION The judgment is affirmed. MURRAY , J. We concur: HULL , Acting P. J. MAURO , J. 3	01-03-2023	08-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1360645/	589 F.3d 1246 (2009) i4i LIMITED PARTNERSHIP and Infrastructures For Information Inc., Plaintiffs-Appellees, v. MICROSOFT CORPORATION, Defendant-Appellant. No. 2009-1504. United States Court of Appeals, Federal Circuit. December 22, 2009. 1254 Donald R. Dunner, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of Washington, DC, argued for plaintiffs-appellees. With him on the brief were Don O. Burley, Kara F. Stoll and Jason W. Melvin; and Erik R. Puknys, of Palo Alto, CA. Of counsel on the brief were Douglas A. Cawley and Jeffrey A. Carter, McKool Smith, P.C. of Dallas, TX, and T. Gordon White, of Austin, TX. Matthew D. Powers, Weil, Gotshal & Manges LLP, of Redwood Shores, CA, argued for defendant-appellant. With him on the brief were Kevin S. Kudlac and Amber H. Rovner, of Austin, TX. Of counsel on the brief were Matthew D. McGill, Minodora D. Vancea, Gibson, Dunn & Crutcher LLP, of Washington, DC; and Isabella E. Fu, Microsoft Corporation, of Redmond, Washington. Of counsel was David J. Lender, Weil, Gotshal & Manges LLP, of New York, NY. John W. Thornburgh, Fish & Richardson, P.C., of San Diego, CA, for amici curiae Dell Inc. and Hewlett-Packard Company. With him on the brief were John E. Gartman; and Indranil Mukerji, of Washington, DC. Richard A. Samp, Washington Legal Foundation, of Washington, DC, for amicus curiae Washington Legal Foundation, of Washington, DC. With him on the brief was Daniel J. Popeo. Before SCHALL, PROST, and MOORE, Circuit Judges. PROST, Circuit Judge. This is a patent infringement case about an invention for editing custom XML, a computer language. The owner of the patent, i4i Limited Partnership ("i4i"), brought suit against Microsoft Corporation ("Microsoft"), alleging that the custom XML editor in certain versions of Microsoft Word ("Word"), Microsoft's word-processing software, infringed i4i's patent. After a seven-day trial, the jury found Microsoft liable for willful infringement. The jury rejected Microsoft's argument that the patent was invalid, and awarded $200 million in damages to i4i. The district court denied Microsoft's motions for judgment as a matter of law and motions for a new trial, finding that Microsoft had waived its right to challenge, among other things, the validity of the patent based on all but one piece of prior art and the sufficiency of the evidence supporting the jury's damage award. Although statutorily authorized to triple the jury's damages award because of Microsoft's willful infringement, the district court awarded only $40 million in additional damages. It also granted i4i's motion for a permanent injunction. This injunction, which this court stayed pending the outcome of this appeal, is narrow. i4i Ltd. v. Microsoft Corp., 1255 No.XXXX-XXXX, ___ Fed.Appx. ___ (Fed. Cir. Sept. 3, 2009). It does not affect copies of Word sold or licensed before the injunction goes into effect. Thus, users who bought or licensed Word before the injunction becomes effective will still be able to use the infringing custom XML editor, and receive technical support from Microsoft. After its effective date, the injunction prohibits Microsoft from selling, offering to sell, importing, or using copies of Word with the infringing custom XML editor. Microsoft is also prohibited from instructing or assisting new customers in the custom XML editor's use. On appeal, Microsoft challenges the jury verdict and injunction on multiple grounds. Because this case went to trial and we are in large part reviewing what the jury found, our review is limited and deferential. We affirm the issuance of the permanent injunction, though we modify its effective date to accord with the evidence. In all other respects, we affirm for the reasons set forth below. BACKGROUND i4i began as a software consulting company in the late 1980s. Basically, companies would hire i4i to develop and maintain customized software for them. Thus, while consumers might not find i4i's products on the shelves at Best Buy or CompUSA, i4i was in the business of actively creating, marketing, and selling software. In June 1994, i4i applied for a patent concerning a method for processing and storing information about the structure of electronic documents. After approximately four years, the United States Patent and Trademark Office ("PTO") allowed the application, which issued as U.S. Patent No. 5,787,449 ("'449 patent"). The invention claimed in the '449 patent forms the basis of this litigation. Since then, i4i has developed several software products that practice the invention. One of these products is "add-on" software for Microsoft Word, which expands Word's capability to work with documents containing custom XML. XML is one of many markup languages. Markup languages tell the computer how text should be processed by inserting "tags" around text. Tags give the computer information about the text. For example, some tags might tell the computer how to display text, such as what words should appear in bold or italics. Tags can also tell the computer about the text's content, identifying it as a person's name or social security number, for instance. Each tag consists of a delimiter and tag name. The delimiter sets the tag apart from the content. Thus, a tag indicating that "717 Madison Pl. NW" is an address might appear as 717 Madison Pl. NW where "address" is the tag's name and "" are the delimiters. Custom XML allows users to create and define their own tags. i4i refers to tags and similar information about a document's structure as "metacodes." The specification of the '449 patent defines "metacode" as "an individual instruction which controls the interpretation of the content of the data." '449 patent col.4 ll.15-16. The '449 patent claims an improved method for editing documents containing markup languages like XML. The improvement stems from storing a document's content and metacodes separately. Id. at col.6 ll.18-21. The invention primarily achieves this separation by creating a "metacode map," a data structure that stores the metacodes and their locations within the document. The document's content is stored in a data structure called "mapped content." Claim 14 is illustrative: A method for producing a first map of metacodes and their addresses of use in 1256 association with mapped content and stored in distinct map storage means, the method comprising: providing the mapped content to mapped content storage means; providing a menu of metacodes; and compiling a map of the metacodes in the distinct storage means, by locating, detecting and addressing the metacodes; and providing the document as the content of the document and the metacode map of the document. Id. at col. 16 ll.18-30. Separate storage of a document's structure and content was an improvement over prior technology in several respects. Importantly, it has allowed users to work solely on a document's content or its structure. Id. at col.7 ll.6-11, 17-20. Since 2003, versions of Microsoft Word, a word processing and editing software, have had XML editing capabilities. In 2007, i4i filed this action against Microsoft, the developer and seller of Word. i4i alleged that Microsoft infringed claims 14, 18, and 20 of the '449 patent by making, using, selling, offering to sell, and/or importing Word products capable of processing or editing custom XML. i4i further alleged that Microsoft's infringement was willful. Microsoft counterclaimed, seeking a declaratory judgment that the '449 patent was invalid and unenforceable. Before the case was submitted to the jury, Microsoft moved for judgment as a matter of law ("JMOL") on the issues of infringement, willfulness, and validity. The district court denied Microsoft's motions, and the case was submitted to the jury. The jury found that Word infringed all asserted claims of the '449 patent. The jury further found that the patent was not invalid, and that Microsoft's infringement was willful. It awarded $200 million in damages. After trial, Microsoft renewed its motions for JMOL on infringement, validity, and willfulness. In the alternative, Microsoft moved for a new trial on these issues based on the sufficiency of the evidence supporting the jury's findings. Microsoft also argued it was entitled to a new trial based on errors in the claim construction, evidentiary rulings, and jury instructions. The district court denied Microsoft's motions. It granted i4i's motion for a permanent injunction and awarded $40 million in enhanced damages. Microsoft now appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION Microsoft raises numerous issues on appeal. First, Microsoft challenges the district court's construction of the claim term "distinct." Second, Microsoft challenges the jury's validity finding, urging us to find that the '449 patent was anticipated or obvious as a matter of law, or at least grant a new trial on those issues. Third, Microsoft argues that the jury's infringement finding must be set aside because it is unsupported by substantial evidence. Fourth, Microsoft challenges the damages award, specifically the admission of certain expert testimony and the sufficiency of the evidence supporting the award. Finally, Microsoft challenges the issuance and terms of the permanent injunction. We address each of these issues in turn. I. Standards of Review For issues not unique to patent law, we apply the law of the regional circuit in which this appeal would otherwise lie. Thus, we apply Fifth Circuit law when reviewing evidentiary rulings and denials of motions for JMOL or new trial. Finisar 1257 Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1328 (Fed.Cir.2008). We review denials of JMOL de novo. Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 179 (5th Cir. 2007). JMOL is appropriate only if the court finds that a "reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a)(1); see Cambridge Toxicology, 495 F.3d at 179. We review the denial of a new trial motion for abuse of discretion. Industrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 924 (5th Cir.2002). We will not reverse a denial absent a "clear showing" of an "absolute absence of evidence to support the jury's verdict." Duff v. Werner Enters., Inc., 489 F.3d 727, 729 (5th Cir.2007) (emphasis added). We review jury instructions for abuse of discretion, cognizant as we do so of the district court's broad discretion to compose jury instructions, so long as the instructions accurately describe the law. Baker v. Canadian Nat'l/Ill. Cent. R.R., 536 F.3d 357, 363-64 (5th Cir.2008); Walther v. Lone Star Gas Co., 952 F.2d 119, 125 (5th Cir.1992); see also Barton's Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1434 (5th Cir.1989). We will reverse a judgment "only if the [jury instructions] as a whole create[ ] a substantial doubt as to whether the jury has been properly guided in its deliberations." Baker, 536 F.3d at 363-64. Erroneous instructions are subject to harmless error review. We will not reverse if, considering the record as a whole, the erroneous instruction "could not have affected the outcome of the case." Wright v. Ford Motor Co., 508 F.3d 263, 268 (5th Cir.2007). II. Claim Construction On appeal, we must decide whether the district court properly construed the claim term "distinct." In the asserted claims, the term "distinct" is used to describe how the metacode map and the mapped content are stored. Specifically, the claims say the metacode map is stored in "distinct map storage means" or "distinct storage means." See, e.g., '449 Patent col.16 ll.20, 25-26, 53-54. Analogously, the document's content is stored in "mapped content storage," id. at col.16 ll.22-23, or "mapped content distinct storage means." Id. at col. 15 l.51 (emphasis added). Before the district court, Microsoft argued that "distinct" added two requirements: (1) storing the metacode map and mapped content in separate files, not just separate portions of the computer's memory; and (2) the ability to edit the document's content and its metacode map "independently and without access" to each other. The district court rejected both of Microsoft's proposed limitations. Based on its review of the claim language, the specification, and prosecution history, the district court concluded that "distinct" did not require storage in separate files. Similarly, it concluded that the user's ability to independently edit the document's structure or content was a benefit of separate storage, not a claim limitation. The district court then defined "distinct map storage means" in more general terms, as "a portion of memory for storing a metacode map." "Mapped content distinct storage means" was defined as "a portion of memory for storing mapped content." On appeal, Microsoft renews both arguments about the meaning of "distinct." We review the district court's claim construction de novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-55 (Fed.Cir.1998) (en banc). To ascertain the 1258 scope and meaning of the asserted claims, we look to the words of the claims themselves, the specification, and the prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1315-17 (Fed.Cir.2005) (en banc); see also 35 U.S.C. § 112 ¶ 2; Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115-16 (Fed.Cir.2004) (holding that the claims are not "presumed" to be restricted to the embodiments disclosed in the specification). We conclude that the district court properly rejected both of Microsoft's proposed limitations. A. Separate Files To determine whether "distinct" adds the requirement of storage in separate files, we begin with the claim language. See Phillips, 415 F.3d at 1312. In this case, the claim's plain language does not require storage of the metacode map and mapped content in separate files. The term "file" appears nowhere in the '449 patent. Instead, the claims use "storage means"; the specification uses "structures." '449 Patent col.16 ll.22-26, 53; see also id. at col.4 ll.7-13, 21-24. Both "storage means" and "structures" are broader terms than "file," suggesting no particular format. At trial, i4i's expert testified that a person of ordinary skill in the art would understand "structures" to store and organize data, but not as limited to a particular storage format. Indeed, the specification arguably renounces particular formats by defining "document" as a "non-random aggregation of data irrespective of its mode of storage or presentation." Id. at col.4 ll.57-59 (emphasis added). Turning to the specification, we similarly see no "clear intent[ ] to limit the claim scope" to storage in files. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.Cir. 2009). The sample algorithms do not say the storage means is restricted to "files." '449 Patent col.8 ll.53-62; see Innova/Pure Water, 381 F.3d at 1121-22. Instead, they use the more generic term "storage space," creating one for the mapped content and another for the metacode map. As for the prosecution history, we do not read it as limiting storage to files. During prosecution, i4i distinguished its invention from U.S. Patent No. 5,280,574 ("Mizuta") prior art in part because Mizuta stored "all document information ... in one file ... the document file." But this is not all i4i said. i4i then explained that Mizuta "lacked any notion of a metacode map" or "distinct storage means." In evaluating whether a patentee has disavowed claim scope, context matters. Together, these statements make clear that what distinguished the Mizuta prior art was not the storage type (file or no file), but rather the separation of a document's content and structure. The statements Microsoft now plucks from the prosecution history do not "clear[ly] and unmistakabl[y] disavow" storage means that are not files. Computer Docking Station Corp. v. Dell, Inc., 519 F.3d 1366, 1374 (Fed.Cir.2008) (citing Purdue Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123, 1136 (Fed.Cir.2006)). Because the claims themselves do not use the word "file" and the specification discloses embodiments where the storage format is not a file, we conclude that "distinct" does not require storage in separate files. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 907-08 (Fed.Cir.2004) (declining to limit the invention's scope to the disclosed embodiments when the specification did "not expressly or by clear implication reject the scope of the invention" to those embodiments); see also Boston Scientific Scimed, Inc. v. Cordis Corp., 554 F.3d 982, 987 (Fed.Cir.2009). B. Independent Manipulation The closer question is whether "distinct" requires independent manipulation 1259 of the metacode map and mapped content. Several of the embodiments in the '449 patent allow the user to manipulate only the metacode map or mapped content. '449 Patent figs.4, 5, 6, 8. However, based on our review of the claim language, the specification, and the prosecution history, we conclude that the claims are not limited to these particular embodiments. Generally, a claim is not limited to the embodiments described in the specification unless the patentee has demonstrated a "clear intention" to limit the claim's scope with "words or expressions of manifest exclusion or restriction." Liebel-Flarsheim, 358 F.3d at 906; see also Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed.Cir.2002). By the same token, not every benefit flowing from an invention is a claim limitation. See Computer Docking, 519 F.3d at 1374; Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1302-03 (Fed.Cir.2007). We begin again with the claim language. None of the claims mention "independent manipulation" of the mapped content and metacode map, an omission we find significant. Had the inventors intended this limitation, they could have drafted the claims to expressly include it. Similarly, the specification refers to "separate," rather than "independent," manipulation of the document's architecture and content. The specification goes on to describe the storage of the metacode map and content as "distinct and separate." "Distinct" and "separate" are not the same as "independent." Moreover, the specification teaches that "separate manipulation" describes the user's ability to work on only the metacode map or content. Behind the scenes, the invention keeps the metacode map and content synchronized. For example, Figure 9 teaches that updates to the content may require the invention to make corresponding changes to the metacode map. '449 Patent col. 14 l.49-col. 15 l.5. Microsoft is correct that the specification refers to working on "solely" the document's structure (metacode map): The present invention provides the ability to work solely on metacodes. The process allows changes to be made to the structure of a document without requiring the content. A metacode map could be edited directly without the mapped content. Additionally a new map can be created based solely on an existing map without requiring the content. Id. at col.7 ll.6-11 (emphases added). Read as a whole, however, these statements are best understood as describing the advantages of separate storage, the real claim limitation. See Abbott Labs., 566 F.3d at 1289-90. The specification's permissive language, "could be edited," "can be created," and "ability to work," does not clearly disclaim systems lacking these benefits. An examination of the prosecution history similarly reveals no statements that unequivocally narrow the claims to require independent manipulation. Initially, the examiner rejected several claims as obvious, explaining that "[s]torage is always distinct, even if at distinct addresses." In response, i4i stated: [T]he architecture of a document can be treated as a separate entity from the content of the document. Thus, the architecture of the document can be treated as an entity having distinct storage from the content of the document. This separation allows distinct processes to operate on the content and the architecture, with or without knowledge of the other. In other words, using the present invention, one could change the architecture, 1260 (layout, structure, or presentation formation) of a document without even having access to the actual content of the document. This is achieved by extracting the metacodes from an existing document and creating a map of the location of the metacodes in the document and then storing the map and the content of the document separately. The reason for the examiner's rejection helps us understand i4i's response. In context, i4i's response is best read as clarifying why the invention's "storage means" are more than just "distinct addresses." i4i's subsequent discussion of the benefits of separate storage is not sufficiently "clear and unmistakable" to disavow embodiments lacking independent manipulation. Purdue Pharma, 438 F.3d at 1136. In light of the specification's permissive language, the prosecution history, and the claim language, we conclude that "independent manipulation" is a benefit of separate storage, but not itself a limitation. III. Validity Microsoft also appeals two issues regarding the validity of i4i's patent. The first is whether the invention would have been obvious to one of skill in the art. The second is whether Microsoft is entitled to JMOL or a new trial on validity, due to anticipation by a software program called S4. At trial, Microsoft argued that the '449 patent was invalid based on several pieces of prior art. As relevant here, Microsoft argued that i4i's invention would have been obvious in light of U.S. Patent No. 5,587,902 ("Kugimiya"), when combined with either an SGML editor known as Rita or U.S. Patent No. 6,101,512 ("DeRose"). In the alternative, Microsoft argued that i4i's invention was anticipated under 35 U.S.C. § 102(b) by the sale of a software program, SEMI-S4 ("S4"), by i4i before the critical date. i4i disputed that it would have been obvious to combine Kugimiya with Rita or DeRose. i4i presented evidence that Kugimiya was in a different field (language translation) than Rita, DeRose, or the '449 patent, which address document editing. i4i also presented evidence of secondary considerations, including long-felt need, failure of others, and commercial success. As to anticipation, i4i also argued that S4 did not practice the '449 patent because it did not create a "metacode map." Before the case was submitted to the jury, Microsoft moved for JMOL on invalidity, arguing that i4i's sale of S4 violated the on-sale bar under § 102(b). Microsoft did not move for pre-verdict JMOL on obviousness or with regard to other prior art. The verdict form did not require the jury to make separate findings for the different pieces of prior art. Instead, the form asked: "Did Microsoft prove by clear and convincing evidence that any of the listed claims of the '449 patent are invalid?" The jury was instructed to answer "yes" if it found a particular claim invalid, but otherwise answer "no." The jury found all the asserted claims not invalid. A. Obviousness On appeal we must decide whether the '449 patent would have been obvious in light of some combination of Rita or DeRose with Kugimiya. The Rita prior art is a software program that allows users to create and edit documents using SGML, a markup language like XML. Rita stores the SGML tags and document's content in a "tree structure." This tree stores the tags and content together. DeRose discloses a system for generating, analyzing, and navigating electronic documents containing a markup language, such as XML or SGML. To assist 1261 navigation, DeRose and Rita use "pointers," which allow the user to move between different branches of the tree structure. Kugimiya discloses a system for translating documents from English to Japanese. As part of the translation process, Kugimiya finds, removes, and stores any XML tags in a separate file. The program then translates the document's content from English to Japanese, after which it puts the XML tags into the translated document. After the tags are replaced, the separate file containing the tags is discarded. Although obviousness is a question of law, it is based on factual underpinnings. As always, our review of the ultimate legal question, whether the claimed invention would have been obvious, is de novo. Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1108 (Fed. Cir.2003). The extent to which we may review the jury's implicit factual findings depends on whether a pre-verdict JMOL was filed on obviousness. Id.; see also Jurgens v. McKasy, 927 F.2d 1552, 1557-58 (Fed.Cir.1991). In this case, Microsoft has waived its right to challenge the factual findings underlying the jury's implicit obviousness verdict because it did not file a pre-verdict JMOL on obviousness for the Rita, DeRose and Kugimiya references. Fed.R.Civ.P. 50(a), (b). As we explained in Duro-Last, a party must file a pre-verdict JMOL motion on all theories, and with respect to all prior art references, that it wishes to challenge with a post-verdict JMOL. 321 F.3d at 1107-08. Microsoft's pre-verdict JMOL on anticipation, based on S4, was insufficient to preserve its right to post-verdict JMOL on a different theory (obviousness), or on different prior art (Rita, DeRose, Kugimiya). Duro-Last, 321 F.3d at 1107-08. Accordingly, we do not consider whether the evidence presented at trial was legally sufficient to support the jury's verdict. Our review is limited to determining whether the district court's legal conclusion of nonobviousness was correct, based on the presumed factual findings. Id. at 1108-09; Kinetic Concepts, Inc. v. Blue Sky Med. Group, Inc., 554 F.3d 1010, 1020-21 (Fed.Cir.2009). In conducting this review, we must presume the jury resolved underlying factual disputes in i4i's favor because the jury made no explicit factual findings. Duro-Last, 321 F.3d at 1108. This presumption applies to disputes about (1) the scope and content of the prior art; (2) differences between the prior art and asserted claims; (3) the existence of motivation to modify prior art references; and (4) the level of ordinary skill in the pertinent art. Id. at 1109; see also Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Kinetic Concepts, 554 F.3d at 1019. Microsoft's argument on appealthat it would have been obvious to combine DeRose or Rita with Kugimiyadepends heavily on (1) the scope of the prior art, and (2) whether a person of ordinary skill would have been motivated to combine the references' teachings. These are questions of fact. Kinetic Concepts, 554 F.3d at 1020-21. Similarly, Microsoft's argument that the prior art discloses all of the claim limitations boils down to questions of fact: whether the "tree structure" in Rita and DeRose is a "metacode map," and whether a "pointer" is an "address of use." See id.; Graham, 383 U.S. at 17, 86 S.Ct. 684. The jury found all of the asserted claims not invalid, meaning the jury must have believed that there were differences between the prior art and asserted claims, and that a person of ordinary skill would not have been motivated to combine the references. Cf. Kinetic Concepts, 554 F.3d at 1019-20; Duro-Last, 321 F.3d at 1108-09. 1262 Because we must view the evidence in the light most favorable to the verdict, all of these questions must be resolved against Microsoft, and in favor of i4i. Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 249, 252-53 (5th Cir.2005); see Jurgens, 927 F.2d at 1557-58. In light of the jury's implicit factual findings, Microsoft has not established that the asserted claims would have been obvious. B. Anticipation For anticipation, the question is whether the district court erred in denying Microsoft's motion for post-verdict JMOL on invalidity, or alternatively a new trial, based on the sale of S4 violating the on-sale bar. See 35 U.S.C. § 102(b). S4 was a software program developed for a client called SEMI by i4i's corporate predecessor. i4i's founder, Michel Vulpe, hired Stephen Owens to help develop S4, which they delivered to SEMI in early 1993. S4 allowed the user to add and edit SGML tags in electronic documents. For storage purposes, S4 divided the document into "entities." According to Vulpe and Owens, these entities were simply chunks of the SGML document, where the SGML tags were intermixed with the content. Both Vulpe and Owens testified that S4 did not create a "metacode map." At trial, Microsoft argued that the sale of S4 before the critical date violated the on-sale bar. To prove invalidity by the on-sale bar, a challenger must show by clear and convincing evidence that the claimed invention was "on sale in this country, more than one year prior to the date of the application for patent in the United States." Id.; Adenta GmbH v. OrthoArm, Inc., 501 F.3d 1364, 1371 (Fed. Cir.2007). It is uncontested that S4 was sold in the United States before the critical date. At trial, the dispute was whether S4 practiced the "metacode map" limitation of the '449 patent. Because the S4 source code was destroyed after the project with SEMI was completed (years before this litigation began), the dispute turned largely on the credibility of S4's creators, Vulpe and Owens, who are also the named inventors on the '449 patent. Both testified that the S4 software sold to SEMI did not practice the '449 patent, for which they claimed the key innovationthe metacode mapwas not even conceived until after the critical date. Both were extensively cross-examined. Vulpe was impeached with statements from a letter he had written to investors, as well as a funding application submitted to the Canadian government. On appeal, Microsoft argues that it was entitled to JMOL because it established a prima facie case of anticipation, which i4i could not rebut by relying on the inventors' testimony alone, absent corroboration. Alternatively, Microsoft contends the evidence was not sufficient to support the jury's verdict of validity. 1. Burden of Proof Microsoft's contention regarding a prima facie case and i4i's "rebuttal" misunderstands the nature of an anticipation claim under 35 U.S.C. § 102(b). Anticipation is an affirmative defense. See, e.g., Electro Med. Sys., S.A. v. Cooper Life Scis., Inc., 34 F.3d 1048, 1052 (Fed.Cir. 1994). We do not agree that i4i was required to come forward with corroboration to "rebut" Microsoft's prima facie case of anticipation. Corroboration is required in certain circumstances. See, e.g., Martek Biosciences Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1374-76 (Fed.Cir.2009) ("Because Lonza sought to introduce the testimony of an alleged prior inventor under § 102(g) for the purpose of invalidating a patent, Lonza was required to produce 1263 evidence corroborating Dr. Long's testimony."); Procter & Gamble Co. v. Teva Pharms. USA, Inc., 566 F.3d 989, 989-99 (Fed.Cir.2009) (requiring corroboration where patentee tried to prove that the conception date was earlier than the filing date of a potentially anticipatory patent); Henkel Corp. v. Procter & Gamble Co., 560 F.3d 1286 (Fed.Cir.2009) (interference); Symantec Corp. v. Computer Assocs. Int'l, Inc., 522 F.3d 1279, 1295-96 (Fed.Cir.2008) ("An alleged co-inventor's testimony, standing alone, cannot rise to the level of clear and convincing evidence; he must supply evidence to corroborate his testimony."). However, this is not a case where witness testimony was being used to overcome prior art by establishing an earlier date of invention. To support its argument that S4 practiced the '449 patent, Microsoft offered testimony by a former i4i employee and its expert. i4i responded with evidence, specifically testimony by S4's inventors, that S4 did not practice the claimed method. Though we require corroboration of "any witness whose testimony alone is asserted to invalidate a patent," Finnigan Corp. v. Int'l Trade Comm'n, 180 F.3d 1354, 1369-70 (Fed.Cir.1999) (emphasis added), here the inventor testimony was offered by i4i in response to Microsoft's attack on the validity of the '449 patent. It was not offered to meet Microsoft's burden of proving invalidity by clear and convincing evidence. Cf. TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151, 1159-60 (Fed.Cir.2004); Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1217 (Fed.Cir.2002); Finnigan, 180 F.3d at 1367. We know of no corroboration requirement for inventor testimony asserted to defend against a finding of invalidity by pointing to deficiencies in the prior art. Accordingly, we hold that corroboration was not required in this instance, where the testimony was offered in response to a claim of anticipation and pertained to whether the prior art practiced the claimed invention. 2. Sufficiency of the Evidence In contrast to obviousness, Microsoft did move for pre-verdict JMOL regarding anticipation based on S4. We nonetheless conclude that there was sufficient evidence for a reasonable jury to find that the '449 patent was not anticipated by the sale of S4. See Bellows v. Amoco Oil Co., 118 F.3d 268, 273 (5th Cir.1997). At trial, the jury heard conflicting testimony on whether S4 met the "metacode map" limitation. In evaluating the evidence, the jury was free to disbelieve Microsoft's expert, who relied on the S4 user manual, and credit i4i's expert, who opined that it was impossible to know whether the claim limitation was met without looking at S4's source code. Although the absence of the source code is not Microsoft's fault, the burden was still on Microsoft to show by clear and convincing evidence that S4 embodied all of the claim limitations. The jury's finding of validity was supported by the testimony of the inventors (Vulpe and Owens), as well as their faxes to an attorney regarding the patent application. 3. Jury Instructions Microsoft also challenges the jury instructions on its burden of proving anticipation. According to Microsoft, the burden of proof should have been less for prior art that was not before the PTO, as was the case for Rita and DeRose. We conclude that the jury instructions were correct in light of this court's precedent, which requires the challenger to prove invalidity by clear and convincing evidence. See, e.g., Zenith Elecs. Corp. v. PDI Commc'n Sys., Inc., 522 F.3d 1348, 1363-64 (Fed.Cir.2008). This court's decisions 1264 in Lucent Technologies, Inc. v. Gateway, Inc., 580 F.3d 1301, 1311-16 (Fed.Cir. 2009), and Technology Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir.2008), make clear that the Supreme Court's decision in KSR International Co. v. Teleflex Inc., 550 U.S. 398, 426, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007) did not change the burden of proving invalidity by clear and convincing evidence. Thus, based on our precedent, we cannot discern any error in the jury instructions. IV. Infringement Taking Microsoft's arguments with regard to infringement in turn, we first review the jury instructions on infringement. We then decide whether the verdict is supported by substantial evidence. A. Jury Instructions At trial, i4i presented three theories of liability: direct, contributory, and induced infringement. Over Microsoft's objection, the district court used a general verdict form, which did not require separate findings on the different theories. Instead, the form asked: "Did i4i prove by a preponderance of the evidence that Microsoft infringes Claims 14, 18, or 20 of the '449 patent?" The form then instructed the jury to answer "yes" or "no" for each claim. The jury answered "yes" for all asserted claims. On appeal, Microsoft argues that it is entitled to a new trial because of two alleged errors in the jury instructions regarding contributory infringement. First, Microsoft argues it was error to use the term "component" rather than "material or apparatus." In relevant part, the instructions provided: If you find someone has directly infringed the '449 patent, then contributory infringement exists if i4i establishes by a preponderance of evidence that: 1) Microsoft sold, offered for sale, or imported; 2) A material component for use in practicing the patented claim-or patented method that is not a staple article of commerce suitable for substantial non-infringing use; 3) With knowledge that the component was especially made or adapted for use in an infringing manner. The corresponding statutory section, 35 U.S.C. § 271(c), uses the words "material or apparatus," not "component," for patented processes. Although the district court's instructions differed from the statute, this is not a case where the difference mattered. See Baker, 536 F.3d at 363-64 (reversing a jury verdict "only if the charge as a whole creates a substantial doubt as to whether the jury has been properly guided in its deliberations"). The parties' infringement arguments did not turn on whether Word's custom XML editor was a "component," versus a "material or apparatus." Nor is there any reason to think the jury was aware of the difference, or would have viewed the difference as anything but semantics had it known, because both parties used the terms interchangeably at trial. Under these circumstances, we are satisfied that the instruction properly guided the jury in its deliberations. Microsoft also argues that the district court erred by instructing the jury to focus on the custom XML editor, rather than all of Word, when deciding whether any noninfringing uses were "substantial." Given the evidence presented at trial, the district court did not abuse its discretion. As we explained in Lucent, a particular tool within a larger software package may be the relevant "material or apparatus" when that tool is a separate and distinct feature. 580 F.3d at 1320-21. In Lucent, 1265 the infringement inquiry accordingly focused on the date-picker, even though that tool was included in Microsoft Outlook, a larger software package. Id. Although the software differs, our reasoning in Lucent applies equally here. At trial, i4i showed that some versions of Word 2003 included the custom XML editor, while others did not. Dr. Rhyne opined that this ability to "leave [the editor] out or put it in" various Word products showed that the editor was a separate and distinct feature. Thus, there was sufficient evidence before the jury for it to conclude that the relevant "material or apparatus" was the custom XML editor, not all of Word. Accordingly, the jury was properly instructed that it should focus on the editor, not all of Word. See Ricoh Co. v. Quanta Computer Inc., 550 F.3d 1325, 1337 (Fed.Cir.2008). B. Sufficiency of the Evidence Microsoft also challenges the sufficiency of evidence supporting the jury's general verdict of infringement. Infringement is a question of fact. Because infringement was tried to a jury, we review the verdict only for substantial evidence. ACCO Brands, Inc. v. ABA Locks Mfrs. Co., 501 F.3d 1307, 1311 (Fed.Cir. 2007). Before we consider the evidence, we pause briefly to address what errors are fatal to a general verdict. Different rules apply depending upon whether the flaw is in the legal theory or the evidence. We must set aside a general verdict if the jury was told it could rely on any of two or more independent legal theories, one of which was defective. Walther, 952 F.2d at 126; see Northpoint Tech., Ltd. v. MDS Am., Inc., 413 F.3d 1301, 1311-12 (Fed. Cir.2005). However, we will not set aside a general verdict "simply because the jury might have decided on a ground that was supported by insufficient evidence." Walther, 952 F.2d at 126 (emphasis added). We will uphold such a verdict if there was sufficient evidence to support any of the plaintiff's alternative factual theories; we assume the jury considered all the evidence and relied upon a factual theory for which the burden of proof was satisfied. See Northpoint Tech., 413 F.3d at 1311-12. In this case, Microsoft argues that the general verdict must be set aside unless both of i4i's alternative legal theories, contributory infringement and induced infringement, are supported by substantial evidence. We disagree: the verdict must be upheld if substantial evidence supports either legal theory. Microsoft's argument fails to distinguish between defects in legal theories and defects in the factual evidence. In this case, the jury was instructed that it could rely on any of three legal theories-direct, contributory, or induced infringement. All of these theories are legally valid and the corresponding instructions on each were proper. Because the jury could not have relied on a legally defective theory, the only remaining question is whether there was sufficient evidence to support either of i4i's independently sufficient legal theories, contributory infringement or induced infringement.[1] We conclude that there was. 1. Direct Infringement To succeed on a theory of contributory or induced infringement, i4i was 1266 required to show direct infringement of the '449 patent. Lucent, 580 F.3d at 1317; see also Glenayre Elecs., Inc. v. Jackson, 443 F.3d 851, 858 (Fed.Cir.2006). Because the claims asserted by i4i are method claims, Microsoft's sale of Word, without more, did not infringe the '449 patent. Lucent, 580 F.3d at 1317. Direct infringement occurs only when someone performs the claimed method. Id. Based on the evidence presented at trial, a reasonable jury could have found that at least one person performed the methods claimed in the '449 patent. This evidence included testimony by i4i's expert (Dr. Rhyne), a joint stipulation, and Microsoft's response to interrogatories. Rhyne opined that Word's custom XML editor met all of the limitations of the asserted claims because the editor separated a document into a "CP stream" of content and a separate data structure containing the metacodes and their addresses of use. Rhyne testified that this separate data structure met the "metacode map" limitation. Though Microsoft's expert offered conflicting evidence, opining that Word did not infringe the asserted claims, the jury was free to disbelieve Microsoft's expert and credit i4i's expert, who testified that the '449 patent was infringed if Word was used to open an XML document, edit an XML document, or save a document containing custom XML in an XML file format. The joint stipulation and Microsoft's interrogatory responses unequivocally state that Word was used in these ways. Cf. Fresenius USA, Inc. v. Baxter Int'l, Inc., 582 F.3d 1288, 1298-99 (Fed.Cir. 2009); Martek, 579 F.3d at 1371-72. 2. Contributory Infringement For contributory infringement, the question is whether there is substantial evidence to support a finding under this theory. A party is liable for contributory infringement if that party sells, or offers to sell, a material or apparatus for use in practicing a patented process. That "material or apparatus" must be a material part of the invention, have no substantial noninfringing uses, and be known (by the party) "to be especially made or especially adapted for use in an infringement of such patent." 35 U.S.C. § 271(c); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1312 (Fed.Cir.2005). Based on the evidence presented at trial, the jury could have reasonably concluded that the custom XML editor had no substantial, noninfringing uses and that Microsoft knew that the use of the custom XML editor would infringe i4i's patent. At trial, Rhyne agreed that the custom XML editor could be used in three noninfringing ways, but opined that none were "substantial." Rhyne explained that saving a document in the noninfringing, binary format deprived users of the very benefit XML was intended to provide: namely, allowing another program to search and read the document's metacode tags. Despite Microsoft's contention to the contrary, evidence that some users saved XML documents in these noninfringing formats does not render the jury's verdict unreasonable. Whether a use is "substantial," rather than just "unusual, far-fetched, illusory, impractical, occasional, aberrant, or experimental," cannot be evaluated in a vacuum. Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1327 (Fed.Cir.2009). In assessing whether an asserted noninfringing use was "substantial," the jury was allowed to consider not only the use's frequency, but also the use's practicality, the invention's intended purpose, and the intended market. See id. Here, the jury heard ample testimony that the noninfringing, binary file format was not a practical or worthwhile use for the 1267 XML community, for which the custom XML editor was designed and marketed. Further, the jury could have reasonably concluded that Microsoft knew that use of the editor would infringe the '449 patent, based on the circumstantial evidence presented at trial. Cf. Lucent, 580 F.3d at 1318, 1321-22; Fuji Photo Film Co. v. Jazz Photo Corp., 394 F.3d 1368, 1377-78 (Fed.Cir.2005). Here, the evidence showed that the Word development team heard a presentation by i4i about software practicing the '449 patent, asked how the software worked, and received marketing materials on the software. Internal Microsoft emails showed that other Microsoft employees received a marketing email from i4i containing the patent number, were "familiar" with i4i's products, and believed the Word's custom XML editor would render that product "obsolete." Based on this evidence, the jury could have reasonably concluded that Microsoft knew about the '449 patent and knew use of its custom XML editor would infringe. 3. Induced Infringement Though we need not reach this theory because substantial evidence supports i4i's theory of contributory infringement, we do so for the sake of completeness. On appeal, the sole question is whether there is substantial evidence to support a verdict of induced infringement. To prove inducement, the patentee must show direct infringement, and that the alleged infringer "knowingly induced infringement and possessed specific intent to encourage another's infringement." MEMC Elec. Materials, Inc. v. Mitsubishi Materials Silicon Corp., 420 F.3d 1369, 1378 (Fed.Cir.2005); see 35 U.S.C. § 271(b). Based on the evidence presented at trial, a reasonable jury could have concluded that Microsoft had the "affirmative intent to cause direct infringement." DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed.Cir.2006) (en banc in relevant part). The jury saw and heard about Microsoft's online training and user support resources, which provided detailed instructions on using Word's custom XML editor. i4i's expert opined that using the editor as directed by these materials would infringe the '449 patent. The instructional materials were thus substantial evidence that Microsoft intended the product to be used in an infringing manner. See DSU, 471 F.3d at 1303, 1305. Unlike the instructions in Vita-Mix, 581 F.3d at 1328-29, which taught a use the defendant "could have reasonably believed was non-infringing" and another use that was "non-infringing," here there was substantial evidence Microsoft knew its instructions would result in infringing use. As explained in our discussion of contributory infringement, Microsoft's internal emails are substantial evidence of Microsoft's knowledge, both of the '449 patent and the infringing nature of Word's custom XML editor. Regarding i4i's software that practiced the invention, one Microsoft employee remarked: "[W]e saw this tool some time ago and met its creators. Word [2003] will make it obsolete. It looks great for XP though." Evidence that consumers were using Word in an infringing manner included Microsoft data on usage of Word, as well as a Microsoft marketing document listing "real" examples of custom XML's use in Word. V. Damages Microsoft protests the $200 million damages award on several grounds. We begin by reviewing the propriety of various evidentiary rulings. We then decide whether the district court abused its discretion by denying Microsoft a new trial on damages. A. Evidentiary Rulings We review evidentiary rulings for abuse of discretion. Huss v. Gayden, 571 1268 F.3d 442, 452 (5th Cir.2009); see Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387-88 (5th Cir.2009). Microsoft challenges the admission of expert testimony on damages, as well as a survey relied on by the expert. We address each in turn. 1. Expert Testimony To determine whether expert testimony was properly admitted under Rule 702 of the Federal Rules of Evidence, we use the framework set out in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-90, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).[2]Daubert requires the district court ensure that any scientific testimony "is not only relevant, but reliable." Id. at 589, 113 S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). When the methodology is sound, and the evidence relied upon sufficiently related to the case at hand, disputes about the degree of relevance or accuracy (above this minimum threshold) may go to the testimony's weight, but not its admissibility. Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 351 (5th Cir. 2007); Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir.1998) (en banc). On appeal, Microsoft challenges the expert testimony by Dr. Wagner, i4i's damages expert. Wagner opined that a reasonable damages award would be $200 million dollars, based on a hypothetical negotiation between i4i and Microsoft at the time the infringement began. To come up with the $200 million figure, Wagner calculated a royalty rate ($98), then multiplied that rate by the number of Word products actually used in an infringing manner (2.1 million). At trial, the parties hotly disputed the correctness of the $98 royalty rate. Microsoft argued that this rate was exorbitant given the price of certain Word products, which could be as little as $97. As further evidence of its unreasonableness, Microsoft pointed out that the rate resulted in a total damages amount ($200 million) greatly exceeding the $1-$5 million Microsoft had paid to license other patents. In response, i4i had its expert (Wagner) give a detailed explanation for how he arrived at the $98 royalty rate. Wagner testified that he first chose an appropriate "benchmark" in order to value Microsoft's use of the claimed invention at the time of the hypothetical negotiation. Wagner chose a product called XMetaL as his benchmark, which had a retail price of $499. To calculate the licensing fee, Wagner multiplied the price of XMetaL ($499) by Microsoft's profit margin (76.6%), based on his assumption that any licensing fee would be a fraction of the profits. Wagner then applied the 25-percent rule to this number, which assumes the inventor will keep 25% of the profits from any infringing sales. This resulted in a baseline royalty rate of $96. Wagner testified that the 25-percent rule was "well-recognized" and "widely used" by people in his field. To support his royalty calculation, Wagner adjusted the baseline royalty rate of ($96) using the factors set out in Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F.Supp. 1116, 1120 (S.D.N.Y.1970).[3]1269 Based on the Georgia-Pacific factors, Wagner then increased the baseline from $96 to $98, which was the "reasonable royalty rate" he used in calculating the $200-$207 million damages estimate. Specifically, Wagner concluded that factors 3, 5, 6, 9, and 11 affected the baseline rate. Wagner opined that factor 3, which considers the license's terms, lowered the royalty rate because his hypothetical license did not give Microsoft know-how, additional cooperation or trade secrets, just non-exclusive use in the United States. However, Wagner opined that factors 5, 6, 9, and 11 increased the royalty rate. For factor 5, which looks at the commercial relationship between the licensor and licensee, Wagner found that Microsoft was a direct competitor of i4i, which meant any license would destroy a "very large segment" of i4i's market. For factor 6, which asks whether the patented technology promotes the sale of other products, Wagner concluded that the infringing custom XML editor was critical to Microsoft's sales generally, as evidenced by internal Microsoft statements that a custom XML editor was "one of the most important ways" for encouraging users to purchase new Word products. Examining factor 9, which examines the infringer's need for taking a license, Wagner opined that Microsoft had no commercially acceptable, non-infringing alternatives to using i4i's patent. This opinion was based on internal Microsoft documents describing Microsoft's interest in creating such a custom XML editor, and prolonged inability to do so. For factor 11, which looks at the use and value of the patented technology to Microsoft, Wagner concluded that the custom XML editor was a critical addition to Word. In support of this view, i4i presented statements by Microsoft employees that custom XML was not a "slight addition [but i]t's more like 90 percent of the value," was "where the future is, seriously," and "the glue that holds the Office ecosystem together." Based on all of these Georgia-Pacific factors, Wagner increased the baseline royalty rate by $2, for a total of $98. On appeal, Microsoft ably points out various weaknesses in the damage calculations by i4i's expert. At their heart, however, Microsoft's disagreements are with Wagner's conclusions, not his methodology. Daubert and Rule 702 are safeguards against unreliable or irrelevant opinions, not guarantees of correctness. We have consistently upheld experts' use of a hypothetical negotiation and Georgia-Pacific factors for estimating a reasonable royalty. See, e.g., Micro Chem., Inc. v. Lextron, Inc., 317 F.3d 1387, 1393 (Fed. Cir.2003); Interactive Pictures Corp. v. 1270 Infinite Pictures, Inc., 274 F.3d 1371, 1384 (Fed.Cir.2001). Wagner's testimony about the acceptance of the hypothetical negotiation model among damage experts and economists, combined with his methodical explication of how he applied the model to the relevant facts, satisfied Rule 702 and Daubert. See Daubert, 509 U.S. at 593, 113 S.Ct. 2786. Given Wagner's testimony about his credentials, the district court did not abuse its discretion in finding Wagner qualified to apply the methodology. See Pipitone v. Biomatrix, Inc., 288 F.3d 239, 249-50 (5th Cir.2002). Microsoft's quarrel with the facts Wagner used go to the weight, not admissibility, of his opinion. We further hold that Wagner's opinion was "based on sufficient facts or data." Fed.R.Evid. 702. At trial, Microsoft disputed which facts were relevant for determining a reasonable royalty rate. In particular, Microsoft focused on the benchmark (XMetaL), the resulting baseline royalty rate, and i4i's survey for estimating infringing use. Regarding the benchmark, Wagner explained that he chose XMetaL because it was the product Microsoft bought and used before developing its own custom XML editor, it was the cheapest of the custom XML editors available on the market at the time, and it was one of three principal competitors Microsoft identified in the custom XML market. Microsoft contended that a better estimate of the custom XML editor's value was $50, the difference in price between versions of Word with and without the editor. Microsoft also argued that because XMetaL has many additional features besides custom XML editing, the $499 retail price overestimated the value of the custom XML editor. In response, Wagner acknowledged that not all users of custom XML would have switched to a high-end product like XMetaL, but that those "who really needed that functionality" would have, requiring them to buy one of the commercially available products, even if it had many superfluous features. Wagner clarified that his damages estimate only considered users who "really needed" the custom XML editor, making it inappropriate to use the $50 price difference paid by all purchasers of Word, regardless of whether they infringed or not. As for using the baseline royalty rate ($96) as the starting point for the Georgia-Pacific analysis, Wagner opined that it was necessary because of Microsoft's business strategy. According to Wagner, Microsoft's primary goal is to make sales, not to maximize the price it charges for each additional feature. In making sales, Wagner explained that Microsoft's biggest competitor is always itself: Microsoft has to convince consumers to purchase new versions of its products, even if they already have a "perfectly good" copy of an older version. To incentivize users to upgrade, Wagner testified that Microsoft included new features at no additional cost, making it difficult to value the new features. As for the survey, i4i's survey expert (Dr. Wecker) explained that it was limited to estimating infringing use by businesses; i4i did not even seek damages for infringing use by individual consumers. Wecker sent the survey to 988 large and small businesses randomly selected from a database of 13 million U.S. companies. Wecker explained that this large sample size was necessary to ensure he received sufficient responses (between 25 and 100) because many companies are "too busy" or have policies against responding to surveys. The survey consisted of screening and substantive questions. The screening questions helped identify the proper person to speak with about the company's use of custom XML. Wecker received 46 responses 1271 to the survey, which consisted of approximately 40 substantive questions. For all of the questions, the responder had the option of saying they did not know. Any company that took the survey received $35, regardless of the answers they gave. Wecker explained that he used logical imputation, an accepted procedure for statisticians to resolve inconsistent survey responses, to make some of the answers consistent. Of those that responded to the survey, 19 companies reported using Word in an infringing manner. Wecker assumed that all the companies that did not respond (942) did not use Word in an infringing manner. Based on these assumptions, Wecker determined that 1.9% (19/988) of all copies of Word sold to businesses between 2003 and 2008 were used in an infringing manner. Wecker then multiplied this percentage (1.9%) by the number of copies of Word sold to businesses, for a total of 1.8 million infringing uses.[4] Wecker opined that this estimate was conservative, "really an underestimate" and "way low" because he assumed every company that did not respond was not infringing, which was highly unlikely and introduced a "serious downward bias." Microsoft contested the accuracy of the survey, based on the low response rate, use of logical imputation to correct inconsistent answers, and questions requiring estimates of Word usage going back several years. In response, i4i's experts opined that the survey's conservative assumptions about the unresponsive companies mitigated (and perhaps even overcorrected) for those weaknesses. Microsoft is correct that i4i's expert could have used other data in his calculations. The existence of other facts, however, does not mean that the facts used failed to meet the minimum standards of relevance or reliability. See Fed.R.Evid. 702 advisory committee's note. Under Rule 702, the question is whether the expert relied on facts sufficiently related to the disputed issue. Here, that issue was a reasonable royalty for the '449 patent. We conclude that Wagner based his calculations on facts meeting these minimum standards of relevance and reliability. Fed.R.Evid. 702. As i4i's expert explained, the facts were drawn from internal Microsoft documents, publicly available information about other custom XML editing software, and a survey designed to estimate the amount of infringing use. Thus, these facts had a sufficient nexus to the relevant market, the parties, and the alleged infringement. While the data were certainly imperfect, and more (or different) data might have resulted in a "better" or more "accurate" estimate in the absolute sense, it is not the district court's role under Daubert to evaluate the correctness of facts underlying an expert's testimony. See Micro Chem., 317 F.3d at 1392. Questions about what facts are most relevant or reliable to calculating a reasonable royalty are for the jury. The jury was entitled to hear the expert testimony and decide for itself what to accept or reject. See Pipitone, 288 F.3d at 249-50. As the Supreme Court explained in Daubert, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596, 113 S.Ct. 2786. Microsoft had these opportunities, and ably availed itself of them. Microsoft presented 1272 expert testimony and attacked the benchmark, survey, and calculation's reasonableness on cross-examination. Cf. Micro Chem., 317 F.3d at 1392. Based on this record, the district court did not abuse its discretion in admitting Wagner's expert testimony on damages. 2. The Survey Microsoft also challenges the district court's admission of the survey used to estimate the amount of infringing use. We do not agree with Microsoft that the danger of unfair prejudice substantially outweighed the survey's probative value, so as to warrant exclusion under Rule 403. Both of i4i's experts, Wagner and Wecker, opined that the survey dramatically underestimated the amount of infringing use. Given the survey's conservative assumptions, the district court did not abuse its discretion in admitting the survey. Further, the survey was properly admitted over Microsoft's hearsay objection under Federal Rule of Evidence 703, since the survey was used to estimate the amount of infringing use, a key number in i4i's damage calculation. Given the survey's importance, evidence about its methodology and findings could certainly help the jury evaluate the expert testimony. See C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1054-55 (5th Cir.1981). The testimony of Wecker, the expert who helped design the survey, sufficed to show that the survey was compiled in accordance with acceptable survey methods. For these reasons, the district court did not abuse its discretion in admitting the survey. B. Reasonableness of the Damages Award Microsoft urges us to follow this court's recent decision in Lucent, 580 F.3d 1301, and hold that $200 million is not a reasonable royalty. We cannot, however, because the procedural posture of this case differs from Lucent, and that difference controls this case. Although Microsoft now objects to the size of the damages award, we cannot reach that question because Microsoft did not file a pre-verdict JMOL on damages. In Lucent, the accused infringer filed a pre-verdict JMOL motion challenging the sufficiency of the damages' evidence. Id. at 1309. Though Microsoft could have similarly filed a pre-verdict JMOL, for whatever reason, it chose not to. See Fed.R.Civ.P. 50(a). On appeal, what that strategic decision means for Microsoft is that we cannot decide whether there was a sufficient evidentiary basis for the jury's damages award. Cf. Lucent, 580 F.3d at 1332 (holding that "we see little evidentiary basis under Georgia-Pacific" for the damages award). Asking whether a damages award is "reasonable," "grossly excessive or monstrous," "based only on speculation or guesswork," or "clearly not supported by the evidence," are simply different ways of asking whether the jury's award is supported by the evidence. Fuji Photo, 394 F.3d at 1378; Catalina Lighting, Inc. v. Lamps Plus, Inc., 295 F.3d 1277, 1290 (Fed.Cir.2002). Microsoft waived its ability to have us decide that question by failing to file a pre-verdict JMOL on damages. Fed.R.Civ.P. 50(a), (b). Had Microsoft filed a pre-verdict JMOL, it is true that the outcome might have been different. Given the opportunity to review the sufficiency of the evidence, we could have considered whether the $200 million damages award was "grossly excessive or monstrous" in light of Word's retail price and the licensing fees Microsoft paid for other patents. Cf. Lucent, 580 F.3d at 1325-32. As this court did in Lucent, we could have analyzed the evidentiary basis 1273 for the Georgia-Pacific factors, and whether the benchmark (XMetaL) was sufficiently comparable. Id. However, we cannot. Instead of the more searching review permitted under Rule 50(b), we are constrained to review the verdict under the much narrower standard applied to denials of new trial motions. Duff, 489 F.3d at 730. This standard is highly deferential: we may set aside a damages award and remand for a new trial "only upon a clear showing of excessiveness." Id. (emphasis added). To be excessive, the award must exceed the "maximum amount calculable from the evidence." Carlton v. H.C. Price Co., 640 F.2d 573, 579 (5th Cir.1981). We must affirm unless the appellant clearly shows there was no evidence to support the jury's verdict. Duff, 489 F.3d at 730, 732; see also Industrias Magromer, 293 F.3d at 923. Under this highly deferential standard, we cannot say that Microsoft is entitled to a new trial on damages. The damages award, while high, was supported by the evidence presented at trial, including the expert testimony-which the jury apparently credited. See Unisplay, S.A. v. Am. Elec. Sign Co., 69 F.3d 512, 519 (Fed. Cir.1995). On appeal, the question is not whether we would have awarded the same amount of damages if we were the jury, but rather whether there is evidence to support what the jury decided. See Fuji Photo, 394 F.3d at 1378. Here, the jury's award was supported by the testimony of Wagner, i4i's damage expert, who opined that a reasonable royalty was between $200 and $207 million. The award was also supported by the testimony of Wecker, i4i's survey expert, who explained that the survey's conservative assumptions (i.e., that none of the companies who failed to respond infringed) meant the damages figure was "really an underestimate" and "way low." As we have recognized previously, any reasonable royalty analysis necessarily involves an element of approximation, and uncertainty. See Lucent, 580 F.3d at 1325; Unisplay, 69 F.3d at 517. Given the intensely factual nature of a damages determination and our deferential standard of review, we are not in a position to second-guess or substitute our judgment for the jury's. C. Enhanced Damages Microsoft has only appealed the district court's decision to enhance damages under 35 U.S.C. § 284. Microsoft does not challenge the jury instructions on willfulness or the sufficiency of the evidence supporting the jury's willfulness finding. Section 284 gives the district court discretion to "increase the damages up to three times the amount found or assessed" by the jury. A finding of willful infringement is a prerequisite to the award of enhanced damages. In re Seagate Technology, LLC., 497 F.3d 1360, 1368 (Fed. Cir.2007) (en banc). In this case, the question of whether Microsoft willfully infringed the '449 patent was submitted to the jury, which was instructed that i4i had to prove Microsoft (1) was aware of the '449 patent; (2) acted despite an objectively high likelihood that its actions infringed a valid patent; where (3) this objectively high risk was either known or so obvious it should have been known to Microsoft. The verdict form instructed the jury to answer "yes" or "no" to "Did i4i prove by clear and convincing evidence that Microsoft's infringement was willful?" The jury answered "yes." Based on the jury's willfulness finding, i4i made a post-trial motion for enhanced damages. The district court then analyzed the factors set out in Read Corp. v. Portec, Inc., 1274 970 F.2d 816, 826-27 (Fed.Cir.1992), in deciding whether to enhance damages. The district court found that factors 2, 4, 6, 7, and 8 supported enhancement. Factors 1 and 9, combined with i4i's delay in bringing suit, were found to weigh against enhancement. For factor 1, which considers whether the infringer deliberately copied the ideas or design of another, the district court found no evidence that Microsoft deliberately copied any of i4i's products. For factor 2, which considers whether the infringer knew of the patent, investigated the patent's scope and formed a good-faith belief of its invalidity or noninfringement, the district court found Microsoft was aware of i4i's patent, never formed a good faith belief of noninfringement, and clearly intended to add a custom XML editor in Word with similar capabilities to i4i's patented products. For factor 4, which considers the infringer's size and financial condition, the district court found that the jury's award, while "substantial," was only a small fraction of Microsoft's profits from the sale of Word products. The district court also noted that Microsoft was "undisputedly" the world leader in software for business and personal computing, with revenues of $60.42 billion in 2008 alone. As for factors 6, 7, and 8, the district court found that Microsoft had started using the infringing products more than five years ago (in 2002), failed to conduct an infringement analysis after being notified of the '449 patent again in 2003, and implemented the infringing custom XML editor with the purpose of rendering i4i's products obsolete. Although statutorily authorized to increase the award to $600 million, the district court awarded only $40 million in enhanced damages. See 35 U.S.C. § 284. On this record, we cannot conclude that the district court abused its discretion in weighing the evidence or applying the Read factors. See Amsted Indus., Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 184 (Fed.Cir.1994). The district court made detailed factual findings which, taken together, support its award of enhanced damages. See Jurgens v. CBK, Ltd., 80 F.3d 1566, 1570-71 (Fed.Cir.1996). In deciding whether to enhance damages, the district court properly declined to reapply the test for willfulness set out in Seagate, 497 F.3d 1360. Although a finding of willfulness is a prerequisite for enhancing damages under § 284, the standard for deciding whetherand by how muchto enhance damages is set forth in Read, not Seagate. See 35 U.S.C. § 284; SRI Int'l, Inc. v. Advanced Tech. Labs., Inc., 127 F.3d 1462, 1468-69 (Fed.Cir.1997); cf. Seagate, 497 F.3d at 1371. Here, the question of willfulness was submitted to the jury. Microsoft does not dispute that the jury instructions were proper under Seagate, 497 F.3d at 1371. The test for willfulness is distinct and separate from the factors guiding a district court's discretion regarding enhanced damages. Compare id., with Read, 970 F.2d at 826-27. Under the Read factors, the district court properly considered Microsoft's size and financial condition, as well as whether Microsoft investigated the scope of the patent. Id. at 827; see also Transclean Corp. v. Bridgewood Servs., Inc., 290 F.3d 1364, 1377-78 (Fed.Cir.2002). Microsoft is correct that it would have been improper to enhance damages based solely on litigation misconduct, and that this is not the prototypical case of litigation misconduct.[5] Typically, "litigation 1275 misconduct" refers to bringing vexatious or unjustified suits, discovery abuses, failure to obey orders of the court, or acts that unnecessarily prolong litigation. Jurgens, 80 F.3d at 1570-71 & n. 3; see also Va. Panel Corp. v. MAC Panel Co., 133 F.3d 860, 866 (Fed.Cir.1997). Here, the misconduct was improper statements by Microsoft's counsel to the jury, in defiance of the court's repeated admonitions. However, the district court considered Microsoft's litigation misconduct only after finding that the other Read factors favored enhanced damages: "Finally, also favoring enhancement is Microsoft's counsel's litigation conduct. . . ." Considering all the Read factors and the district court's statutory authority to treble damages under § 284, the actual award of $40 million was not an abuse of discretion. VI. Permanent Injunction We must decide whether the district court abused its discretion in granting a permanent injunction against Microsoft, or in tailoring that injunction under eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The permanent injunction prohibits Microsoft from (1) selling, offering to sell, and/or importing into the United States any infringing Word products with the capability of opening XML files containing custom XML; (2) using Word to open an XML file containing custom XML; (3) instructing or encouraging anyone to use Word to open an XML containing custom XML; (4) providing support or assistance that describes how to use Word to open an XML file containing custom XML; and (5) testing, demonstrating, or marketing Word's ability to open an XML file containing custom XML. The scope of this injunction is narrow, however. It applies only to users who purchase or license Word after the date the injunction takes effect. Users who purchase or license Word before the injunction's effective date may continue using Word's custom XML editor, and receiving technical support. We review the decision to grant an injunction, as well as the scope of that injunction, for abuse of discretion. Joy Techs., Inc. v. Flakt, Inc., 6 F.3d 770, 772 (Fed.Cir.1993). Factual findings made in support of the injunction are reviewed for clear error; the district court's conclusion as to each eBay factor is reviewed for abuse of discretion. Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1327-31 (Fed.Cir.2008). Our review is guided by statute and well-established principles of equity. See 35 U.S.C. § 283.[6] The plaintiff has the burden of showing that (1) it has suffered an irreparable injury; (2) remedies available at law are inadequate to compensate for that injury; (3) considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) the public interest would not be "disserved" by a permanent injunction. eBay, 547 U.S. at 391, 126 S.Ct. 1837. While we conclude that the injunction's effective date should have been five months, rather than sixty days, from the date of its August 11, 2009 order, we affirm the district court's issuance of a permanent injunction and otherwise affirm the injunction's scope. Below, we address each factor in turn. 1276 A. Irreparable Injury The district court concluded that i4i was irreparably injured by Microsoft's infringement, based on its factual findings that Microsoft and i4i were direct competitors in the custom XML market, and that i4i lost market share as a result of the infringing Word products. The district court further found that the infringing Word products rendered i4i's software obsolete, as a result of which i4i changed its business model to make software that complemented Microsoft's infringing products. It was proper for the district court to consider evidence of past harm to i4i. Past harm to a patentee's market share, revenues, and brand recognition is relevant for determining whether the patentee "has suffered an irreparable injury." Id. at 391, 126 S.Ct. 1837 (emphasis added); see, e.g., Acumed, 551 F.3d at 1328-29 (considering the relevance of past licensing decisions in assessing irreparable injury); Voda v. Cordis Corp., 536 F.3d 1311, 1329 (Fed.Cir.2008) (concluding that the patentee "had not identified any irreparable injury to himself"); Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363, 1379-80 (Fed. Cir.2008) (analyzing whether the patentee "had been irreparably harmed"). Although injunctions are tools for prospective relief designed to alleviate future harm, by its terms the first eBay factor looks, in part, at what has already occurred. Considering past harm to a patentee does not establish a "general rule" or rely on the sort of "broad classifications" rejected by the Supreme Court in eBay; not all patentees will be able to show injury, and even those who do must still satisfy the other three factors. Cf. eBay, 547 U.S. at 393-94, 126 S.Ct. 1837. In this case, the district court properly considered strong circumstantial evidence that Microsoft's infringement rendered i4i's product obsolete for much of the custom XML market, causing i4i to lose market share and change its business strategy to survive. i4i was not required to prove that its specific customers stopped using i4i's products because they switched to the infringing Word products. Based on the evidence presented at trial, it was not an abuse for the district court to find that Microsoft's infringement irreparably injured i4i. B. Inadequate Remedies at Law The district court concluded that there were inadequate remedies at law to compensate i4i for its injury. The district court found that before and after Microsoft began infringing, i4i produced and sold software that practiced the patented method. The district court found no evidence that i4i had previously licensed the patent, instead finding evidence that i4i sought to retain exclusive use of its invention. It was not an abuse of discretion for the district court to conclude that monetary damages would be inadequate. In this case, a small company was practicing its patent, only to suffer a loss of market share, brand recognition, and customer goodwill as the result of the defendant's infringing acts. Such losses may frequently defy attempts at valuation, particularly when the infringing acts significantly change the relevant market, as occurred here. The district court found that Microsoft captured 80% of the custom XML market with its infringing Word products, forcing i4i to change its business strategy. The loss associated with these effects is particularly difficult to quantify. Difficulty in estimating monetary damages is evidence that remedies at law are inadequate. Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 703-04 (Fed.Cir.2008). C. Balance of Hardships Except on the limited issue of timing, the balance of hardships favors i4i. 1277 The district court found that i4i's business is comprised "almost exclusively" of products based on the '449 patent. In contrast, Microsoft's infringing custom XML editor was found to be "merely one of thousands of features" within Word, used by only a small fraction of Microsoft's customers. The district court further found that Microsoft's infringement of the '449 patent allowed Microsoft to "corner[] the XML market." Because the "balance of hardships" assesses the relative effect of granting or denying an injunction on the parties, the district court properly considered several factors in its analysis. eBay, 547 U.S. at 391, 126 S.Ct. 1837. These factors included the parties' sizes, products, and revenue sources. When measured by these factors, it is clear that the patented technology is central to i4i's business. Because most of i4i's products are based on the '449 patent, i4i's market share, revenues, and business strategy are similarly tied to the patented method. These same factors reveal that the infringing custom XML editor relates to only a small fraction of Microsoft's sizeable business. The far greater importance of the patented method to i4i, combined with the demonstrated past effects of infringement on i4i, favors issuance of a permanent injunction. The district court's analysis properly ignored the expenses Microsoft incurred in creating the infringing products. See Acumed, 551 F.3d at 1330. Similarly irrelevant are the consequences to Microsoft of its infringement, such as the cost of redesigning the infringing products. Id. As we explained in Broadcom, neither commercial success, nor sunk development costs, shield an infringer from injunctive relief. 543 F.3d at 704. Microsoft is not entitled to continue infringing simply because it successfully exploited its infringement. Id.; see also Windsurfing Int'l v. AMF, Inc., 782 F.2d 995, 1003 n. 12 (Fed. Cir.1986). D. Public Interest Except as to the injunction's effective date, the district court did not abuse its discretion in finding that the narrow scope of the injunction and the public's general interest in upholding patent rights favor injunctive relief. See Broadcom, 543 F.3d at 704 (quoting Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1547 (Fed.Cir.1995)). The district court's conclusion properly recognized that the touchstone of the public interest factor is whether an injunction, both in scope and effect, strikes a workable balance between protecting the patentee's rights and protecting the public from the injunction's adverse effects. Broadcom, 543 F.3d at 704. In particular, the injunction's narrow scope substantially mitigates the negative effects on the public, practically and economically. By excluding users who purchased or licensed infringing Word products before the injunction's effective date, the injunction greatly minimizes adverse effects on the public. Id. Here, the relevant "public" includes not only individual consumers, but also companies that license infringing Word products and manufacturers that are part of Microsoft's distribution channels. Cf. id. (defining the "public" to include affected network carriers and manufacturers). By carving out users who purchased or licensed infringing Word products before the injunction's effective date, the injunction's tailoring minimizes disruptions to the market and the public. E. Injunction's Effective Date On appeal, Microsoft challenges the date on which the injunction goes into effect. We review whether this aspect of the district court's order is supported by the record. As to the limited question of *1278 the injunction's effective date, we conclude that it is not. Accordingly, the injunction's effective date is modified as described below. The district court ordered the injunction to go into effect sixty days after August 11, 2009, the date of its order issuing the injunction. Citing the declaration of a Microsoft employee (the "Tostevin declaration"), the district court found that "Microsoft ha[d] presented evidence that it may take five months to implement any injunction." The district court also found, without any citation to the record, that "i4i ha[d] presented evidence that it is possible to design a software patch that can remove a user's ability to operate the infringing functionality." Based on, among other things, "this competing evidence" and "the uncertainty surrounding what period of time would be `reasonable' to expect Microsoft to comply with any injunction," the district court ordered Microsoft to comply with the permanent injunction "within 60 days." In light of the record evidence, we conclude that the district court erred by ordering Microsoft to comply with the injunction within sixty days. The only evidence about how long it would take Microsoft to comply with the injunction was the Tostevin declaration, which gave an estimate of "at least" five months. The district court cited no other evidence, and our review of the record reveals no "competing evidence." Accordingly, we modify the injunction's effective date from "60 days from the date of this order" to "5 months from the date of this order." Cf. Canadian Lumber Trade Alliance v. United States, 517 F.3d 1319, 1339 n. 22 & 1344 (Fed.Cir.2008) (modifying an injunction's terms on appeal); Forest Labs., Inc. v. Ivax Pharms., Inc., 501 F.3d 1263, 1271-72 (Fed.Cir.2007) (modifying an injunction's terms on appeal). The injunction's effective date is now January 11, 2010. CONCLUSION The district court's claim construction is affirmed, as are the jury's findings of infringement and validity. The district court did not abuse its discretion in admitting i4i's evidence as to damages or in granting enhanced damages. Finally, we affirm the entry of the permanent injunction as modified herein. AFFIRMED NOTES [1] Even though we could affirm the jury's verdict of infringement so long as there was sufficient evidence of direct infringement by Microsoft, here we focus on indirect infringement because that was the basis for i4i's damages estimate, which the jury apparently credited. See Lucent, 580 F.3d at 1334-35; Dynacore Holdings Corp. v. U.S. Philips Corp., 363 F.3d 1263, 1274 (Fed.Cir.2004). [2] An expert witness with "scientific, technical, or otherwise specialized knowledge," may testify and form an opinion "if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case." Fed.R.Evid. 702. [3] These factors include: (1) royalties the patentee has received for licensing the patent to others; (2) rates paid by the licensee for the use of comparable patents; (3) the nature and scope of the license (exclusive or nonexclusive, restricted or nonrestricted by territory or product type); (4) any established policies or marketing programs by the licensor to maintain its patent monopoly by not licensing others to use the invention or granting licenses under special conditions to maintain the monopoly; (5) the commercial relationship between the licensor and licensee, such as whether they are competitors; (6) the effect of selling the patented specialty in promoting sales of other products of the licensee; (7) the duration of the patent and license term; (8) the established profitability of the product made under the patent, including its commercial success and current popularity; (9) the utility and advantages of the patent property over old modes or devices; (10) the nature of the patented invention and the benefits to those who have used the invention; (11) the extent to which the infringer has used the invention and the value of that use; (12) the portion of profit or of the selling price that may be customary in that particular business to allow for use of the invention or analogous inventions; (13) the portion of the realizable profit that should be credited to the invention as opposed to its non-patented elements; (14) the opinion testimony of qualified experts; and (15) the results of a hypothetical negotiation between the licensor and licensee. Id. [4] Based on sales of Word, Wagner then estimated the number of additional infringing uses that occurred between the end of the survey date and start of trial, to give a total of 2.1 million. [5] Enhanced damages are certainly not the sole remedy for attorney misconduct. Other tools, which may be more appropriate in the mine-run of cases, include the award of attorneys fees or sanctions. See 35 U.S.C. § 285; Fed.R.Civ.P. 11, 38; see also 28 U.S.C. § 1927. [6] The Patent Act provides that courts "may grant injunctions in accordance with the principles of equity to prevent the violation of any right secured by patent, on such terms as the court deems reasonable." 35 U.S.C. § 283.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2980398/	NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0885n.06 FILED No. 10-3331 Dec 27, 2011 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT JOSEPH FEATHERKILE, ) ) ON APPEAL FROM THE Petitioner-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE SOUTHERN v. ) DISTRICT OF OHIO ) WANZA JACKSON, Warden, ) OPINION ) Respondent-Appellee. ) BEFORE: COLE, MCKEAGUE, and GRIFFIN, Circuit Judges. PER CURIAM. Petitioner-Appellant Joseph Featherkile was convicted by a Hamilton County, Ohio, jury on November 22, 1999, on four counts of gross sexual imposition in violation of Ohio Revised Code § 2907.05(A)(4). The trial court sentenced Featherkile to two years’ imprisonment for the first count and five years for each of the three remaining counts, all to be served consecutively, for a total of seventeen years. Featherkile was resentenced in 2006 under the new, discretionary sentencing regime ushered in by the Ohio Supreme Court’s application of United States v. Booker, 543 U.S. 220 (2005), to the Ohio’s sentencing structure. See State v. Foster, 845 N.E.2d 470 (Ohio 2006). At his 2006 resentencing, the court imposed the same term of imprisonment–seventeen years. After exhausting his remedies before the Ohio appellate courts, Featherkile filed a petition for a writ of habeas corpus, arguing that his resentencing based on the new discretionary sentencing procedure violates the ex post facto and due process clauses of the No. 10-3331 Featherkile v. Jackson Fourteenth Amendment to the United States Constitution. In particular, Featherkile argues that his new sentence imposes a new and retroactive punishment because it is greater than the “presumptive minimum” sentence applicable prior to Foster. The district court denied the petition. Featherkile’s claim is the same as that advanced by the petitioner in our recent case of Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011). As we explained in Ruhlman, resentencings pursuant to Ohio’s discretionary sentencing scheme established by Foster, even when it results in a sentence greater than the pre-Foster presumptive minimum sentence, do not violate ex post facto or other due process clause principles. Ruhlman, No. 09-4523, slip op. at 6-12. Thus, for the reasons stated in Ruhlman v. Brunsman, we AFFIRM the denial of the petition by the district court for a writ of habeas corpus. -2-	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1981669/	524 Pa. 135 (1990) 569 A.2d 929 COMMONWEALTH of Pennsylvania, Appellee, v. Josoph HENRY, Appellant. Supreme Court of Pennsylvania. Argued October 26, 1989. Decided February 8, 1990. 136 137 138 139 140 141 142 143 J. Michael Farrell, Philadelphia, for appellant. Donald B. Corriere, Dist. Atty., Richard H. Pepper, Bethlehem, Robert A. Graci, Chief Deputy Atty. Gen., for appellee. Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ. OPINION OF THE COURT FLAHERTY, Justice. On April 25, 1987, in the Court of Common Pleas of Northampton County, the appellant, Josoph Henry, was found guilty of murder of the first degree, rape, involuntary deviate sexual intercourse, indecent assault, burglary, theft, robbery, and aggravated assault. In connection with the murder conviction, a separate sentencing hearing was held, as required by 42 Pa.C.S. § 9711, and appellant was sentenced to death. The present appeal ensued. We find no error in the proceedings, and affirm the judgment of sentence. The incident from which the convictions arose was one in which appellant burglarized the dormitory room of Jeanne Ann Clery, a student at Lehigh University. Clery, who was present at the time of the burglary, was viciously assaulted by appellant. He slashed Clery's neck repeatedly with broken glass, bit her face, raped her, sodomized her, strangled her, and beat her all over her face and body. Before leaving the scene, appellant murdered Clery to prevent her from identifying him. I. PRETRIAL First, appellant claims that it was error for the trial court to deny his motion to bar selection of a petit jury from Lancaster County because of alleged systematic exclusions 144 of non-whites and those convicted of juvenile offenses and misdemeanors.[1] In Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the United States Supreme Court held that in order to establish a prima facie violation of the Sixth and Fourteenth Amendment requirement that the jury represent a fair cross section of the community, the defendant must show: (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S. Ct. at 668, 58 L.Ed.2d at 587. The record indicates that approximately 6,000 names are selected annually in Lancaster County to receive questionnaires concerning the recipients' availability for jury duty. The names are selected at random by computer and are taken from voter registration lists and from school census data. Approximately two percent of Lancaster County is black. In 1986, school census data, which lists all persons over eighteen living within the school district, was not used for the city of Lancaster, where 80% of the county's black population resides, because the computer tapes used by the city were not compatible with the county's computers. The names of prospective jurors from the city were generated by using voter registration lists. The first prong of appellant's argument is that jury panels selected from voter registration lists systematically exclude blacks because blacks, so it is claimed, do not register to vote in proportion to their numbers. This Court has repeatedly held that a criminal defendant may not attack the racial composition of jury panels drawn from voter registration lists on the theory that blacks are underrepresented in voter lists. Commonwealth v. Terry, 145 513 Pa. 381, 405-06, 521 A.2d 398 (1987), cert. denied, 482 U.S. 920, 107 S. Ct. 3198, 96 L. Ed. 2d 685 (1987); Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981). Since the record indicates that the panels were formed by computer generated lists without regard to race, and since voter registration lists have been established as an acceptable source of such lists, there is nothing of record to indicate that the panels were improperly formed with respect to the race of prospective jurors, and appellant's assertion of error is without merit. The second prong of appellant's claim is that it was error to exclude those convicted of juvenile and minor crimes from jury service. Although such persons do appear to have been excluded from jury service based upon their responses to questionnaires asking them whether they had ever been convicted of a crime, appellant is entitled to no relief on this claim since there is nothing of record to indicate that such persons are entitled to the protection afforded by Duren v. Missouri. As to the allegation that the jury was selected in violation of state law,[2] where the panel has been selected impartially, but the selection process erroneously excluded those convicted of lesser crimes, appellant is entitled to no relief absent a showing of prejudice resulting from the erroneous exclusion. Since no prejudice has been alleged, let alone proved, appellant is entitled to no relief on this claim. Next, appellant argues that it was error for the trial court to have denied his pretrial motion in limine to preclude 146 the Commonwealth from making reference to bite mark evidence through the testimony of Dr. Dennis Asen, a general practicing dentist. Dr. Asen testified as to the source and nature of bite marks found on the victim's body. Because the appellant did not dispute that he caused the marks, this claim actually concerns the dentist's testimony that the bite marks were attacking or sadistic in nature. Appellant claims that the dentist is unqualified to state that the bite marks were attacking or sadistic because there is no generally accepted scientific procedure for comparing bite marks. Although it is true that the American Dentistry Association does not recognize forensic odontology as a specialty, and there is no board certification in forensic odontology, Dr. Asen testified that he had taken courses, attended lectures and read the professional literature concerning forensic odontology. Further, he testified that he had done research into the categorization of human bite marks and that he was able to distinguish lunatic and fighting bite marks from attacking or sadistic bite marks and from sexually oriented bite marks. The essence of the distinction is that fighting bite marks are less well defined because they are done carelessly and quickly, whereas attacking or sadistic bite marks are made slowly and produce a clearer pattern. According to Dr. Asen, the sadistic bite mark is one of the most well-defined. Sexual bite marks are also well defined, but usually have a red center, produced by sucking tissue into the mouth. The dentist testified that the bite marks produced in this case were extremely well-defined, and were attacking or sadistic in nature. The legal significance of this testimony is that it might have been considered by the jury as part of their determination that the homicide was committed by means of torture. Pennsylvania has adopted a liberal standard for the qualification of an expert. "Generally, `if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the jury.'" Commonwealth 147 v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26 (1988), quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 501, 80 A.2d 734, 738 (1951). In this case it was established that Dr. Asen had a specialized knowledge in the area of identifying bite marks, and the trial court was careful to instruct the jury that they were free to accept or reject his testimony: [A]s I have stated, the fact that I am permitting this witness to opine in this area does not in any way mean that you are going to find his opinions reliable or worthy of belief. You will have to make that decision. On the other hand, it doesn't mean you won't. What I'm trying to tell you is don't attach any significance that by my permitting it that you are obligated to follow it. You will get a whole set of instructions that deals with how a jury approaches testimony given by expert witnesses. And the bottom line of those instructions will be that if the jury finds in a given case that the expert's opinion is not worthy of belief, the jury has the full right, under the law, to reject it. Since Dr. Asen was established as a practicing dentist who had specialized knowledge of bite mark identification, and since the jury was clearly informed of its right to accept or reject Dr. Asen's testimony, it was not error to have denied appellant's motion in limine to exclude the testimony of Dr. Asen.[3] II. TRIAL The primary trial phase issues concern the verdicts of insanity and "guilty but mentally ill." Appellant claims that the trial court erred in taking these two issues 148 away from the jury as a matter of law. He also challenges evidentiary rulings permitting or prohibiting proof of facts relating to the issues of insanity and guilty but mentally ill. Appellant's main contention is that the trial court erred in granting the Commonwealth's demurrer to the sufficiency of the evidence as it related to the defense of insanity. Appellant argues that the court's conclusion that Pennsylvania does not recognize a defense of insanity based upon what is described as an inherent pathologic illness triggered by the voluntary ingestion of alcohol is a perversion of 18 Pa.C.S. § 308[4] and a misinterpretation of appellate cases addressing the issue of alcohol in relation to the defense of insanity. He argues that in enacting section 308, the legislature did not intend that the insanity defense and guilty but mentally ill verdict be taken away from a defendant when a M'Naghten state results from alcohol triggering an inherent pathological psychiatric illness, such as "alcohol idiosyncratic intoxication." We hold, however, that the trial court properly interpreted and applied the law. In Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979), this Court rejected the defendant's insanity defense based on the theory that his behavior resulted from a passive pathological condition triggered by the ingestion of alcohol. The Court stated that "an actor should not be insulated from criminal liability for acts which result from a mental state that is voluntarily self-induced." Id., 483 Pa. at 311, 396 A.2d at 1186. The Superior Court followed Hicks in Commonwealth v. Plank, 329 Pa.Super. 446, 451-52, 478 A.2d 872, 875 (1984), where it upheld the exclusion of expert psychiatric testimony that the defendant suffered from a mental disorder manifested in blackouts triggered by alcohol. The court ruled that the 149 testimony was irrelevant as a matter of law, then stated: "Appellant took the alcohol by his own hand. If he drank voluntarily, the insanity defense is barred because appellant induced the infirmity." Similarly, in Commonwealth v. Kuhn, 327 Pa.Super. 72, 82, 475 A.2d 103, 108 (1984), the Superior Court concluded that "involuntary intoxication cannot, as a matter of law, be established through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining from ingestion of alcohol." Thus, the law has developed in Pennsylvania that a defendant cannot, as a matter of law, be insulated from criminal liability for his actions by claiming a mental state resulting from alcohol which was voluntarily ingested. Whether or not appellant was aware that he would suffer from the mental state is irrelevant, the fact that he voluntarily ingested the alcohol being determinative in depriving him of an insanity defense. The same reasoning precludes a verdict of guilty but mentally ill. Where a defendant cannot as a matter of law present an insanity defense, he is also prohibited from any other application of that testimony to make out a mental infirmity sufficient to support a guilty but mentally ill verdict. The guilty but mentally ill verdict is available only if a defendant's proferred insanity defense does not reach the necessary M'Naghten standard. 18 Pa.C.S. § 314(a).[5] Since appellant's insanity evidence was irrelevant as a matter of law in this case because his mental state was triggered by his voluntary ingestion of alcohol, he cannot use that same evidence to establish a mental infirmity resulting from the voluntary act of drinking. 150 The appellant also challenges the trial court's denial of his attempts to introduce numerous items of evidence related to his defense of alcohol idiosyncratic intoxication. Specifically, he objects to the denial of a videotape of an alcohol-provoked EEG, appellant's family physician's records, appellant's high school and college records, appellant's father's medical records, the medical records of Robert and Wallace Bracy, and testimony from appellant's father and a psychiatrist regarding appellant's father's drinking history. The trial court permitted appellant to introduce evidence of the amount of alcohol he drank the night before the murder, and permitted him to introduce evidence of his theory of alcohol idiosyncratic intoxication for the limited purpose of establishing that he lacked the specific intent necessary to commit murder of the first degree. Since the evidence of alcohol idiosyncratic intoxication was only relevant on the issue of specific intent, the trial court limited the psychiatric testimony to the diagnosis of appellant and did not permit testimony of specific instances of appellant's father's history which supported the psychiatrist's opinion that appellant inherited the condition from his father. The court specifically held that the only relevant inquiry into appellant's father's behavior was the extent to which his medical history was accurately reflected in the medical records relied upon by the psychiatrist in forming his diagnosis. These limitations on the testimony relating to appellant's father's history and behavior were proper limitations on the basis of relevancy. Similarly, the denial of various records of appellant, including family medical records, high school and college records, and medical records of Robert and Wallace Bracy, was proper in that the materials were adequately covered in the testimony, and that introduction of the records would have served only to distract the jury from the relevant issues. 151 The videotape of the alcohol-provoked EEG sought to be introduced by appellant was denied because the conditions it depicted were too dissimilar to the appellant's physical and mental condition on the night of the crime. The law is clear that experimental evidence is admissible only if the conditions under which the experiment was conducted are substantially similar to those at the time of the event in question. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). The trial court concluded that the EEG did not in any respect simulate the conditions on the night of the murder, but instead depicted a deep subconscious state produced under laboratory-induced intoxication. The evidence of the crime suggests that the appellant was fully conscious of his criminal actions, to the extent that he carried out a detailed burglary plan and was able to formulate an intent to kill in order not to be identified. We therefore perceive no error in refusing to permit the jury to view the videotape of the EEG. Finally, appellant claims that the verdict of guilty as to murder of the first degree is contrary to the weight of the evidence. Moreover, in Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S. Ct. 2444, 77 L. Ed. 2d 1327 (1983), we established that in each death penalty case this Court would determine whether there was sufficient evidence to sustain the conviction for murder of the first degree. In view of appellant's confessions to several fellow college students and to his cellmate, Brunson, we emphatically reject his attack on the weight of the evidence, and hold that there was sufficient evidence to sustain the conviction.[6] 152 III. DEATH SENTENCE At the penalty phase of trial, the jury found that three aggravating circumstances were present. One of these was that the victim was killed to prevent her from giving testimony against appellant. This aggravating circumstance is set forth in 42 Pa.C.S. § 9711(d)(5), which provides: The victim was a prosecution witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses. Appellant contends that it was error for the trial court to submit consideration of this aggravating circumstance to the jury, in that the victim was not a witness in any pending criminal proceeding. We do not agree. In Commonwealth v. Appel, 517 Pa. 529, 537-38 n. 2, 539 A.2d 780, 784 n. 2 (1988), we held that this aggravating circumstance may be found in cases where there was not a pending criminal proceeding, provided that in such cases proof of the killer's intention to eliminate a potential witness is established by direct rather than circumstantial evidence. Accord Commonwealth v. Strong, 522 Pa. 445, 563 A.2d 479, 485 (1989). Such was the case here. Appellant confessed to a number of individuals that the murder was committed to keep the victim from identifying him. The victim awakened while her room was being burglarized, and appellant immediately decided to eliminate her as a witness to that crime. Kenneth Copeland, a friend of appellant, testified that appellant told him that the victim "had saw him, so he had to kill her, and he started beating her. . . ." Another friend, George Bass, testified that appellant 153 said that while he was in the victim's room, "she woke up, and he attacked her and strangled her to keep her quiet." Stephen Rossi, another acquaintance, testified that appellant said he "made sure she was dead." And Marvin Brunson, one of appellant's cellmates in prison, testified that appellant said he committed the murder "to keep the girl from identifying him." Hence, proof of appellant's intention to eliminate the victim as a potential witness was established through direct evidence. It is also argued that this aggravating circumstance should be held applicable only in cases where the intention to kill a witness was formed prior to commencement of the criminal episode that led to the killing. Appellant points out that in Commonwealth v. Appel, supra, the defendant planned to commit a bank robbery and concurrently planned to kill all of the eyewitnesses to the robbery. In contrast, while the present case involves a decision to kill for the purpose of eliminating a witness, the decision was not made until the underlying criminal episode had already begun. We perceive no basis, however, for making this aggravating circumstance dependent upon when the intention to kill a witness was formed. See Commonwealth v. Strong, supra. In 42 Pa.C.S. § 9711(d)(5), supra, there is no language indicating that the time of forming an intention to kill a witness is a matter of significance. The killing of witnesses constitutes a frontal assault upon the criminal justice system, Commonwealth v. Appel, 517 Pa. at 537-38 n. 2, 539 A.2d at 784 n. 2, and, whether the decision to kill is made at an early stage, or later, the assault upon the justice system is the same. The final argument regarding this aggravating circumstance is that the jury should have been instructed on the necessity of finding, by direct evidence, that appellant committed the murder while having a fully formed intent to eliminate a potential witness. The record reveals, however, that the jury was instructed that this aggravating circumstance requires proof that the "victim was a prosecution witness to felonies committed by the defendant and was 154 killed for the purpose of preventing her testimony against the defendant in any criminal proceeding involving such offenses." (Emphasis added). This instruction was entirely proper, for it stated the necessary element of intent, and was in conformity with the language set forth in 42 Pa.C.S. § 9711(d)(5), supra. Further, in view of the direct evidence described supra, consisting of appellant's admissions to a number of individuals that the killing was committed to keep the victim from identifying him, there is no possibility that the jury's finding was based upon circumstantial rather than direct evidence. The second aggravating circumstance found by the jury was that the murder was committed by means of torture, 42 Pa.C.S. § 9711(d)(8). It is alleged that there was insufficient evidence of torture adduced at trial, and, thus, that the trial court erred in allowing the jury to consider this as an aggravating factor. As stated in Commonwealth v. Nelson, 514 Pa. 262, 280, 523 A.2d 728, 737 (1987), cert. denied, 484 U.S. 928, 108 S. Ct. 293, 98 L. Ed. 2d 253 (1987), this aggravating circumstance requires: "[A]n intent to cause pain and suffering in addition to the intent to kill. There must be an indication that the killer is not satisfied with the killing alone." Accord Commonwealth v. Caldwell, 516 Pa. 441, 448, 532 A.2d 813, 817 (1987). The present record provides ample support for finding that appellant tortured his victim. As heretofore described, the testimony established that appellant formed an intent to kill as soon as he was discovered in the act of burglarizing the victim's room. Prior to strangling the victim, however, appellant viciously beat, raped, and sodomized her, and repeatedly cut her neck with a piece of broken glass and bit her on the face. Bruises on numerous areas of the victim's body indicated that the beating had been extensive in scope. Appellant's intention to inflict pain and suffering beyond that associated with the killing itself was plainly demonstrated by the evidence. The third aggravating circumstance found by the jury was that the murder occurred during the perpetration 155 of a felony, 42 Pa.C.S. § 9711(d)(6). This finding was clearly supported by the evidence, for the killing was committed in connection with burglary, robbery, rape, and involuntary deviate sexual intercourse. Thus, having reviewed all of the aggravating circumstances found by the jury, we find that all were supported by the evidence. See 42 Pa.C.S. § 9711(h)(3)(ii) (appellate duty to review findings as to aggravating circumstances). The jury also found two mitigating circumstances, to wit, that the defendant had no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1), and other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). The jury determined that these mitigating circumstances were outweighed by the aggravating circumstances, and, accordingly, imposed a sentence of death. 42 Pa.C.S. § 9711(c)(1)(iv). Appellant contends that, based upon the weight of the evidence, the following additional mitigating circumstances should have been found by the jury: 1) that the defendant was under the influence of extreme mental or emotional disturbance, 42 Pa.C.S. § 9711(e)(2); 2) that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, 42 Pa.C.S. § 9711(e)(3); and 3) that the age of the defendant at the time of the crime was a mitigating factor, 42 Pa.C.S. § 9711(e)(4). We have examined the record and find no basis for overturning the jury's determination that these mitigating circumstances were not established. It is a fundamental rule that a jury may believe any, all, or none of a party's evidence. Commonwealth v. Nelson, 514 Pa. at 272, 523 A.2d at 733. A jury is not obliged, therefore, to believe expert medical or psychiatric testimony offered to prove that a defendant acted under diminished mental capacity. Id. The jury in the present case disbelieved expert testimony proffered by the defense, and instead, based on the testimony of appellant's acquaintances 156 regarding his behavior on the night of the crime, and his later admissions, concluded that appellant's mental state was not such as would qualify as a mitigating circumstance. Also, as to whether age was a mitigating factor, the evidence showed that appellant was twenty years of age at the time of the crime and that he was a student at Lehigh University. It clearly cannot be said that appellant was so young or immature that the jury erred in finding that age was not a mitigating factor. Appellant also claims that the trial court erred in excluding certain mitigating evidence. This evidence consisted of a videotape of an EEG neurological test showing appellant's reactions to ingestion of small amounts of alcohol, and opinion testimony of a professor and a director of prison religious activities indicating that, if appellant were to spend his life in prison, he might serve as an academic tutor or as a spiritual contributor to fellowship ministries. This evidence was properly excluded on grounds of relevancy. The EEG was conducted under laboratory conditions that bore no similarity to conditions present on the night of appellant's crime. It therefore provided no relevant insight regarding appellant's criminal behavior. Also, opinions of the professor and the director of religious activities would have been purely speculative as to the role which appellant might have played in prison, and would not have constituted evidence of appellant's character or record or the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). It should be noted that the professor and the religious activities director did, however, testify freely regarding appellant's character and record. Appellant further claims that the trial court erred in denying a defense request that the jury be permitted to read the medical records of appellant's father and uncles. Testimony regarding these records was introduced by the defense in the guilt and penalty phases of trial, in furtherance of a contention that appellant suffered from genetic psychiatric disorders. Allowing the jury to read the records, however, would have placed before the jury a 157 variety of additional data of an irrelevant nature, and on this basis the trial court properly refused the defense request. It is next alleged that the prosecutor's closing remarks in the penalty phase of trial contained improper remarks comparing appellant with Charles Manson and other mass murderers, as well as references to appellant's racist attitudes, and that these remarks denied appellant a fair trial on the issue of punishment. The remarks included the following: We have to put a stop to senseless killings. We have to defend our society, our way of life. We will not accept these kinds of explanations any more. Josoph Henry, you have stepped over the line. Enough is enough . . . . . . But I say to you that you must acknowledge that in our world, ever since history has been recorded, there have been people who do evil. There are people who are evil. The Bible speaks of the Prince of Darkness. The personification of evil. We have read of the contract killer, the killer for hire. The people responsible for the Holocaust, Charles Manson, and many, many others. These people are different from you and me. The trial court sustained a defense objection to this language and issued a cautionary instruction to the jury. The remarks in question were very closely patterned after, indeed, substantially excerpted from, remarks made by the prosecutor in Commonwealth v. Whitney, 511 Pa. 232, 242-49, 512 A.2d 1152, 1158-60 (1986). In Whitney, this Court held that the remarks were not so extreme as to have rendered the sentencing verdict a product of passion, prejudice, or other arbitrary factor. The remarks in Whitney were more extensive and inflammatory than the present ones, for in that case the prosecutor spoke at greater length of the need to defend society, and, in addition to discussing the Prince of Darkness, contract killers, and personifications of evil, invoked references to "General Achilles," Iago, Adolf Hitler, and a mass murderer of 158 babies. The prosecutor in Whitney also stated that the defendant was more barbaric than a wild animal. This Court held that the remarks in Whitney were within the bounds of "oratorical flair" permitted in arguments at the sentencing stage, and that the remarks were a permissible response to defense counsel's argument that the defendant's purported inability to control his conduct constituted a mitigating circumstance.[7] In the present case, defense counsel made an identical argument. Under Whitney, the prosecutor's remarks in this case cannot be regarded as having tainted the sentencing verdict. We note, however, that the prosecutorial practice of pushing "oratorical flair" to its limits, and patterning arguments upon remarks that this Court has only narrowly tolerated, is a dangerous practice we strongly discourage. One additional remark made during the prosecutor's closing argument has been challenged by appellant (a black man) as racially prejudicial. Referring to the victim, the prosecutor stated: "She was white, she was society, he [appellant] was going to punish Jeanne Ann Clery." A defense objection to this remark was overruled by the trial court on the ground that the remark was properly based upon the evidence regarding motive. Marvin Brunson, appellant's cellmate in prison, had testified as follows: Q: What if anything did he tell you about his feelings about race? A: He said he was prejudice [sic]. Q: What did he say? A: He said, well, where he lived at that, you know, you might be lucky if you see one white person. And when he got to the college, he just started hating white people because he was around white people. Based upon this testimony, the prosecutor's remark was not improper. 159 The remaining issues raised by appellant concerning the penalty phase of trial are lacking in merit and warrant only brief discussion. It is alleged that the trial court erred in allowing the jury to view photographs of cuts and bruises on various parts of the victim's body. These were, however, probative of the vicious nature of the killing, and supported the prosecution's theory that the victim had been tortured. Their probative value outweighed any possible inflammatory effect. See Commonwealth v. Buehl, 510 Pa. 363, 391-93, 508 A.2d 1167, 1181-82 (1986), cert. denied, 488 U.S. 871, 109 S. Ct. 187, 102 L. Ed. 2d 156 (1988). See also Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982). In support of its contention that torture occurred, the prosecution introduced testimony from a forensic pathologist, Dr. Mihalakis, who had also testified during the guilt phase of trial. The testimony of Dr. Mihalakis during the penalty phase was that the multiple transverse cuts found on the front of the victim's neck were of a sort generally attributable to threatening and at-bay situations. Appellant alleges that this testimony constituted pure speculation, and that the trial court erred in allowing its admission. We do not agree. Dr. Mihalakis was properly qualified as a forensic pathologist, and he testified that his opinion regarding the source of these cuts was based upon his experience in reviewing multiple cases. Such an opinion was properly within his expertise to render. Appellant next argues that he should have been permitted to address the jury at the sentencing phase of trial without being subjected to cross-examination. We recently considered and rejected this same argument. Commonwealth v. Abu-Jamal, 521 Pa. 188, 211-13, 555 A.2d 846, 857-58 (1989). It is also alleged that the jury instructions too narrowly defined the role of mercy as a sentencing consideration. Appellant concedes that, as the court instructed, 160 absolute mercy verdicts are precluded by the sentencing statute. See Commonwealth v. Holcomb, 508 Pa. 425, 472, 498 A.2d 833, 857 (1985) (Opinion Announcing the Judgment of the Court), cert. denied, 475 U.S. 1150, 106 S. Ct. 1804, 90 L. Ed. 2d 349 (1986). The court further instructed, however, that jurors are permitted to be swayed by sympathy but only where the sympathy results from the evidence. Appellant claims that this instruction improperly restricted considerations of sympathy or mercy that might relate to appellant's character. The sentencing statute allows for consideration of a defendant's character, but contemplates that a jury's findings and emotional responses will relate to the evidence. Specifically, 42 Pa.C.S. § 9711(e)(8) provides that mitigating circumstances shall include "[a]ny other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense." (Emphasis added). The trial court's instruction was, therefore, proper. Appellant further claims that the trial court erred in refusing to instruct the jury that a sentence of life imprisonment means life imprisonment without an opportunity for parole. Such an instruction would have been misleading, and it would have introduced parole as a sentencing consideration. We have held that parole, pardon, and commutation of sentence are matters that should not enter in any manner into a jury's deliberations regarding the sentence to be imposed in a first degree murder case. Commonwealth v. Strong, 522 Pa. at 458-460, 563 A.2d at 485-86. The instruction was properly denied. Next, it is alleged that the trial court should have acceded to a defense request that the verdict slip be amended to offer the following "alternative" verdict: "We the jury are convinced we cannot agree that death is the appropriate penalty and, thus, defendant is sentenced to life imprisonment." This request was properly denied, for the 161 existing verdict slip was perfectly adequate. It clearly expressed that a sentence of death could be imposed only if the jurors unanimously agreed. Further, the court's instructions to the jury made it clear that, in the event of a failure to agree unanimously on a sentence of life or death, the jury should report that fact to the court and the court would impose a sentence of life imprisonment. Under these circumstances, it is inconceivable that the jurors failed to agree unanimously that death was an appropriate penalty. Further, a poll of the jury conducted after announcement of the verdict confirmed that all jurors agreed to the sentence imposed. Appellant's final argument is that, upon consideration of the totality of circumstances pertaining to the sentencing proceeding, it should be concluded that he was denied a fair trial on the issue of punishment. We do not agree. None of the issues raised by appellant have cast valid doubt upon the fairness of the sentencing process, and the record provides no basis for belief that the sentence of death was the "product of passion, prejudice or any other arbitrary factor." 42 Pa.C.S. § 9711(h)(3)(i).[8] Finally, in accordance with our duty to review sentences of death from the standpoint of their proportionality to sentences imposed in similar cases, Commonwealth v. Zettlemoyer, 500 Pa. at 62, 454 A.2d at 961, we have reviewed the sentence imposed upon appellant in light of sentencing data compiled and monitored by the Administrative Office of the Pennsylvania Courts. See Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08 (1984), cert. denied, 469 U.S. 963, 105 S. Ct. 360, 83 L. Ed. 2d 296 (1984). We perceive no excess or disproportionality in the sentence imposed. Accordingly, the sentence must be *162 affirmed.[9] Judgment of sentence affirmed. McDERMOTT and PAPADAKOS, JJ., concur in the result. NOTES [1] Although the trial was conducted in Northampton County, the jury was selected in Lancaster County, pursuant to a change of venire. [2] 42 Pa.C.S. § 4502 provides: Every citizen of this Commonwealth who is of the required minimum age for voting for State or local officials and who resides in the county shall be qualified to serve as a juror therein unless such citizen: (1) is unable to read, write, speak and understand the English language; (2) is incapable, by reason of mental or physical infirmity, to render efficient jury service; or (3) has been convicted of a crime punishable by imprisonment for more than one year and has not been granted a pardon or amnesty therefor. [3] The opinion of the trial court adequately deals with the following arguments of appellant alleging pretrial errors, inasmuch as we have previously addressed these subject areas, and the trial court properly applied our decisions: (1) the death penalty statute is unconstitutional; (2) the appellant was brought to trial in violation of Rule 1100; (3) the trial court erred in not inquiring as to the racial bias of a prospective juror; and (4) it was error to admit into evidence the appellant's statement to Marvin Brunson. [4] 18 Pa.C.S. § 308 provides: Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder. [5] 18 Pa.C.S. § 314(a) states: (a) General rule. A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found "guilty but mentally ill" at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense. [6] Again, the opinion of the trial court satisfactorily disposes of the following arguments of appellant alleging trial error, inasmuch as we have previously addressed these subject areas, and the trial court properly applied our decisions: (1) the court erred in admitting into evidence inflammatory, prejudicial photographs; (2) the court erred in admitting the expert testimony of Dr. Asen as to bite-mark identification due to its unreliability and prejudicial nature; (3) the court erred in admitting the expert testimony of Dr. Mihalakis concerning the character of cuts on the victim's neck due to its unreliability and prejudicial nature; (4) the court erred in permitting the Commonwealth to conditionally rest and reserve their right to call Marvin Brunson as a witness; (5) the court erred in permitting the Commonwealth to call two Philadelphia detectives and a Pennsylvania state trooper for the sole purpose of collaterally bolstering the credibility of another Commonwealth witness; (6) the court erred in permitting the expert testimony of Mr. Alan Levitt, a psychologist; (7) the court erred in refusing to permit the defense to recall Dr. O'Brien, a psychiatrist, on rebuttal; and (8) appellant was denied a fair trial by the prosecutorial use of a four-minute time period simulation in the Commonwealth's summation. [7] This writer authored a concurring and dissenting opinion in Commonwealth v. Whitney, supra, joined by Mr. Chief Justice Nix and Mr. Justice Zappala. [8] In reviewing imposition of a death sentence in this case it is of interest to note that, in discussing his feelings about having committed this murder, appellant stated to his cellmate Marvin Brunson: "It ain't nothing." [9] The Prothonotary of the Eastern District is directed to transmit the complete record of this case to the Governor, 42 Pa.C.S. § 9711(i).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2139937/	122 Ill. 2d 221 (1988) 522 N.E.2d 1146 THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT GACHO, Appellant. No. 61294. Supreme Court of Illinois. Opinion filed February 11, 1988. Rehearing denied May 31, 1988. 222 223 224 225 226 227 228 Robert Gacho, appellant pro se, and James J. Doherty, and Paul P. Biebel, Jr., Public Defenders, of Chicago (James H. Reddy, Assistant Public Defender, of counsel), for appellant. Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark L. Rotert, Assistant Attorney General, of Chicago, and Thomas V. Gainer, Jr., Kevin Sweeney and Renee G. Goldfarb, Assistant State's Attorneys, of counsel), 229 for the People. Judgments affirmed; sentence vacated; cause remanded. JUSTICE WARD delivered the opinion of the court: Following a jury trial in the circuit court of Cook County, the defendant, Robert Gacho, was convicted of the murder, aggravated kidnapping and armed robbery of Aldo Fratto and Tullio Infelise. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), 10-2(a)(3), 18-2(a).) The trial court had granted a pretrial motion to sever the defendant's trial from that of his codefendants, Joseph Sorrentino and Dino Titone. After the jury found the defendant guilty of the above charges, he elected to have the same jury sit in judgment at the death penalty hearing. The jury, finding no mitigating factors sufficient to preclude imposition of the death penalty, imposed the sentence of death. As this is an appeal of a death penalty sentence, this cause comes before this court on direct appeal. Ill. Const. 1970, art. VI, § 4(b); 107 Ill.2d R. 603. Katherine De Wulf, the defendant's girlfriend, was the principal witness for the State. She testified that Gacho called her between 10:30 and 11 p.m. on December 11, 1982, and told her that she should drive to his house because he needed her to drive "a back-up car." He said he would call her later, which he did about 1:45 a.m., December 12, directing her to wait five minutes and then to drive to his house. She drove to Gacho's house and parked in the alley behind the residence and waited. She said she saw Joe Sorrentino come out the back door of Gacho's house with Infelise and Fratto walking behind him. She recognized Infelise and Fratto because she had previously seen them at Gacho's auto body shop. She testified that Fratto and Infelise had their hands tied behind their backs as they walked from Gacho's house with Sorrentino. Fratto and Infelise were seated in the back seat of a blue car, which Sorrentino then drove with Titone seated in the front passenger's 230 side. Gacho came from the house and came to De Wulf's car, seating himself on the front passenger side. De Wulf testified that she asked Gacho what was going on, and that he responded, "they would have to take them [victims] somewhere. He didn't know where, but they were going to have to waste `em." De Wulf said she believed that "waste `em" meant to kill them. Gacho had a gun when he entered De Wulf's car, which he asked De Wulf to put in her purse, but she said the weapon was too large to fit into her purse. De Wulf then drove her car, following the vehicle driven by Sorrentino. After proceeding about a block or two, Gacho said he wanted to drive the car, and he switched positions with De Wulf. The two automobiles headed south on the Stevenson Expressway (I-55) for about one-half hour and left the expressway at either Cass or Kingery Road. The cars then traveled down a gravel or dirt road for about 10 minutes, and Gacho stopped the car. Gacho, according to De Wulf's testimony, told her they were waiting to hear gunshots, and she said she heard "several" shots within a few minutes. After hearing the shots, Titone and Sorrentino came to De Wulf's car and Titone reported that they had shot Fratto and Infelise and that they were dead. She said Titone also said that Fratto and Infelise had begged them not to kill them, but that Titone and Sorrentino had "just laughed" at the pleas. She said all four then drove back to Gacho's house and enroute the three men discussed cocaine, which Fratto and Infelise had brought to Gacho's home, but she could not recall what specifically was said. A Du Page County forest ranger, Robert Stanton, was on patrol at about 9:15 a.m. on December 12, 1982, when he stopped by a parked automobile in the area of the Des Plaines River near Lemont Road. He heard someone pounding inside the trunk and calling for help. Stanton called the Lemont police and paramedics, who 231 arrived shortly thereafter and opened the car's trunk. Two men, both bloodied and with their hands tied behind their backs, were inside the trunk. One man, Tullio Infelise, was alive, and the other, Aldo Fratto, was dead when the trunk was opened. The defendant made a statement to Assistant State's Attorney John Groark while he was in custody December 12, 1982. The defendant proofread his statement, made corrections to it, and signed it. Groark read the defendant's statement into the record at trial. In his statement, the defendant said that Sorrentino, Titone, Fratto, and Infelise had come to his house on the night of the murders. He said Fratto and Infelise came to his home to sell him cocaine. Gacho further said that the two victims came to his home with "three-quarters of a kilo" of cocaine, a balance-type scale (to weigh the cocaine), and guns. He said Titone and he pulled guns on the victims. He said he had carried a .357 magnum that evening and had put it under the front seat of De Wulf's car. When the defendant and De Wulf waited in De Wulf's car at the crime scene, he first heard three shots, then heard five more shots. Sorrentino and Titone had taken between $1,500 and $2,000 from the victims, of which the defendant got $500. Gacho and his two codefendants then divided up the cocaine at his home, with Titone taking about half; the rest of it was left at his house, but he had asked Sorrentino to take it with him. The defendant testified at trial, denying any involvement in the murders. He said that he and De Wulf had dated for approximately 1 1/2 years prior to the time of the murders. He said that he and De Wulf had broken up in October 1982, but that she continued to call him and come to see him at his auto body shop. He testified that, while he was in custody at the Burbank police station, a detective "kneed [him] in the back" near the right kidney area. He said one officer also slapped him, hit him in 232 the back, and threatened to take his wife and children away. He said the officers kept telling him that he had shot someone. He also testified that he made a statement to Assistant State's Attorney Groark, but it was simply a reiteration of the information that the two officers had provided him concerning the crimes. The defendant further testified that he did not tell Assistant State's Attorney Groark of the police punching him. He said he signed the statement only because he was "pressured" by the police. Much of the other testimony at trial will be discussed in reference to the numerous issues raised by the defendant concerning the guilt/innocence phase of his trial. The jury returned a general verdict of guilty on all counts. The defendant was found subject to the death penalty and at the second phase of the sentencing hearing, the State offered in aggravation evidence from the trial and a conviction on a battery charge on September 7, 1982, a misdemeanor for which he was sentenced to one-year probation. In mitigation, the defendant emphasized that he had no significant prior criminal history, that he was not present at the commission of the crimes, and that he worked two jobs to support his wife and two children. The jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trials of Gacho and Titone were conducted simultaneously, with Gacho being tried by a jury while the judge heard the evidence against Titone. Titone's death conviction was affirmed by this court in People v. Titone (1986), 115 Ill. 2d 413. Sorrentino's sentence to life imprisonment was affirmed by the appellate court in a Rule 23 order on November 17, 1986 (107 Ill.2d R. 23), and leave to appeal to this court was denied. The defendant first argues that the detectives investigating the murders violated his rights under the fourth amendment by arresting him in his home without a warrant 233 and without probable cause to believe that he had committed an offense. The defendant's contention was the subject of a pretrial motion to quash his arrest, which was denied. Officer Stanton, who had discovered the car with the victims inside the trunk about 9:15 a.m., December 12, 1982, testified that, after the trunk was opened by the police, he had asked Infelise who had done this to him and that Infelise appeared to answer "Robert Gott or Gotch." Stanton, though, said it was hard to understand what Infelise was saying because he was in pain and having difficulty breathing. In response to Stanton's question asking where the man he named was located, Infelise answered "Florida." Officer Robert Johnstone arrived at the scene about 9:30 a.m. and testified he asked Infelise how the injuries had occurred, and Infelise responded "Robert Gotch." He also learned from Infelise that a man named Dino and another named Joe were involved in the shootings. James Houlihan, an investigator in the homicide section of the Cook County sheriff's police, testified at the suppression hearing that when he arrived about noon at the crime scene, investigators Mark Baldwin and Johnstone had already interviewed Infelise. They told Houlihan the information they had obtained about the possible assailants, including that one was referred to as Bob Gacho. Houlihan and his partner later went to Chicago to meet with investigators James Coakley and Jerry Smith at the Area Three Violent Crimes facility. Coakley told Houlihan that he had had a conversation with Infelise at the hospital emergency room and that Infelise had named Robert Gacho and two other men named Dino and Joe as those involved in the shootings. From a police arrest record of Gacho, Houlihan also learned Gacho's address and description. 234 Houlihan then went to the house of Tullio Infelise to notify Mrs. Infelise that her husband had been shot. Tullio Infelise's brother, Frank, was also at the house and informed Houlihan that he knew Robert Gacho because he worked with another brother, Rosario. Frank Infelise thought his brother, Tullio, and his uncle, Aldo Fratto, had met Gacho at his house the night before, although he was not certain. Frank Infelise then went with Houlihan to Gacho's residence at about 2 p.m. When they arrived at Gacho's house, no one was home. They returned to Gacho's house about 40 minutes later where they saw a man on the front steps who matched the description of the defendant. Besides Houlihan, Officers Smith and Coakley and other investigators were present. After the police knocked on the door, the defendant came to the door and identified himself. At the investigators' request, Gacho came outdoors, was told the police wanted to talk to him about a shooting in Lemont, and was advised of his Miranda rights. He signed a consent form to allow police to search his house. The defendant testified at the suppression hearing that seven or eight police officers arrived at his home on the afternoon of December 12. When he came to the front door of the house, three or four officers pulled him out of the house as soon as he opened the door. He signed a form that granted permission to the police to search the house, but the form was blank when he did so. The trial court found that the police had "abundant probable cause" to arrest Gacho and that exigent circumstances existed to justify the arrest on the front porch of his house. A reviewing court will not disturb a trial court's ruling on a motion to quash arrest unless that finding is manifestly erroneous. (People v. Cabrera (1987), 116 Ill. 2d 474, 485-86.) Probable cause exists where the police "have knowledge of facts which would 235 lead a reasonable man to believe that a crime has occurred and that it has been committed by the defendant." (People v. Wright (1985), 111 Ill. 2d 128, 145 (quoting People v. Eddmonds (1984), 101 Ill. 2d 44, 60, cert. denied (1984), 469 U.S. 894, 83 L. Ed. 2d 207, 105 S. Ct. 271), cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 179, 107 S. Ct. 1327.) Also, "In dealing with probable cause, * * * we deal with probabilities. * * * [T]hey are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." (Brinegar v. United States (1949), 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310; see also People v. Reynolds (1983), 94 Ill. 2d 160, 166.) Our review of the record persuades us that the police had probable cause to arrest Gacho when they did. Much of the collective information known to the investigators in this case pointed to Gacho as one of the assailants. The surviving victim, Tullio Infelise, had told the first officer at the crime scene that a "Robert Gott or Gotch" was involved in the shootings and, responding to two other officers, gave the proper pronunciation of the defendant's name. Houlihan gathered more information from police records that showed that Gacho lived in the area of Infelise's house. Too, Houlihan was justified in relying on the information provided by Frank Infelise concerning Gacho's address and that he was pretty sure his brother and uncle met with Gacho the prior night. (People v. Bean (1981), 84 Ill. 2d 64, 68-69, cert. denied (1981), 454 U.S. 821, 70 L. Ed. 2d 93, 102 S. Ct. 106.) This information, gathered by various officers, would "`warrant a man of reasonable caution in believing that * * * the person arrested has committed the offense.'" (People v. Shum (1987), 117 Ill. 2d 317, 355, citing People v. Blitz (1977), 68 Ill. 2d 287, 292, cert. denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622.) As such, the trial court was correct in finding that the 236 warrantless arrest was supported by probable cause, and we cannot say its decision finding exigent circumstances was against the manifest weight of the evidence. People v. Montgomery (1986), 112 Ill. 2d 517, 528. The defendant also argues that his rights under the fifth and sixth amendments were violated when he was interrogated after he requested an attorney. He claims that his testimony that he requested an attorney is uncontradicted and that continued interrogation was violative of his fifth amendment rights under Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880. The State first says the issue was waived by the defendant's failure to raise it in his motion for a new trial, and, secondly, the fact is that the defendant did not request an attorney. The defendant testified at the suppression hearing that when he was brought into the interrogation room at the police station, the police began asking him questions. He said they asked him if he wanted an attorney, and he said he did. The defendant said he only signed a form waiving his rights because the police had told him to sign it. He further testified that the police continued asking him questions, and that he continued telling them he would rather talk to an attorney before answering. He said one officer repeatedly told him that he was involved in a shooting. He said the police slapped him, hit him, would not allow him to talk to an attorney, and instructed him not to tell Assistant State's Attorney Groark about being beaten. The defendant also testified he told Groark that he would make a statement after he was allowed to place a phone call. He said he made a phone call to a friend about obtaining an attorney. He told Groark that he had made the call, but did not tell him that he could not get through to his friend on the phone. He testified on cross-examination that he did not 237 tell Groark that he wanted an attorney, nor did he tell him that he wanted an attorney appointed for him. Officer James L. Jordan testified at the suppression hearing that he took the defendant from his home to the Burbank police department facility at 4:15 p.m. He said he almost immediately read the defendant his Miranda rights, which the defendant acknowledged and then signed a written statement waiving those rights. The defendant said he would talk to the officer. Jordan testified he neither punched the defendant nor saw any other officer hit him. Another investigating officer, Thomas Adamski, testified substantially the same. He testified that the defendant gave his statement about 11:30 p.m., and he was present when the defendant and Assistant State's Attorney Groark signed it. Adamski said he heard both Jordan and Groark advise the defendant of his rights. Groark testified at the suppression hearing that he first spoke to the defendant about 6:45 p.m., advising him of his rights under Miranda, and then speaking with him for about 20 minutes. According to Groark, the defendant later agreed to make a statement to police if he was first allowed to make a phone call. Groark testified that the defendant made the requested phone call and then made his statement. Groark said he did not see anyone strike the defendant, that the defendant did not request any medication, that the defendant did not complain of any physical disability, and that he did not threaten to lock up the defendant's wife or girlfriend. The trial court denied the motion to suppress, finding that "the defendant's assertions and allegations appear unlikely and improbable." It is established that a trial court's ruling on a motion to suppress will not be disturbed unless it is manifestly erroneous. (People v. Garcia (1983), 97 Ill. 2d 58, 74, cert. denied (1984), 467 U.S. 1260, 82 L. Ed. 2d 856, 104 S. Ct. 3555.) Under 238 Miranda and its progeny, once an individual states that he wants an attorney, all interrogation must cease until an attorney is present. (Miranda v. Arizona (1966), 384 U.S. 436, 473-74, 16 L. Ed. 2d 694, 723, 86 S. Ct. 1602, 1627.) The defendant's assertion that his testimony concerning his requests for an attorney was uncontradicted is belied by the extensive record of the hearing on his motion. Not only did three persons testify they had either admonished the defendant or heard someone else admonish him as to his concerned constitutional rights, but the defendant admitted he never told Groark, the assistant State's Attorney who took his statement, that he wanted an attorney, and he signed a statement waiving his rights. The defendant said he wanted to first make a phone call, and by his own admission, he made the phone call, and then did not tell the officers that he could not get through to the party he said he was attempting to reach. The trial court was entitled, after observing the witnesses testify, to disbelieve the defendant's version of what transpired. There was no error in its ruling. The defendant also contends that the trial court violated his rights under the sixth and fourteenth amendments by excusing prospective juror Thelma Jackson for cause. The defendant's argument is based on the following colloquy between the court and prospective juror Jackson: "THE COURT: * * So do you know of any other reason why you couldn't be a fair and impartial juror? A. No, but I do not think I believe in the death penalty. Q. You do not believe that you could consider the imposition of it? Under any circumstances? A. I would rather not. Q. Well[,] is it that you couldn't? A. Well[,] I mean if the circumstances were No, I would rather not. Q. Well[,] all right. We will excuse you for cause. 239 A. Okay. Thank you." The State argues that, firstly, the issue is waived because the defendant did not object to the judge's excusal for cause, and that, on the merits, the prospective juror had in practical terms responded "no" to the judge's query of whether she could consider the imposition of the death penalty under any circumstances. Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, prohibits the exclusion for cause of prospective jurors who express only general objections to the death penalty. In Wainwright v. Witt (1985), 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852, the Court held that a juror may not be excused unless his or her views "`prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" We would observe that the defendant here did not object to the exclusion of juror Jackson. The failure to raise an issue in a written motion for a new trial generally constitutes waiver of that issue and it cannot be urged as a grounds for reversal on review. (People v. Caballero (1984), 102 Ill. 2d 23, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 298, 105 S. Ct. 362.) An exception to the waiver doctrine is provided by our Rule 615(a) (107 Ill.2d R. 615(a)), but that exception is expressly limited to cases in which the plain error affected substantial rights. Our decisions have held that, while the plain error doctrine may come into play when reviewing a sentencing hearing involving the death penalty (People v. Szabo (1983), 94 Ill. 2d 327, 355), issues which were waived will be addressed only when the evidence is closely balanced (People v. Garcia (1983), 97 Ill. 2d 58, 86-87). Even if an objection had been made here, the record shows a proper basis for the exclusion of prospective juror Jackson under Witherspoon and Wainwright. The challenge to a juror exclusion in People v. Del Vecchio (1985), 105 Ill. 2d 414, 240 cert. denied (1985), 474 U.S. 883, 88 L. Ed. 2d 173, 106 S. Ct. 204, was based on a very similar response by the prospective juror. In Del Vecchio, the prospective juror said "I don't think I have the right to do that [impose death sentence]." This court decided there that the standards of Witherspoon had been met and that "the prospective juror's inclusion of `I think' did not render his answers ambiguous. We are persuaded that regardless of what the evidence showed, he would have voted against the imposition of the death penalty, and we conclude that the circuit court did not err in excusing him." (105 Ill. 2d 414, 431; see also People v. Brisbon (1985), 106 Ill. 2d 342, 357-60, cert. denied (1985), 474 U.S. 908, 88 L. Ed. 2d 241, 106 S. Ct. 276.) Jackson responded here "No, I would rather not" when asked by the judge if she could consider imposing the death penalty under any circumstances. Jackson's responses to the court's questions demonstrate that her views concerning the death penalty would prevent or substantially impair the performance of her duties as a juror in accordance with the instructions and her oath. Jackson was properly excused for cause. The defendant also contends he was denied a fair trial by the admission into evidence of an out-of-court statement made by Infelise nearly 6 1/2 hours after he was shot. The challenged hearsay statement, naming "Robert Gott or Gotch" as the offender, was made to Officer Stanton at the scene of the crime when the trunk of the car was first opened by police and paramedics. Stanton testified that Infelise made the statement as a response to Stanton's question, "Who did this to you?" The trial court held the statement was admissible, qualifying as a spontaneous-declaration exception to the hearsay rule. The trial court determined that, although the statement came 6 1/2 hours after the shootings, it was Infelise's first opportunity to speak after being confined, suffering from multiple gunshot wounds, in a locked car trunk. The State contends the 241 circumstances here show that Infelise's statement to Stanton was spontaneous and, as such, admissible. For testimony to qualify as a spontaneous declaration and be admissible, three requirements must be met: "(1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence." (People v. Poland (1961), 22 Ill. 2d 175, 181.) The testimony concerning Infelise's statement that his attacker was "Robert Gott or Gotch" was properly admitted under the spontaneous-declaration exception to the hearsay rule. The occurrence was the multiple gunshot wounds and subsequent confinement in the trunk. This undoubtedly horrifying experience would produce an unreflected statement. Second, while the defendant correctly asserts that a rather lengthy interval elapsed 6 1/2 hours between the occurrence and the statement, we must reject his argument that the statement was not spontaneous. In both decisions relied upon by the defendant, People v. Robinson (1978), 73 Ill. 2d 192, and People v. Jones (1985), 105 Ill. 2d 342, the declarants had made the challenged hearsay statements after talking to other persons about the crimes. Infelise's response to Stanton's question was his first opportunity to speak with anyone after the period of confinement in a seriously wounded condition. Too, "[t]he time factor is an elusive element and will vary with the facts of the case." (People v. Shum (1987), 117 Ill. 2d 317, 343; In re Hatfield (1979), 72 Ill. App. 3d 249, 257.) The circumstances here show that Infelise was confined for 6 1/2 hours in a car trunk, suffering from multiple gunshot wounds and the resultant blood loss, and suffering this horror with a dead man on a cold December night. We believe it is inconceivable, as the trial court ruled, that Infelise would have spent the time under these conditions to attempt to fabricate a story or statement about the event. Lastly, the statement admitted related 242 to the occurrence. That the statement was made in response to a question about "who did this" does not necessarily destroy its spontaneity. (People v. Shum (1987), 117 Ill. 2d 317, 343; People v. Damen (1963), 28 Ill. 2d 464, 472.) As such, Infelise responded spontaneously to Stanton's query and the statement was properly admitted into evidence. The defendant also contends that he was not proved guilty beyond a reasonable doubt of the murder of Infelise because the evidence was insufficient to show that the gunshot wounds were a contributing cause of death. The parties stipulated that Infelise was in the hospital from December 12, 1982, the day he was discovered in the car trunk, through December 28, 1982, at which time he died. It is the defendant's contention that the testimony of a medical expert left the relation of the gunshot wounds to the cause of death to mere inference and speculation. Conversely, the State argues that the medical examiner's testimony showed the multiple gunshot wounds inflicted upon Infelise were the cause of his death. Dr. Lawrence Ariano, qualified to testify as an expert in the field of pathology, performed an autopsy on Infelise at Central DuPage Hospital on December 29, 1982. He testified that Infelise had a surgical scar on the right side of the chest and a vertical mid-abdominal scar, both of which showed healing. He also observed a rubber drain in the right upper quadrant, and evidence of "entrance-type bullet wounds" on the right shoulder, an area in the right axilla, and also on the right upper quadrant of the abdomen. Dr. Ariano found "two recent, small surgical incisions that were healing" in the right upper area of the back. He also testified he removed two bullets from near Infelise's spine area and the right flank area. His internal examination found numerous healing wounds near the small bowel, pancreas, and "massive bilateral thromboembolisms, blood clots that 243 occluded the major vessels of both lungs." He testified further about the thromboembolisms: "They are relatively common findings after major surgical operations in people who have had severe injuries such as I presume this man to have had based on the findings that I discovered both internally and externally. * * [I]n a young man like this, it would usually follow a surgical operation or severe injury, both of which he wound up having." He further testified that the cause of death was multiple gunshot wounds of the chest and abdomen and the "mechanism of death" was massive, bilateral pulmonary thromboembolism. He defined "mechanism" of death as that "secondary set of causes that leads immediately up to the person's demise. * * * [B]ut the first cause, the real cause, the proximate cause in this case was the gunshot wounds that were inflicted." Gacho contends that the above testimony leaves to mere inference and speculation the causal relation between the criminal acts and the subsequent death. We recently addressed a contention similar to that of Gacho's in People v. Brackett (1987), 117 Ill. 2d 170, and we consider that that holding is controlling here. In Brackett, the defendant was originally charged with the rape, deviate sexual assault, and aggravated battery of an 85-year-old widow. About five weeks after the events giving rise to the original charges, the woman died. An autopsy determined that her immediate cause of death was asphyxiation from food being aspirated into her trachea. The defendant was then additionally charged with murder; he was convicted of murder, rape, and aggravated battery. He contended on appeal that he was not proved guilty of murder beyond a reasonable doubt because there was insufficient evidence to prove a criminal agency caused the woman's death. 244 This court noted that where criminal acts of the defendant have contributed to a person's death, the defendant may be found guilty of murder. "It is not the law in this State that the defendant's acts must be the sole and immediate cause of death. People v. Reader (1962), 26 Ill. 2d 210, 213." (People v. Brackett (1987), 117 Ill. 2d 170, 176.) The causal relationship is a question of fact that should be left to the trier of fact, and a reviewing court will not disturb the verdict unless the evidence is so unreasonable, improbable and unsatisfactory as to leave a reasonable doubt as to defendant's guilt. (People v. Brackett (1987), 117 Ill. 2d 170, 177, citing People v. Molstad (1984), 101 Ill. 2d 128, 133.) The uncontradicted testimony of the medical experts in Brackett showed that the victim, due to her broken rib and other injuries, was not able to breathe deeply to expel the food from her trachea nor was she able to be fed through a nasal tube. This court held that the defendant had set in motion a chain of events which contributed to the victim's death, and that the medical testimony provided sufficient proof of causation. We consider that the testimony of the medical examiner here summarized a detailed internal and external examination of Infelise and supported the trier of fact's conclusion that the gunshot wounds contributed to Infelise's death. Dr. Ariano's uncontradicted testimony showed that Infelise had suffered multiple gunshot wounds, had had surgery as a result of the internal damage caused by the bullets, and that Dr. Ariano had actually removed two of the bullets post-mortem. He described the pulmonary thromboembolisms as a common result from the type of surgery and severe injury that Infelise had recently undergone. And, although he testified that the thromboembolisms were the immediate cause of death, he identified the gunshot wounds as the "first, or real cause" of Infelise's death. We believe that 245 the felonious acts of the defendant set in motion the chain of events which contributed to Infelise's death. The pathologist's testimony provided sufficient proof of causation between the defendant's criminal acts and the subsequent death of Infelise. The defendant's contention to the contrary must be rejected. The defendant, citing People v. Fiorita (1930), 339 Ill. 78, and People v. Evertson (1923), 310 Ill. 397, next contends that a portion of the State's cross-examination of him was improper, beyond the scope of direct, and so irrelevant and prejudicial as to deprive him of a fair trial. He says the State exceeded the proper limits of cross-examination in two areas. He first challenges the cross-examination concerning whether he used cocaine and his frequency of use. The defendant believes these questions suggested he had committed crimes not charged in the indictment. The questions, as the State notes, were not objected to at trial and not raised in the defendant's motion for a new trial, thus waiving their review. Another area of cross-examination challenged by the defendant concerns letters written by the defendant, while he was being held in Cook County jail prior to trial, to De Wulf when she was staying at his sister's home in Arkansas. De Wulf had testified that Gacho had asked her to stay away from the Chicago area until after his trial and had asked her in June 1984 to go to Arkansas to stay with his sister. The State cross-examined Gacho concerning the letters, which the State had introduced into evidence, asking if he had written to De Wulf, "I still believe I can escape from here one way or the other." The defendant objected, contending the State was introducing proof of another possible crime, and moved for a mistrial. We consider that the trial court ruled correctly in allowing the above cross-examination. "[T]he scope of 246 cross-examination rests largely in the discretion of the trial court, and we will overturn its ruling only where an abuse of that discretion results in manifest prejudice to the defendant." (People v. Wright (1985), 111 Ill. 2d 128, 149, quoting People v. Owens (1984), 102 Ill. 2d 88, 103, cert. denied (1984), 469 U.S. 963, 83 L. Ed. 2d 297, 105 S. Ct. 362.) That the contents of the letter showed Gacho wanted to escape from jail was proper and relevant testimony as tending to show consciousness of guilt. E. Cleary & M. Graham, Handbook of Illinois Evidence § 801.3, at 514 (4th ed. 1984); People v. Gaines (1981), 88 Ill. 2d 342, 366, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285; People v. Harper (1967), 36 Ill. 2d 398, 403. The defendant further challenges the cross-examination concerning a letter from Gacho to De Wulf in which he said, "we were pushing the State and they might mess up." The examination continued: "[THE PROSECUTOR]: Read the letter, Mr. Gacho. What are the first four words of that letter? * * A. `Hi, Sweetheart. I love you.' * * * Q. Did you later, in that same letter to this woman that you had no feelings for, say, `The way I look at it, the State made just about their whole case around you. They were banking on you. Now, they are going to have to change their plans, and they don't have all that much time with all their other cases.'" The defendant objected that the letters were not supposed to go to the jury, but "they are going to the jury line by line." The court ruled that evidence of the letters' content was permissible impeachment of the defendant's testimony concerning the nature of his relationship with De Wulf at the time of the murders and subsequent to his arrest. The cross-examination continued 247 with the prosecutor asking, "Did you write, `The [defense] lawyers set their case up knowing and hoping you wouldn't be in court'?" The court overruled the defendant's objection that the question went to defense plans and strategy. The defendant then answered the above question affirmatively. The defendant also responded affirmatively that he had signed the letter, "Love, your future husband[,] Bob." We consider that the above sequence of questions concerning the letters from Gacho to De Wulf was proper impeachment of the defendant's testimony on direct examination. In cross-examining criminal defendants, it is proper to ask the witness questions that would explain, qualify, discredit or destroy his direct examination. (People v. Williams (1977), 66 Ill. 2d 478, 486-87.) The questions were a proper inquiry by the State to Gacho's testimony elicited on direct examination and go directly to his credibility on how he had described his relationship with De Wulf, the State's principal witness. The State characterizes the contents of the letters as an attempt to "affectionately" influence De Wulf not to appear in court to testify against the defendant. Our review of the record shows that the State's view is likely correct. Testimony is relevant and admissible that relates to any attempt by a party to conceal or, by threat or otherwise, to suppress evidence or otherwise obstruct an investigation. People v. Gambony (1948), 402 Ill. 74, 80, cert. denied (1949), 337 U.S. 910, 93 L. Ed. 1722, 69 S. Ct. 1045. The defendant also contends he was denied a fair trial because the prosecutor was allowed to comment in closing argument on a hearsay statement by Infelise that named Gacho as one of the offenders, despite the trial court's ruling on a motion in limine to exclude the evidence. This argument concerns the testimony of Officer Coakley, who detailed the police investigation that led to the arrest of Gacho. He said he spoke to Infelise at the 248 hospital for three or four minutes on the morning of December 12, 1982, and he and his partner then went to Chicago to look for Robert Gacho. In a sidebar, the defendant objected, claiming that the testimony was indirect hearsay of Infelise's statement identifying Gacho as one of the offenders, and he moved for a mistrial, which was denied. The alleged error in allowing the above testimony was then compounded, the defendant asserts, because the prosecutor asked Gacho during cross-examination if he had heard Coakley testify that he went to look for him. During closing argument, the prosecutor summarized Coakley's testimony, saying he spoke to Infelise at the hospital, "getting that defendant's name from the lips of Tullio Infelise." The defense objection to this comment was sustained, but a motion for mistrial was denied. The prosecutor also said Coakley had gotten more detailed information from police records. The defendant contends, relying on People v. Spivey (1978), 58 Ill. App. 3d 677, People v. Warmack (1976), 44 Ill. App. 3d 243, and People v. Campbell (1983), 115 Ill. App. 3d 631, that the claimed hearsay statement of Infelise to Coakley had been injected into the trial by indirection. We must reject the claim. Had the substance of the conversation that Coakley had with Infelise been testified to, it would have been objectionable as hearsay. The testimony of Coakley, however, was not of the conversation with Infelise but to what he did and to investigatory procedure. (People v. Williams (1977), 52 Ill. App. 3d 81, 87-88; see also People v. Wright (1974), 56 Ill. 2d 523.) As our appellate court stated in considering similar testimony, "Such testimony is not hearsay because it is based on the officers' own personal knowledge, and is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers' subsequent conduct." (People v. Hunter (1984), 124 Ill. App. 3d 516, 529; see also McCormick, 249 Evidence § 248, at 587 (2d ed. 1972).) Coakley's testimony was properly admitted. It was error for the prosecutor, during closing arguments, to say that Coakley had learned the defendant's name from the lips of Infelise at the hospital. On this record, however, it was not reversible error. There was no repetition of the improper remarks, as in People v. Campbell (1983), 115 Ill. App. 3d 631, 637, and the court immediately admonished the jury after the prosecutor's remark, saying, "I want to caution the jury that we rely on the Jury's recollection of the evidence that they heard, and any statement made by any lawyer that is not based on the evidence is to be disregarded." This was sufficient to cure any error. The plain error rule, as discussed previously, is invocable where the evidence is so closely balanced that it might be said that the jury's verdict may have resulted from the error. The evidence here cannot be said to be closely balanced. The defendant next contends he was denied a fair trial through the admission into evidence of a prior consistent statement by De Wulf to bolster her credibility. The defendant also says it was improper for the prosecutor to comment on the statement during closing argument. Although the out-of-court statement was admitted into evidence, at the defendant's objection, it did not go to the jury. The statement, given by De Wulf on December 12, 1982, to an assistant State's Attorney at the Burbank police station, was nearly identical to her testimony at trial. Much of the defendant's cross-examination of De Wulf attempted to show that she feared being charged with perjury if she changed her story from the original one she gave the assistant State's Attorney. De Wulf had also made an out-of-court statement to one of Gacho's attorneys about one week after her original statement to the assistant State's Attorney, which was admitted into 250 evidence. In her second statement, she claimed her original statement had been fabricated because she feared the police would arrest her. The defendant, relying on People v. Clark (1972), 52 Ill. 2d 374, argues that a prior consistent statement is admissible only to rebut a charge that at trial the witness is motivated to testify falsely or that the testimony is a recent fabrication. Evidence of the prior consistent statement is admissible to show that it was made before the motive came into existence. The defendant contends De Wulf had a motive to fabricate before she made the original statement as she wanted to avoid being charged as an accomplice to murder or for possession of cocaine at her residence. Dino Titone, also charged with the murders of Fratto and Infelise, was tried simultaneously with Gacho. Titone waived trial by jury, and at their joint trial, the evidence was considered by the trial judge with respect to Titone, while the jury received evidence as to the defendant. Titone raised this issue on his appeal, but it was rejected. (People v. Titone (1986), 115 Ill. 2d 413, 423.) There, we held that the circuit court, in admitting the original statement, apparently concluded that De Wulf did not have a motive to fabricate when the statement was made. We said, "On this record we are unable to say that in admitting the statement the court erred." (115 Ill. 2d 413, 423.) Although a jury, rather than a judge, heard the evidence against Gacho, logic requires that the question be decided against Gacho, as it was against Titone. Proof of the prior consistent statement was proper as a means to rebut the defendant's claim on cross-examining that De Wulf's trial testimony had been fabricated to avoid being charged with perjury. People v. Powell (1973), 53 Ill. 2d 465, 474-75. The defendant next argues he was denied a fair trial because the prosecutor cross-examined Mrs. Gacho on matters beyond the scope of direct examination. The 251 defendant also claims this was unfair because the prosecutor then impeached her with a prior inconsistent statement that incriminated the defendant, and the jury was not instructed that the prior inconsistent statement could not be used substantively. On direct examination, Mrs. Gacho testified she went to the Burbank police station the night of December 12, 1982, where her husband was in custody, after the police had called her three times, asking about kidney medication for the defendant. She testified concerning her emotional state at the police station. On cross-examination, she was asked if the officers had asked her questions while she was at the police station. She said they had, although she said it was "more like they were telling me what happened and I was supposed to agree with them." She said she told the police her husband was at home with her and their children on the night the murders occurred. She further testified on cross-examination that she had told the police she did not know if anyone came to her house that night because she was in her bedroom, and she did not know if anything else occurred because she was sleeping. Officer James Coakley was called by the State in rebuttal to Mrs. Gacho's testimony. He testified that Mrs. Gacho told him on December 12, 1982, while she was at the Burbank police station, that Sorrentino and Titone had come over to the Gacho residence about 9:30 p.m. on December 11. She told him that Sorrentino, Titone, and the defendant had sat in the kitchen talking for a while. Gacho later went to her bedroom and came back to the kitchen with a .38-caliber handgun, which he gave to Sorrentino. She heard only portions of their conversation in the kitchen, Coakley testified, but she could discern that they were talking about robbing Fratto and Infelise of cocaine. Fratto and Infelise arrived and the five men sat around smoking cocaine from pipes. According 252 to Coakley's testimony, Mrs. Gacho told him she cleaned the pipes in the bathroom, and she noticed when she returned to the kitchen that Fratto and Infelise were no longer there. Her husband told her the two men were in the basement; she went to her bedroom and awoke later to find the apartment empty. Coakley also testified he did not threaten to charge Mrs. Gacho at the police station or threaten to take away her children. We consider that both the cross-examination and rebuttal testimony were properly admitted. As we stated above concerning the cross-examination of the defendant, cross-examination that explains, discredits, or destroys direct testimony is proper. On direct examination, Mrs. Gacho had stated her reasons for going to the Burbank police station, what she had seen there, and how she felt about the experience. The cross-examination focused on what happened at the police station, and specifically the conversation Mrs. Gacho had with investigators that evening. She had admitted talking to the officers, but denied making the statements which Officer Coakley later testified she made. The prosecutor laid a proper foundation to impeach through a prior inconsistent statement by directing the witness' attention to the time, place, and circumstances of the statement as well as to its substance. (People v. Cobb (1983), 97 Ill. 2d 465, 479.) Introduction of prior inconsistent statements, with the proper foundation laid, is proper cross-examination if offered for impeachment purposes, and not as substantive evidence. Admittedly, there is a danger that juries may consider impeaching evidence such as prior inconsistent statements to be evidence of the truth of the impeaching evidence. (People v. Bradford (1985), 106 Ill. 2d 492, 499.) There is no showing, though, that the State did not limit the use of this evidence here to showing her inconsistencies as to what occurred at the police station. Officer Coakley's testimony was admissible to show her 253 inconsistency and bias, but it was not admissible for the truth of the matters asserted in her statement. (People v. Chupich (1973), 53 Ill. 2d 572, 578-79.) The defendant did not tender a limiting instruction for the jury that Coakley's testimony was to be considered only for purposes of impeachment. We need not address the defendant's claim that it was error not to give the instruction, as any question on it was waived by his failure to tender a limiting instruction (People v. Neal (1985), 111 Ill. 2d 180, 201; People v. Barnard (1984), 104 Ill. 2d 218, 232), and raise it in his motion for a new trial. The defendant also argues the trial court committed reversible error by admitting Mrs. Gacho's gun into evidence. The defendant says the gun, a .38-caliber Charter Arms revolver recovered from a bedroom dresser in the Gacho residence, had no connection to the crimes charged against him. He says the weapons actually used to shoot Fratto and Infelise a .25-caliber automatic and a Smith & Wesson .38-special revolver were recovered at the scene. Officer Coakley, who discovered the gun at the Gacho residence, testified that Mrs. Gacho had told him the gun belonged to her. Mrs. Gacho testified that she owned the revolver. The gun that the defendant had said he carried that night, a Colt Python .357 magnum, was also recovered at his home and admitted into evidence. The defendant says the admission of Mrs. Gacho's gun prejudiced his right to a fair trial as it was not sufficiently connected with the crime and the defendant to make it relevant evidence. (People v. Jones (1961), 22 Ill. 2d 592, 600.) The State correctly argues that, although admission of the gun was objected to at trial, it was not raised in the defendant's motion for a new trial, and is thus waived. People v. Caballero (1984), 102 Ill. 2d 23. On another point, the defendant contends that the prosecutor deliberately elicited highly prejudicial, inadmissible hearsay into evidence, denying him a fair trial, and also 254 that, by doing so, the prosecutor violated the Code of Professional Responsibility. This argument concerns the testimony of Andre Watkins, an emergency medical technician at the Cermak Health Services, a facility of the Cook County jail. Watkins was called by the State as a rebuttal witness to the defendant's testimony that, prior to making his confession while in custody, he was struck in the right kidney area by several officers. Watkins testified as to his physical examination of the defendant on January 6, 1983, about three weeks after he was taken into custody. His testimony was based on a written report he had made of the examination. The report was not admitted into evidence, but was used to assist the witness' recall of the examination. When asked the name of the inmate appearing on his report, Watkins answered, "Robert Gacho, also known as Robert Gotch." The defendant immediately objected and, out of the jury's presence, moved for a mistrial. He argued that he was never known other than Robert Gacho. The judge denied the mistrial motion, but ordered the "also known as" testimony stricken and instructed the jury to disregard it. Watkins said on redirect that the report was in his own handwriting. The defendant's assertion that the State has violated its obligations under the Code of Professional Responsibility apparently is based on a belief that someone other than Watkins placed the "also known as Robert Gotch" onto the report. We agree with the State's contention that the defendant's simply attaching the medical chart purportedly prepared by Watkins to the defendant's brief as an appendix was an improper means of seeking to supplement the appellate record. In any event, the report was not admitted into evidence, and it was not made a part of the trial record. We consider only that which appears in the record on appeal (People v. Reimolds (1982), 92 Ill. 2d 101, 106-07; People v. Jackson (1963), 28 Ill. 2d 37, 39), and there certainly is nothing 255 to support the defendant's claim that the words "also known as Robert Gotch" were placed on the medical chart by someone other than Watkins. The defendant had been shown the report in advance of the testimony, and when he objected strongly to the "also known as" testimony of Watkins, he did not at that time charge or suggest that the notation appeared to be written in a hand other than Watkins', nor did he raise it in his motion for a new trial. The question was waived for appeal. The testimony of Watkins was relevant and admissible, and he was in court subject to cross-examination. Ashford v. Ziemann (1984), 99 Ill. 2d 353, 364-65; People v. Rogers (1980), 81 Ill. 2d 571, 580. The defendant next contends that the prosecutor's comments in rebuttal during closing argument concerning proof of guilt beyond a reasonable doubt improperly reduced the importance of proof beyond reasonable doubt. The prosecutor said: "Reasonable doubt. * * There's nothing magical about proving somebody guilty beyond a reasonable doubt. It happens every time a person is convicted in this courtroom. It happens in every courtroom in this building, in every criminal court building in this county, every county in this state and every state in this country." The State properly points out that nearly identical remarks were made by the prosecutor in People v. Collins (1985), 106 Ill. 2d 237, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267, and were held not to have reduced the State's burden of proof. Similar comments were also held proper in People v. Bryant (1983), 94 Ill. 2d 514, 523. The prosecutor's comments on the State's burden of proof here were not improper. Having rejected the defendant's contentions of error at trial, we affirm his convictions. The defendant also claims there were serious errors relating to his sentencing hearing, most of which need not be addressed in 256 light of our conclusion that there must be a remandment for a new sentencing hearing. The defendant contends he was deprived of a fair sentencing hearing because the prosecutor argued to the jury that, if it did not impose a sentence of death, the defendant might some day be paroled. Such remarks, the defendant says, are subject to a "strict scrutiny" review. (People v. Walker (1982), 91 Ill. 2d 502, 515.) He also argues that he was further prejudiced by the prosecutor's comments urging the death penalty as a means to prevent the defendant from injuring someone else in the future, including prison guards and fellow inmates. The prosecutor said during rebuttal: "Mr. McDonnell [defense attorney] has thrown about some very famous names Gacy, Speck. Well, you know that Richard Speck was originally sentenced to death, and he comes up for parole every two years, and one day he is going to be out on parole. MR. McDONNELL: I'm objecting to this." The trial court sustained the objection and directed that the comment be stricken. The prosecutor continued: "Well, Mr. McDonnell says put Robert Gacho away for life, and I say to you, what about the guards in the jail? What about their families, and what about even the fellow inmates? They deserve protection from a person who would go along with a deal MR. McDONNELL: Your Honor, I'm objecting to this type of argument. THE COURT: Wait, wait. Objection sustained." The prosecutor concluded his argument: "Finally, ladies and gentlemen, on behalf of all of the People, I ask you to consider the opportunity that this man will someday have to hurt somebody else. That's one of the things you can consider. * * [A]nd consider that some day he may have that opportunity again. MR. McDONNELL: Objection to this type of argument. 257 [PROSECUTOR]: Don't let him do that. MR. McDONNELL: He's intimating he will be paroled and THE COURT: Overruled, overruled. Objection overruled." The prosecutor's comments on the possibility of parole, together with the other objectionable comments, were improper and prejudicial, depriving the defendant of a fair sentencing hearing. This court has consistently held that argument by the prosecutor at a death sentencing hearing that raises the possibility of parole as a reason that the defendant should be sentenced to death is improper and prejudicial. (People v. Szabo (1983), 94 Ill. 2d 327, 366-67; People v. Walker (1982), 91 Ill. 2d 502, 515; People v. Brisbon (1985), 106 Ill. 2d 342, 366-68.) In People v. Szabo (1983), 94 Ill. 2d 327, the court stated that comments of that character divert the jury's attention from the aggravating and mitigating factors as it considers the record and the circumstances surrounding the crimes. The Szabo prosecutor, in closing argument during the sentencing phase, extensively discussed the possibility that "some bureaucrat" could later decide to release the defendant on parole. This court said: "The chance that `some bureaucrat [may] decide to release' John Szabo was a factor that should not have been considered. In planting the seed in the jurors' minds the State's Attorney erred. The closing remarks of the State's Attorney in both his closing argument and rebuttal appealed to the passions and prejudices of the jury. The comments of the State's Attorney mandate the vacation of the death penalty. A penalty of death that could have been imposed under the influence of passion or prejudice cannot stand." (94 Ill. 2d 327, 367.) The comments here were even more to be condemned because the prosecutor was aware, from discussions in chambers with the trial judge and defense attorney, that Gacho, 258 if not sentenced to death, would have to be sentenced to natural life imprisonment, with no possibility of parole or release, except through executive clemency. Gacho, who had been convicted of murdering more than one person, was required by statute to be sentenced to natural life imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c); see also People v. Taylor (1984), 102 Ill. 2d 201, 209 (upholding the constitutionality of the provision for mandatory life imprisonment upon conviction of murdering more than one victim).) Despite this knowledge that a term of imprisonment and parole were not an option for this defendant, the prosecutor commented on parole possibilities and asked the jury "to consider the opportunity that this man will someday have to hurt somebody else." Comments which serve no purpose but to "inflame the [passion and] emotions of the jury are highly improper and have no place in the sentencing phase of a capital trial." (People v. Lyles (1985), 106 Ill. 2d 373, 406, cert. denied (1985), 474 U.S. 859, 88 L. Ed. 2d 141, 106 S. Ct. 171.) The comments here deprived the defendant of a fair sentencing hearing under the death penalty statute and require the vacation of the death penalty. The State, relying on People v. Garcia (1983), 97 Ill. 2d 58, 88, contends that statements of the defendant's attorney during his closing argument invited the rebuttal comments of the prosecutor: "MR. McDONNELL: Is Robert Gacho the kind of man that we have had in the history of the State of Illinois, a Gacy, or a Speck or a Heirens? You people know that he's not that type of man." The defense attorney's comments certainly invited the jury to compare the defendant with the notorious murderers, but they did not invite the prosecutor to comment on the possibility of parole. Beyond that, they certainly did not invite the prosecutor to argue that a sentence other than death might endanger prison 259 guards, prison inmates or cause someone else to be injured. Those comments of possible criminal acts by the defendant, should he not be executed, were also improper, as this court held in People v. Holman (1984), 103 Ill. 2d 133, 164-65, cert. denied (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 1204. It is true, as the State points out, that there is no evidence that the possibility of parole was a factor considered in the jury's deliberations, as there had been in People v. Walker (1982), 91 Ill. 2d 502, but these highly prejudicial remarks came in closing argument at the sentencing phase of a case where the death penalty was sought. In Walker this court stated that the review of a death penalty case "demands strict scrutiny of such remarks and their possible effect upon the sentencing jury." (91 Ill. 2d 502, 515; see also California v. Ramos (1983), 463 U.S. 992, 998-99, 77 L. Ed. 2d 1171, 1179, 103 S. Ct. 3446, 3452.) We must reject the State's argument that the trial court's sustaining the objection and ordering that a portion of the comments be stricken cured the error. (People v. Yates (1983), 98 Ill. 2d 502, 538, cert. denied (1984), 466 U.S. 981, 80 L. Ed. 2d 836, 104 S. Ct. 2364.) The force of the prosecutor's comments on the possible future criminal conduct of Gacho clearly was that the jury, if it refused to sentence the defendant to death, would give the opportunity to the defendant to again kill or harm. "Unsupported predictions as to the kinds of crimes the defendant will commit if not executed are even more to be condemned than references to the possibility of parole, for they convey more directly to jurors the vivid, but misleading, message that the death penalty is the only way to protect society from the defendant and forestall his violence." (People v. Holman (1984), 103 Ill. 2d 133, 165.) The prosecutor's statements on this point and concerning parole could well have caused the jury to consider the death penalty as the only way to protect society from the defendant and diverted its attention 260 from the proper aggravating and mitigating factors. As a consequence, the death sentence must be vacated and the cause remanded for a new sentencing hearing. The defendant makes numerous other complaints concerning his sentencing hearing, but as we have already determined that there will be a new sentencing hearing, it is necessary to address only those issues which might reappear at the new hearing. The defendant argues that the trial court erred when it refused to instruct the jury that, in the case of multiple murders, the only alternative sentence to a sentence of death is a sentence of natural life imprisonment without the possibility of parole. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c).) In refusing to instruct, the court told defense counsel that he could inform the jury in closing argument that natural life imprisonment was the only sentencing alternative to death, but the court told counsel that he was not to mention parole. The defendant's attorney did state to the jury in closing argument that the defendant would have to be sentenced to life imprisonment, if the death penalty were not imposed. In instructing the jury, the court gave Illinois Pattern Jury Instruction, Criminal, No. 7A.15 (2d ed. 1981) (IPI), which provides that if the jury finds mitigating factors that preclude the death sentence, the court shall sentence the defendant to imprisonment. The State argues that the instruction was adequate, for this court in People v. Albanese (1984), 102 Ill. 2d 54, 81, cert. denied (1984), 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268, and in People v. Stewart (1984), 105 Ill. 2d 22, 71, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666, held that there was no error in giving this standard IPI instruction without informing the jury that natural life imprisonment was the only statutory alternative to the death penalty for a multiple murderer. 261 The Court of Appeals for the Fifth Circuit, in King v. Lynaugh (1987), 828 F.2d 257, observed that jurors may harbor misconceptions about parole law, which may cause them to be biased in favor of capital punishment if the defendant is not allowed to inquire into their views on parole during the voir dire. In King the court was applying the law of Texas, which provides that a jury may not consider the possibility of parole in its deliberations on punishment. (O'Bryan v. Estelle (5th Cir.1983), 714 F.2d 365, 388.) Although the King decision involved the voir dire stage of trial and not the sentencing stage, the opinion provides persuasive argument that a jury should be fully instructed as to sentencing options in a capital case. The court observed: "A juror might decline to impose the death penalty if the alternative were confinement of the criminal for life without possibility of parole because the general public would be adequately protected by such a life sentence. Similarly, a juror might decline to impose the death penalty on a particular defendant if he believed that the individual to be sentenced would no longer represent a menace if he were confined for at least twenty years without parole for the crime he committed. If, on the other hand, a juror believed it were likely or even possible that a convicted person would be released in a few years and the juror believed that the criminal would then still constitute a hazard to the public, that juror might conclude that only the death penalty would adequately ensure public safety." King, 828 F.2d at 260. The standard IPI instruction given here, which states that if a sentence of death is not imposed, the judge will sentence the defendant to imprisonment, is not a complete instruction as to the statute in regard to a multiple murderer. A convicted defendant cannot be given imprisonment for a term of years, but is required by statute to be sentenced to natural life imprisonment. (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c).) The jury here could 262 have reasonably believed, from the instruction given, that the defendant might be given a prison term of a number of years, rather than natural life imprisonment. That could have persuaded it that the death penalty was the only certain way to protect society from this defendant. The court's curiously allowing defense counsel to argue that life imprisonment was the only other sentencing option, and in effect having counsel rather than the court instruct the jury, did not rectify the error. We observe further that the defendant's refused instruction itself was defective. It failed to state that natural life imprisonment may be commuted through executive clemency. The Unified Code of Corrections provides that, "No person serving a term of natural life imprisonment may be paroled or released except through executive clemency." (Ill. Rev. Stat. 1983, ch. 38, par. 1003-3-3(d).) In California v. Ramos (1983), 463 U.S. 992, 77 L. Ed. 2d 1171, 103 S. Ct. 3446, the Supreme Court said that to describe a sentence of life imprisonment as without parole "is simply inaccurate when the governor possesses authority to commute the sentence to a lesser sentence that include the possibility of parole." An instruction stating that natural life imprisonment was the only alternative to the death penalty would be defective for failing to include that a term of life imprisonment may be commuted by the executive. An instruction in the case of multiple murders should state that if the jury finds mitigating factors sufficient to preclude imposition of the death penalty, the defendant will be sentenced to natural life imprisonment, and no person serving a term of natural life imprisonment can be paroled or released, except through executive clemency. Our decision on this issue differs from what this court said in Albanese and Stewart. Under the supervisory authority inherent in this court, as well as that conferred by section 16 of article VI of the Illinois Constitution of 263 1970, we direct that after the date of this opinion the trial courts of this State, when conducting a sentencing hearing involving a defendant convicted of multiple murders, use the above jury instruction. People v. Prim (1972), 53 Ill. 2d 62, 76. The defendant also contends that the trial court erred by giving the jury an instruction and verdict form at the death-eligibility phase of the sentencing hearing that permitted it to find Gacho subject to the death penalty, though the jury may have had a reasonable doubt whether Gacho intended that a life be taken. The defendant says that he may not constitutionally be sentenced to death "in the absence of proof that [he] killed or attempted to kill, and regardless of whether [he] intended or contemplated that life would be taken." (Enmund v. Florida (1982), 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368.) The defendant's reasoning under Enmund is that his conviction was obtained solely upon the theory of vicarious liability under the felony-murder doctrine and that such a conviction may be gotten without a showing of intent upon the defendant's part to kill or cause great bodily harm. He contends that, because the jury returned a general verdict finding him guilty of murder and of the two predicate forcible felonies, it is "impossible to determine if the jury found a reasonable doubt on the question of the defendant's intent to kill." The defendant's argument does not convince because the jury, in the death-eligibility phase of the sentencing hearing, was given Illinois Pattern Jury Instruction, Criminal, No. 7A.11 (2d ed. 1981), which states that the defendant is liable for the death penalty if convicted of murdering two or more persons, so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts. At the conclusion of the eligibility phase, the jury agreed that this aggravating factor existed. Thus, it is clear that the jurors, 264 who also had sat at the guilt/innocence phase, judged the murders to be intentional acts. Too, the recent Supreme Court decision in Tison v. Arizona (1987), 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct. 1676, which is cited by the State as additional authority, defeats the defendant's argument that he is not subject to the death penalty because he did not specifically intend to kill the victims and did not inflict the fatal gunshot wounds. The court held in Tison that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement for imposition of the death penalty. (Tison v. Arizona (1987), 481 U.S. 137, 158, 95 L. Ed. 2d 127, 145, 107 S. Ct. 1676, 1688.) The evidence here leaves no doubt that Gacho was a major participant in the murders of Infelise and Fratto and had shown a reckless indifference to human life. For the reasons given, we affirm the defendant's convictions, but we vacate the sentence of death and remand the cause to the circuit court of Cook County for a new sentencing hearing. Judgments affirmed; sentence vacated; cause remanded. JUSTICE SIMON, dissenting: The State was permitted, over the defendant's objection, to cross-examine the defendant about the contents of a letter he wrote to Katherine De Wulf from prison in which he stated: "I still believe I can escape from here one way or the other." The defendant objected on the ground that the State was introducing proof of another possible crime. The majority concludes that the trial court ruled correctly in allowing the cross-examination because the defendant's statement about escaping from jail "was proper and relevant testimony as tending to 265 show consciousness of guilt," citing People v. Gaines (1981), 88 Ill. 2d 342, cert. denied (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285, and People v. Harper (1967), 36 Ill. 2d 398. (122 Ill.2d at 246.) These two cases, however, involved situations where the defendants actually escaped or attempted to escape. (People v. Gaines, 88 Ill.2d at 366; People v. Harper, 36 Ill.2d at 403.) Here, the defendant was simply writing about the possibility of leaving prison sometime in the future. He may have meant that he thought he would be found innocent and be released or he may have been thinking of escaping because of harsh conditions in prison. In any case, his statement is not relevant to the issue of whether he is guilty of murder, and permitting the State to cross-examine the defendant about the statement was reversible error. I believe that the trial court also committed a reversible error in admitting De Wulf's prior consistent statement given at the police station on December 12, 1982, the night after the incident. A prior consistent statement is admissible to rebut a charge that the witness has a motive to testify falsely or that her testimony is of recent fabrication where the witness told the same story before the motive came into existence or before the time of the alleged fabrication. (People v. Clark (1972), 52 Ill. 2d 374, 389.) The majority does not apply this principle to the evidence introduced here. Rather, relying on this court's decision in Gacho's codefendant's case, People v. Titone (1986), 115 Ill. 2d 413, 423, the court concludes that the statement was admissible because the trial judge "apparently concluded that De Wulf did not have a motive to fabricate when the statement was made." (122 Ill.2d at 250.) The majority does not identify any motive that De Wulf had to fabricate her trial testimony that did not also exist when she gave her original statement to the police. The defense theory, as evidenced by its cross-examination 266 of De Wulf, was that she falsely implicated the defendant in order to avoid prosecution for being an accomplice to murder or for possession of cocaine at her residence. As I stated in my dissent in People v. Titone, "Since this motive was present, if anything more forcefully, when she made her original statement to the police the night after the incident, the existence of that statement could not rebut the inference created by the defense that she was lying on the stand and served only to improperly bolster her testimony." (115 Ill.2d at 428 (Simon, J., dissenting).) For the foregoing reasons, I believe that the defendant's conviction should be reversed, and I respectfully dissent.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612948/	875 P.2d 515 (1994) 128 Or. App. 274 Matthew SLAK and Karen Slak, Respondents, v. Donald R. PORTER and Clara Porter, Appellants. 9207-04834; CA A77302. Court of Appeals of Oregon. Argued and Submitted July 13, 1993. Decided May 25, 1994. 517 Stewart M. Whipple, Portland, argued the cause, for appellants. With him on the briefs were Charles F. Adams and Stoel Rives Boley Jones & Grey. Lawrence J. Beck, Portland, argued the cause and filed the brief, for respondents. Before WARREN, P.J., and EDMONDS and LANDAU, JJ. LANDAU, Judge. This action arises out of a dispute concerning the continuing existence of an easement over defendants' land. Plaintiffs brought suit to quiet title to the easement, for a declaratory judgment, and to permanently enjoin defendants from interfering with their use of the easement. Defendants counterclaimed to quiet title and to remove cloud from their title, on the theory that the easement had been extinguished by adverse possession. The trial court declared that plaintiffs retained the easement as described in their deed, enjoined defendants from interfering with the easement, and instructed defendants to remove the obstructions they had placed on the easement. On de novo review, ORS 19.125(3), we reverse. Before 1958, plaintiffs' and defendants' predecessor owned a single tract of land on the west bank of the Willamette River. In 1958, the predecessor divided the single tract into two parcels, an eastern parcel that bordered the river and a western parcel that was situated on the upland side of the eastern parcel. The predecessor sold the eastern, riverfront parcel to defendants, subject to an easement in favor of the western parcel. The easement was described in the deed as a three-foot wide path along the northern edge of the property running eastward to the river. The western parcel was sold to a series of owners, and ultimately, in 1989, to plaintiffs. In 1959, defendants developed the eastern, riverfront property. Among the improvements was a six-foot-high fence, which begins just inside the entrance to the property, at its northwestern corner, and runs 60 feet along the northern boundary, parallel to the easement. At the northwestern corner, however, shortly after the entrance to the property, the fence angles directly across the easement and completely blocks it. Defendants constructed the fence with the deliberate 518 intention of blocking access to the easement. The fence has been maintained continuously since its construction. Beginning in the late 1970's, defendants planted substantial shrubbery and other vegetation in and along the easement. At least six rhododendrons were planted directly in the path, as was a 60-foot-long photinia hedge, a holly tree and several cedars. Defendants have maintained the vegetation continuously since the time of planting. Evidence of any attempts by owners of the western parcel to obtain access to the river since 1959 is sketchy. The first owner of the western parcel testified that, from 1959 to 1968, he and members of his family walked to the river two to three times each year. However, because the easement was blocked by the fence, he and his family walked to the north of the fence, on the neighboring owner's land, to get to the river. He assumed, incorrectly, that the fence did not block the easement, and that, when he walked to the north of the fence, he was walking on the easement. The owner of the western parcel from 1968 to 1970 testified that he attempted to walk to the river from his property on one occasion. He said that there was no trail at the time, and that he could not recall whether he walked to the north or the south of the fence. Similarly, the owners of the western parcel from 1970 to 1973 "checked out" the easement on one occasion. There is no testimony as to the route they took to the river on that occasion. The owner of the parcel from 1973 to 1989 testified that, at the time he purchased the property, the easement area was so heavily overgrown with shrubbery and other vegetation that he could not use it. He testified that his wife would occasionally "stand on the end of the easement," and that he and his grandchildren would occasionally go from their property to the river and back. However, he could not identify the route he took to the river, and whether it was to the north or the south of the fence and the shrubbery. He did say that he was aware that the shrubbery blocked the easement and that "it had been our intention eventually to confront [defendants] on this issue." Plaintiffs obtained the western parcel in 1989. Plaintiff Matthew Slak testified that he used the easement five or six times. He said that he walked along the south side of the fence through some bushes and then to the south of the photinia hedge that occupied the easement. To establish that they extinguished the three-foot easement to the river, defendants must show that their use or occupancy of the easement was actual, open, notorious, exclusive, continuous and hostile for a 10-year period. Abbott v. Thompson, 56 Or.App. 311, 316, 641 P.2d 652, rev. den., 293 Or. 103, 648 P.2d 851 (1982); see also Schoeller v. Kulawiak, 118 Or.App. 524, 528, 848 P.2d 619, rev. den., 317 Or. 272, 858 P.2d 1314 (1993).[1] In addition, defendants must show that their use or occupancy was inconsistent with plaintiffs' use of the easement. Abbott v. Thompson, supra, 56 Or.App. at 317, 641 P.2d 652. Each element must be established by clear and convincing evidence. Thompson v. Scott, 270 Or. 542, 547, 528 P.2d 509 (1974). To establish "actual" possession, defendants must show "occupation or use of the land that would be made by an owner of the same type of land, taking into account the uses for which the land is suitable." Lee v. Hansen, 282 Or. 371, 376, 578 P.2d 784 (1978). Defendants contend that, by erecting a fence and planting trees, shrubs and other vegetation in the easement, they have established actual possession. Plaintiffs do not address the sufficiency of defendants' proof with respect to this element. In any event, we find that defendants' use of the easement is the type of use that would be made by the owner of the property. The element of actual possession is satisfied. To establish that their use was "open" and "notorious," defendants must 519 show that plaintiffs had notice that defendants were asserting a claim of ownership of the easement. Corson v. Williford, 44 Or. App. 145, 149, 605 P.2d 1194 (1980). Defendants argue that their construction of the fence in 1959 and their later planting of trees, shrubs and other vegetation directly in the easement put plaintiffs on notice that defendants were asserting ownership of the easement. Plaintiffs characterize defendants' use of the easement as "secretive and covert" and argue that defendants' failure to declare openly their intentions with respect to the easement is fatal to their adverse possession claim. According to plaintiffs, there was no way for them to know that the fence and the vegetation actually blocked the easement. Defendants' failure to announce their intentions to acquire the easement by adverse possession is not fatal to their claim. Notice of the adverse possession may be actual or constructive. Corson v. Williford, supra, 44 Or.App. at 149, 605 P.2d 1194. Construction of a fence, in fact, is recognized as a "classic" example of the type of use that satisfies the requirement of open and notorious use. Doan v. Bogart, 254 Or. 42, 43, 456 P.2d 1001 (1969). Moreover, the testimony of prior owners removes any doubt that they were aware of the fence and the vegetation and the extent to which both blocked the easement. The owner of the western parcel for the 16 years between 1973 and 1989, for example, testified that he was aware of the shrubbery and other vegetation growing in the easement in the 1970's. He further testified that he had intended to confront defendants concerning their obstruction of the easement. Defendants' possession was open and notorious. To establish that their possession was "exclusive," defendants must show that their possession was of the kind that would characterize an owner's use. Nelson v. Vandemarr, 281 Or. 65, 74, 573 P.2d 1232 (1978). Plaintiffs argue that defendants cannot establish that element because there is no evidence as to when the planting of the shrubs and other vegetation "completely obstructed that portion of the easement so as to make it impassable." Plaintiffs misunderstand the nature of the element of exclusivity. Actual physical exclusion of all other users is not required. Schoeller v. Kulawiak, supra, 118 Or.App. at 528, 848 P.2d 619. What is required is use consistent with ownership. Nelson v. Vandemarr, supra, 281 Or. at 74, 573 P.2d 1232. The construction of the fence and the planting of vegetation directly in the easement is use consistent with ownership. Defendants have established the exclusivity of their possession. Defendants also must establish that they possessed the easement continuously for a period of not less than 10 years. Defendants argue that they adversely possessed the easement continuously for 33 years, beginning with the construction of the fence directly blocking the easement to the river. At the very latest, they argue, their continuous possession of the easement runs from the 1970's, when they planted shrubs, trees and other vegetation directly in the easement. Plaintiffs argue that the construction of the fence cannot be used to begin the period of possession, because defendants took two sabbaticals, in 1964-65 and again in 1972-73. Those sabbaticals, plaintiffs argue, constitute breaks in the 10-year period. As to the vegetation, plaintiffs argue that defendants failed to establish precisely when the photinia hedge was planted, as well as when it grew to a size sufficient to make the easement impassable. According to plaintiffs, that hedge was not planted until 1985 or 1986, and it did not grow to its current, impassable condition until recently. Plaintiffs' arguments are unavailing. First, whether or not defendants took sabbaticals is of no consequence to the continuity of their possession of the easement following the construction of the fence and the planting of the vegetation. It is the continuous presence of the fence and the vegetation, not defendants' place of residence, that establishes their adverse possession of the easement. The evidence is unrebutted that the fence was constructed in 1959, that it was placed directly across the easement and that it has remained there continuously until the time of trial. The evidence is likewise unrebutted that, beginning in the 1970's, defendants began planting shrubs, hedges and other 520 vegetation in the easement, which were continuously maintained until the time of trial. That evidence satisfies the element of continuity. Second, because defendants established continuous possession of the easement beginning in 1959, it is immaterial when the photinia hedge was planted. In any event, as has been explained, plaintiffs' argument that the photinia hedge was not large enough to block the easement until recently is predicated on an incorrect understanding of the law. It is not required that the easement have been rendered impassable continuously for ten years, only that defendants possessed the land in an actual, open, notorious, exclusive and hostile manner for that period of time. To establish the element of "hostility," defendants must show that they possessed the easement intending to be its owner and not in subordination to the true owner. Knapp v. Daily, 96 Or.App. 327, 330, 772 P.2d 1363 (1989). Defendants argue that, beginning with their decision to construct a fence directly in the path of the easement, they have intended to adversely possess the easement. There is no evidence that their construction of the fence or the planting of vegetation in the easement was permissive. To the contrary, one of the prior owners testified that he had intended to confront defendants about their obstruction of the easement. Defendants have established that their possession of the easement was hostile. Finally, defendants must establish that their use of the easement was inconsistent with plaintiffs' use of the easement. Defendants contend that the construction of a fence across the easement and the planting of vegetation in it is plainly inconsistent with plaintiffs' use. Plaintiffs argue that, because there is evidence that "the easement owners continuously used the easement" for the entire 33 years that defendants say they adversely possessed it, defendants cannot successfully argue that their use of the easement was inconsistent with plaintiffs'. Defendants have the better of the argument. The construction of a fence or locked gate across an easement establishes the inconsistency of an adverse possessor's use. Abbott v. Thompson, supra, 56 Or.App. at 317, 641 P.2d 652. Moreover, plaintiffs' argument cannot be squared with the record. There simply is no evidence to support the assertion that plaintiffs and the prior owners continuously used the easement. There is hardly any evidence that they used the easement at all. Defendants have established the inconsistency of their use. We conclude that defendants have shown, by clear and convincing evidence, that they adversely possessed the easement from the point that the fence blocks the easement to the river. Plaintiffs argue in the alternative that, if defendants adversely possessed the easement, we should find that plaintiffs nevertheless have acquired a new easement to the river by prescription. Plaintiffs do not describe the nature or precise location of the new easement beyond the general assertion that it veers south from the original easement around the point where the fence blocks access to the original easement, and continues just south of the fence to the river. To establish such an easement by prescription, plaintiffs must prove, by clear and convincing evidence, that their use of the new pathway to the river was actual, open, notorious, exclusive, continuous and hostile for no less than 10 years. Schoeller v. Kulawiak, supra, 118 Or.App. at 528, 848 P.2d 619. The prior owners' testimony establishes that each of them occasionally attempted to find access to the river from their property. However, their testimony is simply too vague and indefinite to establish any of the elements of a prescriptive easement claim by clear and convincing evidence. The owner of the western parcel from 1959 to 1968 testified that he walked to the river two to three times a year, but along a route to the north of the fence, not to the south of the fence, where plaintiffs assert the existence of the new easement. The owner of the parcel from 1968 to 1970 said that he attempted to walk to the river only once, and he could not remember the route. The owner from 1970 to 1973 said that he also made one attempt, but he could not remember the route either. The owner from 1973 to 1989 testified that he and his grandchildren made several trips to *521 the river each year, but he, too, could not describe precisely how he got there. That evidence is insufficient to establish plaintiffs' prescriptive easement claim. Reversed and remanded for entry of judgment quieting title in defendants. NOTES [1] Defendants contend that their rights in the easement vested, at the latest, by 1989. Therefore, the statutory requirements for adverse possession that were enacted in 1989 do not apply. ORS 105.620.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873156/	241 S.W.3d 830 (2007) Lee SIGGERS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent. No. ED 88743. Missouri Court of Appeals, Eastern District, Division Two. November 20, 2007. Jo Ann Rotermund, St. Louis, MO, for Appellant. Shaun J. Mackelprang, Daniel Neal McPherson, Jefferson City, MO, for Respondent. Before LAWRENCE E. MOONEY, P.J., BOOKER T. SHAW, J., NANNETTE A. BAKER, J. Prior report: 165 S.W.3d 584. ORDER PER CURIAM. Lee Siggers ("Movant") appeals from the motion court's denial of his Rule 29.15 motion after a jury verdict convicting him of one count of forcible rape, in violation of Section 566.030 RSMo 2000,[1] two counts of forcible sodomy, in violation of Section 566.060 and one count of kidnapping, in violation of Section 565.110. Movant was sentenced as a persistent offender to three consecutive life sentences, plus a consecutive *831 fifteen-year sentence. Movant appeals the judgment denying his Rule 29.15 motion for post-conviction relief. We affirm. We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be Without merit. No error of law appears, An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b). NOTES [1] All statutory references are to RSMo 2000, unless otherwise indicated.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1039756/	Case: 13-10940 Date Filed: 09/04/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-10940 Non-Argument Calendar ________________________ D.C. Docket No. 6:11-cv-01021-RBD-TBS MARK ANTHONY WEIRBACK, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (September 4, 2013) Before HULL, PRYOR and JORDAN , Circuit Judges. PER CURIAM: Case: 13-10940 Date Filed: 09/04/2013 Page: 2 of 3 Mark Anthony Weirback appeals a decision affirming the denial of his application for disability insurance benefits and supplemental security income. 42 U.S.C. §§ 405(g), 1383(c)(3). We affirm. Weirback argues that the administrative law judge failed to account for Weirback’s moderate difficulties in maintaining concentration, persistence, or pace in a hypothetical question to a vocational expert and in determining Weirback’s residual functional capacity, but we disagree. Weirback testified that his functional limitations were impaired by severe diarrhea, fatigue, vomiting, and a lack of concentration, but the administrative law judge was entitled to discredit Weirback’s testimony because he had not complained about those symptoms to his physicians; his medical treatment had remained routine or conservative in treating his impairments; and a doctor for the Florida Department of Health had examined Weirback and found that he had an intact memory and adequate concentration. Further, the doctor who performed the residual functional capacity assessment accounted for Weirback’s complaints and found that he could perform sedentary work with occasional stopping and crouching and that he had exaggerated the severity of his complaints. See Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990); 20 C.F.R. § 404.1529(c)(4) (evaluating symptoms based on “any inconsistencies in the evidence and the extent to which there are any conflicts between [the] statements [of the claimant] and the rest of the evidence”). The 2 Case: 13-10940 Date Filed: 09/04/2013 Page: 3 of 3 administrative law judge found that Weirback’s moderate difficulties restricted his ability to work only to the extent that he was limited to simple repetitive tasks with no work with crowds or the public and no teamwork, and the administrative law judge included those limitations in the hypothetical question and her assessment of Weirback’s residual functional capacity. See Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1181 (11th Cir. 2011) (remanding because the hypothetical question failed to mention that the applicant was limited in concentration, persistence, and pace or to “otherwise implicitly account for the limitation”). The answer of the vocational expert provided substantial evidence to support the finding that Weirback could perform the requirements of a dowel inspector, nut sorter, and document preparer. We AFFIRM the denial of Weirback’s application for benefits. 3	01-03-2023	09-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1039774/	BLD-391 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 12-4562 ___________ NINA SHAHIN, Appellant v. SECRETARY OF STATE OF DELAWARE ____________________________________ On Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 12-cv-01080) District Judge: Honorable Sue L. Robinson ____________________________________ Submitted on a Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 15, 2013 Before: HARDIMAN, GREENAWAY, JR. and SCIRICA, Circuit Judges (Opinion filed: September 4, 2013) _________ OPINION _________ PER CURIAM Nina Shahin appeals from orders 1 of the United States District Court for the District of Delaware, which denied her application to proceed in forma pauperis (“IFP”), 1 Shahin mentions only the latter order in her notice of appeal, but we liberally construe her notice to include the earlier order. and her motion for reargument. Because we agree that no substantial question is raised by the appeal, we will grant the Appellee’s motion for summary affirmance. The sole issue in this appeal is whether the District Court abused its discretion in denying Shahin’s application to proceed IFP. See United States v. Holiday, 436 F.2d 1079, 1079-80 (3d Cir. 1971) (granting of application to proceed IFP is committed to sound discretion of district court). In determining whether a litigant is eligible for IFP status, the Court should consider the financial position of the party. A party need not be destitute to warrant such status, Adkins v. E.I. Dupont Nemours Co., 335 U.S. 331, 339 (1948), but the status is a privilege rather than a right, White v. Colo., 157 F.3d 1226, 1233 (10th Cir. 1998). Shahin argues that the District Court abused its discretion by requiring her to disclose her spouse’s assets (or otherwise considering what those assets might be), and by considering assets held in trust. We disagree. The Court required Shahin to fill out a form disclosing her income, expenses, and assets, as well as those of her spouse. Shahin indicated that she has a monthly income of $95 from self-employment, and that her home and vehicle are held in a “grantor’s trust and kids are the owners.” Shahin did not disclose any of her husband’s income or assets, but included a notarized statement signed by her husband, indicating that he is unwilling to disclose his finances and that he does not support his wife’s “personal lawsuits . . . in any way, shape or form.” The statement indicated, however, that he provides Shahin “with food, clothing, shelter, paying her medical and travel expenses and even her business losses.” 2 Shahin has argued that the value of her car and the house in which she resides should not be considered because they are held in trust. However, she produced the trust agreement in the District Court, and it is a revocable trust. She and her husband are the grantors, and the trust agreement provides that “the trustees may pay income of the trust estate and such portion of the principal as the grantors from time [sic] may direct to the grantors, or otherwise as they direct during their lives.” Although the couple’s children are co-trustees and may have to agree to any such distribution, because the trust is revocable, it is not unreasonable to consider the trust property in determining whether Shahin is eligible to proceed IFP. Cf. Kelley v. Comm’r of Soc. Sec., 566 F.3d 347, 350 (3d Cir. 2009) (Social Security Act treats corpus of revocable trust as resource available to individual). Further, even without considering the trust property, Shahin indicates that she has a monthly income of $95 from self-employment. Because her husband provides her “with food, clothing, shelter, paying her medical and travel expenses and even her business losses,” requiring Shahin to pay her own litigation expenses, although requiring her to save for several months, would not deprive her of the “necessities of life.” Adkins, 335 U.S. at 339. For the foregoing reasons, we conclude that the District Court did not abuse its discretion in denying Shahin the privilege of proceeding IFP; thus, we will affirm the decisions of the District Court. 3	01-03-2023	09-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1285183/	262 N.W.2d 341 (1977) STATE of Minnesota, Respondent, v. C. John FORGE, Jr., Appellant, James Olson and Richard C. Larsen, Appellants. Nos. 46473, 46478 and 46479. Supreme Court of Minnesota. October 14, 1977. 342 Hencke & Forge and C. John Forge, Jr. pro se, Independence, Mo., for Forge, Jr. Donnelly & Martin and John H. Martin, St. Paul, for Olson and Larsen. Warren Spannaus, Atty. Gen., C. Paul Faraci, Deputy Atty. Gen., Steven G. Thorne, Special Asst. Atty. Gen., St. Paul, John L. Plattner, County Atty., Walker, for respondent. Smith, Juster & Feikema and Allen H. Gibas, Minneapolis, for Crane Clan of the Lake Superior Chippewa Band seeking reversal. Tupper, Smith & Seck, Kent P. Tupper, Bernard P. Becker, and Kim D. Mattson, Walker, for Leech Lake Band of Chippewa Indians seeking affirmance. Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, George R. Hyde, Edward J. Shawaker, Dept. of Justice, Washington, D. C., for the United States, seeking affirmance. Considered and decided by the court en banc. 343 ROGOSHESKE, Justice. On this appeal, defendants seek to overturn their convictions for fishing on the Leech Lake Indian Reservation without a supplementary reservation stamp affixed to their Minnesota fishing licenses in violation of Minn.St. 97.431. Defendants principally contend that this statute, which requires all persons who are not members of the Minnesota Chippewa Tribe to pay a special licensing fee for the privilege of fishing within the reservation, is an unconstitutional denial of equal protection to non-Indians. For reasons which follow, we hold that members of the Minnesota Chippewa Tribe retain unextinguished treaty rights to fish on Leech Lake and that § 97.431 is a rational compromise between these rights and the legitimate interest of the State of Minnesota to regulate fishing within its borders. We therefore hold that § 97.431 has not denied defendants equal protection under the law and affirm their convictions. On June 22, 1973, defendants C. John Forge, Jr., James Olson, and Richard C. Larsen fished at Leech Lake with valid fishing licenses issued by the State of Minnesota for the year 1973 but without the Leech Lake Reservation stamp affixed thereto.[1] None of the defendants were members of the Minnesota Chippewa Tribe, and all of them knew that it was a violation of § 97.431 to fish at Leech Lake without the reservation stamp. Defendants were arrested by a state conservation officer and subsequently were found guilty of fishing illegally by the County Court of Cass County on August 3, 1973. An appeal was taken to the Cass County District Court in which defendants' convictions were affirmed on November 7, 1975. Underlying these relatively simple facts is a long and acrimonious history of litigation concerning fishing and hunting rights in the Leech Lake area. In 1969, the Leech Lake Band of Chippewa Indians (hereinafter Band) brought suit in Federal District Court against the commissioner of natural resources of the State of Minnesota, seeking a declaratory judgment that the Band had an unextinguished and exclusive treaty right to hunt, fish, trap, and gather wild rice within the boundaries of the Leech Lake Reservation and that they could exercise that right free of state control. A similar suit, which was basically sympathetic to the claims made by the Band, was subsequently brought by the United States government on behalf of the entire Minnesota Chippewa Tribe[2] and was joined with the former actions. These consolidated cases generated widespread public concern, for it was commonly believed by non-Indian sportsmen and resort owners in the Leech Lake area that, if the Indians had an exclusive right to fish in Leech Lake, the valuable fishing resources could become depleted through commercial exploitation, resulting in disastrous consequences to the tourist industry. After vigorous and protracted litigation, the Federal District Court determined that the Band had an unextinguished but nonexclusive treaty right to take fish from Leech Lake free of state regulation. This conclusion was predicated on the finding that the Chippewa Indians had entered into treaties with the United States government in 1855 and 1867 reserving to themselves the rights to hunt, fish, trap, and gather wild rice upon the public lands and waters of the reservation. Contrary to the claims made by the state, the Federal District Court further held that the Nelson Act of 1889, 25 Stat. 642,[3] had not disestablished the Leech Lake Reservation, and as a consequence, the Band's reserved treaty rights 344 had not been abrogated. See, Leech Lake Band of Chippewa Indians v. Herbst, 334 F. Supp. 1001 (D.Minn.1971), (hereinafter referred to as Leech Lake I). Following the Leech Lake I decision, the parties appealed and cross-appealed on the issue of the Band's alleged exclusive right to regulate fishing independent of state control in Leech Lake. At that stage of the litigation, a group called the Leech Lake Citizens Committee, represented principally by present-defendant C. John Forge, filed a motion with the Eighth Circuit Court of Appeals seeking to intervene on behalf of private non-Indian sportsmen and property owners in the lake area. Although this motion was denied, the court did grant the Leech Lake Citizens Committee permission to file a brief amicus curiae.[4] While the Eighth Circuit appeal was still pending, the parties and the governor of Minnesota entered into a tentative settlement agreement on January 26, 1973. On this basis, the Eighth Circuit remanded the matter to the Federal District Court for entry of a consent judgment. Under the major terms of this agreement, members of the Minnesota Chippewa Tribe were exempted from state regulation within the reservation as to fishing, hunting, trapping, and the gathering of wild rice. The Band agreed to prohibit commercial hunting and fishing so as to conserve these resources for the tourist industry and to regulate the fishing activities of its members according to the provisions of its own tribal conservation code.[5] In return, the state agreed to collect for the benefit of the Band a supplementary licensing fee from non-Indians for the right to hunt, trap, and fish in this area. An established committee comprised of members of the Band was given the right to determine the amount of the supplementary fee, provided that it did not exceed one-half the sum charged by the state for hunting, trapping, and fishing licenses. The settlement reached by the parties was "expressly conditioned upon the adoption by the Legislature, at the 1973 session thereof, of legislation to be submitted by the Governor to effectuate the terms of [the] Agreement."[6] After extensive hearings were conducted, in which Forge and other interested citizens participated, Minn.St. 97.431 was finally enacted into law on April 23, 1973. Subdivision 3 of this statute expressly ratified the previously executed settlement agreement, and subd. 4 authorized the commissioner of natural resources to set up the administrative machinery needed for collection of the special licensing fee.[7] On June 18, 1973, the Federal District Court incorporated the settlement agreement into a consent judgment, which effectively terminated the Leech Lake I litigation.[8] According to the terms of § 97.431, the special licensing requirements for fishing in Leech Lake became effective on June 22, 1973,[9] and not coincidentally, defendants 345 were arrested on the same date. Both defendants and the trial judge viewed the prosecution from the start as a test case challenging the constitutionality of § 97.431. Notwithstanding the express holding in Leech Lake I, which found that the Nelson Act had not extinguished the Band's treaty rights, the trial judge painstakingly reconsidered the congressional history and intent behind this act. Based upon this analysis, the trial court concluded that the Nelson Act had completely terminated the Leech Lake Reservation, with the result that any treaty rights claimed by the Band to hunt, fish, trap, and gather wild rice were nonexistent. It necessarily followed, in the opinion of the trial judge, that § 97.431 denied defendants equal protection of the law. For the sole purpose of permitting the present appeal to this court, the district court affirmed defendants' convictions entered by the county court. Defendants assert as their principal claim that § 97.431 denies non-Indians equal protection under both the Fourteenth Amendment and Minn.Const. art. 1, § 2, since the statute exempts all members of the Minnesota Chippewa Tribe from paying a special licensing fee and further provides that the monies collected for the special fee by the state are to be paid to the Band.[10] Closely related to this argument is the claim that § 97.431 is special legislation prohibited by Minn.Const. art. 4, § 33.[11] As correctly observed by the trial judge, the merit of these allegations hinges directly on whether the Band retains unextinguished treaty rights to fish in Leech Lake and whether these rights, if found to exist, were terminated by the Nelson Act. Prior to passage of the Nelson Act, two significant treaties were negotiated with the Chippewa Indians which in large part established the boundaries of what is now known as the Leech Lake Reservation. In the Treaty of February 22, 1855, 10 Stat. 1165,[12] the Chippewa agreed to "cede, sell, and convey to the United States all their right, title, and interest in, and to, the lands now owned and claimed by them, in the Territory of Minnesota." By this treaty and the Treaty of March 19, 1867, 16 Stat. 719,[13] the Indians were granted in return a number of reservations, one of which was the Leech Lake Reservation.[14] Under these treaties the Band retained an unextinguished right to hunt and fish, as the trial court expressly found.[15] 346 In 1889, Congress enacted the Nelson Act. The essential provisions of this act provided for the establishment of a commission, later known as the Rice Commission, to negotiate with the Chippewa "for the complete cession and relinquishment in writing of all their title and interest in and to all the reservations of said Indians in the State of Minnesota, except the White Earth and Red Lake Reservations." The Indians, upon agreement of two-thirds of all adult males, were to be relocated to the White Earth Reservation and granted specific allotments of real property in severalty.[16] Sales of the extensive agricultural and timber lands ceded were then to be conducted by the Federal government, and the proceeds of these sales were to be held in trust by the government for the benefit of the Indians. See, 4 Folwell, History of Minnesota, pp. 219 to 226. While the ostensible purpose of the Nelson Act was to relocate the Chippewa to the White Earth Reservation, § 3 of the act expressly provided: " * * That any of the Indians residing on any of said reservations may, in his discretion, take his allotment in severalty under this act on the reservation where he lives at the time of the removal herein provided for is effected, instead of being removed to and taking such allotment on White Earth Reservation." 25 Stat. 643.[17] Although the disestablishment effect of the Nelson Act is not free from doubt, we are convinced after a review of the voluminous authorities cited to us that the act did not terminate the Leech Lake Reservation.[18] It follows that the Band, contrary to the finding of the trial court, retains unextinguished treaty rights to fish, hunt, trap, and gather wild rice in this area.[19] This conclusion rests on our prior holding in State v. Jackson, 218 Minn. 429, 16 N.W.2d 752 (1944), where we reviewed the conviction of a member of the Minnesota Chippewa Tribe for shooting partridge out of season on an allotment not owned by him but located within the Leech Lake Reservation. We first held that under the previously discussed treaties the Indians had an "ancient and immemorial right to hunt and fish" within "Indian country" without state regulation. 218 Minn. 429, 16 N.W.2d 755. Since there was no congressional definition of "Indian country" under then existing law, we considered prior decisions of the United States Supreme Court that had construed this term and concluded that trust allotments located within the Leech Lake Reservation were a part of Indian country.[20] Members of the Minnesota Chippewa Tribe were thus immune from prosecution under the state game laws. 347 Our initial opinion in the Jackson case did not discuss the possibility that the Leech Lake Reservation had been disestablished under the Nelson Act. Upon the state's motion for reargument, we addressed this question and found that, since § 3 of the act gave the Indians the option of remaining at Leech Lake rather than moving to White Earth, the Leech Lake Reservation remained intact.[21] The only portion of this land that was no longer a part of the reservation was the residue remaining after the Indians had taken their allotments in severalty. We are further persuaded that, to the extent the Nelson Act is unclear in expressing congressional intent to terminate the Leech Lake Reservation, this ambiguity should not be resolved to the prejudice of the Indians. As has been repeatedly recognized by the United States Supreme Court, "statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians." Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S. Ct. 40, 42, 63 L. Ed. 138, 141 (1918). Accord, Bryan v. Itasca County, Minnesota, 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed. 2d 710 (1976); Antoine v. Washington, 420 U.S. 194, 95 S. Ct. 944, 43 L. Ed. 2d 129 (1975). This canon of construction is reflective of the fact that treaties and statutes are "not a grant of rights to the Indians, but a grant of rights from thema reservation of those not granted." United States v. Winans, 198 U.S. 371, 381, 25 S. Ct. 662, 664, 49 L. Ed. 1089, 1092 (1905). Had Congress intended to terminate completely the Leech Lake Reservation and the right of the Chippewa to fish thereon, we believe that it could have, and would have, expressed this intention with more definiteness and, in all likelihood, would not have permitted the Band, by § 3 of the Nelson Act, to continue to settle within the boundaries of the reservation.[22] Given the continued existence of Indian treaty rights to fish, hunt, trap, and gather wild rice at Leech Lake, we have little difficulty in finding that § 97.431 is not violative of either state or Federal equal protection standards or the prohibition against special legislation contained in Minn.Const.1857, art. 4, § 33.[23] In reviewing equal protection challenges to legislative classifications, we have consistently upheld statutory differentiations where the classification has some natural and reasonable basis. Blue Earth County Welfare Dept. v. Cabellero, 302 Minn. 329, 225 N.W.2d 373 (1974); Schwartz v. Talmo, 295 Minn. 356, 205 N.W.2d 318, appeal dismissed, 414 U.S. 803, 94 S. Ct. 130, 38 L. Ed. 2d 39 (1973). Section 97.431 was enacted 348 for the primary purpose of effecting a compromise between the Band, which claimed an exclusive treaty right to take fish from Leech Lake, and the state, which argued on behalf of all Minnesota citizens that the Indians were not immune from fish and game laws. The reconciliation achieved by the statute recognized only a nonexclusive Indian right to fish in Leech Lake, and in return the Band was permitted to charge a special licensing fee. The practical effect of this agreement was to preserve the valuable fishing resources found at Leech Lake while at the same time giving recognition to and compensation for historic treaty rights held by the Band. We therefore hold that the classifications created under § 97.431 were rationally related to resolving the competing claims advanced by the parties in Leech Lake I.[24] For similar reasons, defendants cannot successfully seek to overturn their convictions on the ground that § 97.431 is special legislation prohibited by Minn.Const., art. 4, § 33.[25] Defendants finally contend that § 97.431, subd. 3, by ratifying the settlement agreement reached in Leech Lake I, permits an unconstitutional delegation of legislative power in contravention of Minn. Const. art. 3, § 1. In particular, defendants maintain that the establishment of the special licensing fee may not be delegated to the reservation business committee of the Band, which under the terms of the agreement is authorized to set this fee annually in an amount not to exceed 50 percent of the state resident license fees.[26] For two reasons, this argument is not persuasive. The Band's authority to determine the special licensing fee can first be construed to be at least partially derived from treaty rights that are separate and distinct from delegations of legislative power. Secondly, the legislature is constitutionally prohibited only from delegating its exclusive power to enact a complete law. When an administrative body, such as the reservation business committee, is only empowered to determine those circumstances that will make a statute operative, the legislature has not unconstitutionally delegated its authority. Anderson v. Commissioner of Highways, 267 Minn. 308, 126 N.W.2d 778, 9 A.L.R. 3d 746 (1964); Lee v. Delmont, 228 Minn. 101, 36 N.W.2d 530 (1949). Since the settlement agreement ratified by § 97.431 restricts the Band from setting the special licensing fee in excess of 50 percent of the state resident fee, we find that the legislature has not abdicated its exclusive power to enact law. Affirmed. WAHL, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case. NOTES [1] The Leech Lake Reservation covers an area of 588,684 acres and is located within Itasca, Cass, and Beltrami Counties. Approximately 80 percent of this land is now owned by Federal, state, and county governments, with the 295,000-acre Chippewa National Forest occupying the largest single portion of the reservation. Approximately 27,000 acres of the remaining area is owned either by individual Indians in fee or the Minnesota Chippewa Tribe. [2] The Minnesota Chippewa Tribe is a Federally constructed Indian tribe organized under the Wheeler-Howard Act of 1934, 25 U.S.C.A. § 461 et seq. This tribe is the aggregate of certain of the historic Chippewa bands, including the Leech Lake Band. [3] See, I Kappler, Laws and Treaties, p. 301. [4] This sequence of events is more fully described in Leech Lake Citizens Committee v. Leech Lake Band of Chippewa Indians, 355 F. Supp. 697 (D.Minn.1973). [5] The tribal conservation code is in most respects similar to the state fish and game laws. [6] During the time that the settlement negotiations and legislative hearings were taking place, the Leech Lake Citizens Committee attempted to enjoin the proceedings by bringing an action in Federal District Court. On March 28, 1973, the court dismissed the action, finding that the court was "without authority to enjoin the Legislature from ratifying the agreement." Leech Lake Citizens Committee v. Leech Lake Band of Chippewa Indians, 355 F. Supp. 697, 699 (D.Minn.1973). [7] Since the inception of the special licensing fee agreement, the Band has never charged more than $1 for the reservation stamp, which is substantially less than one-half the sum charged by the state for hunting and fishing licenses. [8] Prior to entry of the consent judgment, another attempt was made by Forge and other members of the Leech Lake Citizens Committee to intervene in the Leech Lake I lawsuit. This motion was denied by the Federal District Court and summarily affirmed by the Eighth Circuit in Leech Lake Area Citizens Committee v. Leech Lake Band of Chippewa Indians, 486 F.2d 888 (8 Cir. 1973). [9] See, L.1973, c. 124, § 2. [10] In an amicus brief filed by the Crane Clan, it is argued that § 97.431 also denies Chippewa Indians who are not members of the Minnesota Chippewa Tribe as well as members of other tribes equal protection of the law. The Crane Clan is one of 27 clans that originally constituted the historic Chippewa Tribe. Not all of these clans, however, comprise the Federally constructed Minnesota Chippewa Tribe, which was recognized under the Wheeler-Howard Act of 1934. See, footnote 2, supra. We decline to consider this issue on the present appeal, since the entire thrust of the trial court proceedings was directed to the constitutionality of § 97.431 with respect to non-Indians. [11] Under the restructured constitution, enacted subsequent to defendants' prosecutions, the special legislation prohibitions are contained in Minn.Const. art. 12, § 1. [12] See, II Kappler, Laws and Treaties, p. 685. [13] Id. 974. [14] Other less significant treaties and executive orders during this period were: Treaty of March 11, 1863, 12 Stat. 1249; Treaty of May 7, 1864, 13 Stat. 693; and executive orders of November 4, 1873, October 29, 1873, and May 26, 1874 (I Kappler, Laws and Treaties, pp. 851, 854). [15] Defendants have attempted both in their reply brief and during oral argument to establish that Congress intended by the Treaty of 1855 to terminate completely all Chippewa claims to land in the Territory of Minnesota, with the result that all Indian treaty rights to hunt and fish were abolished. This argument is based in large part on language found in 10 Stat. 598, the enabling legislation for the Treaty of 1855, which authorized the President to negotiate with the Chippewa for the complete cession of all their land in the Territories of Wisconsin and Minnesota. But to hold, as defendants now urge, that the Chippewa completely relinquish all of their land by virtue of 10 Stat. 598, would mean that every Indian reservation in the State of Minnesota has been a legal nullity for over a century. We are persuaded that both the Treaty of 1855 and subsequent treaties, which established vast Indian reservations within this state, clearly refute this contention. [16] Prior to the Nelson Act, Congress had created the Northwest Commission in 1886, which had unsuccessfully tried to negotiate with the Indians for their removal to the White Earth Reservation. See, 24 Stat. 44. A more detailed history of this commission's activities is contained in 4 Folwell, History of Minnesota, pp. 198 to 219. [17] See, I Kappler, Laws and Treaties, p. 303. [18] It should be noted that regardless of congressional intent behind the Nelson Act, few Indians ever relocated to the White Earth Reservation. In 1890, Commissioner Rice reported to the President that many Indians were distrustful of the act because of previous unfair treatment by the Federal government. See, H.R.Exec.Doc. No. 247, 51st Cong., 1st Sess. (1890). By 1894, it was estimated that only 775 Indians out of a total population of 4,000 had moved to White Earth. 4 Folwell, History of Minnesota, p. 235. [19] For purposes of the present appeal, it is unnecessary for us to decide whether these rights are exclusive or nonexclusive. [20] Subsequent to the Jackson decision, Congress defined "Indian country" by 18 U.S.C.A. § 1151. Thereafter, in 1953, P.L. 83-280 was enacted which extended state criminal and civil jurisdiction to certain offenses and actions arising in Indian country. The criminal jurisdiction provisions are now codified in 18 U.S.C.A. § 1162, and the civil jurisdiction provisions are contained in 28 U.S.C.A. § 1360. It is interesting to note that 18 U.S.C.A. § 1162(b), provides that Indians are not to be deprived of any "immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof." [21] More recently, the United States Supreme Court has held that the mere fact that Indians were granted allotments in order to permit sale of reservation lands to non-Indians does not necessarily mean that Congress intended to terminate the reservation. See, Mattz v. Arnett, 412 U.S. 481, 93 S. Ct. 2245, 37 L. Ed. 2d 92 (1973). [22] A growing body of Federal law has also recognized that Indians may retain unextinguished treaty rights to hunt and fish even when their reservations have been terminated by statute. In the leading case of Menominee Tribe v. United States, 391 U.S. 404, 88 S. Ct. 1705, 20 L. Ed. 2d 697 (1968), the United States Supreme Court held that the Menominee Tribe of Indians retained their right to hunt and fish notwithstanding the fact that the Menominee Indian Termination Act of 1954, 25 U.S.C.A. § 891 to § 911, had terminated their reservation. In the opinion of the court, Congress could not extinguish pre-existing game rights under the treaty without using express statutory language to that effect. See, also, Kimball v. Callahan, 493 F.2d 564 (9 Cir.), certiorari denied, 419 U.S. 1019, 95 S. Ct. 491, 42 L. Ed. 2d 292 (1974); 4 American Indian L.Rev. 121. Although it is unnecessary for us to resolve the present appeal on these grounds, we note that the Nelson Act makes no mention of abolishing Chippewa game rights in the Leech Lake area. It would certainly be difficult to infer from this silence that Congress intended to deprive the Chippewa of fishing rights which, at the time the Nelson Act was passed, were crucial to their continued survival. [23] The standards of the equal protection clause of the Fourteenth Amendment are synonymous with the standards of equality under Minn. Const. art. 1, § 2, and Minn.Const., art. 4, §§ 33, 34. See, Minneapolis Federation of Teachers v. Obermeyer, 275 Minn. 347, 147 N.W.2d 358 (1966). [24] Even in the absence of treaty rights, the United States Supreme Court has frequently upheld legislation that singles out Indians for particular and special treatment. See, Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974); McClanahan v. Arizona State Tax Comm., 411 U.S. 164, 93 S. Ct. 1257, 36 L. Ed. 2d 129 (1973). [25] One minor complication with the above analysis is the fact that defendants were arrested while fishing in Sucker Bay of Leech Lake, which may not have been within the original boundaries of the reservation set by the Nelson Act and prior treaties. Although the trial court's findings are extremely cloudy on this issue, we find that § 97.431 does not deny defendants equal protection even if the settlement agreement reached in Leech Lake I extended the boundaries of the restricted fishing area to include all of the surface water area of Leech Lake. It should be obvious that enforcement of the agreement would be totally unmanageable if fishermen were required to pay a special licensing fee for fishing in some areas of the lake and not in others. The classifications created by § 97.431 are thus rationally related to preventing "an impractical pattern of checkerboard jurisdiction" that would make enforcement of the agreement impossible. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 358, 82 S. Ct. 424, 428, 7 L. Ed. 2d 346, 351 (1962). [26] Defendants also raise the issue of unconstitutional delegation of legislative power relating to a settlement agreement provision concerning the promulgation of regulations to control harvesting of wild rice and a provision which provides that disputes over the enforcement of the agreement are to be settled by arbitration. We have carefully reviewed these issues and find them to be without merit.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612950/	19 Kan. App. 2d 643 (1994) 875 P.2d 297 J. MARK HIXON, SHAWNEE COUNTY APPRAISER, Appellant, v. LARIO ENTERPRISES, INC., Appellee. No. 70,346 Court of Appeals of Kansas. Opinion filed June 3, 1994. Sandra L. Jacquot, assistant county counselor, and Linda P. Jeffrey, county counselor, for appellant. Robert J. O'Connor and Pamela Clancy, of Morrison & Hecker, of Wichita, for appellee. Before RULON, P.J., GREEN, J., and JANICE D. RUSSELL, District Judge, assigned. RUSSELL, J.: Mark Hixon, the Shawnee County Appraiser (The County), appeals from the decision of the district court affirming the Board of Tax Appeals (BOTA). We reverse and remand the case with directions. The central question of this appeal is whether the district court and BOTA erred in using the developer's discount method to value multiple parcels of property within a subdivision. This 644 method results in multiple units of property owned by one entity being valued as one unit. At issue is BOTA's 1989 appraisal of the Montara subdivision of Topeka, Kansas. The subdivision was originally built as a housing development for Forbes Air Force Base. When Forbes closed, the City of Topeka acquired the property and subsequently sold it to Lario Enterprises, Inc. (Lario). The subdivision comprises between 650 and 700 individual parcels. The parties agree that the Montara parcels are properly divided into five categories. Category 1 consists of some 117 vacant lots. Category 2 contains 386 single family rental units. Category 3 consists of 158 units that are not habitable because of an advanced state of disrepair. Category 4 contains several model homes and offices. Category 5 consists of three vacant lots and an RV storage area. The County initially appraised the properties at $18,099,240. Lario appealed to BOTA, claiming that the proper appraised value was $9,600,000 for the properties. BOTA issued an opinion generally adopting Lario's appraisal methods but modifying the appraisal amount to $12,026,600. After BOTA denied the County's motion to reconsider, the County filed a motion for judicial review in the district court. The district court affirmed the BOTA decision, and the County appealed. This appeal involves only categories 1, 2, 3, and 5. BOTA accepted the County's appraisal as to category 4 (the model homes and offices), and Lario has not appealed that valuation, so the valuation of the properties contained in category 4 is not an issue. Review of BOTA's order does not reveal the precise method which BOTA used to value categories 2 and 5. It is plain that BOTA used the developer's discount method to value the 177 vacant lots in category 1. As we understand, BOTA utilized the developer's discount method to value the 158 vacant, uninhabitable units in category 3. The 386 single family rental units in category 2 were appraised as one single unit, utilizing the direct capitalization approach. Category 5, which contained three vacant lots and an RV parking area, was appraised as one single unit, though BOTA's opinion does not state what appraisal method was used in reaching the appraised value. 645 The district court treated BOTA's appraisal as if all of the four questioned appraisals were made using the developer's discount method. The County's appeal challenges both the developer's discount approach to appraisal for tax purposes and BOTA's valuation of multiple parcels owned by one entity as a single unit. Because the ownership of multiple parcels is central to the developer's discount method of valuation, the two issues are inextricably intertwined. Lario alleges the County did not properly preserve the right to appeal the question of valuing multiple parcels as a single unit. However, an integral part of the County's challenge method was the argument that the developer's discount method was constitutionally and statutorily infirm because it valued property based upon ownership versus the value of the individual parcel. We conclude both issues were sufficiently preserved for appeal. At the outset, we note that BOTA is a specialized agency that exists to decide issues concerning taxation and valuation, and its decisions should be given great credence and deference when it is acting within its area of expertise. In re Tax Appeal of Director of Property Valuation, 14 Kan. App. 2d 348, 353, 791 P.2d 1338 (1989), rev. denied 246 Kan. 767 (1990). "`If, however, the reviewing court finds that the administrative body's interpretation is erroneous as a matter of law, the court should take corrective steps; the determination of an administrative body on questions of law is not conclusive, and, while persuasive, is not binding on the courts.'" Board of Johnson County Comm'rs v. Smith, 18 Kan. App. 2d 662, 664, 857 P.2d 1386 (1993). The party challenging the validity of the agency action bears the burden of proving the invalidity of the action. K.S.A. 77-621(a)(1). We conclude that BOTA's valuation of Lario's property in this case is constitutionally infirm and is invalid under Kansas statutes. Therefore, despite the deference ordinarily granted to BOTA's decision on property valuation for tax purposes, we must reverse. Article 11, § 1(b) of the Kansas Constitution provides: "(1) The provisions of this section (b) shall govern the assessment and taxation of property on and after January 1, 1989, and each year thereafter. Except as otherwise hereinafter specifically provided, the legislature shall provide for a uniform and equal basis of valuation and rate of taxation of all property subject to taxation ...." (Emphasis added.) 646 The legislature, in answer to the constitutional mandate that it provide for a uniform and equal basis for taxation, has enacted various statutory provisions. K.S.A. 1993 Supp. 79-1439(a) states that all real property which is subject to ad valorem taxation shall be appraised uniformly and equally as to class and, unless otherwise specified, shall be appraised at its fair market value as defined by K.S.A. 1993 Supp. 79-503a which provides: "`Fair market value' means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. For the purposes of this definition it will be assumed that consummation of a sale occurs as of January 1. .... "Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and other factors including but not by way of exclusion: (a) The proper classification of lands and improvements; (b) the size thereof; (c) the effect of location on value; (d) depreciation, including physical deterioration or functional, economic or social obsolescence; (e) cost of reproduction of improvements; (f) productivity; (g) earning capacity as indicated by lease price or by capitalization of net income; (h) rental or reasonable rental values; (i) sale value on open market with due allowance to abnormal inflationary factors influencing such values; and (j) restrictions imposed upon the use of real estate by local governing bodies, including zoning and planning boards or commissions; and (k) comparison with values of other property of known or recognized value.... "The appraisal process utilized in the valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures which are adaptable to mass appraisal and consistent with the definition of fair market value unless otherwise specified by law." K.S.A. 1993 Supp. 79-501 states that each parcel shall be appraised at its fair market value and that the price such property would bring at auction or at a forced sale may be considered. The statutory scheme for valuing property for tax purposes is a surrogate for a real marketplace event; the statute requires the 647 appraiser to pretend, in effect, that each piece of property is sold on January 1 of the year in which the appraisal is done in an arms length transaction. In this imaginary sale, the price paid by a well informed buyer and accepted by a well informed seller, each acting without undue compulsion, constitutes the "fair market value" at which a particular piece of property must be appraised. In determining the validity of a tax assessment, the essential question is whether the mandates of K.S.A. 1993 Supp. 79-503a have been considered and applied. Northern Natural Gas Co. v. Williams, 208 Kan. 407, Syl. ¶ 7, 493 P.2d 568, cert. denied 406 U.S. 967 (1972). The developer's discount method of valuation, which is also known as the subdivision approach or the development approach, consists of a discounted cash flow analysis which considers a projected absorption rate and the corresponding drop in income from the sale of lots. Inherent in this approach is the notion that, if the owner of multiple lots places them all on the market at once, there would not be enough buyers in the marketplace who would be willing to pay full market price for each lot. Such approach assumes that the seller would have to discount the price of the property to lure additional buyers into the market. The discount is calculated by utilizing an absorption factor, which is based upon the number of willing buyers in any given year. In the alternative, the developer's discount method could be defined as the price that the owner of multiple lots would accept for all of its lots when sold to one buyer; that buyer would presumably pay a discounted price for each individual lot because the buyer would take the absorption factor into account in determining how quickly, and for what price, he or she could in turn sell the lots to other buyers. According to David Craig, Lario's expert, the steps in the process are as follows: (1) Establish an average value for the lots; (2) project future sales expenses and holding costs; (3) estimate the required absorption period; (4) derive the most profitable net income and pre-tax cash flow from sales of the lots by subtracting all expenses from gross sales; 648 (5) determine an internal rate of return which would attract a prudent investor to invest in a similar situation with comparable degrees of risk, non-liquidity, and management burdens; and (6) convert the cash flow into a present value by discounting at an appropriate yield rate. On the surface, Lario's argument that the developer's discount method is appropriate under Kansas law is persuasive. Lario argues this is the only method that yields a fair market value for multiple lots owned by one entity because it reflects what would actually happen to the price of the lots if they were all placed on the market on the same day. Lario argues that it is the only method that reflects the discounting that occurs when a buyer purchases, in bulk, multiple lots that are held for resale. After fully considering this matter, we are convinced there are several flaws in Lario's arguments. First, the Kansas Constitution mandates a "uniform and equal basis of valuation ... of all property subject to taxation." Kan. Const. Art. 11, § 1 (b). The Constitution speaks in terms of property, not the identity of owners or buyers, and Lario's valuation method focuses strongly on the identity of owners and/or buyers. Second, Lario's approach results in unequal treatment of owners of similar lots. The record shows that some of the lots in the Montara subdivision had already been purchased by individuals at the time of the appraisal. The developer's discount method would treat investors in real estate differently, depending on where their holdings were located; an investor holding multiple lots in a subdivision would be entitled to claim the developer's discount as a method of valuation, while an investor holding the same number of lots, scattered around the city, would not be entitled to have the developer's discount applied to his or her property for tax purposes. Finally, Lario's argument is premised on the notion that the owner of multiple lots in a subdivision is entitled to a discounted tax appraisal because the statute requires the appraiser to assume a sale of all of his lots on January 1. We acknowledge that Lario is correct, but we are compelled to add that K.S.A. 1993 Supp. 79-503a requires the assumption that every square inch of real 649 estate in the state of Kansas is sold on the same day. Under those circumstances, Lario's argument that it is entitled to special treatment because the statute creates the fiction that it, along with all other property owners, will sell its real estate holdings on January 1, can readily be seen to be fallacious. This court, defining the concept of constitutionally valid tax assessment, has said: "`Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation.... [Citations omitted.] "`It is apparent that uniformity is necessary in valuing property for assessment purposes so that the burden of taxation will be equal. [Citation omitted.]... Uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one or a few taxpayers at a substantially higher valuation than that placed on other property within the same taxing district.... [T]he inequality or lack of uniformity, if knowingly high or intentionally or fraudulently made, will entitle the taxpayer to relief." In re Tax Appeal of Andrews, 18 Kan. App. 2d 311, 316, 851 P.2d 1027 (1993) (quoting Addington v. Board of County Commissioners, 191 Kan. 528, 382 P.2d 315 [1963]). The opposite is also clearly true. The systematic and intentional valuation of one or a few taxpayers' property at a lower rate entitled the taxing entity to relief. Obviously, BOTA's acceptance of the developer's discount method of valuing Lario's property runs afoul of the mandate of Andrews; it results in a systematic valuation of lots owned by Lario within the Montara subdivision at a lower value than those assigned to other lots owned by individuals within the same subdivision. Since it systematically values Lario's lots at a lower price, it results in an inequality of the burden of taxation. In its brief, Lario relies heavily on several memoranda of the Kansas Department of Revenue, Division of Property Valuation (DPV), which approve the use of the developer's discount approach to appraisal. A DPV memorandum dated January 5, 1989, provides as follows: "We have received several inquiries and requests for clarification of subdivision development appraisal procedures. Although mapping specifications call for the creation of individual parcels when a subdivision plat is filed, the appraisal should actually reflect the aggregate value of the development. "The appraiser must consider the rate at which a project will be completed and the number of vacant lots expected to be sold in the local market each 650 year. This absorption period for typical subdivisions covers several years. To account for the impact of this projection on value, a factor reflecting the discount rate should be estimated by ascertaining the appropriate risk rate in the marketplace. This factor is then applied to the expected net proceeds from lot sales over the completion/absorption period to arrive at the present value of the land. When a newly-platted subdivision has been mapped, an influence factor can be applied to each lot or a unique neighborhood CALP model can be developed to accomplish this adjustment." (Emphasis added.) A DPV memorandum dated February 16, 1990, provides: "Although K.S.A. 79-405 requires platted lots in a subdivision to be identified and taxed individually, the appraisal should be based upon the entire tract of land. When the appraisal of the whole tract is complete, the market value shall then be allocated among the developer's individual lots. This requires the county appraiser to distinguish between the gross sellout (aggregate of individual retail prices) and the wholesale value of the development as one unit, which is market value. "This conclusion reconfirms the Division's position with respect to the subdivision valuation issue addressed in the Director's update #26 dated January 5, 1989. County appraisers have been directed to use the development approach when comparable sales data (for entire subdivisions) is limited. You are expected to obtain pertinent income and expense data from developers and prepare an estimate of value based on the present worth of the projected stream of net income. "The use of discounted cash flow models have gained wide acceptance in the valuation of this type of investment property over the last few years. The subcommittee strongly recommends the use of a detailed cash flow analysis which itemizes the entire income and expense flow on a year by year basis during the absorption period. In selecting the discount rate, the appraiser shall consider the desirability of the project, the risk involved and the competitive rate of return required to attract capital to the project. This methodology shall be given serious consideration at the formal conference with any developer who has filed a 1989 tax payment under protest.... "A related issue, brought up by appraisers, concerns the impact of individual subdivision lot sales on the ratio study. These parcels may often sell for two or three times their allocated value when purchased on an individual basis. This is no cause for alarm because the comparison is not appropriate. The subject of the appraisal is a group of lots and the allocated per parcel value is simply an administrative requirement. A sale of one lot from a developer's holding is very similar to a split which takes place from an acreage tract. The only difference is that the appraiser has some prior knowledge of how the `splits' will likely occur in a subdivision from the recorded plat. Although the sale data will be very useful for arriving at individual lot values it will not be used in the official state assessment/sales ratio study." 651 We conclude that Lario's reliance on these memoranda is misplaced. It is clear that the January 5, 1989, memorandum refers to the valuation of a planned subdivision, not a completed one. The memorandum speaks of valuing subdivision parcels "when a subdivision plat is filed" and "the rate at which a project will be completed." In other words, the memorandum approves use of the developer's discount method to appraise parcels when the plat has been filed, but development, i.e., installing roads and utilities has not been accomplished. The memorandum does not approve use of the developer's discount method when the plat has been filed, streets and curbs have been laid, utilities have been installed, and homes have been built. The district court accepted Lario's argument that State Highway Commission v. Lee, 207 Kan. 284, 485 P.2d 310 (1971), and Great Northern Ry. v. Weeks, 297 U.S. 135, 80 L. Ed. 532, 56 S. Ct. 426 (1936), taken together, dictate approval of the developer's discount approach to tax appraisal. In Lee, the Kansas Supreme Court ruled that it was constitutional to use the development approach to value a tract of land for condemnation purposes. In Weeks, the United States Supreme Court stated, "The principles governing the ascertainment of value for the purposes of taxation, are the same as those that control in condemnation cases...." 297 U.S. at 139. Lario's reliance on this pair of cases, however, is misplaced because Lee is distinguishable from the case at hand. The property in question in Lee was a tract of raw ground that was slated for development, but the plat had not been filed. The Supreme Court there approved the development approach because development was imminent. We find Lee to be inapplicable to this case, where development has been accomplished and the owner of the subdivision is still simply holding some of the lots for resale. Lario has also cited several cases from other jurisdictions which it claims support the use of the developer's discount method. They are Dash v. State, 491 P.2d 1069 (Alaska 1971); Dept. of Transp. and Dev. v. Hammons, 550 So. 2d 767 (La. App. 1989); Ramsey County v. Miller, 316 N.W.2d 917 (Minn. 1982); State by Spannaus v. Heimer, 393 N.W.2d 687 (Minn. App. 1986); Tacchino v. State ex rel. Dep't Hwys., 89 Nev. 150, 508 P.2d 652 1212 (1973); Akey v. State, 108 App. Div.2d, 963, 484 N.Y.S.2d 947 (1985); and Cherokee Water Co. v. Appraisal Dist., 773 S.W.2d 949 (Tex. Civ. App. 1989), aff'd 801 S.W.2d 872 (Tex. 1990). We have examined these authorities, and we conclude that they are not determinative of the issue. Of the cases cited by Lario, only the Texas case concerns appraisal for tax purposes, and that case cannot be said to approve the developer's discount approach to tax appraisal. The developer's discount method had been utilized there by the taxing entity; the court found that the taxpayer had failed to challenge the method of appraisal during the administrative process and in the lower court and, therefore, could not raise a challenge to that appraisal approach on appeal. In support of its position that the use of the developer's discount method is inappropriate for tax valuations, the County cites cases from other jurisdictions that had rejected it. In First Interstate Bank v. Dept. of Rev., 306 Or. 450, 760 P.2d 880 (1988), the Oregon Supreme Court rejected the use of the developer's discount method as a proper method of valuing a subdivision which was platted, divided into lots, and had streets, curbs, water and sewers in place. Though the court stated that the developer's discount could be an appropriate method of valuing an undeveloped subdivision, it stated, "The value of each lot, by itself, not as a portion of a larger piece of property, must be assessed." 360 Or. at 453. In part, the court based its reasoning on Oregon statutes that required the property to be listed on assessment rolls by parcels. In accord with the Oregon case are Michigan and Maryland cases. In Rose Bldg. Co. v. Independence Twp., 436 Mich. 620, 462 N.W.2d 325 (1990), the Michigan Supreme Court rejected the use of the approach when valuing a developed subdivision with improved lots, although the court did acknowledge the possible appropriateness of the use of the developer's discount method for valuing an undeveloped tract: "A discount may be appropriate where an undeveloped tract of land exists without improvements. The recognized `developmental approach' to valuation allows for such a discount. However, this approach is appropriate only in instances involving unimproved property." 436 Mich. at 635. 653 In St. Leonard Shores Joint Ven. v. Supervisor, 307 Md. 441, 514 A.2d 1215 (1986), the Maryland Court of Appeals rejected the developer's discount method of valuation for unsold lots in a subdivision. The court stated, "Regardless of whether a buyer for each lot actually exists, the assessor is required to assess each lot as if a willing buyer exists." 307 Md. at 446. Although the cases from other jurisdictions are instructive, in the final analysis, this case must be decided upon the basis of Kansas statutes and the Kansas Constitution. K.S.A. 1993 Supp. 79-501 states, "Each parcel of real property shall be appraised at its fair market value in money." (Emphasis added.) The Kansas Constitution, Article 11, § 1(b) mandates a "uniform and equal basis of valuation." These statutory and constitutional provisions compel the conclusion that BOTA erred in utilizing the developer's discount method of valuing the lots owned by Lario. The developer's discount method of valuation is based upon ownership and is not based upon the value of each parcel of property as mandated by K.S.A. 1993 Supp. 79-501. The developer's discount method of valuation, as applied to the facts of this case, systematically favors the owners of multiple lots over the owners of single lots within a subdivision. Such method of valuation systematically favors the developers of subdivisions over the owners of lots located throughout the taxing unit. Therefore, the developer's discount method of valuation, as applied, is unconstitutional and violative of the Kansas statutory scheme of valuing property for ad valorem tax purposes. BOTA's appraisal (and the district court's approval of the same). of categories 1 and 3 is reversed. To the extent that BOTA discounted the value of parcels in categories 2 and 5 to account for absorption in the marketplace due to the single ownership of multiple lots, that valuation is also reversed. The decision of the district court is reversed, and the case is remanded to district court with directions to remand this case to the Board of Tax Appeals for further proceedings to value Lario's properties in accord with the holdings of this opinion.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873152/	241 S.W.3d 190 (2007) In re HEARST NEWSPAPERS PARTNERSHIP, L.P. and Galveston County Daily News, Relators. No. 01-07-00866-CV. Court of Appeals of Texas, Houston (1st Dist.). October 30, 2007. 191 Charles A. Daughtry, Daughtry & Jordan, P.C., Thomas M. Gregor, William W. Ogden, Ogden, Gibson, White & Broocks, Houston, TX, Jonathan R. Donnellan, The Hearst Corp., New York, NY, for Relator. James D. Ebanks, Ebanks, Smith & Carlson, L.L.P., Otway Denny, Jr., Katherine D. MacKillop, Fulbright & Jaworski L.L.P., Don R. Riddle, Riddle, Arturo Gonzales, Brent Coon & Associates, Kenneth Tekell, Tekell, Book, Matthews & Limmer, Houston, TX, Brent W. Coon, Beaumont, TX, James B. Galbraith, Galveston, TX, for Real Party in Interest. Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY. OPINION ELSA ALCALA, Justice. By petition for writ of mandamus, relators, Hearst Newspapers Partnership, L.P. 192 ("Hearst News") and Galveston County Daily News, challenge the trial court's[1] order prohibiting discharged jurors from speaking to the press, media, or others about the evidence and what their votes would have been after the trial ended in a settlement. The relators contend the order is an unconstitutional prior restraint on their right to gather news under both the Texas Constitution and the First Amendment. We conditionally grant the petition for writ of mandamus. Background After an explosion at BP's Texas City plant in March 2005, about 4,000 individuals filed cases against BP and others.[2] The explosion and the cases received much publicity on the local and national levels. Among other things, this publicity included news reports, television interviews, mailings sent to local residents, town hall meetings with BP employees, and Chamber of Commerce meetings. In August 2007, a group of plaintiffs was called to trial. Due to the pretrial publicity, the trial court called over 1200 people to report to jury duty to ensure that a jury and several alternates could be empaneled. This jury heard ten days' evidence from the plaintiffs before the trial court announced that the parties had reached a settlement. After the trial ended, the trial court permitted the lawyers for each side to meet with the jurors, who had some positive things to tell each side's lawyers. However, with approximately 1200 cases still pending, the trial court was concerned about additional pretrial publicity interfering with the parties' rights to a fair trial by making the task of selecting future juries even more difficult, particularly because the jurors had not heard all the evidence. Therefore, the trial court admonished the jurors, "I am going to forbid you from speaking to anybody in the media or anybody other than myself or the lawyers or their employees until after all cases have settled." Two days later, Hearst News, on behalf of the Houston Chronicle, intervened, requesting the trial court to reconsider and rescind the gag order on the jurors. Soon thereafter, the Galveston County Daily News also intervened. Hearst News argued that the order was an unconstitutional prior restraint under both article I, section 8 of the Texas Constitution and the First Amendment. The trial court promptly held a hearing, affording all parties and the newspapers an opportunity to be heard. No evidence was adduced at this hearing. However, the trial court described the unusual nature of the litigation, including the large number of parties and the extensive pretrial publicity. In addition to the newspaper media, we have had to deal with the web site issue, the internet issue, mailing things to jurors, word on the street, talks being given at Chamber of Commerce. We have had hours and hours of hearings about how much is out there . . . [We] have talked to hundreds and hundreds and hundreds of jurors in these past two voir dire panels to try to find out how many people were affected by the publicity. The first time we called in a panel we called in I think 12 or 13 hundred to get the 12, and the second time we realized that. . . . 193 It costs a tremendous amount of money to the taxpayer to bring in the kind of panel you have to get down to just twelve impartial people in this case. The trial court declined to rescind the gag order, but instead signed a written order limiting the time period of the restriction on the jurors' speech. In the order, the trial court found that (1) no final judgment or nonsuit was reached in the subject trial and that numerous other claims in the consolidated litigation remained outstanding; (2) media coverage of the discharged jurors' impressions about the evidence, trial, or disclosure of what their votes would have been, based upon the incomplete trial record, posed a threat to the administration of justice in the remaining, pending cases; and (3) the temporary restriction on discharged jurors' speech was the least restrictive means available to prevent the potential harm. The trial court, therefore, ordered that "discharged jurors are under an instruction not to speak or disclose to the press, media, or others about their views of the evidence and/or their impressions of what their vote would have been if the evidence had concluded on the day that the jurors were discharged until on or after January 2, 2008 unless such order is extended upon motion of any party for good cause shown." Standard of Review Mandamus relief is available only to correct a "clear abuse of discretion" when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). "A trial court clearly abuses its discretion if `it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. at 839 (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding)). Mandamus may be used to challenge a prior restraint on the media. Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 55 (Tex.1992). Prior Restraints The Texas Constitution affirmatively grants the rights to freedom of speech and of the press: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege. . . ." TEX. CONST. art. I, § 8. In Texas, pre-speech sanctions or "prior restraints" are presumptively unconstitutional.[3]Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex.1992). A prior restraint in a civil case "will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm." Id. at 10. In Davenport, the supreme court struck down the trial court's gag order prohibiting the parties, attorneys, and witnesses from discussing the case except as necessary with each other or in court. Id. at 6. The supreme court noted that, "a prior restraint will withstand scrutiny under this test only under the most extraordinary 194 circumstances." Id. at 10. The supreme court explained that (1) the harm must be to the judicial process, (2) the harm must be imminent and severe, and (3) there must be no alternative available to address the threat to the judicial process that is less restrictive of state speech rights. Id. at 10-11. In addition, the supreme court observed that convenience will never justify the imposition of a gag order. Id. at 11 (citing Ex parte McCormick, 129 Tex. Crim. 457, 462, 88 S.W.2d 104, 107 (1935)). The Right to Gather News The First Amendment provides, "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." U.S. CONST. amend. I. Similarly, article I, section 8, provides that "no law shall ever be passed curtailing the liberty of speech or of the press." TEX. CONST. art. I, § 8. The parties have not argued that the right to gather news under the Texas constitution is broader than that afforded by the United States constitution. In fact, at oral argument they directed our attention to federal precedent. In light of the nearly identical language in the two charters, we find that the right to gather news under the Texas constitution is coextensive with that right under the United States constitution. See Operation Rescue-Nat'l v. Planned Parenthood of Houston and Se. Tex., Inc., 975 S.W.2d 546, 559 (Tex.1998) ("It is possible that Article I, Section 8 may be more protective of speech in some instances than the First Amendment, but if it is, it must be because of the text, history, and purpose of the provision, not just simply because."). As a Texas appellate court construing the constitutionality of a Texas district court order restricting the rights of Texas citizens, we apply Texas law, i.e., Davenport. However, we also look to well-reasoned and persuasive federal authority to inform our analysis of the relator's right to gather news. Davenport, 834 S.W.2d at 20 ("With a strongly independent state judiciary, Texas should borrow from well-reasoned and persuasive federal procedural and substantive precedent when this is deemed helpful, but should never feel compelled to parrot the federal judiciary.") News organizations may receive, investigate, and report on public trial proceedings, but they generally have no right to information not available to the public generally. In re Express-News Corp., 695 F.2d 807, 809 (5th Cir.1982). In Express-News, the Fifth Circuit held a local federal district court rule prohibiting any person from interviewing any juror concerning the deliberations or verdict of the jury, except by leave of court, to be unconstitutional as applied to the interviews sought. Id. at 808. In particular, the court of appeals held that the rule violated the newspaper's constitutional right to gather news. Id. The court of appeals noted the relationship between freedom of the press and the right to gather news: The first amendment's broad shield for freedom of speech and of the press is not limited to the right to talk and to print. The value of these rights would be circumscribed were those who wish to disseminate information denied access to it, for freedom to speak is of little value if there is nothing to say. Therefore, the Supreme Court recognized in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 2656, 33 L.Ed.2d 626, 639 (1972), that news-gathering is entitled to first amendment protection, for "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 808-11. The court also noted the relationship between the right to gather news and the public's right to receive the news: 195 Government-imposed secrecy denies the free flow of information and ideas not only to the press but also to the public. The public right to receive information has been repeatedly recognized and applied to a vast variety of information. The judiciary, like the legislative and judicial branches, is an agency of democratic government. The public has no less a right under the first amendment to receive information about the operation of the nation's courts than it has to know how other governmental agencies work and to receive other ideas and information. Id. at 809 (footnote omitted). Finally, the court of appeals observed that the right to gather news is not absolute, and may sometimes be outweighed by competing interests, like a criminal defendant's Sixth Amendment right to a fair trial, or a discharged juror's right to privacy and protection against harassment. Id. at 809-10. But even in these instances, a court rule cannot restrict the journalistic right to gather news unless it is narrowly tailored to prevent a substantial threat to the administration of justice. Id. at 810. In addition, the court of appeals stated that discharged jurors are under no obligation to speak. Id. at 811 ("The jurors' freedom of speech is also freedom not to speak, and the district court may so instruct the jurors in order to avoid the possible misunderstanding that jury service places them under some obligation to subject themselves to scrutiny or to submit to interview."). Restrictions on Discharged Jurors' Speech Restrictions on juror speech have rarely been found to be constitutionally permissible; the restrictions have been limited to situations, such as protecting the secrecy of juror deliberations, protecting the privacy of jurors, and preserving a defendant's sixth amendment right to a fair trial in criminal cases. See U.S. v. Cleveland, 128 F.3d 267, 267-71 (5th Cir.1997) (upholding restriction on juror interviews to protect secrecy of jury deliberations); U.S. v. Harrelson, 713 F.2d 1114, 1116-18 (5th Cir.1983) (same); Haeberle v. Tex. Int'l Airlines, 739 F.2d 1019, 1020-22 (5th Cir. 1984) (upholding restriction on juror interviews to protect juror privacy when interviews sought by litigant's attorney); U.S. v. Williams, No. H-03-0221-11, 2006 WL 3099631 at 4 (S.D.Tex. October 30, 2006) (slip copy) (upholding restriction on juror interviews to protect secrecy of jury deliberations); State v. Neulander, 173 N.J. 193, 801 A.2d 255, 271-75 (2002) (upholding restriction on juror interviews after mistrial in capital murder case to prevent the State from gaining unfair advantage on retrial). We conclude that the right to gather news generally includes the right of the press to interview willing, discharged jurors, except when outweighed by a compelling government interest, such as the need to protect the sanctity of jury deliberations, a juror's right to privacy and to be free from harassment, or a defendant's Sixth Amendment right to a fair trial. Cleveland, 128 F.3d at 267-71; Haeberle, 739 F.2d at 1020-22; Harrelson, 713 F.2d at 1116-18; In re Express-News Corp., 695 F.2d at 808-11; Neulander, 801 A.2d at 271-75. Difficulty Empaneling a Jury The trial court restricted the discharged jurors' right to speak to "the press, media, or others," because it concluded that the additional, incremental publicity would cause imminent and irreparable harm to the judicial process by making it even more difficult to empanel a jury. But no findings or evidence show that the additional, incremental publicity from juror interviews would cause imminent *196 and irreparable harm to the judicial process. Davenport, 834 S.W.2d at 10. To satisfy the second prong of Davenport, the prior restraint must be the least restrictive means possible to prevent the threatened imminent and irreparable harm to the judicial process. Id. Other than voir dire, nothing in the record shows that the trial court considered other less restrictive means, such as continuance or change of venue. Further, the trial court's conclusion that voir dire would be inconvenient does not satisfy the Davenport standard. Id. at 11. Pretrial publicity does not necessarily create such harm to the judicial process as to outweigh the media's right to gather news. See Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554-55, 96 S.Ct. 2791, 2800-01, 49 L.Ed.2d 683 (1976) ("[P]retrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial."); see also Neulander, 801 A.2d at 272 ("In our view, the inhibiting effect of media interviews of the first jury on the `free exchange of ideas' by members of the retrial jury simply is too speculative a basis on which to justify restricting the media's right of access to consenting jurors. We also are inclined to doubt that such juror interviews would `restrict the jury pool' on retrial."); see also Ex parte McCormick, 88 S.W.2d at 105-07. The record does not show that interviews of the discharged jurors would preclude the selection of an impartial jury or that measures less restrictive than a gag order would be ineffective. See Davenport, 834 S.W.2d at 10. Other than the claimed difficulty in selecting a jury, there are no other claimed harms that may result from allowing the jurors to talk. The Sixth Amendment is inapplicable because this is a civil case. U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .") (Emphasis added).[4] The trial court was not concerned about the media harassing the jurors. There exists no concern about protecting the secrecy of juror deliberations because the trial ended before the conclusion of the plaintiffs' case, without any jury deliberations. We conclude that the gag order in this case is unconstitutional under article I, section 8 of the Texas Constitution. Conclusion We conditionally grant the writ of mandamus and direct the trial court to vacate the September 18, 2007 and September 24, 2007 orders prohibiting the jurors from speaking to the press and others. We are confident the trial court will promptly comply and our writ will issue only if it does not. NOTES [1] Respondent is the Honorable Susan E. Criss of the 212th District Court of Galveston County, Texas. The underlying suit is In re: Texas City Explosion, March 23, 2005, Coordinated Discovery Proceedings, Cause No. 05-CV-0337-A, (212th Dist. Ct., Galveston County, Tex.). [2] "BP" refers to BP Products North America, Inc. [3] Davenport emphasized the need to rely on the Texas Constitution in evaluating free speech and free press issues. Id. at 10. The Court stated, "Our rich history demonstrates a longstanding commitment in Texas to freedom of expression as well as a determination that state constitutional guarantees be given full meaning to protect our citizens." Id. at 19. We therefore rely on independent and adequate state law, and any federal cases are cited only for guidance and do not compel the result reached under the Texas Constitution. Id. at 20; see Star-Telegram, Inc. v. Walker, 834 S.W.2d 54, 58 n. 6 (Tex.1992). [4] The trial court found, "An imminent and irreparable harm to the judicial process could deprive present litigants of a just resolution of their dispute which must be balanced in light of movant's First Amendment concerns and the parties Sixth Amendment concerns." (Emphasis added).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1913199/	981 A.2d 916 (2009) COM. v. DONALD. No. 1939 EDA 2008. Superior Court of Pennsylvania. July 15, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2007470/	39 B.R. 166 (1984) In the Matter of Claudette FRANK, Debtor. Claudette FRANK, Plaintiff, v. Milton BERLIN and the Bank of New York, Defendants. Bankruptcy No. 183-30836-16, Adversary No. 183-0374-16. United States Bankruptcy Court, E.D. New York. April 18, 1984. 167 Frank X. Kilgannon, Mineola, N.Y. by Daniel P. Buttafuoco, Bethpage, N.Y., for plaintiff. Stim & Warmuth, P.C. by Joseph D. Stim, Huntington, N.Y., for defendants. MANUEL J. PRICE, Bankruptcy Judge. This is an adversary proceeding brought by the debtor in possession, Claudette Frank, ("Frank," the "plaintiff," or "debtor") pursuant to section 1107(a) of the Bankruptcy Reform Act of 1978, (the "Code") 11 U.S.C. § 1107(a), to set aside the sheriff's sale of her share in a one family residence located at 67 Colonial Drive, Massapequa, New York, owned by her and her husband, Albert Frank, to the defendant, Milton Berlin, ("Berlin," or the "defendant") on the ground that the sale constituted either a fraudulent conveyance, a preferential transfer, or a transaction which violated her homestead rights under state law. At a hearing held on November 1, 1983, (Transcript "Tr." 11/1/83), the plaintiff's action was heard together with a motion by the defendant to dismiss the Chapter 11 proceeding for the debtor's failure to submit a plan as required by section 1106(5) of the Code. I denied his motion at that time and only the plaintiff's action is to be decided here. The facts, as stipulated by the parties, adduced at trial, and indicated from the files, are as follows: On December 28, 1978, the Bank of New York, (the "Bank," or "creditor") obtained a default judgment for $3,019.82 against Claudette Frank and her husband. Mrs. Frank, who is a native of Trinidad, has had little formal education. Her husband, a seaman, spent much of his time away from home at sea. The Bank had obtained the obligation on which the judgment was based in 1977 by way of an assignment from a company known as Trisun Corp., from which the Franks had purchased aluminum siding on credit in order to make repairs on their home. On February 23, 1979, the judgment was docketed in the Clerk's Office of Nassau County and thus became a lien on the Franks' real property which consisted of their marital residence. After the Bank docketed the judgment, the debtor continued to live in the premises and to make payments which significantly reduced the amount owed. Nonetheless, on January 25, 1983, with a balance outstanding of $1,024.96, the Bank caused the sheriff to conduct an auction sale of the Franks' home. (Tr. 11/1/83, p. 11) This sale took place pursuant to an order issued by Justice Arthur D. Spatt, of the New York Supreme Court, Nassau County, on July 23, 1982 which authorized the Bank to issue an execution against the real property of the Franks. The order provided that: "from the first proceeds of such sale, money, not exceeding $10,000 be paid to the judgment debtors as representing their interest in the proceeds." (Defendant's Exhibit 2) It was issued pursuant to section 5206(e) of the New York Civil Practice Law and Rules (CPLR) which provides for the sale of homesteads. According to this section: "A judgment creditor may commence a special proceeding in the county in which the homestead is located against the judgment debtor for the sale, by a sheriff or receiver, of a homestead exceeding ten thousand dollars in value. The court may direct that the notice of petition be served upon any other person. The court, if it directs such a sale, shall so marshal the proceeds of the sale that the right and interest of each person in the 168 proceeds shall correspond as nearly as may be to his right and interest in the property sold. Money, not exceeding ten thousand dollars, paid to a judgment debtor, as representing his interest in the proceeds, is exempt for one year after the payment, unless, before the expiration of the year, he acquires an exempt homestead, in which case, the exemption ceases with respect to so much of the money as was not expended for the purchase of that property; and the exemption of the property so acquired extends to every debt against which the property sold was exempt." N.Y.Civ.Prac.Law & R. § 5206(e) (McKinney 1978). The defendant was the only bidder at the sale, the Franks themselves did not attend, and he obtained the property for $500. The parties have stipulated that at the time of the sale the fair market value of the property was $55,000. (Tr. 11/1/83, p. 15) It was subject to a mortgage held by the Bowery Savings Bank of $30,621.77; a mortgage held by the Nassau County Department of Social Services of $2,448.85; a tax lien of $120.02; a mechanic's lien of $534.05, and judgment liens totalling $8,583. (Debtor's Schedule A-3, Proofs of Claim and stipulation Tr. 11/1/83, pp. 16, 22) The liens and encumbrances therefore amounted to $42,307.69 which, taken from the $55,000 stipulated fair market price, left the Franks with an equity of $12,692.31 and the debtor, Claudette Frank, with an equity of $6,346.15. According to New York State law, however, as provided in CPLR § 5203(a)3, Berlin took the property free of judgment liens. See May v. Finnerty, 104 Misc. 2d 450, 428 N.Y.S.2d 570, 571 (Sup.Ct.1980) and First Federal Savings & Loan Association of Port Washington v. McKee, 61 Misc. 2d 693, 305 N.Y.S.2d 589 (Sup.Ct.1969). Consequently, he received a piece of property which had an equity of $21,275.31 for a bid of $500. On February 4, 1983, the sheriff issued a deed to the property (Defendant's Exhibit 1) to Berlin and it was recorded in the Nassau County Clerk's Office on March 7, 1983. (Tr. 11/1/83, p. 12) The proceeds of the sale were disbursed according to the court order and a check for $175.29 was sent to the Franks to cover their homestead exemption. The plaintiff denied receiving this check and it was conceded at the trial that it was never cashed. The Bank's attorneys received the remaining $324.71 to reimburse them for the expenses of the sale. (Id. pp. 13-14) Although the debtor contends that her husband was at sea and thus was never served with the summons in the Bank's action against him and that the underlying judgment, and consequently the sale of his share of the property which they held as tenants by the entirety, is therefore void, no action was taken by them in state court to vacate the judgment or the sale. (Id. pp. 5-6) Instead, on April 25, 1983, less than two months after the deed was recorded, the debtor filed an individual petition for relief under Chapter 11 of the Code and on August 4, 1983, as the debtor in possession, asserting the powers of a trustee under section 1107(a), she filed the complaint herein to have the conveyance of her share set aside. Section 1107(a) of the Code, 11 U.S.C. § 1107(a) enables a debtor in possession to assert the powers of a trustee. This section provides: "Subject to any limitations on a trustee under this chapter, and to such limitations or conditions as the court prescribes, a debtor in possession shall have all the rights, other than the right to compensation under section 330 of this title, and powers, and shall perform all the functions and duties, except the duties specified in sections 1106(a)(2), (3), and (4) of this title, of a trustee serving in a case under this chapter." By filing her petition for relief under Chapter 11, the debtor, as debtor in possession, assumed the right to pursue avoidance actions under section 547(b) and section 548(a) of the Code. The cause of action she most vigorously pursues is that of the fraudulent conveyance of her interest in the property under section 548(a). 169 Fraudulent Conveyance Section 548(a) of the Code provides that: "The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor (1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer occurred or such obligation was incurred, indebted; or (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured." Although her complaint states that the sale was made with the "actual intent to hinder, delay or defraud" creditors under section 548(a)(1), she failed to allege any facts either in the complaint or the post-trial memorandum, to support this assertion which in any case hardly seems appropriate for an involuntary transfer to a stranger. That claim must therefore be rejected. The plaintiff also claims, however, that the sale constituted a fraudulent conveyance under section 548(a)(2) insofar as the debtor did not receive "reasonably equivalent value" for the transfer within the meaning of section 548(a)(2)(A). In response, the defendant argues that the transfer to him cannot be avoided because it should be deemed to have been made beyond the one year period within which such conveyances are vulnerable to attack. He contends that the time of the transfer should be deemed to relate back to the time when the judgment against the debtor and her husband was docketed by the bank. Defendant's Post Trial Memorandum, pp. 10-11. In addition, he maintains that any consideration at a forced sale, not otherwise improper, should be regarded as conclusively "equivalent value" under section 548(a)(2)(A). Id., pp. 4-9. The case at bar, therefore, brings two interesting and important questions before the court, namely: (1) whether the time of the transfer to Berlin at the sheriff's sale should relate back to the time when the bank docketed its judgment which created a lien on the property, or whether the transfer took place at the time of the sale and the delivery of the deed to him by the sheriff, and (2) whether the price recovered at the sheriff's sale should necessarily be deemed to be reasonably "equivalent value" within the meaning of section 548(a)(2)(A) or whether it should be examined on a case by case basis. Time of Transfer It is well established that under sections 548(a) and 547(b) involuntary as well as voluntary transfers may be avoided, since the Code's definition of "transfer" includes involuntary transactions. According to section 101(40), "`transfer' means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest." S.Rep. 95-989, 95th Cong., 2d Sess. 27 (1978), U.S. Code Cong. & Admin.News 1978, pp. 5787, 5813. (emphasis added) The courts have construed a transfer, as defined in section 101(40) of the Code, which replaced section 1(30) of the Bankruptcy Act of 1898 as amended, former Title 11 § 1(30) (the "Act"), to include the attachment of liens as well as forced sales and they have made clear that such transfers are to be construed as having been made by the debtor. See Abramson v. 170 Lakewood Bank & Trust Co., 647 F.2d 547, 548 (5th Cir.1981); Durrett v. Washington National Insurance Co., 621 F.2d 201, 204 (5th Cir.1980); In re Wheeler, 34 B.R. 818, 820 (Bkrtcy.N.D.Ala.1983); In re Berge, 33 B.R. 642, 648 (Bkrtcy.W.D.Wis. 1983); In re Bates, 32 B.R. 40, 41 (Bkrtcy. E.D.Cal.1983); In re Coleman, 21 B.R. 832 (Bkrtcy.S.D.Tex.1982) (cases determining that nonjudicial foreclosure sales constitute "transfer" under section 548(a)); In re Carr, 34 B.R. 653, 656 (Bkrtcy.D.Conn. 1983) (strict foreclosure sale is transfer); In re Ewing, 33 B.R. 288, 291-292 (Bkrtcy. W.D.P.A.1983) (involuntary sale of stock); In re Gilmore, 31 B.R. 615, 617 (D.C.E.D. Wash.1983); In re Evans, 30 B.R. 744, 745 (Bkrtcy.N.D.Ohio 1983) (judicial lien as transfer under section 547(b)); In re Worcester, 28 B.R. 910, 914 (Bkrtcy.C.D. Cal.1983) (transfer includes disposition of debtor's equity); In re Richard, 26 B.R. 560 (Bkrtcy.D.R.I.1983) (sheriff's sale is transfer); In re Maytag Sales and Service, Inc., 23 B.R. 384, 388 (Bkrtcy.N.D.Ga.1982) (garnishment of debtor's bank account is transfer under section 547(b)); In re Perdido Bay Country Club Estates, Inc., 23 B.R. 36 (Bkrtcy.S.D.Fla.1982) (transfer of title at foreclosure sale is transfer); In re Smith, 21 B.R. 345, 351 (Bkrtcy.M.D.Fla. 1982) (sheriff's sale of debtor's home was transfer); In re Suppa, 8 B.R. 720, 722 (Bkrtcy.D.R.I.1981) (attachment of judgment lien is a transfer under section 547(b)). But see In re Madrid, 725 F.2d 1197, 1202 (9th Cir.1984) where the court found that a foreclosure sale based upon a previously conveyed deed of trust is not a transfer by a debtor but "an involuntary conveyance triggered by the debtor's failure to fulfill some obligation in the promissory note secured by a mortgage or deed of trust." See also 4 Collier on Bankruptcy ¶ 547.11 (15th ed. 1980). The defendant does not dispute that the sheriff's sale of the Franks' property constituted a transfer by the debtor, but he maintains that the time of the transfer to him should be deemed to relate back to February 23, 1979 when the Bank docketed its judgment. Since the debtor filed her petition on April 25, 1983, that would place the transfer well beyond the one year period of vulnerability under section 548(a). To support his contention, the defendant refers to a decision of an Alaskan Bankruptcy Court, In re Alsop, 14 B.R. 982 (Bkrtcy.D.Alaska 1981). This decision was affirmed by the U.S. District Court for Alaska, In re Alsop, 22 B.R. 1017 (D.C. Alaska 1982), and its reasoning was adopted by the Ninth Circuit Court of Appeals in In re Madrid, 725 F.2d 1197 (9th Cir.1984), a decision which is in conflict with the approach taken by two Fifth Circuit Court of Appeals decisions, Durrett v. Washington National Insurance Co., supra, and Abramson v. Lakewood Bank and Trust Co., 647 F.2d 547 (5th Cir.1981), cert. denied 454 U.S. 1164, 102 S. Ct. 1038, 71 L. Ed. 2d 320, as well as most of the lower court decisions which followed. In Durrett, which was brought under section 67d of the Act, former Title 11, § 107d, the court held for the first time that a nonjudicial foreclosure sale to the holder of the trust deed could be set aside as a fraudulent conveyance on the ground that the debtor had failed to receive fair value. Although the trust deed had been executed (the title voluntarily conveyed) beyond the one year period for setting aside fraudulent conveyances, the court took the date of the involuntary sale, which was within one year of the filing of the bankruptcy petition, as the time of the transfer to the defendant buyer. This construction was explained and reaffirmed in Abramson, another Act case which set aside a nonjudicial foreclosure sale as a fraudulent conveyance for failure of fair equivalent value. In re Alsop, which the defendant urges this court to follow, and In re Madrid, supra, involved cases brought by the trustees therein under section 548(a) of the Code, to challenge nonjudicial foreclosure sales to the holders of trust deeds. There the courts refused to allow the trustees to avoid the sales on the ground that the time of the transfers should be deemed to relate back to the time when the deeds were 171 executed, which happened to have been well beyond the one year period of vulnerability under section 548(a). In refusing to follow Durrett and Abramson, the Alsop court maintained that those decisions had failed to discuss the effect of section 67d(5) of the Act (which was superseded by section 548(d)(1) of the Code) or the relevant state law concerning perfection, but had instead rested their conclusions on the ground that a foreclosure sale constituted a "transfer" within the meaning of section 1(30) of the Act (section 101(40) of the Code). 14 B.R. at 987. Section 548(d)(1) of the Code, which replaced section 67d(5) of the Act, requires reference to state law so far as it defines the time of transfer in terms of perfection. This section provides that a transfer is made: "when such transfer becomes so far perfected that a bona fide purchaser from the debtor against whom such transfer could have been perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer occurs immediately before the date of the filing of the petition." The Alsop court determined that under Alaska state law "the interest of the purchaser at a foreclosure sale is perfected at the time of the recording of the original deed of trust" and that therefore the time of the sale should be deemed to relate back to the time the deed was executed. 14 B.R. at 986. In affirming the Bankruptcy Court's decision, the District Court of Alaska stated that the transfer had occurred at the time the deed of trust was recorded because "[u]nder Alaska law, a deed of trust becomes perfected against subsequent bona fide purchasers when it is recorded." In re Alsop, 22 B.R. at 1018. In In re Madrid, supra, at 1202, which was decided during the pendency of this action, the Ninth Circuit cited In re Alsop to note that while a foreclosure sale based upon a deed of trust previously executed, might satisfy the definition of transfer in section 101(4), that definition had to be limited by the definition of transfer in section 548(d)(1) which required a finding that the time of the transfer was the time the deed was executed and not the time of the sale. The Alsop decision was criticized by Judge Glen E. Clark in In re Richardson, 23 B.R. 434, 445 (Bkrtcy.D.Utah 1982), a case involving a trustee's successful attempt to set aside a nonjudicial foreclosure sale under section 548(a). According to Judge Clark, the Alsop decision "improperly fuses two separate transfers": the transfer to the lender which creates the lien by the voluntary transfer of the deed and the transfer that passes the debtor's equity at the foreclosure sale. 23 B.R. at 445. According to Richardson, it is necessary to regard the time of the challenged transfer as the time of the sale because under state law, as applied to section 548(d)(1), the sale to the buyer at the foreclosure sale was perfected only when the sale could have been discovered: "Under Section 548(d)(1), a transfer challenged under Section 548(a) is made when it `becomes so far perfected that a bona fide purchaser from the debtor against whom such transfer could have been perfected cannot acquire an interest in the property transferred that is superior to the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer occurs immediately before the date of the filing of the petition.' In this case, Section 548(d)(1) deems the transfer of the debtors' equity to [the buyer] to have been made when it was so far perfected that a bona fide purchaser from the debtor could not acquire an interest in the debtors' equity superior to [the buyer's] interest. Under Utah law the transfer to [the buyer] was so far perfected that a subsequent purchaser from the debtor could not acquire an interest in the debtors' equity superior 172 to [the buyer's] interest after the sale, when a purchaser, based on the notice of default and the notice of sale, could have discovered the sale. Thus, the transfer was made within one year before the date of the filing of the debtors' petition." Id. at 446. (Judge Clark's subsequent decision to dismiss the trustee's case and to rescind the order to set aside the sale on the ground that the bankruptcy court had no subject matter jurisdiction in view of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982). In re Richardson, 27 B.R. 407 (Bkrtcy.D.Utah 1983), was vacated on appeal by the District Court of Utah, in the companion case In re Color Craft Press, Ltd., 27 B.R. 962 (D.C.Utah 1983)). Other cases which construe the time of the transfer as the time of the sale following the Durrett-Abramson rule, include: In re Wheeler, 34 B.R. 818, 821 (Bkrtcy.N. D.Ala.1983); In re Carr, 34 B.R. 653 (Bkrtcy.D.Conn.1983); In re Ewing, 33 B.R. 288 (Bkrtcy.W.D.Pa.1983); In re Berge, 33 B.R. 642, 643-644 (Bkrtcy.W.D. Wis.1983); In re Gilmore, 31 B.R. 615, 617 (D.C.E.D.Wash.1983); In re Bates, 32 B.R. 40, 41 (Bkrtcy.E.D.Cal.1983); In re Worcester, 28 B.R. 910, 912-915 (Bkrtcy.C.D.Cal. 1983); In re Coleman, 21 B.R. 832, 833 (Bkrtcy.S.D.Texas 1982). In In the Matter of Jordan, 5 B.R. 59, 61 (Bkrtcy.D.N.J. 1980), the court deemed the time of transfer under section 547(b) to be the time the judgment lien was docketed rather than the time the creditor levied on the property, but the issue there was whether the debtor in a Chapter 13 proceeding could avoid the creditor's levy, not whether a sale to a stranger could be set aside. The facts in the case at bar are distinguishable from those of Alsop, Madrid, and Richardson since those cases dealt with nonjudicial foreclosure sales based upon prior executions of trust deeds while this matter concerns a sheriff's sale based upon a judgment lien. The defendant in this case held no deed previously transferred by the debtor. It is therefore unnecessary for this court to decide between the Alsop-Madrid and Richardson interpretations on the "time of the transfer" under section 548(d)(1) since it is clear that under that section the time of the transfer to Berlin must be deemed to be the time he recorded the deed because under New York law the title of a buyer at a sheriff's sale is perfected against a subsequent purchaser from the debtor only when he has recorded his deed. Section 291 of New York's Real Property Law provides: "A conveyance of real property, within the state, on being duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter, may be recorded in the office of the clerk of the county where such real property is situated, and such county clerk shall, upon the request of any party, on tender of the lawful fees therefor, record the same in his said office. Every such conveyance not so recorded is void as against any person who subsequently purchases or acquires by exchange or contracts to purchase or acquire by exchange, the same real property or any portion thereof, or acquires by assignment the rent to accrue therefrom as provided in section two hundred ninety-four-a of the real property law, in good faith and for a valuable consideration, from the same vendor or assignor, his distributees or devisees, and whose conveyance, contract or assignment is first duly recorded, and is void as against the lien upon the same real property or any portion thereof arising from payments made upon the execution of or pursuant to the terms of a contract with the same vendor, his distributees or devisees, if such contract is made in good faith and is first duly recorded." N.Y.Real Property Law, § 291 (McKinney 1980). This requirement applies to purchasers at sheriffs' sales as well as other buyers of real property. In upholding a sale to a buyer who recorded a deed which he received 173 from a debtor subsequent to a sheriff's sale of the same property to a buyer who recorded the certificate of sale but not the deed, the Appellate Division of the First Department held that the certificate was insufficient notice to a subsequent grantee who would only be put on notice by the recording of the deed: "[A]fter the lien of the judgment had expired, a [subsequent] purchaser acquiring the property in good faith and without notice, no deed from the sheriff having been recorded, and the purchaser having duly recorded his deed under the Recording Act would acquire a good title to the property." Davidson v. Crooks, 45 A.D. 616, 619, 61 N.Y.S. 362 (1st Dept.1899). Although the rights of a buyer at a sheriff's sale relate back to the rights the debtor had at the time the judgment became a lien, the buyer must record the deed to acquire them: "The execution and delivery of a deed by the sheriff would relate back so as to convey all the right, title and interest of the judgment debtor at the time of the docket of the judgment; but where, by the lapse of time, the lien of the judgment upon the land had ceased and no conveyance or deed executed by the sheriff had been recorded, and where the owner of the land executed a valid conveyance to a third person, who received it for a valuable consideration and without notice of any other conveyance, and duly recorded his deed under the Recording Act, his title would be good." Id. at 620, 61 N.Y.S. 362 citing Reynolds v. Darling, 42 Barb. 422 (1864); see also, Cohen v. East Netherland Holding Co., 258 F.2d 14 (2d Cir.1958) (construing "transfer" under section 60d of the Act and section 291 of Real Property Law). The defendant argues that two New York cases, Grid Realty Corp. v. Fazzino, 55 A.D.2d 635, 390 N.Y.S.2d 169 (2d Dept. 1976), affirmed, 42 N.Y.2d 1048, 399 N.Y.S.2d 212, 369 N.E.2d 768 (1977), and Maroney v. Boyle, 141 N.Y. 462, 36 N.E. 511 (1894), require that the time of the transfer be deemed to relate back to the time the creditor docketed the judgment. But neither of these cases, which he applies to Alsop by analogy, support the theory he proposes. Grid concerned the rights of a purchaser at a sheriff's sale whose ownership interest in real property was challenged by a party whose claim derived from a judgment entered subsequent to his purchase. The Appellate Division, Second Department of the New York State Supreme Court held: "[B]y reason of the protection afforded by the recording act, an innocent purchaser for value, who in good faith acquires title through a sheriff's execution sale, and records the deed pursuant thereto, has a right to the property superior to any claim derived through a subsequently entered judgment which declares the judgment debtor's prior record ownership to be, in fact, a mortgage. * * * * * "`[T]he transfer of title is the same as if the sheriff had in fact acted as the authorized attorney of the debtor. The grantee in such cases holds, not under the sheriff, but under the debtor, and the deed when recorded is protected by, and has the benefit of the recording act.'" (emphasis added) 390 N.Y.S.2d at 170-171. Quoting Hetzel v. Barber, 69 N.Y. 1, 10 (N.Y.1877). Maroney v. Boyle involved a purchaser at a sheriff's sale whose rights were being challenged by a plaintiff holding notes on the property which had been obtained prior to the sale. The court held that "[s]uch a purchaser, after he obtains the sheriff's deed, is in the same position as he would have been if the deed had been executed by the judgment debtor at the time the judgment was docketed." 141 N.Y. at 469, 36 N.E. 511 (emphasis added). Although these cases illustrate the principle that buyers who purchase at sheriffs' sales may obtain rights superior to those who obtain interests prior in time, neither case supports the defendant's theory that the time buyers obtain such rights should 174 be deemed to be prior to the time they receive the deed or record it. Maroney makes clear that the buyer is in a protected position only "after he obtains the sheriff's deed." 141 N.Y. at 469, 36 N.E. 511. Grid makes clear that a buyer at a sheriff's sale is protected once he "records the deed." 390 N.Y.S.2d at 171. (emphasis added) It is true that under CPLR § 5203 the creditor is safe against subsequent transferees of the debtor once he dockets his judgment. This section provides that: "No transfer of an interest of the judgment debtor in real property, against which property a money judgment may be enforced, is effective against the judgment creditor either from the time of the docketing of the judgment with the clerk of the county in which the property is located until ten years after filing of the judgment-roll, or from the time of the filing with such clerk of a notice of levy pursuant to an execution until the execution is returned, except: "1. a transfer or the payment of the proceeds of a judicial sale, which shall include an execution sale, in satisfaction either of a judgment previously so docketed or of a judgment where a notice of levy pursuant to an execution thereon was previously so filed; or "2. a transfer in satisfaction of a mortgage given to secure the payment of the purchase price of the judgment debtor's interest in the property; or "3. a transfer to a purchaser for value at a judicial sale which shall include an execution sale; or "4. when the judgment was entered after the death of the judgment debtor; or "5. when the judgment debtor is the state, an officer, department, board or commission of the state, or a municipal corporation; or "6. when the judgment debtor is the personal representative of the decedent and the judgment was awarded in an action against him in his representative capacity." Therefore, under section 548(d)(1), an involuntary transfer of the debtor's interest to the creditor occurs when the creditor dockets his lien. But to deem the time of the transfer to the buyer at the sheriff's sale as the time of the transfer to the creditor is simply to confuse the two transfers and incorrectly to identify the rights obtained with the time such rights accrued. Since section 548(d)(1) of the Code defines the time of the transfer as the time a transferee is perfected against subsequent buyers, and because a transferee who takes real property at a sheriff's sale is perfected under New York law only once he has recorded his deed, the transfer to Berlin must be deemed to have taken place on March 7, 1983, when he recorded his deed, which was less than two months before the debtor filed her petition. This court must, therefore, decide whether the "debtor received less than a reasonably equivalent value in exchange for such transfer," under section 548(a)(2)(A). VALUE The plaintiff argues that this court should follow the Fifth Circuit Court of Appeals decision, Durrett v. Washington Co., 621 F.2d 201 (5th Cir.1980), which set aside a foreclosure sale for failure of "fair-equivalent" value after comparing the sale price ($115,400) to the fair market value of the property sold ($200,000). The value received in that case was 57.7% of the fair market value of the property. The defendant urges this court to follow instead the decision of the Ninth Circuit Bankruptcy Appellate Panel (the "Panel"), In re Madrid, 21 B.R. 424 (Bkrtcy.App. 9th Cir.1982) in which Judge Robert L. Hughes, speaking for the majority of the Panel, had held that any price paid at a nonjudicial foreclosure sale, not otherwise improper, should conclusively be deemed to be equivalent value under section 548(a)(2)(A). According to Judge Hughes, because the mere inadequacy of the price would be insufficient to set aside a foreclosure sale under Nevada and California law, 175 the sale could not be avoided in bankruptcy under section 548(a). During the pendency of the case at bar, the Ninth Circuit Court of Appeals, in In re Madrid, 725 F.2d 1197 (9th Cir.1984), affirmed the Panel's decision not to set the sale aside. Although the court noted in dicta that policy considerations supported its decision to uphold the sale, since an opposite finding would create a de facto redemption right which would have a chilling effect on participation at foreclosure sales, Madrid at 1202, it studiously avoided basing its decision on the issue of equivalent value and instead based its decision on the narrow issue of time. The court held that the time of the transfer was the time the deed was executed, not the time of the sale; this placed the transfer outside of the one year period of challenge under section 548(a): "We agree that the foreclosure sale cannot be set aside, but do not base our holding on the question of reasonably equivalent value. We hold that the sale must be upheld because the transfer of the home occurred at the time of perfection of the trust deed, not upon foreclosure." (emphasis added) Id. at 1198. Consequently, the Madrid decision does not create a conflict between the Fifth and Ninth Circuits on the issue of whether the price paid at foreclosure sales should be considered presumptively equivalent value. The majority of the lower courts which have decided the issue since the Madrid Panel decision was rendered have rejected Judge Hughes's interpretation in favor of the Durrett approach. In re Wheeler, 34 B.R. 818, 821 (Bkrtcy.N.D.Ala.1983); In re Carr, 34 B.R. 653 (Bkrtcy.D.Conn.1983); Matter of Berge, 33 B.R. 642, 645 (Bkrtcy. W.D.Wis.1983); In re Ewing, 33 B.R. 288 (Bkrtcy.W.D.Pa.1983); In re Bates, 32 B.R. 40, 41-42 (Bkrtcy.E.D.Cal.1983); ("the Bankruptcy Code preempts state law under these circumstances"); In re Richard, 26 B.R. 560 (Bkrtcy.D.R.I.1983); In re Smith, 21 B.R. 345 (Bkrtcy.M.D.Fla.1982). But see In re Worcester, 28 B.R. 910, 914-915 (Bkrtcy.C.D.Cal.1983) (sale set aside where the debtor's equity was $180,000, sale price was $14,975 (less than 8%) and there was "gross misdescription" of the property making the sale improper under state law); In re Gilmore, 31 B.R. 615, 616 (D.C.E.D. Wash.1983) (sheriff's sale not set aside since sale was properly conducted and debtor failed to pursue state remedy to challenge it); In re Perdido Bay Country Club Estates, Inc., 23 B.R. 36, 41 (S.D.Fla. 1982) (debtor estopped by his failure to challenge judicial foreclosure sale in state court). Most of the decisions favoring the Durrett approach involved foreclosure sales but they also include sheriffs' sales of real property, In re Smith, supra; In re Richard, supra; the involuntary sale of stock; In re Ewing, supra, and strict foreclosure sales, In re Carr, supra. The most thorough analysis of the issue, however, is found in Judge Glenn Clark's opinion in In re Richardson, 23 B.R. 434, 446 (Bkrtcy.D. Utah 1982), which sets forth several reasons for favoring the Durrett approach in a trustee's case to avoid a nonjudicial foreclosure sale. Judge Clark noted that giving presumptive status of "reasonable equivalence" to the price obtained, "proscribes the factual inquiry into `reasonable equivalence' which Section 548(a)(2) was designed to facilitate." 23 B.R. at 446. In addition, he found that such an approach "reads a good faith" requirement into Section 548(a)(2)(A) "which is inconsistent with Congress' deletion of Section 67's good faith test" and "duplicates rights which the trustee already has under the law of most states through Section 544(b)." Id. at 447. According to Judge Clark, "[i]t is unlikely that Section 548(a)(2)(A) was intended to operate merely as a repetition of Section 544(b)." In addition, he criticized giving too much weight to state law which, in sanctioning foreclosure exchanges for less than reasonably equivalent value, may be giving effect to state contracts and foreclosure policy but may "overlook the interests of other creditors of the debtor." According to Richardson, "reasonable equivalence 176 should be determined in light of the function of Section 548 in fostering an equitable distribution of the debtor's property." Id. Finally, the opinion notes that the policy arguments favoring state law "are not relevant" so far as federal law takes precedence over state law and may lead to results otherwise impermissible outside of the Bankruptcy context: "While Durrett's application of bankruptcy fraudulent conveyance law to a foreclosure sale may have been unprecedented, there is nothing novel in avoiding transfers under bankruptcy law which are valid under state law. . . . preference powers cast a cloud over pre-petition transfers which are otherwise invulnerable. Section 545 radically alters state law governing statutory liens." Id. at 448. Judge Clark concluded that he had no choice but to apply section 548(a) even if it lead to results inconsistent with state law because: "When the language of an avoiding power established under Federal Bankruptcy law `is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms' . . . and policy arguments against its enforcement are not relevant." Id. Quoting Central Trust Co. v. Official Creditors Committee of Geiger Enterprises, Inc., 454 U.S. 354, 359-360, 102 S. Ct. 695, 698, 70 L. Ed. 2d 542 (1982). Quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442 (1917). He added that any uncertainty in the foreclosure market would occur only in cases where the buyer had paid an unreasonable price in which case the result would "not seem unfair." Id. Although Richardson deals specifically with nonjudicial foreclosure sales, I find its reasoning to be equally applicable to sheriffs' sales based upon judgment liens. See In re Richard, 26 B.R. 560 (Bkrtcy.D.R.I.1983) (sheriff's sale set aside under section 548(a) where debtor had an equity of $3,250 in home valued at $22,500 and sale price was $31). Although New York law does not permit a money judgment sheriffs' sale of real property to be set aside merely because the price is inadequate, Guardian Loan Co. v. Early, 47 N.Y.2d 515, 521, 419 N.Y.S.2d 56, 392 N.E.2d 1240 (1979), and provides no right of redemption, Pindus v. Newmat Leasing Corp., 71 A.D.2d 948, 420 N.Y.S.2d 10 (2d Dept.1979); CPLR § 5236, Commentary to CPLR § 5236, "Sale of Real Property upon Execution," by Professor David D. Siegel, N.Y.Civ.Prac.Law & R § 5236 (McKinney 1978), such facts cannot be dispositive for this court must follow the plain language of the federal law and apply that which Congress has established to promote the equal distribution of the debtor's assets to all creditors. Although certain provisions of the Code such as sections 522(b), 544(b), 547(e)(1) and (2), 548(d)(1), may require this court to apply state law, section 548(a)(2)(A) is not one. Consequently, certain transactions are vulnerable to attack as involuntary fraudulent conveyances in the bankruptcy context that are otherwise secure under state law. Since the federal law is preemptive in this area, this court must examine the particular facts of this transaction to determine whether "the debtor received less than reasonably equivalent value" under section 548(a)(2)(A). Methods of Computation The courts have used various methods of determining value under section 548(a)(2)(A) (previously 67d of the Act). Some have looked to the fair market value of the property which was sold, Durrett, Abramson, Wheeler, Bates, Smith; some have looked to the debtor's equity, Worcester; Coleman; some to the buyer's, Carr, Richardson. One court set aside a sheriff's sale without deciding which method was correct when the sale price was 1% of the debtor's share of the equity as well as 1% of the fair market value of her share of the property. In re Richard, 26 B.R. 560, 562-63 (Bkrtcy.D.R.I.1983). Whatever the method chosen, however, since Mrs. Frank 177 filed her petition for relief as an individual rather than jointly with her husband, any computation of value must be made according to what she received as her share of the proceeds for her share of the property which was involuntarily conveyed. See In re Richard, 26 B.R. 560, 561 (Bkrtcy.D.R.I. 1983) for a case involving very much the same type of facts as in the case at bar. According to the stipulation of the parties, the debtor and her husband had an equity in the property of approximately $12,692.31 (The fair market value of $55,000 less the liens of $42,307.69). Her half-share was therefore $6,346 for which she received $87.50, or one-half of the $175 which was the couple's entitlement according to Judge Spatt's order. Although she apparently refused to cash the check which was sent for this amount, Tr. 11/1/83, p. 3, it would be improper to say that she received nothing for the transfer. Therefore, using these figures and the method of computation most favorable to the defendant which compares the debtor's equity of $6,346 with the price she received, $87.50, the value received was 1.3%. Other methods of computation, based upon the buyer's equity in the debtor's share ($21,275 ÷ 2 = $10,637), or the debtor's share of the stipulated fair market value of the property ($55,000 ÷ 2 = $27,500) produce even lower percentage rates: 0.8% and 0.3% respectively. In fact, even if one-half of the price paid ($250) is compared to the debtor's share of the equity ($6,346), the value was less than 4%. Since I find that under any reasonable method of calculation the debtor received far less than equivalent value, it is unnecessary to decide between their respective merits. The transfer of the debtor's share of the property may be avoided under section 548(a)(2) and the debtor in possession may recover the property from the defendant who is liable under section 550 of the Code. Since there is nothing to suggest that the defendant failed to take the property for value and in good faith, according to section 548(c) of the Code, which provides that the defendant "has a lien on the interest transferred . . . and may enforce any obligation incurred . . . to the extent that he gave value to the debtor in exchange for the transfer . . ." the defendant is entitled to receive $250 since he paid this amount for the debtor's share of the property. Preferential Transfer Since I have found that the transfer to Berlin is void under section 548(a)(2), it is unnecessary to determine whether a preferential transfer was made under section 547(b) although, in view of the fact that the creditor Bank received nothing from the transfer to Berlin, it would seem unlikely that the transfer qualified as a preference under section 547(b) which allows transfers to be avoided which are: "(1) to or for the benefit of a creditor; "(2) for or on account of an antecedent debt owed by the debtor before such transfer was made; "(3) made while the debtor was insolvent; "(4) made "(A) on or within 90 days before the date of the filing of the petition; or "(B) between 90 days and one year before the date of the filing of the petition, if such creditor, at the time of such transfer "(i) was an insider; and "(ii) had reasonable cause to believe the debtor was insolvent at the time of such transfer; and "(5) that enables such creditor to receive more than such creditor would receive if "(A) the case were a case under chapter 7 of this title; "(B) the transfer had not been made; and "(C) such creditor received payment of such debt to the extent provided by the provisions of this title." Having found that the transfer of the debtor's share of the property to Berlin is void under section 548(a)(2) as a fraudulent conveyance, it is unnecessary for me to determine whether the sale should be set *178 aside as having violated the debtor's homestead exemption provided for by section 5206 of the New York State Civil Practice Law and Rules. Accordingly, judgment is granted for the plaintiff. Settle judgment in accordance herewith.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1882294/	685 F. Supp. 986 (1988) Lucille YOUNG, et al., Plaintiffs, v. Samuel R. PIERCE, et al., Defendants. Civ. A. No. P-80-8-CA. United States District Court, E.D. Texas, Paris Division. March 3, 1988. Jonathan Strong, HUD, Washington, D.C., Charlene Berry, HUD, Ft. Worth, Tex., Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, Dallas, Tex., Elizabeth K. Julian, Executive Director, North Cent. Texas Legal Services Foundation, Inc., Michael M. Daniel, Dallas, Tex., for plaintiffs. Steven M. Mason, Asst. U.S. Atty., Tyler, Tex., Arthur R. Goldberg, David M. Souders, Dept. of Justice, Civil Div., Washington, D.C., for defendants. 987 INTERIM INJUNCTION JUSTICE, Chief Judge. An order, entered in the above-entitled and numbered action on July 31, 1985, held that the United States Department of Housing and Urban Development and its officials ("HUD") knowingly created, promoted, and funded racially segregated housing in East Texas in violation of the United States Constitution and federal civil rights laws. Young v. Pierce, 628 F. Supp. 1037 (E.D.Tex.1985). This finding of liability related to a class which included black residents of, and applicants for, HUD-assisted housing in the thirty-six class action counties. The court subsequently entered an injunction on July 3, 1986, 640 F. Supp. 1476, from which HUD appealed. On appeal to the U.S. Court of Appeals for the Fifth Circuit, the parties agreed to limit the plaintiff class to applicants for, and residents of, all traditional low-rent housing programs owned by public housing authorities (PHAs) in the thirty-six class counties. They then jointly moved the Court of Appeals to vacate all findings of fact and conclusions of law to the extent they related to liability as to persons no longer in the class. Young v. Pierce, 822 F.2d 1368, 1373 & n. 7 (5th Cir.1987). The Court of Appeals approved this agreement and granted the motion. Id. at 1373. The parties also agreed, and the Court of Appeals ruled, that the injunction should be remanded for modifications to make more specific the obligations of HUD, and to make any other modifications to the injunction that were necessary or advisable in light of the parties' settlement on the limitation of the class. Id. at 1374. On appeal, HUD did not contest its liability with respect to its prior actions in overseeing the low-rent public housing programs administered by the PHAs. Id. supra at 1373. Pursuant to the direction of the Court of Appeals, and upon consideration of the arguments of the parties, the following interim remedial order will be entered against HUD pending final remedial orders in this case. A separate order, describing the role of the court-appointed special master in this phase of the litigation, also is filed herewith. With respect to the plaintiff class members in this action, as modified by the agreement before the Court of Appeals, the Department of Housing and Urban Development, its officers, agents, servants, employees, successors, and all persons in active concert or participation with them, shall be, and they are hereby, ENJOINED, either directly, or through contractual or other arrangements: 1. From subjecting a class member to segregation or separate treatment in any matter related to his receipt of housing, accommodations, facilities, services, financial aid, or other benefits, under any of its programs or activities in the class action counties, on the ground of race or color. The "separate treatment" prohibitions of this provisions shall not include the affirmative and remedial provisions of this decree, which are designed to provide relief for the class. 2. To direct each public housing authority (PHA) operating a low-rent public housing project with federal financial assistance under the 1937 Federal Housing Act, as amended, 42 U.S.C. §§ 1401 et seq., in the class action counties to adopt, within ninety days of the date of this order, a tenant selection and assignment plan that contains the following procedures, in addition to those required by the terms of 24 C.F.R. 1.4(b)(2)(ii): a) The pool of vacancies from which each applicant shall be assigned a unit shall include all appropriately sized units which are actually vacant and not the subject of an outstanding offer to another applicant as of the date of the assignment. The pool of vacancies shall include all vacant units in each project owned, operated, or managed by the PHA, whether or not that project is a low-rent public housing project. b) The applicant at the top of the waiting list shall be offered a unit in a project site where the applicant's race does not predominate, if such a unit is in the vacancy pool. An applicant's race does not predominate in a project site if the project site is 988 occupied by less than 75% of the members of the same race as the applicant. c) If the applicant refuses the offered vacancy, then the applicant shall be placed at the bottom of the waiting list, and shall not be offered another unit until either every other applicant eligible for the same size unit with the same or earlier application date has been offered an appropriate unit or has withdrawn his request, or six months has elapsed from the rejection of the offer, whichever time period is longer. An offer will be deemed rejected if not accepted within ten working days from the date of the offer. d) The PHA will make available to class members the opportunity to transfer between housing programs operated, managed, or administered by the PHA, if such a transfer will result in a desegregated housing opportunity to that class member. To "make available" means to ascertain whether such a transfer would offer a desegregated housing opportunity, and to give notice to applicants describing the transfer opportunities and informing the applicants of the actions reasonably necessary to make use of the transfer. e) The correction of "over-housed" situations (as that term is described at 628 F.Supp. at 1052 n. 7), or "under-housed" situations (where tenant families are placed in inappropriately small units), will be done as soon as possible after the PHA becomes aware of the condition. The transfers necessary to correct over-housed or under-housed situations will be made to units in projects or project sites where the transferee's race does not predominate, if such units are available in the vacancy pool. These transfers will have priority over the filling of vacancies from the waiting list. f) The PHA shall adopt and implement a policy for effective monitoring of its compliance with the approved tenant selection and assignment policy. This policy shall include the record-keeping necessary to determine compliance with the tenant selection and assignment procedures. g) The PHA will submit a written report to HUD 120 days after filing of this order, and every twelve months thereafter, describing: (1) the racial occupancy characteristics of each project site owned, operated, or managed by the PHA and of the immediate area or neighborhood within which each project site is located; (2) the racial occupancy characteristics of those on the PHA's waiting list for each HUD-assisted program operated by the PHA; and (3) the racial occupancy characteristics of those receiving housing assistance through programs, other than low-rent public housing, that are operated, managed, or administered by the PHA, and the racial occupancy characteristics of the area or neighborhood within which that housing assistance is being received. 3. To exercise its discretion under its various housing programs to attempt to create and develop, for class members, housing alternatives in areas and neighborhoods that will offer the class members a desegregated housing opportunity. 4. a) To give each class member written notice, every six months, in a form and distribution method to be approved by the court, of all HUD-assisted low income housing projects and programs in relevant market areas, and the alternatives, if any, created pursuant to paragraph 3 above, which through location and/or occupancy characteristics offer class members a desegregated housing opportunity. b) To include in the notice described in subparagraph 4. a), the full address, telephone number, and name of the person responsible for accepting applications for the project or program, a short description of the type of housing offered by the project or program, and the general eligibility requirements for the project or program. c) To include in the notice required by subparagraph 4. a), the names and telephone numbers of the HUD Fair Housing/Equal Opportunity (FH/EO) and program personnel, who are designated to perform the functions set out in paragraph 6, below, and a brief description of the function to be performed by those individuals. 5. To direct the owner, operator, or manager of each public housing project or 989 program, other than low-rent public housing, that offers assistance in non-racially impacted areas or neighborhoods in the class action counties, to amend their Affirmative Fair Housing Marketing Plan or Equal Housing Opportunity Plan within ninety days of the date of this order to include the following procedures: a) Each project or program will include all PHAs in its respective market area as community sources to be contacted for applicant referrals, and the project or program specifically will recruit as applicants those class members referred to it by HUD. b) The project or program will determine, for each applicant, whether or not that applicant is a class member, or currently a resident of or on the waiting list for PHA housing. For each month in which a class-member applicant is on the waiting list for admission to the project or program, the project or program will report in writing to HUD the status of the applicant including the applicant's place on the waiting list, the approximate period before the applicant will be made an offer of housing assistance, the dates of each offer of housing assistance, whether the offer(s) are accepted, the date of any rejected or withdrawn applications, and the specific reasons for any rejection or withdrawal. c) The project or program will give class members a priority and preference, equal to, but no greater than, any special priorities and preferences accorded in its recipient-selection process to applicants who: (1) are living in substandard housing, (2) are displaced by government action, (3) are in need of emergency housing, or (4) have other special housing needs. d) To determine, every three months, the racial composition characteristics of those receiving its assistance, the racial identification of the area or neighborhood within which those receiving its assistance are located, and the racial composition of those on the waiting list for its assistance. 6. To designate specific HUD personnel to respond to requests for information, requests for assistance, and complaints of discrimination or of violations of HUD applicant-selection procedures, from class members desiring to obtain housing assistance in non-racially impacted areas. The assistance to be provided shall include referrals of interested class members to public housing projects, and programs other than low-rent public housing projects, that offer desegregative housing opportunities in the relevant market area, as well as any other assistance HUD deems appropriate in the specific situation presented to it. 7. To keep a written record both of the requests and complaints received by the personnel designated in paragraph 6, above, and of all actions taken by HUD as a result of the requests or complaints. 8. To comply with the following specific requirements in the course of conducting Title VI investigations and compliance activities with regard to PHAs in the thirty-six class action counties: a) To seek out, and document, the cause of each "racial disparity" or "Title VI problem" as those terms are defined in the HUD Title VI Handbook 8040.1 6/76, at pages 20-23, and to include the documentation in the Title VI investigation report. b) To afford those PHAs that receive notice of apparent noncompliance with Title VI not more than sixty calendar days, from the date of receipt of such notice, to comply substantially with the provisions of Title VI, before referring the matter to HUD's Central Office FH/EO for formal enforcement and other proceedings. 9. To perform the intensive non-discrimination monitoring set out in HUD Handbook 7465.2 REV., The Public Housing Occupancy Audit Handbook, for each PHA in the thirty-six class action counties, within two years of the date of this order. In the conduct of these reviews, HUD shall compile a written report specifically answering each of the questions, and make each of the determinations, that are required by the items set forth in said Handbook. HUD shall initiate a Title VI compliance review for each PHA for which "racial disparities," or "Title VI problems," are identified during the monitoring. To the extent that HUD has conducted such an 990 occupancy audit of a PHA since October 1985, in full compliance with the provision of said Handbook, the provisions of this requirement shall not apply, provided that HUD furnishes the plaintiffs, the special master, and the court all documentation showing that such an audit was conducted, and that the provisions of said Handbook were complied with. 10. To include, as a "Gross Indicator" of each PHA in the thirty-six class action counties, the presence of racially identifiable projects or project sites. ("Gross Indicator" is defined in HUD Handbook 7460.7 REV. Annual Performance Review.) 11. To give a priority to class action county PHA proposals for Comprehensive Improvement Assistance Program (CIAP) funds, which proposals are designed to remedy disparities in physical conditions between racially identifiable white and black projects. 12. To consider, in its evaluation of the appropriate Section 8 Fair Market Rent levels for the market areas that include the class action counties, the effect of the rent levels set on the opportunity of class members to obtain a desegregated housing opportunity through transfer to the Section 8 certificate or voucher program. 13. To consider, in its evaluation of the procedures governing its Section 8 certificate and voucher programs operating in the class action counties, the effect of such procedures on the opportunity of class members to obtain a desegregated housing opportunity through transfer to the Section 8 certificate or voucher program. 14. With respect to HUD-controlled housing resources that are available, and with respect to such resources that will become available during the interim injunction period, which might be used to desegregate the dual system of public housing in the class counties, to furnish to the plaintiffs, the court, and the special master, the following: a) A statement of all housing resources, including, but not limited to, amounts for construction of new low-rent public housing, Section 8 vouchers and certificates, and CIAP funds which are allocated to HUD Region VI, which shall include funds for the fiscal year beginning October 1, 1987. The statement of resources now available shall be furnished within sixty days of the filing of this order. b) Copies of all invitations for applications for funds and Notices of Funding Availability that are, or will be, sent to PHAs in Region VI at any time from the date of this injunction on. 15. To file with the court, every three months, reports detailing the status of compliance with each provision of this order, and specifically reporting the results of that compliance. 16. To give plaintiffs' counsel access to all documents referred to in this Order, upon reasonable notice to defendant. It is so ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1040636/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-5041 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DELMONTA RASHEED JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:12-cr-00152-NCT-1) Submitted: August 30, 2013 Decided: September 12, 2013 Before KING, AGEE, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Patrick Michael Megaro, BROWNSTONE, P.A., Winter Park, Florida, for Appellant. Ripley Rand, United States Attorney, T. Nick Matkins, Special Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Delmonta Rasheed Johnson pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced to 120 months in prison. Johnson asserts that the district court’s judicial fact-finding at sentencing, which resulted in a nine-level increase in his total offense level, violated his right to a jury trial and United States v. Booker, 543 U.S. 220 (2005), as well as his Eighth Amendment right to be free from excessive punishment. Finding no error, we affirm. Although claims of constitutional error are reviewed de novo, United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009), we review the district court’s factual findings underlying its application of a sentencing enhancement for clear error, and its legal conclusions de novo. United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010). We reject Johnson’s argument that his right to a jury trial was violated by the district court’s judicial fact-finding at sentencing. Because Johnson was sentenced to the statutory maximum applicable to his offense, none of the enhancements to Johnson’s base offense level resulted in a sentence greater than that authorized by his guilty plea. 18 U.S.C. § 924(a)(2) (2006). Accordingly, the district court did not violate the Sixth Amendment or Booker in applying the enhancements. See 2 Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing that the Supreme Court’s “Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence”); Booker, 543 U.S. at 232-44 (holding that judge-found sentence enhancements mandatorily imposed under the Guidelines that result in a sentence greater than that authorized by the jury verdict or facts admitted by the defendant violate the Sixth Amendment’s guarantee of the right to trial by jury); United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (holding that, as long as the Guidelines range is treated as advisory, a sentencing court may consider and find facts by a preponderance of the evidence, provided that those facts do not increase a sentence beyond the statutory maximum); United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) (stating that the district court did not violate the Sixth Amendment by imposing a sentence based on facts not found by a jury). Although Johnson also complains that the district court was not authorized to deny him credit for acceptance of responsibility based on conduct the district court found relevant to the underlying conviction, the Guidelines make clear that “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted 3 in a manner inconsistent with acceptance of responsibility[.]” U.S. Sentencing Guidelines Manual (“USSG”) § 3E1.1 cmt. n.1(A) (2011). The Guidelines also make clear that committing, suborning, or attempting to suborn perjury—which the district court explicitly found Johnson did—are examples of conduct that warrant the obstruction of justice enhancement. See USSG § 3C1.1 cmt. n.4(B) (2011). Accordingly, we discern no error in the district court’s decision to deny Johnson a reduction in his offense level for acceptance of responsibility, and to increase the offense level because he obstructed justice by committing perjury and allowing others to do so in his defense. Johnson also asserts that the district court erred when it determined that his cocaine possession constituted a drug trafficking crime justifying a four-level enhancement under USSG § 2K2.1(b)(6)(B), because he argues he was not convicted of cocaine possession, and because the district court allegedly made erroneous factual findings. It is well-established, however, “that a sentencing court may consider uncharged and acquitted conduct in determining a sentence, as long as that conduct is proven by a preponderance of the evidence.” United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009). Moreover, we review a district court’s factual findings for clear error and afford the “highest degree of appellate deference” to those factual findings when they are 4 based on assessments of witness credibility. See United States v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009). In this case, the district court explicitly stated it was rejecting Johnson’s version of the events because it believed his version was fabricated. We defer to the district court’s credibility determination. We also reject Johnson’s argument that his sentence violates the Eighth Amendment. In this regard, Johnson claims that his sentence is excessive because it was increased based on “extraneous culpability for facts [with which he] was neither charged, nor conceded, nor convicted[,]” and because he summarily claims the sentence failed to take into account his life and characteristics. To the extent that Johnson’s argument could be construed as suggesting he received a sentence disproportionate to others convicted of being a felon in possession of a firearm, “proportionality review [under the Eighth Amendment] is not available for any sentence less than life imprisonment without the possibility of parole.” United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001). Moreover, and Johnson’s argument to the contrary, the record establishes that the district court fully considered Johnson’s individual circumstances and justified why it believed the statutory maximum sentence should be imposed in this case. Because the district court was authorized to increase Johnson’s 5 offense level based on facts it found by a preponderance of the evidence, and since the district court imposed the statutory maximum applicable to Johnson’s crime and adequately justified that sentence under the Guidelines and relevant 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2013) factors, we discern no procedural, substantive or constitutional error in Johnson’s sentence. We have considered Johnson’s arguments and affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 6	01-03-2023	09-12-2013
https://www.courtlistener.com/api/rest/v3/opinions/893686/	1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellant, 9 v. NO. 30,990 10 BYRON CUSTER, 11 Defendant-Appellee, 12 APPEAL FROM THE DISTRICT COURT OF McKINLEY COUNTY 13 Grant L. Foutz, District Judge 14 Gary K. King, Attorney General 15 Andrea Sassa, Assistant Attorney General 16 Santa Fe, NM 17 for Appellant 18 Steven F. Seeger 19 Gallup, NM 20 for Appellee 21 MEMORANDUM OPINION 22 VIGIL, Judge. 23 The State appeals dismissal of charges against Defendant. In our notice, we 1 proposed to affirm the dismissal. The State has responded that it does not contest our 2 proposal. 3 Therefore, for the reasons stated in our notice, we affirm. 4 IT IS SO ORDERED. 5 ______________________________ 6 MICHAEL E. VIGIL, Judge 7 WE CONCUR: 8 ___________________________ 9 JONATHAN B. SUTIN, Judge 10 ___________________________ 11 TIMOTHY L. GARCIA, Judge 2	01-03-2023	06-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/3107448/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00435-CR Tiffney Lynne McAdoo § From the 372nd District Court § of Tarrant County (1247941R) v. § December 13, 2012 § Per Curiam The State of Texas § (nfp) JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS PER CURIAM COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00434-CR NO. 02-12-00435-CR TIFFNEY LYNNE MCADOO APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY ---------- MEMORANDUM OPINION1 ---------- Appellant Tiffney Lynne McAdoo attempts to appeal following her pleas of guilty to theft of property valued between $1,500 and $20,000 from an elderly individual and to making a false statement to obtain property or credit. See Tex. Penal Code Ann. § 31.03(e)(4), (f) (West Supp. 2012); id. § 32.32 (West 2011). Following the plea agreements, the trial court sentenced Appellant to five years’ incarceration in each case but suspended her sentence, ordering that Appellant 1 See Tex. R. App. P. 47.4. be placed on community supervision for five years and that Appellant make restitution. The trial court’s certifications of Appellant’s right to appeal state in each case that this “is a plea-bargain case, and the defendant has NO right of appeal.” See Tex. R. App. P. 25.2(a)(2). On September 17, 2012, we notified Appellant that these appeals could be dismissed unless she or any party desiring to continue the appeals filed a response showing grounds for continuing the appeals. We have to date not received any response. The Texas Rules of Appellate Procedure are clear that in a plea-bargain case, an appellant may appeal only those matters that were raised by written motion filed and ruled on before trial or after getting the trial court’s permission to appeal. See Tex. R. App. P. 25.2(a)(2). Because the trial court’s certifications reflect that Appellant has no right of appeal, we dismiss these appeals for want of jurisdiction. See Tex. R. App. P. 25.2(a)(2), (d), 43.2(f). PER CURIAM PANEL: GARDNER, WALKER, and MCCOY, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: December 13, 2012 2	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1883890/	201 B.R. 600 (1996) In re Jean BERNARD and Marie Bernard, Debtors. Bankruptcy No. 95-11161-JNF. United States Bankruptcy Court, D. Massachusetts. April 18, 1996. Leonard M. Frisoli, Jr., Cambridge, MA. Richard Askenase, Trustee, Boston, MA. Joseph G. Albiani, Winchester, MA, for debtors. Gary L. Donahue, U.S. Trustee, Boston, MA. MEMORANDUM JOAN N. FEENEY, Bankruptcy Judge. I. INTRODUCTION The matter before the Court is the "Objection to Debtors' 2nd Amended Chapter 13 Plan by Secured Creditor East Cambridge Savings Bank." The Interim Chapter 13 Trustee (the "Chapter 13 Trustee") filed a Response to the Objection filed by the East Cambridge Savings Bank (the "Bank"). The Court heard the Objection and the Response on January 29, 1996. At the conclusion of the hearing, the Court ordered the Chapter 13 Trustee to file a brief by February 20, 1996 and the Bank to file a reply brief by February 29, 1996. The Chapter 13 Trustee moved for an extension of time within which to file his brief, which motion the Court allowed. The Chapter 13 Trustee filed his brief on February 29, 1996, and the Bank filed its reply brief on March 11, 1996. On March 28, 1996, the United States Trustee (the "U.S. Trustee") requested permission to file a brief, noting that he had just received copies of the briefs submitted by the Chapter 13 Trustee and the Bank.[1] The Court granted the U.S. 601 Trustee's request. The U.S. Trustee filed his brief on April 8, 1996. Upon consideration of the briefs, as well as the undisputed facts, the Court now makes the following findings of fact and conclusions of law in accordance with Fed.R.Bankr.P. 7052. II. FACTS The Debtors filed a Chapter 13 petition on February 21, 1995. On Schedule A-Real Property, they listed a three family home, located at 36 Nye Avenue, Brockton, Massachusetts, which they valued at $61,000.00. On Schedule D-Creditors Holding Secured Claims, they listed the Bank with a claim of $143,534.00. The Debtors listed no other priority or unsecured creditors. On Schedules I and J, the Debtors disclosed monthly income of $2,986.00, including income from real property in the sum of $1,150.00, and monthly expenditures of $1,639.00. Thus, the Debtors have excess income of $1,347 with which to fund their Chapter 13 plan. In April of 1995, the Debtors filed motions under 11 U.S.C. §§ 506(b) and 1322(b)(2) with respect to their property in Brockton. The Bank opposed the motions. The Court scheduled an evidentiary hearing to determine the value of the Debtors' property. However, the parties reached a settlement prior to the hearing. On August 8, 1995, the parties filed a Stipulation (the "Stipulation") in which they agreed that the value of 36 Nye Avenue was $80,000.00. In addition, the parties agreed to the following: 1) the Debtors would pay the Bank's $80,000.00 secured claim over 60 months through their plan with interest calculated at 9% per annum; 2) the Debtors would pay "the balance of the mortgage lien over 60 months as part of their unsecured claims paid at 10%;" 3) the Bank would retain its lien in full until the successful completion of the plan; and 4) upon the successful completion of the plan, the Bank would discharge its lien. The Court approved the Stipulation on August 24, 1995. Four months later, on December 1, 1995, the Debtors filed their Second Amended Chapter 13 Plan (the "Plan"). Through their Plan, the Debtors propose to make total monthly payments to the Bank of $1,972.00, including $1,660.67 toward payment of the Bank's $80,000.00 secured claim and $113.67 toward payment of the Bank's $68,202.00 unsecured claim. The Debtors' Plan provides for the payment of fees to the Chapter 13 Trustee totalling $11,829.00 or $197.15 per month. The Bank filed an Objection to the Debtors's Plan in which it asked the Court to order the Debtors to pay its secured claim outside the Plan. In its Objection, the Bank indicated that "[i]f the Debtors were to pay the Bank outside the Plan, there would be a savings in Trustee fees of $9,964.02 ($1,660.67 × 60 @ 10% = $9,964.02), which sum would be available for application to the Bank's unsecured claim of $68,202.00."[2] By the Bank's calculations, if the Debtors paid the Bank's secured claim directly, outside the Plan, it would receive a 25%, rather than a 10%, dividend on its unsecured claim, and the Trustee's fees would be $1,867.98, rather than $11,829.00. The Chapter 13 Trustee filed a Response to the Bank's Objection in which he stated the following: 1) that the Plan complies with the provisions of 11 U.S.C. § 1322 and § 1325(a)(5)(B) and, consequently, the Bank lacks standing to object to the Debtors' Plan; 2) that there are no grounds for the Bank's objection to confirmation because the Plan complies with the Bankruptcy Code; 3) that cases such as In re Fulkrod, 973 F.2d 801 (9th Cir.1992), In re Reid, 179 B.R. 504 (E.D.Tex.1995), aff'd, 77 F.3d 473 (5th Cir. 1995), and In re Ford, 179 B.R. 821 (Bankr. E.D.Tex.1995), hold that payments to creditors on impaired claims must be paid through the Chapter 13 Trustee; 4) that the main reason for the Objection was to avoid paying the Chapter 13 Trustee's fee, a position that, if adopted by the Court, would undermine the self-funding Chapter 13 program envisioned by Congress; and 5) that the precedent created by upholding the 602 Bank's objection also would undermine the program because of its effect in so-called Chapter 20 cases (i.e. Chapter 7 cases that convert to Chapter 13). The Bank filed a brief addressing the Chapter 13 Trustee's Response. It maintained that it had standing to object to confirmation of the Debtors' Plan because it is "materially affected" by the Debtors' proposed payments through the Plan. Citing In re Wagner, 36 F.3d 723 (8th Cir.1994), it also argued that the Bankruptcy Code permits direct payments to impaired secured creditors, and the Court has discretion to permit direct payments to it. The U.S. Trustee makes the most cogent arguments with respect to the matter now before the Court in a brief captioned "Comments Pursuant to 28 U.S.C. § 586(a)(3)(C) in Support of Confirmation of the Debtors' Second Amended Plan."[3] The U.S. Trustee argues that the Bank waived any objection to its treatment under the Plan by entering into a Stipulation with the Debtors that outlined the treatment of its claims under the Debtors' Plan. Because the Court approved the Stipulation between the parties, the U.S. Trustee maintains that the treatment memorialized in the Stipulation and incorporated into the Plan is the law of the case. The U.S. Trustee also argues that the Objection fails to raise any factual or legal disputes relevant to confirmation because the Debtors' Plan satisfies all the elements of 11 U.S.C. § 1325(a)(5)(B) and (b).[4] Specifically and correctly, the U.S. Trustee notes that the Debtors provide in their Plan for the retention of the Bank's lien and a stream of payments in an amount not less than the allowed amount of the Bank's secured claim. Likewise, with respect to the Bank's unsecured claim, the Debtors' Plan provides for a 10% dividend, and the Bank does not argue that the Debtors have not and will not apply all their disposable income to the payment of the 10% dividend. The U.S. Trustee next argues that the Debtors cannot be compelled to pay the Bank directly for the following reasons: 1) only the Debtors may propose a Chapter 13 plan, see 11 U.S.C. §§ 109(e) and 303(a); 2) there is no statutory or case authority that would permit the Court to order the Debtors to pay the Bank directly if their Plan otherwise complies with the provisions of Chapter 13; and 3) granting the Bank's request would violate the compensation scheme for the Chapter 13 Trustee and the compensation order issued under the authority of the Attorney General of the United States, see 28 U.S.C. § 586(e).[5] 603 In support of this last argument, the U.S. Trustee states 1) that the structure of Chapter 13 contemplates that plan payments will be made by the Chapter 13 Trustee, see 11 U.S.C. §§ 1322(a)(1),[6] 1326(c)[7] and 1325(c);[8] 2) that the Bankruptcy Code does not authorize debtors to make direct payments to creditors on impaired secured claims in order to avoid the Chapter 13 Trustee's fees, see id. §§ 1322(a)(1), 1325(a)(5)(B)(ii), and 1326(c); and 3) that "a standing Chapter 13 trustee's statutory allowance is subject only to administrative adjustment by the Attorney General, and not to case-by-case review by courts." See In re Savage, 67 B.R. 700, 706 (D.R.I. 1986). III. DISCUSSION The Court finds that it need not specifically address all the arguments raised by the parties, particularly as the Court agrees with the positions advanced by the U.S. Trustee, and has previously ruled in In re Liriano, No. 85-12711-JNF, slip op. at 7 (Bank. D.Mass. January 12, 1986), that debtors may depart from the norm of payments to creditors by the Chapter 13 Trustee only if they advance a "`significant reason'" for doing so. With respect to the arguments made by the parties, the Court finds that the first two arguments raised by the U.S. Trustee are both persuasive and dispositive. In this case, the Bank agreed to a specific treatment of its claims in the Stipulation. In accordance with the Stipulation, the Debtors proposed a Plan which implemented the terms of Stipulation, and the Chapter 13 Trustee indicated his lack of objection to the Plan by submitting to this Court a proposed order of confirmation. The Bank cannot be heard objecting to a Plan that does no more than implement the provisions of an agreement it entered into voluntarily and with the assistance of counsel. Accordingly, the Court finds that the Bank waived its Objection to 604 the Plan by entering into the Stipulation with the Debtors which set forth how its claims would be treated under their Plan. Moreover, as the Chapter 13 Trustee and the U.S. Trustee recognize, the Bank has no sustainable grounds for objecting to the Debtors' Plan under section 1325(a)(5) and (b) of the Bankruptcy Code. Its secured and unsecured claims are treated in accordance with provisions of the Bankruptcy Code. The treatment may not comport with the Bank's sense of fairness, but this is not a sufficient ground for this Court to either deny confirmation or order the Debtors to pay the Bank directly outside the Plan an order that would be unprecedented because of the absence of any statutory or case authority. Although the Court finds the Bank's arguments to be without merit, the Court can sympathize with its position. The Chapter 13 Trustee's fee of $11,892.00 or $197.15 per month for issuing two checks to one creditor does appear excessive when compared with a payment of $113.67 per month on the Bank's $68,202.00 unsecured claim. Under In re Savage, supra, and the statutory scheme of 28 U.S.C. § 586(e), this Court does not have the authority to reduce Chapter 13 Trustee's fee. Accordingly, if the Chapter 13 Trustee's fee can be reduced, the decision to reduce the fee would have to be made by the Chapter 13 Trustee or the U.S. Trustee. Assuming that the Chapter 13 Trustee or the U.S. Trustee is permitted to reduce the percentage fee under extraordinary circumstances, the Court questions whether this case illustrates the type of circumstance where such a reduction might warrant an exercise of discretion as the fee imposed is out of all proportion to the work involved in administering a single creditor case. Nevertheless, in view of the increased dividend that would be available to the Bank from direct payments, it is unfortunate and perplexing that the Bank and the Debtors did not work out a payment plan outside of the umbrella of bankruptcy jurisdiction. IV. CONCLUSION In accordance with the foregoing, the Court hereby overrules the Bank's Objection to the Debtors' Chapter 13 Plan. An order of confirmation shall enter. NOTES [1] The Court notes that counsel to the Chapter 13 Trustee did not serve a copy of his brief on the U.S. Trustee. [2] The Bank filed a proof of claim in the sum of $148,202.00. In view of the agreed value of the collateral securing the claim ($80,000.00), the Bank's unsecured claim is $68,202.00. [3] Section 586(a)(3)(C) provides the following: (a) Each United States trustee, within the region for which such United States trustee is appointed, shall . . . (3) supervise the administration of cases and trustees in cases under chapter 7, 11, 12, or 13 of title 11 by, whenever the United States trustee considers it to be appropriate (C) monitoring plans filed under chapters 12 and 13 of title 11 and filing with the court, in connection with hearings under sections 1224, 1229, 1324, and 1329 of such title, comments with respect to such plans. . . . 28 U.S.C. § 586(a)(3)(C). [4] Section 1325(a)(5) and (b) provide the following: (a) Except as provided in subsection (b), the court shall confirm a plan if (5) with respect to each allowed secured claim provided for by the plan (A) the holder of such claim has accepted the plan; (B)(i) the plan provides that the holder of such claim retain the lien securing such claim; and (ii) the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; or (C) the debtor surrenders the property securing such claim to such holder. . . . (b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan (A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or (B) the plan provides that all of the debtor's projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan. . . . 11 U.S.C. § 1325(a)(5), (b). [5] Section 586(e) provides in relevant part the following: (e)(1) The Attorney General, after consultation with a United States trustee that has appointed an individual under subsection (b) of this section to serve as standing trustee in cases under chapter 12 or 13 of title 11, shall fix (A) a maximum annual compensation for such individual consisting of (i) an amount not to exceed the highest annual rate of basic pay in effect for level V of the Executive Schedule; and (ii) the cash value of employment benefits comparable to the employment benefits provided by the United States to individuals who are employed by the United States at the same rate of basic pay to perform similar services during the same period of time; and (B) a percentage fee not to exceed (i) in the case of a debtor who is not a family farmer, ten percent . . . based on such maximum annual compensation and the actual, necessary expenses incurred by such individual standing trustee. (2) Such individual shall collect such percentage fee from all payments received by such individual under plans in the cases under chapter 12 or 13 of title 11 for which such individual serves as standing trustee. Such individual shall pay to the United States trustee, and the United States trustee shall deposit in the United States trustee System Fund (A) any amount by which the actual compensation of such individual exceeds 5 per centum upon all payments received under plans in cases under chapter 12 or 13 of title 11 for which such individual serves as standing trustee; and (B) any amount by which the percentage for all such cases exceeds (i) such individual's actual compensation for such cases, as adjusted under subparagraph (A) of paragraph (1); plus (ii) the actual, necessary expenses incurred by such individual as standing trustee in such cases. Subject to the approval of the Attorney General, any or all of the interest earned from the deposit of payments under plans by such individual may be utilized to pay actual, necessary expenses without regard to the percentage limitation contained in subparagraph (d)(1)(B) of this section [sic]. 28 U.S.C. § 586(e). [6] Section 1322(a)(1) provides the following: (a) The plan shall (1) provide for the submission of all or such portion of future earnings or other future income of the debtor to the supervision and control of the trustee as is necessary for the execution of the plan. . . . 11 U.S.C. § 1322(a)(1). [7] Section 1326(c) provides the following: (c) Except as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan. 11 U.S.C. § 1326(c). [8] Section 1325(c) provides the following: (c) After confirmation of a plan, the court may order any entity from whom the debtor receives income to pay all or any part of such income to the trustee. 11 U.S.C. § 1325(c).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3349365/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] Memorandum Filed July 24, 1997 The plaintiff, Marvin C. Perlin, has filed this two-count complaint against the defendant, Betsy Henley-Cohn, to recover the balance of a debt. In count one, the plaintiff alleges that: (1) on November 1, 1983, the defendant became indebted to him in the amount of one million fifty thousand dollars and executed to him two promissory notes, one in the amount of $400,000.00, and the other in the amount of $650,000.00; (2) such notes contained a provision acknowledging that such indebtedness derived from a commercial transaction and therefore waiving the rights to notice and a hearing with respect to any prejudgment remedies; (3) such notes were to be repaid in full on or before November 1, 1986, together with interest and costs of collection, including attorneys fees, if necessary to collect the debt; (4) the CT Page 7808 plaintiff is still the holder of these notes; and (5) the defendant has failed to repay the notes upon maturity and therefore has defaulted under the terms of the notes. In count two, the plaintiff alleges in the alternative that: (1) on July 7, 1994, the defendant executed a promissory note in his favor in the amount of $140,000.00; (2) the 1994 note represents an agreement between the parties to compromise the plaintiff's claim against the defendant for the balance due under the two 1983 notes; (3) such note provided for the capitalization of the interest accrued and unpaid as of December 31, 1995 with the total amount payable in 96 equal installments commencing on February 1, 1996; (4) the defendant has failed to repay the installment due on February 1, 1996 and therefore the note is in default; and (5) the plaintiff has exercised his option, provided in the note itself, to accelerate the loan and declare the entire amount of the note, including interest, due and payable. The defendant filed an answer and a special defense on June 20, 1996. The defendant's special defense asserts that she tendered full payment to the plaintiff, according to the terms of the 1983 notes, but the plaintiff refused such tender and should therefore be estopped from collecting. On March 12, 1997, the plaintiff filed the present motion for summary judgment and requested that judgment be entered in his favor with regard to count one, on the ground that there are no issues of material fact and that he is entitled to judgment as a matter of law. In support of his motion for summary judgment, the plaintiff has attached the portions of the complaint which were admitted by the defendant, the defendant's disclosure of defense, the plaintiff's request for admissions served on the defendant on May 3, 1996, the plaintiff's own affidavit, the affidavit of the plaintiff's attorney at the time of the transaction, the affidavit of the plaintiff's current attorney, and a certified copy of the deposition of the defendant. The plaintiff specifies that he seeks summary judgment only on the first count of the complaint, which is based on the 1983 notes. The plaintiff further states that he will abandon the second count which is based on the 1994 note, if judgment is entered in his favor on the first count. Summary judgment is a method of resolving litigation when the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the CT Page 7809 moving party is entitled to judgment as a matter of law. Practice Book § 380; Wilson v. New Haven, 213 Conn. 277, 279,567 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Citation omitted; internal quotation marks omitted.) Delahunty v.Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 588 n. 10,674 A.2d 1290 (1996). For purposes of a motion for summary judgment, "the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party [however] must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v.Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). The plaintiff maintains that this case is amenable to summary judgment since the facts are undisputed. He emphasizes that the existence of the debt, the execution of the promissory notes, and the amount of outstanding balance on the principal have been admitted by the defendant. (Request for Admission of Facts and Execution of Writings, ¶¶ 1, 2, and 4.)1 The plaintiff contends that these facts are established and that he is entitled to judgment as a matter of law. The defendant opposes the motion for summary judgment on the ground that the 1994 note referred to by the plaintiff is a novation of the two 1983 notes. Because a novation extinguishes the prior agreement between the parties, the defendant argues that the plaintiff cannot collect under the terms of the prior notes since the latter note now governs the rights and obligations of the parties. In his reply memorandum, the plaintiff counters that the defendant's claim of novation must be rejected because it is "outside the pleadings" given that it raises a defense not previously asserted in this action. The plaintiff further maintains that, even considered on its merits, the defendant's claim does not meet the legal test of a novation. He states that the 1994 note was nothing more than a preliminary draft of a proposal for a compromise agreement to negotiate a restructuring of the debt owed by the defendant, that the draft is incomplete, lacking the date and description of property to be pledged as security under the compromise agreement, and that it contains inaccuracies and typographical errors. More importantly, the plaintiff argues that the defendant, who was to provide security CT Page 7810 for the note in the form of a mortgage on certain property that she owned, in fact never provided such security. Finally, the plaintiff characterizes the 1994 note as an "executory accord" which, as such, would have satisfied the original obligation only upon performance under its terms by the defendant. Since the defendant never performed any of the agreement's conditions, and consequently breached the accord, the plaintiff claims the option of seeking either enforcement of the original duty or enforcement of any obligation under the accord. A compromise agreement is a contract between parties to a dispute who, in order to resolve their differences over a claim, agree to an amicable settlement based upon mutual concessions. Compromise agreements can be divided into two categories. Agreements in the first category are called "executory accords"; agreements in the second category are called "substituted contracts." See generally 1 C.J.S. 460, Accord and Satisfaction § 3 (1985). "Novation" is a term which "is usually used with reference to instances in which a new party is introduced into the new contract, while `substituted contract' is the designation commonly employed to cover agreements between the same parties which supersede and discharge prior contract obligations. . . . There is, however, no distinction so far as concerns the legal effect." (Citation omitted.) Riverside Coal Co. v. American CoalCo., 107 Conn. 40, 44-45, 139 A.2d 276 (1927). If the compromise provides for the acceptance in the future of a stated performance in satisfaction of the claim, the contract is an "executory accord." Restatement of Contracts § 417 (1932); A. Corbin, Contracts § 1269 (1962). "An accord is a contract between creditor and debtor for the settlement of a claim by some performance other than that which is due. Satisfaction takes place when the accord is executed." (Citation omitted; internal quotation marks omitted.) Herbert S. Newman andPartners v. CFC Construction Ltd., 236 Conn. 750, 764,674 A.2d 750 (1996). The satisfaction is, consequently, "the performance of the new promise rather than the new promise itself." DoAllDallas Co. v. Melton, 498 S.W.2d 396, 400 (1973). If, on the other hand, the compromise agreement itself is accepted as a substitution for and an extinguishment of the existing claim, then the compromise is a substituted contract. Restatement of Contracts § 418 (1932); A. Corbin, Contracts § 1269 (1962). "A recognized test for whether a later CT Page 7811 agreement between the same parties to an earlier contract constitutes a substitute contract looks to the terms of the second contract. If it contains terms inconsistent with the former contract, so that the two cannot stand together it exhibits characteristics . . . indicating a substitute contract." (Internal quotation marks omitted.) Bushnell Plaza DevelopmentCorp., 38 Conn. Super. Ct. 683, 688, 460 A.2d 1311 (1983). If the contract is an executory accord, the nonbreaching party may sue either upon the original obligation or upon the compromise agreement. "If the debtor breaches such a contract the creditor has alternative rights. He can enforce either the original duty or the subsequent contract." Restatement of Contracts § 417(c) (1932). If the agreement is a substitute contract, the nonbreaching party can enforce only the subsequent contract. In the present case, the 1994 agreement cannot be classified as an executory accord. It does not evidence an intent by the parties that the future performance of its terms by the defendant would constitute the acceptance that the plaintiff required in satisfaction of the debt, but rather an intent that the agreement was to operate as an immediate substitution for and an extinguishment of the antecedent claim.2 In order to be effective, however, a substitute contract must be supported by consideration. Vachon v. Tomascak, 155 Conn. 52,56, 230 A.2d 5 (1967); Union Trust Company v. Jackson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 286938 (July 14, 1992, Katz, J.). See also State National Bank v.Dick, 164 Conn. 523, 529, 325 A.2d 235 (1973) (modification of agreement requires valid consideration). Therefore, if consideration is lacking, the new agreement is not a valid and binding contract. Brian Construction and Development Co. v.Brighenti, 176 Conn. 162, 166, 405 A.2d 72 (1978). To constitute new consideration, "a party [must] do, or promise to do, something further than, or different from, that which he is already bound to do." Thermoglaze, Inc. v.Morningside Gardens, Co., 23 Conn. App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn. 811 (1991). "[A] promise to do that which one is already bound to do does not constitute valid consideration for a modification of an agreement." Union TrustCompany v. Jackson, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 286938 (July 14, 1992, Katz, CT Page 7812 J.). For example, it has been held that, absent proof that the debtors ever paid interest greater than that which they had agreed to pay from the beginning, or that they had given the creditor additional collateral, an alleged oral agreement to extend the term of a loan was not supported by new consideration.State National Bank v. Dick, supra, 164 Conn. 529-30. In the present case, while the 1994 note represents an attempt to reach a compromise concerning the defendant's obligations under the two previous notes, a binding agreement was never reached. The plaintiff was willing to renegotiate the previous loan at terms less advantageous to him than those under the previous notes, foregoing his rights under a claim which should have been satisfied by the defendant by November 1986, but no consideration was received. It is undisputed that the mortgage on certain real estate located in Hartford, Connecticut, which was supposed to be given by the defendant as security for the new agreement, was never provided. The plaintiff has submitted an affidavit in which his attorney attests that the mortgage deed referred to in the draft 1994 note was never provided by the defendant. In addition, the plaintiff's request to admit contained a paragraph asking the defendant to admit that the security in question was never provided. Because the defendant has not responded to this request to admit, the defendant is deemed to have admitted that the mortgage was never provided. "[O]ur Supreme Court affirmed the granting of a summary judgment on the basis of admissions by a party who did not respond to requests to admit, even though an opposing affidavit was filed." Allied Grocers Cooperative, Inc.v. Caplan, 30 Conn. App. 274, 280, 620 A.2d 165 (1993). Moreover, the defendant has failed to present evidence that she supplied any other consideration that would support a mutuality of obligation. The defendant did not incur any additional detriment, nor did the plaintiff receive any additional benefit for his promise to restructure and compromise his claim against the defendant for the balance due under the 1983 notes. On a motion for summary judgment, "[a]lthough the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue." Haesche v. Kissner, 229 Conn. 213,217, 640 A.2d 89 (1994). The plaintiff in the present case has alleged, and the defendant is deemed to have admitted, that the CT Page 7813 consideration for the 1994 note was never provided; the defendant has presented no evidence, affidavits, of facts which can establish valid consideration to support the contention that the 1994 note constitutes a valid agreement between these parties, nor has she adequately raised any other genuine issues of material fact.3 The existence of the underlying debt, the execution of the promissory notes, and the outstanding principal balance are therefore all deemed admitted by the defendant, and the substitute agreement fails as a matter of law for lack of consideration. No other issue of material fact exists, and the plaintiff is therefore entitled to judgment as a matter of law. Accordingly, the motion for summary judgment is granted as to the first count. SILBERT, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1913519/	981 A.2d 319 (2009) COM. v. PIPPEN. No. 3142 EDA 2008. Superior Court of Pennsylvania. June 18, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1664868/	774 N.W.2d 476 (2009) 2009 WI App 141 OPPOR v. GENERAL CAS. CO. OF WISCONSIN. No. 2008AP2718. Court of Appeals of Wisconsin. August 26, 2009. Unpublished opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1039748/	United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-1506 ___________________________ DocMagic, Inc. lllllllllllllllllllll Plaintiff - Appellant v. The Mortgage Partnership of America, L.L.C. lllllllllllllllllllll Defendant - Appellee ____________ Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________ Submitted: January 15, 2013 Filed: September 4, 2013 ____________ Before BYE, MELLOY, and SMITH, Circuit Judges. ____________ SMITH, Circuit Judge. DocMagic, Inc. ("DocMagic"), a California corporation, and Mortgage Partnership of America, L.L.C. ("Lenders One"), a Missouri limited liability company, entered into a service contract ("Agreement"), which included a provision that should a dispute arise, the prevailing party would receive attorneys' fees, other costs, and expenses. DocMagic filed various claims against Lenders One stemming from the parties' Agreement, and Lenders One filed various counterclaims. Both parties succeeded on some of their respective claims. Based on the amount of the award and the number of claims it succeeded on, the district court1 found Lenders One to be the prevailing party and awarded it attorneys' fees and costs. DocMagic appeals, seeking reversal of the district court's prevailing-party determination. We affirm. I. Background DocMagic is a "provider of mortgage loan document preparation software used in the preparation of, among other things, pre-disclosures and closing documents." Lenders One "provides mortgage products and services, related products and services on a cooperative basis to [its] Members." In October 2008, DocMagic and Lenders One entered into an agreement whereby Lenders One agreed to "supply DocMagic with a list of all current Members" and "refer, market and promote" DocMagic's products and services to Lenders One's Members. The Agreement between Lenders One and DocMagic stated in relevant part: 18. Applicable law, Jurisdiction and Venue: For any legal action arising from or relating to this Agreement in any way, jurisdiction shall be vested solely in the state and federal courts located in the Eastern District of St. Louis, Missouri, and the validity, meaning and effect of this Agreement shall be determined in accordance with the laws of the State of Missouri without regard to principles of conflicts of laws. 19. Attorneys' Fees: In the event of any dispute with respect to or relating to this Agreement in any way, the prevailing Party shall be entitled to reasonable legal fees and other costs and expenses incurred 1 The Honorable Mary Ann L. Medler, United States Magistrate Judge for the Eastern District of Missouri. -2- in resolving such dispute, in addition to any other relief to which that Party may be entitled. DocMagic filed suit against Lenders One, alleging claims for breach of contract, breach of the duty of good faith and fair dealing, rescission, unjust enrichment, tortious interference, and fraud in the inducement. DocMagic also sought a declaratory judgment that it was not obligated to pay Lenders One a marketing fee. Lenders One answered DocMagic's complaint, denying all of DocMagic's claims and asserting certain affirmative defenses. It also asserted counterclaims against DocMagic for breach of contract and unjust enrichment, and sought a declaratory judgment that DocMagic was required to pay marketing fees to Lenders One "on all DocMagic's revenues generated from sale of products and services to [Lenders One] [m]embers, not just new DocMagic customers." Lenders One then moved for summary judgment on its breach-of-contract counterclaim and on all of DocMagic's claims. The district court denied summary judgment to Lenders One on its counterclaims and all of DocMagic's claims, except that the court found as a matter of law "that DocMagic was required to pay a ten[-]percent marketing fee for Products and Services purchased by Lender[s] One's Members who were DocMagic's pre- existing customers." DocMagic, Inc. v. Mortgage P'ship of Am., L.L.C., No. 4:09CV1779MLM, 2011 WL 2462196, at 4 (E.D. Mo. June 17, 2011). Following the court's summary-judgment order, the case proceeded to trial on the remaining claims. The jury found in favor of Lenders One on DocMagic's claims for (1) breach of the Agreement; (2) evading the spirit of the Agreement; (3) denying DocMagic the expected benefit of the Agreement; (4) misrepresentation regarding marketing and promoting DocMagic's products; and (5) misrepresentation that DocMagic would get a majority of the 20,000 loans closed per month. The jury found in favor of DocMagic on its claim that Lenders One refused to allow DocMagic to attend a conference but awarded zero dollars. It also ruled for DocMagic on its claim -3- against Lenders One for fraud in the inducement. On that claim, the jury awarded DocMagic $243,000. Lenders One prevailed on its counterclaims against DocMagic for (1) breach of the Agreement by failing to give accurate monthly sales reports and (2) breach of the Agreement for failing to pay the ten percent marketing fee and was awarded $52,500 for the breach-of-the-contract claim. In summary, the jury found in favor of DocMagic on only two of its seven claims, while it found in favor of Lenders One on both of its counterclaims against DocMagic. Both parties moved for attorneys' fees, expenses, and costs as the prevailing party, and the district court found that Lenders One was the prevailing party. The court ordered DocMagic to pay Lenders One $445,615 in attorneys' fees, $9,298.19 in expenses, and $3,188.90 in costs. DocMagic had sought $458,986.50 in attorneys' fees and $56,072.95 in expenses and costs, and $3,977.02 in taxable costs. In its post-trial memorandum opinion and order the district court construed the attorneys' fees clause in the Agreement to be broad enough to include DocMagic's fraud-in-the-inducement claim. DocMagic, Inc. v. Mortgage P'ship of Am., L.L.C., No. 4:09CV1779MLM, 2012 WL 263091, at 11 (E.D. Mo. Jan. 30, 2012). The court then concluded that, under Missouri law, a trial court must award attorneys' fees to the prevailing party should the contract between the parties include an attorneys' fees provision. Id. (citing Schnucks Carrollton Corp. v. Bridgeton Health and Fitness Inc., 884 S.W.2d 733, 739 (Mo. Ct. App. 1994)). To determine the prevailing party, the district court looked to Ken Cucchi Constr., Inc. v. O'Keefe for the Missouri rule that a "'prevailing party is the party prevailing on the main issue in dispute, even though not necessarily to the extent of its original contention.'" 973 S.W.2d 520, 528 (Mo. Ct. App. 1998). The court also noted that Missouri law "places just as much emphasis [on] successfully defending claims as they do on successfully prosecuting them." DocMagic, Inc., 2012 WL 263091, at 11. -4- The district court then observed that both sides recovered damages on their contract claims, causing an offset of the damages awarded. Id. at 12. Adopting Lenders One's view of the law, the court deemed it appropriate to consider the relative amount of each side's award as a factor. Id. The court also considered "the number of claims successfully prosecuted or defended, the amount of recovery in proportion to damages sought[,] and . . . who prevailed on the [m]ain [i]ssues." Id. (quotation omitted). The district court found that the breach of the Agreement was the "main issue" in dispute. Id. at 11. The court pointed out that Lenders One, as the defendant, prevailed by defeating five of DocMagic's seven claims on summary judgment, and Lenders One prevailed on both of its own counterclaims at trial. Id. DocMagic, on the other hand, prevailed on only two of its seven claims and received damages on only one—the fraud-in-the-inducement claim. Id. The court further noted that Lenders One recovered 58 percent of its claimed damages, whereas DocMagic2 recovered only seven percent of what it sought. Id. at 11 n.5. After weighing the factors, the court concluded that "Lenders One is the prevailing party and shall recover its attorneys fees pursuant to the Agreement." Id. at 12. II. Discussion On appeal, DocMagic contends that the district court erred in awarding Lenders One attorneys' fees, expenses and costs and in declining to award attorneys' fees, expenses, and costs. DocMagic raises four arguments on appeal. First, DocMagic contends that the district court erred because "the parties' agreement requires a determination that DocMagic was the prevailing party." Second, DocMagic argues that Lenders One could not be the prevailing party because it was awarded "$190,500.00 less than the total monetary judgment awarded to DocMagic." Third, DocMagic avers that the district court should have awarded DocMagic its costs and 2 The district court noted that DocMagic had initially sought approximately $4,000,000.00 on its fraud-in-the-inducement claim, whereas Lenders One sought approximately $90,515.00. -5- denied Lenders One the same because DocMagic was the prevailing party. Fourth, DocMagic asserts that the district court "mischaracterized the extent to which Lenders One successfully defended [itself against] DocMagic's claims, and even if DocMagic was not a prevailing party, the district court should not have found Lenders One to be the prevailing party." For its part, Lenders One argues that "there is only a single issue involved in this appeal, to-wit: Did the District Court err in finding that Lenders One is the prevailing party for purposes of an award of attorney's fees, expenses and costs?" A. Standard of Review As an initial matter, we address the appropriate standard of review. The parties put forth competing views of our standard of review, each choosing a standard favorable to their arguments. DocMagic seeks de novo review, while Lenders One prefers an abuse-of-discretion standard. Both parties misstate aspects of the applicable standard, which involves both factual and legal determinations by the district court. Our cases are fairly clear on this issue. As we have previously stated: [W]e review de novo the legal question of whether a litigant is a prevailing party. See Pottgen v. Missouri State High Sch. Activities Ass'n, 103 F.3d 720, 723 (8th Cir. 1997); St. Louis Fire Fighters Ass'n v. St. Louis, 96 F.3d 323, 330 (8th Cir. 1996). Accord Church of Scientology v. City of Clearwater, 2 F.3d 1509, 1512–13 (11th Cir.1993) ("We review the factual findings underlying a district court's determination regarding 'prevailing party' status for clear error . . . . Whether the facts as found suffice to render the plaintiff a 'prevailing party' is a legal question reviewed de novo."), cert. denied, 513 U.S. 807, 115 S. Ct. 54, 130 L. Ed. 2d 13 (1994). In Association for Retarded Citizens v. Schafer, 83 F.3d 1008 (8th Cir.), cert. denied, 519 U.S. 993, 117 S. Ct. 482, 136 L. Ed. 2d 376 (1996), we stated that we reviewed fee awards for an abuse of discretion, "or an error in implementing the governing legal standards." Id. at 1010 (quotation omitted). The Supreme Court has defined and applied the test for -6- prevailing party status in unmistakably legal terms: "[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992). Thus, while abuse of discretion governs in reviewing fee awards, the question of prevailing party status, a statutory term, presents a legal issue for decision, which we review de novo. Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 713 (8th Cir. 1997). In sum, we review de novo the threshold and, in this case, decisive legal question of which litigant is the prevailing party. We review for an abuse of discretion the district court's actual award of fees and costs. Although Jenkins dealt with a prevailing party under a statutory fee allocation scheme, unless otherwise agreed, the same standard would apply for a prevailing-party determination in a contractual context. B. Prevailing Party "If a contract provides for the payment of attorneys' fees and expenses incurred in the enforcement of a contract provision, the trial court must comply with the terms of the contract and award them to the prevailing party." Clean Uniform Co. St. Louis v. Magic Touch Cleaning, Inc., 300 S.W.3d 602, 612 (Mo. Ct. App. 2009) (citing Sheppard v. East, 192 S.W.3d 518, 523 (Mo. Ct. App. 2006). The critical issue in this appeal is whether DocMagic or Lenders One is the prevailing party for purposes of awarding attorneys' fees and costs under paragraph 19 of the Agreement. Paragraph 18 of the Agreement clearly states that "the validity, meaning and effect of this Agreement shall be determined in accordance with the laws of the State of Missouri." "Under Missouri law we must enforce a contract as written and according to the plain meaning of the words in the contract when the contract is clear -7- and unambiguous." Farmland Indus., Inc. v. Frazier-Parrott Commodities, 111 F.3d 588, 590 (8th Cir. 1997). Since the Agreement also clearly states that legal fees, other costs, and expenses shall be awarded to the "prevailing [p]arty" but does not define the term "prevailing [p]arty," this court must look to Missouri law for the interpretation of this term. See Kan. City Life Ins. Co. v. Wells, 133 F.2d 224, 224 (8th Cir. 1943). "A 'prevailing party' is one who obtains a judgment from the court, regardless of the amount of damages." Brooke Drywall of Columbia, Inc. v. Bldg. Constr. Enters., Inc., 361 S.W.3d 22, 27 (Mo. Ct. App. 2011) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603 (2001)). The parties have identified two different analytical approaches for determining a prevailing party under Missouri law. The first approach—"main-issue analysis"—turns on which party is "the party prevailing on the main issue in dispute, even though not necessarily to the extent of its original contention." Ken Cucchi Constr., 973 S.W. 2d at 528 (citing Birdsong v. Bydalek, 953 S.W.2d 103, 124 (Mo. Ct. App. 1997)). The second approach—"net-prevailing-party analysis"—essentially arithmetically calculates which party received "'the most points'" and "'at the end of the contest [declares] [it] the winner.'" Weitz Co. v. MH Washington, 631 F.3d 510 (8th Cir. 2011) (quoting Ozias v. Haley, 125 S.W. 556, 557 (Mo. Ct. App. 1910)). The net-prevailing-party analysis, as construed by DocMagic, would turn on who got the most money in the case. However, neither Weitz or Ozias seem to limit the "points scored" to dollars awarded. Ozias involved a fraud action by the plaintiff against the defendant related to a business transaction. 125 S.W. at 556. The plaintiff sued for $7,500. Id. The defendant counterclaimed for $2,000 in damages. Id. After trial, the jury awarded plaintiff $1,250 in damages in the fraud case, but it also awarded the defendant the full $2,000 for his counterclaim. Id. In an appeal by the plaintiff to require the lower court to re-compute the costs taxed, the Missouri Court of Appeals declined to do so. -8- Id. The court construed the applicable Missouri statute,3 which entitled a "'plaintiff [who] recover[s] any damages [to] . . . recover his costs.'" Id. at 557 (quoting Mo. Rev. Stat. § 1552 (1899)). The court concluded that no costs should be taxed to the defendant "[s]ince the net result of the trial of the case was a judgment for defendant . . . unless the statute gives plaintiff the right to recover his costs." Id. The court then interpreted the statute to give the trial court discretion to tax costs for the plaintiff only if the plaintiff wins the verdict—not the judgment. Id. The court went on to distinguish other statutes and concluded that the plaintiff was not entitled to costs because the statute gave the court no discretion to award them where the plaintiff suffered a judgment "on the whole case" despite prevailing as to certain issues. Id. The court in Weitz was tasked with identifying the prevailing party to determine if attorneys' fees were recoverable under the Missouri Prompt Payment statute in a complex commercial case where both sides claimed some success. 631 F.3d at 528. Following trial, the jury awarded the plaintiff $981,976 against the defendant. The defendant, in turn, received a jury award of $285,400 on its counterclaim. Id. at 516. We determined that the plaintiff "was the prevailing party against [the defendant] under Missouri law, because it was the net prevailing party." Id. at 530. In affirming the district court, this court cited Ozias approvingly for the proposition that the prevailing party is the party in whose favor the verdict compels a judgment. Id. The court concluded there was no abuse of discretion in awarding attorneys' fees under the statute. Id. Curiously, both the main-issue approach and net-prevailing-party approach trace their lineage to Ozias. See Birdsong, 953 S.W. 2d at 124. In Birdsong, following complex litigation flowing from a real estate deal, the trial court awarded a defendant 3 "In all actions not founded on contract the damages claimed in the petition shall determine the jurisdiction of the court, and if the plaintiff recover any damages he shall recover his costs." Mo. Rev. Stat. § 1552 (1899). -9- its attorneys' fees as a prevailing party. Id. The defendant successfully defended a breach of contract claim despite the plaintiff's success in achieving an order of specific performance. Id. In declaring a prevailing party for purposes of assignment of attorneys' fees under the contract the trial court took the totality of the litigation into account including the defendant's success against the breach of contract claims. Id. The Missouri Court of Appeals approved the approach and noted that the trial court's decision to award attorneys' fees to its designated prevailing party should be affirmed "whether the phrase 'prevailing party' is measured by the BLACK'S LAW DICTIONARY definition[—the main-issue approach—]or is analyzed under Ozias"—the net-prevailing-party approach. Id. at 124–25. In the instant case, Lenders One successfully defended against DocMagic's claims regarding (1) breach of the Agreement; (2) evading the spirit of the Agreement; (3) denying the expected benefit of the Agreement; (4) misrepresentation regarding marketing and promotion of DocMagic's products; and (5) misrepresentation that DocMagic would get a majority of the 20,000 loans closed per month. Lenders One also succeeded on its counterclaims against DocMagic for (1) breach of the Agreement by failing to give accurate monthly sales reports and (2) breach of the Agreement for failing to pay the ten-percent marketing fee. The district court awarded Lenders One $90,515.00 on its counterclaim for breach of contract; $445,615.00 in attorneys' fees; $9,298.19 in expenses; and $3,188.90 for costs. The court also denied DocMagic's motion for new trial, alternative motion for additur, and motion for bill of costs. In the aggregate, DocMagic had limited success on its claims that (1) Lenders One refused to allow DocMagic to attend a conference and (2) Lenders One committed fraud in the inducement. As the district court noted, DocMagic had "claimed approximately $4,000,000.00 in damages" but received $515,059.45 for the misrepresentation. DocMagic, Inc., 2012 WL 263091, at 11 n.5. -10- The district court opted for a "main-issue" approach and concluded that both the "relative amount of the award" and the "number of claims successfully prosecuted or defended" are important factors in determining who prevails on the main issue. Id. at *12. On review, we do not believe it necessary for us to resolve the tension in Missouri cases between the main-issue and net-prevailing-party approaches. Like the court in Birdsong, we hold that "the trial court did not err in concluding that [Lenders One] was the 'prevailing party' as between it and [DocMagic] . . . [regardless of] whether the phrase 'prevailing party' is measured by the [main-issue or net-prevailing- party analysis]." See 953 S.W.2d at 124–25. The district court's memorandum opinion and order disposing of all post-trial motions listing the relief granted and denied shows that the court considered the totality of the case and reasonably determined "the" prevailing party for purposes of the parties' contract. We are not convinced to alter the court's order on appeal. Because we conclude that the district court did not err in designating Lenders One as the prevailing party, we need not address DocMagic's remaining issues.4 III. Conclusion Accordingly, we affirm the judgment of the district court. 4 DocMagic also argues for the first time on appeal that main-issue analysis to determine the prevailing party should not be utilized in a case with a broad attorneys' fees provision, such as the instant case. DocMagic asserts that even applying main- issue analysis, its fraud-in-the-inducement judgment was directly related to the Agreement. It asserts that disputes regarding the Agreement also included "negotiations immediately prior to the execution of the Agreement." DocMagic argues that the district court erred in finding that the main issue in the case was breach of the Agreement and that fraud in the inducement was not a main issue. Because this assignment of error is raised for the first time on appeal we decline to address it. Murphy v. Aurora Loan Servs., LLC, 699 F.3d 1027, 1033 n.4 (8th Cir. 2012). -11- BYE, Circuit Judge, dissenting. In my view, a provision for attorneys' fees in a commercial contract is generally intended not to reward the "winner" of a case, but to compensate a wronged party for having to resort to litigation to enforce its contractual rights. I am deeply troubled by the invocation of such a contract provision by a party found by a jury to have breached another portion of the same contract. Moreover, where both parties have engaged in mutual wrongdoing, I cannot believe the parties would have intended such a provision to reward the greater wrongdoer. The majority avers that under either analytical approach—main-issue or net- prevailing-party—Lenders One emerges victorious; it successfully litigated more claims and recouped a higher percentage of claimed damages. As the majority acknowledges, however, the net-prevailing-party approach recognizes the party which received "the most points" as the prevailing party. See Weitz Co. v. MH Washington, 631 F.3d 510, 530-31 (8th Cir. 2011). Traditionally—and, notably, in the case of Weitz—this language has been read to refer to the party receiving the larger jury award. See Weitz Co. v. MH Washington, No. 09-311, Order Granting Mot. Atty's Fees Sep. 2, 2009 ("In the present case, a contract action, Weitz'[s] verdict against TDG was for $223,813 while TDG's verdict against Weitz was for $88,508, thus Weitz is the prevailing party."); Solter v. P.M. Place Stores, Co., Inc., 748 S.W.2d 919, 923 (Mo. Ct. App. 1988) ("Each party prevailed on certain issues in this case and each party lost on certain issues. The net result, however, was a money judgment to respondent's favor."). In support of its assertion that Lenders One may be declared the prevailing party under the net-prevailing-party approach, the majority asserts that "neither Weitz or Ozias seem to limit the 'points scored' to dollars awarded." Ante at 8. I disagree. Ozias v. Haley concludes as follows: -12- Our analysis of the statutes convinces us that the proper rule to be applied in this case is that stated in the following excerpt from the Cyclopedia of Law & Procedure, vol. 11, p. 31: "Where a set-off or counterclaim has been filed and allowed, wholly or in part, the party in whose favor final judgment is rendered will be entitled to costs in the absence of some special statutory provision changing the general rule which gives costs to the prevailing party. In other words, plaintiff is entitled to costs if he has judgment for an amount in excess of the set-off or counterclaim allowed. By parity of reasoning, if the amount allowed as set-off or counterclaim exceeds the amount allowed on plaintiff's demand, defendant is entitled to costs." 125 S.W. 556, 557 (Mo. Ct. App. 1910) (emphasis added). In my view, Ozias explicitly embraces a monetary appraisal when employing the net-prevailing-party approach. Accordingly, I believe under this approach, we must recognize DocMagic as the prevailing party, and thus, each party can credibly invoke Missouri precedent to claim prevailing-party status. Our court settled a nearly identical dispute in Walton General Contractors, Inc./Malco Steel, Inc. v. Chicago Forming, Inc., in which a contractor and subcontractor each claimed entitlement to attorneys' fees under a construction agreement. 111 F.3d 1376 (8th Cir. 1997). A jury returned verdicts in favor of each party, finding (1) the contractor liable for $352,408 in damages to the subcontractor and (2) the subcontractor liable for $233,629 in damages to the contractor. Id. at 1380. The parties' agreement entitled the "prevailing party" to recover attorneys' fees, costs, and expenses. Id. at 1381. Applying Missouri law, the magistrate judge "declined to find either party a 'prevailing party' and enforce an attorneys' fee clause in the contract both parties saw fit to breach." Id. at 1384 (internal quotation omitted). On appeal, the contractor argued it had prevailed on the "significant" issues of the litigation, while the subcontractor argued its larger damage award rendered it the prevailing party under a "net judgment rule." Id. Our court affirmed the non- award, concluding "the parties intended the attorneys' fees provision of the -13- subcontract to provide an additional remedy for a nonbreaching party." Id. at 1385 (emphasis added). Our determination in Walton that a non-award of attorneys' fees did not amount to an abuse of discretion does not, without more, compel the conclusion that the district court's award of attorneys' fees here amounts to an abuse of discretion. The tie-breaker, so to speak, sounds in equity. The $243,000 awarded to DocMagic represents two related, but distinct concepts: (1) the amount of losses suffered by DocMagic, which necessarily translates into (2) the total damage found to have been inflicted upon DocMagic by Lenders One. Thus, while $243,000 constitutes a small percentage of the total losses sought by DocMagic, it also reflects Lenders One's infliction of nearly six times the damage ultimately attributed to DocMagic by the jury. What the district court and majority fail to acknowledge is that, despite successfully litigating more claims, Lenders One also perpetrated the greater wrong against DocMagic. Where contract language is ambiguous, the court is charged with the task of crafting an interpretation consistent with the parties' intent. See Grantham v. Rockhurst Univ., 563 S.W.2d 147, 150 (Mo. Ct. App. 1978) ("In construing ambiguous contracts the objective is to ascertain and render effective the mutual intent of the parties."). Where, as here, it is clear both parties have engaged in wrongdoing, I cannot believe the parties intended their agreement to reward the greater wrongdoer. Thus, imposing upon DocMagic nearly one million dollars in combined attorneys' fees for having perpetrated a total of $52,500 in damages—when DocMagic itself suffered a $243,000 loss at the hands of Lenders One—seems legally unfounded and logically untenable. Utilizing our rationale from Walton, I would name neither party in this case the prevailing party and leave each to pay its own litigation expenses. For the foregoing reasons, I respectfully dissent. ______________________________ -14-	01-03-2023	09-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612963/	19 Kan. App. 2d 509 (1993) 875 P.2d 983 FLOYD S. ELLIFF, Appellee, v. DERR CONSTRUCTION COMPANY and NATIONAL UNION FIRE INSURANCE COMPANY, Appellants. No. 69,331 Court of Appeals of Kansas. Opinion filed December 3, 1993. Eldon L. Boisseau and James A. Cline, of Turner and Boisseau, Chartered, of Wichita, for the appellant. James P. Johnston, of the Johnston Law Offices, P.A., of Wichita, for the appellee. Before PIERRON, P.J., LARSON and GREEN, JJ. PIERRON, J.: Derr Construction Company (Derr) and National Union Fire Insurance Company appeal the trial court's determination that Floyd Elliff has a 49.5% work disability rating. The appellants claim there was not substantial competent evidence to 510 support the decision, that Elliff failed to overcome the statutory presumption of no work disability, and that the court did not consider all the factors in K.S.A. 1992 Supp. 44-510e(a) before reaching a decision. We reverse. Elliff was injured in June 1990 while working as an ironworker for Derr in Wichita, Kansas. He consulted a physician in Wichita who recommended fusing the injured ankle. Elliff, a Texas native, wanted a second opinion and consulted Dr. Mark Sanders, an orthopedic surgeon in Texas City, Texas. Sanders performed the surgery and managed the post-surgical recovery. Elliff did not work until April 1991, when he returned to work for Derr as a foreman. This was a supervisory position, and Elliff was paid a higher wage. Elliff left this job in September 1991. He moved back to Texas and worked for a different construction company, making a higher wage than Derr had paid him. Elliff performed all the duties of a foreman. The position required him to go into the framework with the ironworkers approximately 10% of the time. He was able to do this. The administrative law judge found Elliff suffered a 17% permanent partial general disability due to the ankle injury and subsequent fusion. The director's review was not sought. The appeal to district court resulted in an "occupational disability rating" of 49.5%. Derr appeals this order. The standard of review is well settled: "In an appeal from the district court in a workers compensation case, the scope of review by an appellate court is to determine whether the district court's judgment is supported by substantial evidence. The evidence is viewed in the light most favorable to the party prevailing below, and, if substantial evidence supports the district court's factual findings, the appellate court does not reweigh the evidence or reverse the final order of the district court. In workers compensation cases, the term `substantial evidence' means `evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved.' [Citation omitted.] Substantial competent evidence is also defined as evidence that is relevant and that carries enough weight to allow one to conclude that the judgment is proper. [Citation omitted.]" Hughes v. Inland Container Corp., 247 Kan. 407, 410, 799 P.2d 1011 (1990). K.S.A. 1992 Supp. 44-510e(a) sets out the statutory definition of permanent partial general disability and the factors to be considered 511 when computing the percentage of disability. The statute also states a presumption that an individual whose post-injury wage is comparable to his pre-injury wage does not have a work disability. It is uncontroverted that Elliff's post-injury wage exceeds his pre-injury wage. However, Elliff argues the testimony of a personnel specialist, Jerry Hardin, shows Elliff has overcome the presumption. Hardin testified that based on a computer analysis of Elliff's pre- and post-injury abilities, Elliff's access to the labor market is restricted. Hardin based this decision on work restrictions placed on Elliff by an examining physician. Dr. Ernest Schlachter evaluated Elliff at Elliff's request. He limited him to lifting 45 pounds and no walking on uneven ground. Hardin used Schlachter's figures to compute work disability even though Elliff's treating physician imposed different restrictions. The treating physician, Dr. Sanders, stated Elliff could occasionally lift 100 pounds or more and could frequently lift 50 pounds or more. The only activity which Sanders prohibited was kneeling or crouching. Hardin's computer assessment employs a process of elimination which matches abilities to job description and titles, eliminating those jobs which are outside the limitations of the worker. Hardin stated the program evaluates both loss of access to the market and the ability to earn a comparable wage. Hardin testified the computer assessment of work availability would have factored out working as an ironworker foreman because that would be considered an inappropriate job based on Elliff's restrictions. Hardin admitted that Elliff told him he could be a foreman and stay within the doctor's restrictions. Hardin also made a personal assessment of market accessibility. The assessment, which did not utilize the computer, included the fact Elliff worked as foreman, resulting in a higher percentage of available jobs. The computer analysis showed Elliff's injury excluded him from 82% of the jobs. Hardin's personal estimate was that Elliff's injury excluded him from 70-80% of the jobs available to someone of his age, education, and experience without injuries. It is not clear that any evidence was presented about Elliff's current situation. Although the computer analysis was based on 512 personal information, the analysis is clearly flawed. The job Elliff is currently performing is, in his own estimation, within the limits imposed by the physicians, and it pays a comparable wage. In Perez v. IBP, Inc., 16 Kan. App. 2d 277, 826 P.2d 520 (1991), this court considered a similar issue. The question before the court was whether Perez presented sufficient evidence to overcome the presumption against a work disability. After setting out the standard for review, this court determined Perez failed to meet this burden. The evidence showed Perez returned to work almost immediately after the injury. He worked 33 out of 57 work days and was ultimately fired for poor attendance. 16 Kan. App. 2d at 279. The facts of the instant case are somewhat different. Elliff was off work for several months. However, he did return to work for the same company in a higher level position at a higher wage. There has been no period of unemployment since he recovered from the injury and surgery. There was some evidence presented that, in general, foreman positions are harder to obtain than worker positions. Elliff himself has not experienced difficulty finding positions. Hardin did not specifically address the comparable wage issue. He also did not explain how the computer analysis assesses potential wages. Given the standard of review set out above, we hold Elliff did not present sufficient evidence to overcome the presumption set out in K.S.A. 1992 Supp. 44-510e(a). As Elliff was unable to overcome the presumption, the court erred by awarding an "occupational disability" of 49.5%. The statute does not allow an award for "occupational disability," and the court did not define this term. It should also be noted that the method the court used to arrive at this figure is not contained in the opinion. It is possible to arrive at this figure by averaging the functional impairment assigned by Schlachter (17%) and the computer assessment of loss of access to the job market (82%). (17 + 82 = 99 ÷ 2 = 49.5.) We acknowledge there are other ways to reach 49.5%, but we should not have to speculate how the court reached its figure. We have not found a case where the trial court averages functional impairment with work disability. We do not believe this 513 equation is contemplated by the statute. This formula allows for functional impairment to be factored in twice. The functional impairment is, necessarily, a component used to figure loss of access to the labor market. (If the employee has lifting restrictions as the result of a back injury, his potential job pool is restricted because of this physical impairment.) Averaging the physical impairment and work disability figures results in lowering the percentage of permanent partial general disability for which a person could recover. The Supreme Court did approve averaging in Hughes. The number averaged, however, were loss of ability to perform work in the open labor market and loss of ability to earn a comparable wage. These are the two factors used to establish work disability. K.S.A. 1992 Supp. 44-510e(a). This resulted in an access-based percentage for permanent partial general disability. Hughes, 247 Kan. at 422. The district court has, in this case, created a formula which is contrary to the statute, and which, as stated earlier, overemphasizes the physical impairment. The statute mandates recovery based on work disability or functional impairment. A claimant's disability rating can never be less than the percentage of functional impairment. K.S.A. 1992 Supp. 44-510e(a). Therefore, although Elliff failed to overcome the presumption, he is entitled to an award for permanent partial disability. This award can be based on a general body disability (functional impairment, K.S.A. 1992 Supp. 44-510e[a]) or a scheduled injury, K.S.A. 1992 Supp. 44-510d. Derr argues the injury should be treated as a scheduled injury, alleging no physician's testimony in this case is believable. Schlachter's testimony is impugned because of a transcription error. His secretary failed to delete material from a form letter. The undeleted information states Elliff is fine. This is followed by a specific discussion of Elliff's impairment. Schlachter explained this discrepancy during his deposition. Schlachter assigned a 17% total body impairment 16% to the leg injury and 1% to a bad donor site on Elliff's iliac crest. Derr assails Sanders' testimony for a similar reason. On a form returned to Elliff's attorney, Sanders assigned Elliff a 37% total body impairment (TBI). During his deposition, Sanders stated this was an error. He assigned a 30% TBI to the leg which the *514 American Medical Association Guidelines equate with a 12% TBI. He assigned an additional 5-10% TBI based on Elliff's complaint of a sore back. The 5-10% TBI for back trouble was assigned without examining Elliff. Sanders based this figure on his experience with other patients with similar injuries. Both Schlachter and Sanders assigned permanent partial figures rather than scheduled injury numbers because of after effects. Sanders' TBI assessment was based on low back pain, while Schlachter's was based on a bad donor site. In Chinn v. Gay & Taylor, Inc., 219 Kan. 196, Syl. ¶¶ 1-3, 547 P.2d 751 (1976), the Kansas Supreme Court stated: "When a primary injury under the workmen's compensation act is shown to have arisen out of the course of employment every natural consequence that flows from the injury, including a new and distinct injury, is compensable if it is a direct and natural result of a primary injury." "Compensation is allowable for disability from a second and distinct injury to a workman where it can be traced to a covered accident through a primary injury. The fact that the primary injury is scheduled does not bar compensation for general bodily disability where a new, distinct, and disabling injury is a direct and natural result of the primary injury." "The existence, nature and extent of the disability of an injured workman is a question of fact. Medical testimony is not essential to the establishment of these facts and it is not necessary that a workman's disability be given a medical name or label." The district court may have found there was substantial competent evidence of some secondary disability and awarded compensation for a general body disability rather than a scheduled injury. What evidence was used is not set out in the opinion. Therefore, we are not able to determine whether the award for general disability is appropriate if that approach was taken. The court should have stated a basis for awarding compensation based on general disability. Either the low back pain or the damaged iliac might be a basis for converting from a scheduled injury to a general disability. On this record, we cannot tell what was found by the court. We therefore reverse and remand for further findings of fact.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1913185/	981 A.2d 968 (2009) Noreen THOMPSON, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (CINEMA CENTER), Respondent. No. 621 C.D. 2009. Commonwealth Court of Pennsylvania. Submitted on Briefs August 14, 2009. Decided September 24, 2009. 969 David Brown, Philadelphia, for petitioner. 970 Leah M. Lewis, Harrisburg, for respondent. BEFORE: PELLEGRINI, Judge, LEAVITT, Judge, and FLAHERTY, Senior Judge. OPINION BY Judge LEAVITT. Noreen Thompson (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) decision to grant her claim petition. However, both the WCJ and the Board denied Claimant's request for quantum meruit attorney's fees for unreasonable contest. It was the position of Claimant's employer that her accident did not occur on its premises and, therefore, did not occur in the scope of her employment. The Board concluded that the employer's contest was a reasonable one. We affirm. Cinema Center (Employer) is a movie theater located in a strip mall. Since September 2006, Claimant has been employed there as a ticket taker and usher, working approximately 15 hours per week. Claimant sustained an injury to her left shoulder on February 12, 2007, when she fell while walking to her car after work. Her treating orthopedic surgeon diagnosed the injury as a severe humeral head fracture, which required shoulder surgery followed by a course of physical therapy. Claimant returned to her regular job on March 29, 2007. Claimant filed a claim petition seeking total disability benefits for the closed period from February 13, 2007, to March 29, 2007; payment of her medical bills; and payment of her counsel fees. Employer filed a timely answer denying that Claimant sustained a work-related injury. Employer also issued a Notice of Compensation Denial explaining that the claim was denied because Employer did not believe the incident occurred on Employer's premises; thus, Claimant's injury was not compensable under Section 301(c)(1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1), as she was not injured in the course and scope of her employment.[1] At the hearing before the WCJ, Employer stipulated that the only issue in contest was whether Claimant's injury had occurred in the scope of employment.[2] Claimant did not contend that she was furthering Employer's business at the time of her injury. Nevertheless, Claimant could prove that her injury occurred in the course of employment by establishing that: (1) her injury occurred on the employer's premises; (2) she was required by the nature of her employment to be present on the employer's premises; and (3) the injury was caused by the condition of the premises or by operation of the employer's business or affairs thereon. Markle v. Workers' Compensation Appeal Board (Bucknell University), 785 A.2d 151, 153 (Pa.Cmwlth.2001). Whether an employee is injured in the course of employment is a question of law to be determined on the basis of the WCJ's findings of fact. Id. Claimant testified on her own behalf, describing the parking situation at work. Employer's movie theater is located at the end of the shopping center. The shopping center parking lot is located in front of 971 Employer's theater and also to the right side of the theater building. Claimant drives to work each day and can park anywhere in the shopping center parking lot; there are no designated parking spaces for Employer's employees. Members of the public also can park anywhere in the lot. On February 12, 2007, when she arrived for work, Claimant parked on the right side of the building. At 4:00 p.m., Claimant clocked out, left by the door that was closest to her car and walked out onto a concrete sidewalk that leads to the asphalt parking lot. Claimant explained that a "lip" or uneven area exists where the concrete and asphalt meet; she lost her footing at the uneven area and fell onto her left side. Reproduced Record at 15a-16a (R.R. ___).[3] Claimant testified that the weather was clear, and there was no snow or ice present on the parking lot. Claimant estimated that the spot where she fell was 13 to 15 feet from the exit door and less than 10 feet from her car. Employer presented testimony from Trudy Withers, Executive Vice-President of Theater Operations. She explained that Employer owns the building that houses the movie theater but does not own the sidewalk or parking lot; rather, the owner of the strip mall (Landlord) owns that property. Employer pays Landlord a fee for use and maintenance of "common areas," which include the sidewalk and parking lot. R.R. 46a. Landlord is responsible for snow removal, changing parking lot lights and similar duties. There are no assigned parking spots; employees may park anywhere in the shopping center parking lot without charge. Employer has no control over where employees park or where shopping center customers park. There are always enough parking spaces for all 35 employees. Withers acknowledged that it was appropriate for Claimant to park where she did and that Claimant was required to walk across the area where the accident occurred in order to go from the theater to her car. Employer submitted the lease agreement into evidence. Section 8 of the lease is entitled "Common Area" and confirms that the common area includes parking areas, sidewalks and curbs. The lease provides that Employer and "its employees, agents, and customers shall have the non-exclusive right to the use or benefit of the Common Area" and Employer "acknowledges that the Common Area may also be used by occupants and/or invitees of properties adjoining the Shopping Center, whether or not owned, leased or managed by Landlord." R.R. 70a (Lease sections 8(A) & 8(B)). The WCJ considered the evidence and issued a decision and order granting Claimant's claim petition. The WCJ found in relevant part as follows: 42. This [WCJ] accepts as credible [C]laimant's testimony in its entirety, including her description of the location and mechanism of her fall, and that she tripped on the lip while stepping from the cement sidewalk to the asphalt parking lot; and that she was walking from the theatre to her car, which was parked in the shopping center's parking lot where she and other employees of [Employer] always parked. . . . * * 44. This [WCJ] accepts generally the testimony of Ms. Withers as credible 972 based on her demeanor at the hearing, and finds that it is consistent with [C]laimant's testimony. This [WCJ] finds that Ms. Withers' testimony regarding the lack of control which [Employer] exercises over where its employees and customers park, the landlord's obligation to maintain the common areas, and the landlord's contract with a local company to salt the parking lot when there is a big snowfall, while credible, is not dispositive of the issue of whether [C]laimant's injury occurred in the course and scope of her employment with [Employer]. 45. This [WCJ] finds that [C]laimant has satisfied all of the elements in her Claim Petition. Although [C]laimant's injury did not occur in the furtherance of the business or affairs of [Employer], this [WCJ] finds that she satisfied the three conditions necessary for her injury to be considered "in the course and scope of her employment." Pursuant to the case law, [C]laimant's injury occurred on [Employer's] "premises," as the term encompasses more than just the property owned by [Employer]it also encompasses the sidewalk and parking lot; her presence was required by the nature of her employment as she was required to traverse the sidewalk and parking lot to reach her car; and her injury was caused by a condition of the premises, notably the lip between the sidewalk and parking lot, on which she tripped. * * 47. This [WCJ] finds that [Employer] engaged in a reasonable contest, as the case law requires that certain specific factual findings are necessary to determine whether [C]laimant's injury occurred while she was within the course and scope of employment. WCJ Decision, July 24, 2008, at 5-7; Findings of Fact 42, 44-45, 47. Based on his findings, the WCJ granted Claimant's petition, awarding her a closed period of total disability benefits followed by a suspension based on her return to work, payment of her medical bills and litigation costs. Because he concluded that Employer's contest was reasonable, the WCJ did not award quantum meruit attorney's fees. Claimant appealed the WCJ's denial of attorney's fees, and the Board affirmed. Claimant then petitioned for this Court's review.[4] On appeal, Claimant presents one issue for our consideration. Claimant contends that both the WCJ and the Board erred by concluding that Employer's contest was reasonable. Under Section 440 of the Act, 77 P.S. § 996, a claimant who is successful in whole or in part in the litigation is entitled to an award of attorney's fees, unless the employer's contest is reasonably based.[5]973 The employer has the burden of presenting sufficient evidence to establish a reasonable basis for its contest. Frankford Hospital v. Workers' Compensation Appeal Board (Walsh), 906 A.2d 651, 656 (Pa.Cmwlth.2006). Whether an employer's contest is reasonable is a question of law fully reviewable on appeal. Essroc Materials v. Workers' Compensation Appeal Board (Braho), 741 A.2d 820, 826 (Pa. Cmwlth.1999). A reasonable contest is established where the employer presents medical evidence that is contrary to the claimant's evidence and where it is evident that the employer's contest is not frivolous or done to harass the claimant. United States Steel Corp. v. Workers' Compensation Appeal Board (Luczki), 887 A.2d 817, 821 (Pa.Cmwlth.2005). However, it is axiomatic that the reviewing court must look at the totality of the circumstances, since the reasonableness of the contest may not necessarily depend on a conflict in the evidence per se. Majesky v. Workmen's Compensation Appeal Board (Transit America, Inc.), 141 Pa.Cmwlth.398, 595 A.2d 761, 762 (1991). The reasonableness of an employer's contest depends on whether the contest was prompted to resolve a genuinely disputed issue, which can be a legal or factual issue, or both. McGuire v. Workmen's Compensation Appeal Board (H.B. Deviney Co.), 140 Pa.Cmwlth.68, 591 A.2d 372, 374 (1991). In arguing that Employer's contest was unreasonable, Claimant focuses on the WCJ's finding that Withers' testimony was not dispositive of the course and scope of employment issue. Claimant argues that the contest was unreasonable because Employer did not show that a conflict in the evidence existed or that the evidence was susceptible to contrary inferences. However, as explained above, the fact that Employer's evidence was not contrary to Claimant's evidence does not mean its contest was unreasonable. This Court must look at the totality of the circumstances to determine whether there was a genuinely disputed issue in this case. The sole issue here concerned the first prong of Claimant's burden of proof regarding course and scope of employment, i.e., whether the area where Claimant fell was, in fact, Employer's "premises." For purposes of the Act, the "premises" is property "owned, leased or controlled by the employer to a degree where that property could be considered an integral part of the employer's business." Ortt v. Workers' Compensation Appeal Board (PPL Services Corp.), 874 A.2d 1264, 1267 (Pa.Cmwlth.2005) (emphasis added). Claimant argues that a parking lot leased by Employer was part of its "premises," and there can be no debate on this point. Employer, on the other hand, contends that the testimony of Withers and the lease agreement presented a genuine legal issue as to whether the leased property constituted Employer's "premises." Employer's evidence showed that its use of the common areas was not exclusive and that Employer had no control over where its employees park. These facts could support a conclusion that the accident did not occur on its premises. In support, Employer points to Ortt, 874 A.2d 1264. In that case, the claimant 974 slipped and fell on ice in the "Colonial Parking Lot" while walking to her car after work. The employer owned four parking lots and also leased 174 parking spaces from Colonial Parking, which the employer offered to its employees at a reduced cost. The remainder of the parking lot was open to the general public, and Colonial Parking was responsible for maintaining the lot. This Court affirmed the denial of the claimant's claim petition on the basis that the Colonial Parking Lot was not part of the employer's premises because it was not integral to the employer's business. Relevant to this determination were the facts that the lot was owned and operated by a private company; the claimant was not required to park in that particular lot; and the claimant paid for her own parking space. Another recent case addresses the question of whether a parking lot constitutes the employer's premises. In Waronsky v. Workers' Compensation Appeal Board (Mellon Bank), 958 A.2d 1118 (Pa.Cmwlth. 2008), the claimant parked in a parking garage owned by the employer where members of the public could also park. The claimant was struck by a car as she crossed the street to get to employer's building. This Court affirmed the denial of her claim petition after determining that the parking garage was not integral to the employer's business because the employer did not mandate where its employees parked. As Ortt and Waronsky illustrate, the mere fact that the employer leases or even owns a parking lot or garage where the employee was injured is not dispositive of the question of whether a parking area is part of the employer's "premises." Such a determination requires an examination of many other facts, such as the employer's requirements on parking. Here, Employer did not own the sidewalk or parking lot but, rather, paid Landlord a fee for maintenance and the non-exclusive right to use those areas. However, Employer did not mandate where employees should park and the entire parking lot was open for use by members of the public. Although Employer did not prevail,[6] the record shows that there was a genuinely disputed issue as to whether the area where Claimant fell was Employer's "premises" for purposes of the Act. Therefore, the Board did not err in concluding that Employer's contest was reasonable. Accordingly, we affirm the Board's order. Judge PELLEGRINI concurs in the result only. ORDER AND NOW, this 24th day of September, 2009, the order of the Workers' Compensation Appeal Board dated March 9, 2009, in the above-captioned matter is hereby AFFIRMED. NOTES [1] An injury is compensable under the Act only if it is sustained in the course and scope of employment. Pursuant to Section 301(c)(1) of the Act, 77 P.S. § 411(1), in order for an injury to occur in the course and scope of employment, it must be sustained upon the employer's premises or while furthering the employer's business. [2] Accordingly, we will not discuss Claimant's medical reports. [3] Claimant submitted into evidence photographs of the uneven area where she fell, which depict a three foot long area where the concrete is one and a half inches higher than the asphalt. R. R. 60a-61a. [4] This Court's scope and standard of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether Board procedures were violated, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n. 2 (Pa.Cmwlth.2003). [5] Section 440(a), added by the Act of February 8, 1972, P.L. 25, provides in relevant part: In any contested case where the insurer has contested liability in whole or in part. . . the employe . . . in whose favor the matter at issue has been finally determined in whole or in part shall be awarded, in addition to the award for compensation, a reasonable sum for costs incurred for attorney's fee, witnesses, necessary medical examination, and the value of unreimbursed lost time to attend the proceedings: Provided, That cost for attorney fees may be excluded when a reasonable basis for the contest has been established by the employer or the insurer. 77 P.S. § 996(a). [6] Because Employer did not appeal the grant of the claim petition, we make no determination as to the correctness of the WCJ's conclusion that Claimant was injured on Employer's "premises."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612974/	35 Cal. App. 2d 455 (1939) In the Matter of the Estate of GEORGE E. BORNEMAN, Deceased. DELIA STEWART, Administratrix, etc., Respondent, v. MARGARET BORNEMAN, Appellant. Civ. No. 11230. California Court of Appeals. First Appellate District, Division Two. November 14, 1939. I. F. Chapman and Tom Chapman for Appellant. Willard Lee Pope for Respondent. 457 Sturtevant, J. On August 4, 1938, in San Francisco, a man died leaving an olographic will in words and figures as follows: "San Francisco January 3, 1938." "I George Stewart want my wife Delia Stewart to have everything I own including the money in the San Francisco Bank." "George Stewart". On August 31, 1938, Delia Stewart filed a petition asking that the will be admitted to probate and that, as surviving wife of the decedent, she be appointed administratrix. On September 27, 1938, Margaret Borneman filed a petition in which she alleged the true name of the decedent was George E. Borneman and that she was his surviving wife. She asked that the will be admitted to probate and that letters of administration with the will annexed be issued to her. Notice of the hearing of each petition was duly given and both came on for a hearing on the same date. Later the trial court made an order granting the petition first mentioned and denying the second. From that order Margaret Borneman has appealed under the alternative method. Before making the order appealed from the trial court made findings, among others: "(4) That the petitioner Delia Stewart married the decedent at San Jose, California, on or about May 21, 1919; that at the date of said marriage the decedent was not married to the petitioner, Margaret Borneman; (5) That the petitioner Delia Stewart is the surviving wife of the decedent; ... (6) That the petitioner Margaret Borneman is not the surviving wife of said decedent." The appellant attacks each of those findings. In addition to the facts recited above the transcript discloses that at San Francisco in 1895 George E. Borneman and Maggie E. Neary were married. Although this petitioner Margaret Borneman did not so testify we will assume for the purposes of this decision that she was formerly Maggie E. Neary. In 1912, while the Bornemans were at Portland, Oregon, Mr. Borneman left the petitioner and went to live with a Miss Stewart. In 1914 he left Portland and came to San Francisco. In 1915 Mrs. Borneman and her two sons came to San Francisco. Mrs. Borneman did not testify that after the separation in 1912 she ever saw her 458 husband or that any communications passed between them. She testified her sons saw and spoke to him, but she gave no dates. One son did not appear as a witness. The other son did. He testified he saw the decedent in 1922. He did not claim he ever saw him or communicated with him at any other time between 1912 and 1922. There is not a word in the record to the effect that from 1912 until 1937 the decedent knew that petitioner, Margaret Borneman, was alive, and if she were living where she resided. On May 21, 1919, at San Jose, the decedent applied to the county clerk for a license to marry Delia Johnson. In his written application he stated his name was George E. Stewart, that he had been married, and that he was "widowed". The license was issued and the decedent and Delia Johnson, the other petitioner, were duly married and thereafter lived together as man and wife down to the date of his death. On the trial Mrs. Borneman produced a photograph which she testified Mr. Borneman gave her many years before. She testified it was a photograph of him. Mrs. Stewart testified it was a photograph of Mr. Stewart. [1] Mrs. Borneman attacks the findings hereinabove set forth and claims that the marriage of Mr. and Mrs. Stewart was invalid and void. We think that claim may not be sustained. Section 61 of the Civil Code provides: "A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless: ... 2. Unless such former husband or wife is absent, and not known to such person to be living for the space of five successive years immediately preceding such subsequent marriage, or is generally reputed or believed by such person to be dead at the time such subsequent marriage was contracted. In either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal." (Emphasis ours.) The marriage dated May 21, 1919 having been duly proved, the presumption of its validity is very strong. (Wilcox v. Wilcox, 171 Cal. 770, 774 [155 P. 95].) In Hunter v. Hunter, 111 Cal. 261, at page 267 [43 P. 756, 52 Am. St. Rep. 180, 31 L.R.A. 411], the court said: "Rather than hold a second marriage invalid and that the parties have committed a crime or been guilty of immorality, the courts have often 459 indulged in the presumption of death in less than seven years, or, where the absent party was shown to be alive, have allowed a presumption that the absent party has procured a divorce. A more correct statement perhaps would be that the burden is cast upon the party asserting guilt or immorality to prove the negative--that the first marriage had not ended before the second marriage." That rule has been repeated and followed in many cases. (26 Cal. Law Review, 270 and cases cited.) Mrs. Borneman says, in effect, that Mr. Borneman left her at Portland and that he, and not she, was the "absent" one and therefore section 61 of the Civil Code has no application. That statement rests solely on her testimony that Mr. Borneman left her. But the trial court was not bound to believe her testimony. (Davis v. Judson, 159 Cal. 121, 128 [113 P. 147].) A consideration of the facts hereinabove set forth leads one to agree with the trial court's intimations that Mrs. Borneman did not testify truly. Therefore the second marriage under the facts of this case was valid. The record does not directly show what Mr. Stewart (Mr. Borneman) knew about the continuation of the life of his first wife on May 21, 1919. His statement to the county clerk, when applying for a license to marry Delia Johnson, that he was "widowed" is some evidence of what he believed. Therefore the trial court was authorized in presuming that on said date the applicant believed his first wife was dead. [2] But the holding of the trial court was not erroneous if it be assumed that section 61 of the Civil Code was not applicable. Under the common law a subsequent marriage contracted by any person during the life of a former husband or wife of such person other than such husband or wife is illegal and void from the beginning unless the former marriage has been annulled or dissolved. But, at common law, the rule stated in the Hunter case obtained. (Rex v. Twyning, 106 Reprint, 407.) Viewing this case under the rules of the common law the same result must be reached. In 38 Cal.Jur. 1328, the author says: "In the case of conflicting marriages of the same spouse, the presumption of validity operates in favor of the second marriage. Accordingly the burden of showing the validity of the first marriage is on the party asserting it, and even where this is 460 established it may be presumed in favor of the second marriage that at the time thereof the first marriage had been dissolved either by a decree of divorce or by the death of the former spouse, so as to cast the burden of adducing evidence to the contrary on the party attacking the second marriage." [3] For the purpose of showing that her marriage to George Borneman had not been dissolved or annulled, Mrs. Borneman testified she had never commenced an action to obtain that relief and that she had never been served with papers in such an action commenced by her husband. She also introduced evidence that the records in San Francisco contained no record of such an action. But there was no evidence showing the residence of Mr. Borneman or of Mr. Stewart from the year 1912 down to 1938 except the mere fact that Mr. Stewart resided in San Francisco at the time of his death. That proof was insufficient to rebut the presumption of innocence. (Everett v. Standard Acc. Ins. Co., 45 Cal. App. 332, 336 [187 P. 996]; Marsh v. Marsh, 79 Cal. App. 560, 567 [250 P. 411].) The burden rested on Mrs. Borneman to introduce such evidence as would convince the mind of the trial court that the first marriage had not been dissolved. (Estate of Chandler, 113 Cal. App. 630, 636 [299 P. 110].) This apparently she did not do. The most she did was to create a conflict in the evidence but a mere conflict in the evidence will not warrant a reversal. It follows that whether the case is measured by the rules at common law or by the terms of the statute Mrs. Borneman did not sustain the allegations of her pleadings. [4] In all we have said above we have acted on the assumption that Borneman and Stewart were one and the same individual. That assumption is far from being clear. It is directly controverted by the statements made by Stewart in his application to marry Delia Johnson. Borneman was in San Francisco in 1895 when he married Maggie E. Neary. No disinterested witness was called to testify Borneman was later known as Stewart. Mrs. Borneman did not claim she ever saw her husband after they separated at Portland. She testified that when he arrived in San Francisco he called on her sister. But that sister was not called as a witness. She testified her sons saw her husband. But one of the sons she did not call. She would *461 have the trial court understand that her husband, herself, and both sons lived in San Francisco from 1915 to 1938, but during that time she made no claim she was the wife of the decedent nor entitled to support from him. Nor is there any evidence she commenced an action, as she had a right to do, to have the second marriage annulled. (Civ. Code, sec. 83, subd. 2.) Not until one year prior to the death of the decedent did one of her sons learn of the fact of the second marriage. Not until Stewart was dead did his alleged sons call at his home or claim they were his sons. It suffices to say that such facts do not support the contention that the decedent changed his name from Borneman to Stewart and then committed bigamy. The judgment appealed from is affirmed. Nourse, P. J., and Spence, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612976/	36 Cal. App. 2d 77 (1939) In the Matter of the Estate of FRED WOODSON, Deceased. J. MAURICE, as Administrator, etc., Appellant, v. SHIRLEY WOODSON et al., Respondents. Civ. No. 11225. California Court of Appeals. First Appellate District, Division One. December 13, 1939. Jay Maurice, Vaughns & Larche and Frank M. Larche for Appellant. Edward D. Mabson and John W. Bussey for Respondents. Ward, J. This is an appeal by the administrator of the estate of Eliza Wooldridge, deceased, the mother of Fred Woodson, deceased, from an order, judgment and decree, declaring that Eliza Wooldridge is not an heir at law of Fred Woodson and that Betty Jean Woodson is an heir at law and entitled to an undivided one-half of the estate of Fred Woodson, deceased. The evidence shows that the mother of Betty Jean had been married to a man named Terry and from this marriage there had been born one child. Shirley Terry arrived in San Francisco in January of 1932 and lived for about one year in a Pine Street apartment owned by Woodson. In February of 1933, she moved to an apartment on Sutter Street, and on June 22d following, Betty Jean was born at the San Francisco Hospital, the mother registering under the name of Williams, and the birth certificate of Betty Jean stating that the residence of the father and mother was at the Sutter Street address; that George Melvin Williams was the father of the child and that the maiden name of the mother was Shirley Terry. Some six or seven months after the birth of the child the mother moved back to the home of Woodson on Pine Street, and in December of 1935 Woodson and Shirley Terry were married. Fred Woodson died intestate on the 29th day of November, 1936, predeceasing his mother Eliza Wooldridge. Thereafter Shirley Woodson, his wife, was appointed the administratrix of his estate. 79 The court found that Betty Jean Woodson was conceived during the month of September, 1932, at a time when Shirley Woodson, then known as Shirley Terry, was residing in and upon premises owned and occupied by decedent Fred Woodson. The court also found that prior and subsequent to the marriage, Fred Woodson publicly acknowledged Betty Jean as his child and that he received her into his family and treated her in every way as a legitimate child. [1] It is the contention of appellant that Betty Jean is the issue of Williams, who died in May, 1936, and Shirley Terry, now Shirley Woodson; that the evidence did not reasonably and substantially support certain findings to the contrary; that a marriage between Williams and Shirley Terry was proved by the admissions and conduct of these parties, and that as a result of such conduct an estoppel arose which operated against either of the last-named parties denying that they were husband and wife or that they were the parents of Betty Jean. In support of appellant's contention that Shirley Terry and George Melvin Williams were husband and wife, and that Betty Jean was the issue of such marriage, a certified copy of the birth certificate was introduced and marked as an exhibit in the case. The exhibit in fact does not state that Shirley and Williams were husband and wife, but it does state the name of Williams as the father of the child. Shirley Woodson had the right to deny the accuracy of the statements contained in the birth certificate, and if such contrary evidence was believed it was sufficient to overcome the prima facie effect of the documentary evidence. In Arais v. Kalensnikoff, 10 Cal. 2d 428, 434 [74 PaCal.2d 1043, 115 A.L.R. 163], the court said: "In the birth certificate, the mother caused John Morales to be named as the father of the child; but this does not raise an estoppel against her and require a reversal of the judgment, as the defendant contends. There is no evidence that she led the defendant to believe that this statement was true. On the contrary, the record supports the implied finding of the trial judge that she gave a fictitious name for the father at the request of the defendant and for the purpose of protecting him." In the instant case the credibility of the mother was exclusively with the trial court. (Estate of Gird, 157 Cal. 534 [108 P. 499, 137 Am. St. Rep. 131].) 80 [2] Section 3083, Political Code, as in force at the time, provided that a copy of the record of a marriage or birth when certified by the state registrar to be a true copy thereof, shall be prima facie evidence in all courts and places of the facts therein stated. Prima facie evidence is not conclusive evidence; it simply denotes that the evidence may suffice as proof of a fact until or unless contradicted and overcome by other evidence. (Code Civ. Proc., sec. 1833.) Entries in official record books, made in the performance of official duty, are prima facie evidence of the facts stated therein (secs. 1920, 1926, Code Civ. Proc.), but such entries do not in and of themselves always express or guarantee the truthfulness of the contents of the document. There is no evidence of a marriage between Williams and the mother of Betty Jean by license and solemnization or otherwise unless an inference may be drawn from the conduct of the parties that such a relation existed. The witness Shirley Woodson admitted that she had given the name of Williams to the hospital authorities as the father of the child. She testified in substance that she did not use the name of Woodson on occasions because he "was threatened to be sued and I did that to protect Mr. Woodson." He "asked me not to use his name at that time". Other evidence pro and con upon the issues in this case was admitted, which was exhaustively considered in the briefs, but all of such evidence related to questions of fact regarding the credibility of witnesses or the weight to be given certain documentary evidence, matters to be determined exclusively by the trier of the facts. It is not necessary to discuss further facts and arguments submitted by respondents to uphold their contention as to the correctness of the decree that Betty Jean Woodson is the owner of an undivided one-half interest in the estate of Fred Woodson. The order, judgment and decree appealed from is affirmed. Peters, P. J., and Goodell, J., pro tem, concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1914283/	126 B.R. 885 (1991) In re Patricia A. McFARLAND, Debtor. Bankruptcy No. 2-86-01833. United States Bankruptcy Court, S.D. Ohio, E.D. April 3, 1991. 886 Bernard Z. Yavitch, Columbus, Ohio, for Thomas McFarland, claimant. Thomas McFarland, Columbus, Ohio, Patricia A. Jamison, Columbus, Ohio, for debtor. Sara J. Daneman, Chester, Hoffman, Willcox & Saxbe, Columbus, Ohio, Chapter 7 Trustee. ORDER OVERRULING OBJECTION TO CLAIM OF THOMAS MCFARLAND BARBARA J. SELLERS, Bankruptcy Judge. I. Preliminary Considerations This matter is before the Court on the merits of an objection to the allowance of the claim of Thomas McFarland. The objection was filed by Sara J. Daneman, the duly-appointed successor trustee ("Trustee") of the Chapter 7 bankruptcy estate of debtor Patricia McFarland. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference previously entered in this district. This is a core proceeding which this bankruptcy judge may hear and determine. 28 U.S.C. § 157(b)(2)(B). II. Findings of Fact The debtor filed a petition under Chapter 7 of the Bankruptcy Code on May 13, 1986. At that time she had an interest in a class action lawsuit. During the pendency of this case that action was settled and the bankruptcy estate received $10,654.76 on account of the debtor's interest. The debtor's bankruptcy schedules listed as a creditor her ex-husband, Thomas McFarland ("McFarland"). That obligation was shown as disputed in the amount of $17,400. 887 The debtor and McFarland entered into a separation agreement at the time they dissolved their marriage in September of 1985. That agreement provided, in part, that each would retain the vehicle titled in his or her name and would be responsible for the debt associated with that vehicle. Accordingly, the debtor retained a Pontiac Firebird with a corresponding obligation to Bank One Columbus, N.A. ("Bank One"). Repayment of that obligation was secured by a lien in favor of Bank One. Both the debtor and McFarland were signatories on the note to Bank One for the purchase of the Firebird. The debtor fell behind in her payments to Bank One and the Firebird was repossessed and sold. Bank One sued McFarland for the balance of the note obligation which remained after the sale of the vehicle. As a result of that suit and Bank One's subsequent execution on its judgment, McFarland entered into an agreement with Bank One under which the bank agreed to accept $4,728 from McFarland in full satisfaction of the obligation. In September 1987 McFarland paid the $4,728 to Bank One from funds he borrowed from his mother. Several months later, the debtor filed a motion in the Domestic Relations Division of the Court of Common Pleas of Franklin County. That motion sought to increase the child support she received from McFarland. McFarland responded by moving for contempt against the debtor for her failure to pay the Bank One obligation. The parties resolved that dispute on January 20, 1988 by executing a memorandum of understanding under which McFarland would provide support of $120 each week for the couple's two children and the debtor would not seek any increase in that amount for one year. In return McFarland would not take any action against the debtor for their joint debt to Bank One which he had already paid. At the time of that agreement the debtor believed McFarland was in the process of paying Bank One. She was unaware that Bank One had been paid and that McFarland was actually repaying his mother. More than a year later the bankruptcy estate received funds from the debtor's interest in the class action suit. The clerk of the Bankruptcy Court then notified all creditors that the estate now had assets against which claims could be filed. On March 28, 1989 McFarland filed a proof of claim in the amount of $10,976.09. Consideration for that claim was asserted to be the debtor's assumption of the Bank One obligation under the separation agreement. III. Arguments of the Parties The bases for the Trustee's objection to McFarland's claim against the estate are twofold. First, the Trustee asserts that, at the time the claim was filed, McFarland had waived any claim against the debtor under the terms of the January 1988 memorandum of understanding which resolved the state court action. Therefore, pursuant to 11 U.S.C. § 502(b)(1), McFarland had no enforceable claim against the debtor and, derivatively, no enforceable claim against the estate. In the alternative, the Trustee argues that McFarland could not be entitled to any claim in excess of the $4,728 he actually paid to Bank One. McFarland admits that his proof of claim is erroneous to the extent it exceeds $4,728. He asserts he is entitled to a claim in that amount, however, because he agreed not to pursue the debtor for her nonpayment of the Bank One debt only because the discharge previously entered in her bankruptcy case required that result. At the time he made that agreement in January 1988, creditors in the debtor's bankruptcy case had received only the original notice that the estate appeared to have no assets. The debtor, on the other hand, maintains that she gave up her request for an immediate increase in child support because she believed McFarland was repaying the Bank One debt. McFarland's is one of three claims presently asserted against the estate, but if McFarland's claim is disallowed, funds left after payment of the other claims and administrative expenses will be returned to the debtor. IV. The Issue Presented The only issue for the Court's determination is whether McFarland waived any 888 claim against the debtor in the January 1988 memorandum of understanding executed in the state court action. If such waiver occurred, his claim would be disallowed under 11 U.S.C. § 502(b)(1). V. Application Of The Legal Principles To The Facts It is well settled law that waiver is the voluntary relinquishment of a known right. List & Son Co. v. Chase, 80 Ohio St. 42, 49, 88 N.E. 120, 122 (1909); Rose v. New York Life Ins. Co., 127 Ohio St. 265, 270, 187 N.E. 859, 861 (1933); State ex rel. Hess v. City of Akron, 132 Ohio St. 305, 307, 7 N.E.2d 411, 413 (1937). There is no dispute that McFarland's execution of the memorandum of understanding in January 1988 was voluntary. It was executed in settlement of a motion filed by the debtor seeking increased child support. As part of that agreement he purported to relinquish a known right to pursue the debtor for her failure to pay Bank One. And in return for that waiver the debtor gave up her right to seek an increase in child support for at least 12 months. However, McFarland stated that he believed he was relinquishing only a right he no longer possessed because of the legal effect of the discharge in bankruptcy granted to his ex-wife. McFarland asserts that he did not realize he also continued to possess a viable right to maintain a claim against the bankruptcy estate. That estate had no assets available to it at the time of his agreement. As the Ohio Supreme Court has stated, a waiver must be intentional, "with knowledge of the facts and of the party's rights. . . ." List, 80 Ohio St. at 51, 88 N.E. at 122. In order to constitute a valid waiver, "there must be an existing right, knowledge of that right, and an intention to relinquish such right." Parente v. Day, 16 Ohio App.2d 35, 38, 241 N.E.2d 280, 282 (1968) (emphasis added). McFarland could not have intentionally waived a right to claim against the bankruptcy estate when he was unaware of the existence of such right. Stated another way, waiver "`involves the idea of assent, and assent is an act of understanding. This presupposes that the person to be affected has knowledge of his rights, but does not wish to assert them.'" Rose, 127 Ohio St. at 270-71, 187 N.E. at 861 (citation omitted). It therefore follows that McFarland cannot be bound by his purported waiver of rights as "[n]o man can be bound by a waiver of his rights, unless such waiver is distinctly made, with full knowledge of the rights which he intends to waive. . . ." Prudential Ins. Co. v. Joyce Bldg. Realty Co., 44 Ohio L.Abs. 481, 488, 489, 65 N.E.2d 516, 570 (1943), aff'd, 143 Ohio St. 564, 56 N.E.2d 168 (1944) (citation omitted). See also 28 Am.Jur.2d Estoppel and Waiver § 158, at 841 (1964) ("Ignorance of a material fact negatives waiver, and waiver cannot be established by a consent given under a mistake or misapprehension of fact."). Moreover, the Trustee has not offered satisfactory proof that McFarland's purported waiver against the debtor amounted to a waiver against the bankruptcy estate. "He who affirms a waiver must prove it, and in so doing he must prove a clear, unequivocal, decisive act of the party against whom the waiver is asserted, showing such a purpose or acts amounting to an estoppel on his part." White Co. v. Canton Transp. Co., 131 Ohio St. 190, 2 N.E.2d 501 (1936) (quoting from court's syllabus). Additionally, "`it devolves upon the party claiming a waiver to prove the facts on which he relies for such waiver. A presumption of the relinquishment of a known right cannot be rested on a presumption that such right was known.'" Andress v. Carter (In re First-Central Trust Co.), 75 Ohio App. 1, 14, 60 N.E.2d 503, 509 (1944), rev'd on other grounds, 145 Ohio St. 498, 62 N.E.2d 311 (1945) (citation omitted). In other words, a mere presumption that McFarland knew of the existence of a bankruptcy estate, which he asserts that he did not, cannot be used to sustain a finding that he intended to relinquish his claim against such estate. When a waiver is not expressed, it is sometimes possible to find an implied waiver. List, 80 Ohio St. 42, 88 N.E. 120 (1909). However, "[w]hether an alleged waiver is expressed or implied, it must be 889 intentional. Mere negligence, oversight, or thoughtlessness does not create a waiver." 28 Am.Jur.2d Estoppel and Waiver § 158, at 842-43 (1964). Further, "[s]ince waiver must be an intentional relinquishment, it cannot arise through mere negligence or inadvertence." In re Winer, 39 B.R. 504, 510 (Bankr.S.D.N.Y.1984). To prove a waiver, the Trustee would have to show that McFarland must have known of the existence of the bankruptcy estate and realized that he was renouncing a right to claim against such estate. "This knowledge is not to be imputed; `[t]here is, in this context, no presumption that all must know the law. . . .'" Id. (citations omitted). Therefore, even if McFarland should have known of the existence of the bankruptcy estate (which finding is unsupported by the evidence), and even if this lack of knowledge rose to the level of negligence, an implied waiver would not be created. The Court finds that McFarland needed to have a reasonable understanding of the consequences of his purported waiver before it could be effective against him. See In re Mapother, 53 B.R. 433, 435 (Bankr.W.D.Ky.1985) ("waiver must present a conscious and informed judgment by the debtor as to the consequences thereof"). See also Elmer v. Lucas County Children Serv. Bd., 36 Ohio App.3d 241, 245, 523 N.E.2d 540, 545 (1987). Since McFarland did not have sufficient knowledge of the consequences of his purported waiver, the waiver is ineffective to cut off his claim against the bankruptcy estate. The Court notes, however, that since the waiver is ineffective as to McFarland, it is also ineffective as to the debtor. In McMillen v. Willys Sales Corp. the court stated that a waiver by implication might arise where the opposite party was misled to her prejudice by the conduct of the party purporting to waive. 118 Ohio App. 20, 27, 193 N.E.2d 160, 164 (1962). Although no implied waiver on the part of McFarland is found here, the same principle of avoiding prejudice to the other party still applies. The debtor purported to waive her right to seek an increase in child support for at least 12 months, in exchange for the relinquishment of a right that McFarland admits he believed was worthless. When a waiver is based upon an agreement, it must be supported by consideration. Marfield v. Cincinnati, D. & T. Traction Co., 111 Ohio St. 139, 146, 144 N.E. 689, 691 (1924). The debtor was in essence exchanging a waiver for a waiver. But a purported waiver where the waiving party believes he has no choice in the matter is not effective. See In re Yeager Co., 227 F.Supp. 92, 95 (N.D.Ohio 1963). Hence, the debtor received no valid consideration for her waiver, and it would be inequitable to hold that she had validly waived her right while McFarland was free to pursue his. Thus, the entire agreement between the debtor and McFarland is invalid. The debtor may wish to return to the domestic relations court to seek an immediate and retroactive increase in child support, and the domestic relations court is encouraged to hear such matter if brought. It is undisputed in this proceeding that McFarland paid a just debt of the debtor in the amount of $4,728. CONCLUSION Based upon the foregoing, the Trustee's objection to the claim of Thomas McFarland is overruled. McFarland's claim shall be, and the same is hereby, allowed pursuant to 11 U.S.C. § 502(b)(1) in the amount of $4,728. IT IS SO ORDERED.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601614/	228 P.3d 40 (2010) 2010 WY 34 EXCEL CONSTRUCTION, INC., a Wyoming corporation, Appellant (Plaintiff), v. HKM ENGINEERING, INC., a Montana corporation, Appellee (Defendant). No. S-09-0120. Supreme Court of Wyoming. March 23, 2010. 42 Representing Appellant: Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Representing Appellee: Matthew F. McLean of Crowley Fleck P.L.L.P., Bozeman, Montana. Before GOLDEN, HILL, KITE, and BURKE, JJ., and DAVIS, D.J. DAVIS, District Judge. [¶ 1] This is an appeal from a summary judgment granted to Appellee HKM Engineering by the district court for Big Horn County. For the reasons set forth below, we affirm the district court. ISSUES [¶ 2] 1. Should this Court modify its ruling in Rissler & McMurry Co. v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228 (Wyo.1996), to permit negligence claims by general contractors against project engineers or design professionals? 2. May Excel Construction maintain a claim against HKM for tortious interference with the contract between Excel Construction and the Town of Lovell when HKM was acting as Lovell's agent? 3. May Excel Construction maintain a claim of misrepresentation on the basis asserted in the trial court under the Rissler decision? 4. Does ¶ 9.10(A) of the agreement between the Town of Lovell and HKM impose a duty of good faith and fair dealing on HKM, creating an issue which must be tried? FACTS [¶ 3] This case involves a dispute between general contractor Excel Construction, Inc. ("Excel") and project engineer HKM Engineering, Inc. ("HKM") related to a contract for the replacement and improvement of water and sewer lines in the Town of Lovell, Wyoming. The record before the Court is sparse, with only portions of the contract documents supplementing the pleadings below. The following can be gleaned from the 43 record, the briefing, and the arguments of counsel. [¶ 4] The Town of Lovell entered into an agreement with HKM Engineering, Inc. for engineering services on the project, including both design of the new water and sewer system and project management. In the terms pertinent to this appeal, the agreement provided that HKM would be the Town of Lovell's representative during construction. HKM was to make periodic site visits, and to assure that work progressed in accordance with project plans and specifications. If the parties agreed, HKM was to provide a project representative to provide more extensive observation of the work. The record does not reflect whether this occurred or not. [¶ 5] HKM was empowered to issue written clarifications of the contract documents, to authorize minor variations in the work, and to reject defective work by the contractor. HKM was also authorized by the agreement with the Town of Lovell to determine compliance of completed work with the contract requirements, and to act as an impartial interpreter and judge in so doing. [¶ 6] The contract between the Town of Lovell and HKM also provided as follows in ¶ 9.10(A): Neither ENGINEER's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by ENGINEER in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by ENGINEER shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by ENGINEER to CONTRACTOR, and Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. [¶ 7] The Town of Lovell entered into a separate agreement with Excel to serve as general contractor on the project. Only a small portion of the contract between the town and Excel are in the record. In any event, Excel and HKM each contracted separately with the Town of Lovell, and there is no contract between HKM and Excel. The provisions of ¶ 9.10 of the Town of Lovell-HKM contract are incorporated in the Town of Lovell-Excel contract by § 9.01(A)(4). [¶ 8] The record does not reflect any detailed information as to the nature of the dispute which arose between HKM and Excel. At oral argument, counsel for Excel gave as examples of Excel's claims that HKM's specifications called for insufficient backfill in certain locations, and that Excel was told by HKM representatives to simply purchase the required backfill and bill all of the charges for it at the end of the month, rather than submitting an immediate request for a change order or payment. Excel claims that HKM engaged in misrepresentation and other tortious conduct in making that representation, and that it was not paid for the cost of the additional backfill after it relied on HKM's direction. Counsel also claimed that HKM released Excel from the worksite with the understanding that it would return to complete some minor work, and then attempted to assess liquidated delay damages for the time during which Excel was not working after being released. It also claims that HKM improperly denied certification of substantial completion. Until substantial completion is certified, Excel cannot obtain the funds held as retainage to insure completion of the project. [¶ 9] Excel initially filed suit against the Town of Lovell on February 5, 2008. It claimed breach of contract, breach of an implied covenant of good faith and fair dealing, account stated, unjust enrichment, and entitlement to a declaratory judgment for amounts due under the agreement between the parties. The town counterclaimed for damages based on alleged breaches of contract by Excel. Excel amended its complaint to join HKM as a party-defendant on June 13, 2008, claiming that HKM had engaged in the tort of misrepresentation, breached a duty of good faith and fair dealing, intentionally interfered with Excel's contract with the Town of Lovell, and acted negligently. In its complaint, Excel accused HKM of unreasonably refusing to certify substantial completion of the work, and of hindering and delaying Excel's work by refusing to meet, approve change orders after 44 altering the scope and duration of the work, refusing to provide accurate and buildable drawings for the work, and generally of interfering with Excel's performance of its contract. [¶ 10] Defendant HKM filed a motion to dismiss on August 8, 2008. In that motion, it contended that the complaint must be dismissed under Rissler & McMurry Co. v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228 (Wyo.1996), which determined that a contractor's claims against a project engineer were barred by the economic loss rule. Excel responded to the motion, and included in its response copies of portions of the contract between it and the Town of Lovell, as well as copies of portions of the contract between the town and HKM. [¶ 11] At a hearing held on February 13, 2009, the district court converted HKM's motion to dismiss to a Rule 56 motion for summary judgment as permitted by Wyoming Rule of Civil Procedure 12(b)(6), based upon the inclusion of matters beyond the pleadings. The record does not reflect a request from either party for additional time to conduct discovery or to supplement the record to include any additional information which might properly have been considered on a motion for summary judgment. [¶ 12] The district court granted HKM's motion. In its decision letter, the Court held that the economic loss rule articulated in Rissler did in fact bar recovery in this case, which it found to involve similar claims. Proceedings in the case against the Town of Lovell were stayed pending resolution of this appeal. We will affirm the district court's ruling, although we do so as to certain claims for different reasons. STANDARD OF REVIEW [¶ 13] As noted above, HKM initially filed a motion to dismiss. This motion was converted to a motion for summary judgment after Excel attached portions of the contract to its response to the motion. Although the materials outside the pleadings which were considered by the district court were limited to a few pages of the contracts between the parties, and although the record contains no affidavits or depositions which might create a specific factual record, this Court will apply the standard applicable to motions for summary judgment under W.R.C.P. 56: Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if proven, would establish or refute an essential element of a cause of action or a defense that a party has asserted. Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, [1055](Wyo.2002). We evaluate the propriety of a summary judgment by employing the same standards and by examining the same material as the district court. Id. We examine de novo the record, in the light most favorable to the party opposing the motion, affording to that party the benefit of all favorable inferences that may be drawn from the record. Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 229 (Wyo.2000). If upon review of the record, doubt exists about the presence of issues of material fact, that doubt must be resolved against the party seeking summary judgment. Id. We accord no deference to the district court's decisions on issues of law. Metz, ¶ 9. Linton v. E.C. Cates Agency, Inc., 2005 WY 63, ¶¶ 6-7, 113 P.3d 26, 28 (Wyo.2005). We "may affirm the summary judgment on any legal grounds appearing in the record." Wyo. Cmty. Coll. Comm'n v. Casper Cmty. Coll. Dist., 2001 WY 86, ¶ 11, 31 P.3d 1242, 1247 (Wyo.2001). Lawrence v. City of Rawlins, 2010 WY 7, ¶ 12, 224 P.3d 862, 867-868 (Wyo.2010). DISCUSSION Should the Rissler decision be modified to permit suit by a general contractor against a project engineer notwithstanding the economic loss rule? [¶ 14] HKM and the trial court relied heavily upon this Court's decision in 45 Rissler & McMurry v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228 (Wyo.1996). In that case, the general contractor under a contract for the construction of an improved water supply system in the Sheridan area sued, among others, the project engineer, which happened to be HKM, the Appellee in this case. Rissler claimed that HKM was negligent in the formulation of the plans and specifications for the project, thus causing it damage. It also claimed that HKM had made negligent misrepresentations which also caused it damage. [¶ 15] In Rissler, the trial court granted summary judgment in favor of HKM based upon the economic loss rule. In affirming, this Court stated: The "economic loss rule" bars recovery in tort when a plaintiff claims purely economic damages unaccompanied by physical injury to persons or property. The purpose of the "economic loss rule" is to maintain the distinction between those claims properly brought under contract theory and those which fall within tort principles. As the court noted in Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55, 58 (1988): The controlling policy consideration underlying tort law is the safety of persons and propertythe protection of persons and property from losses resulting from injury. The controlling policy consideration underlying the law of contracts is the protection of expectations bargained for. If that distinction is kept in mind, the damages claimed in a particular case may more readily be classified between claims for injuries to persons or property on one hand and economic losses on the other. The "economic loss rule" is "founded on the theory that parties to a contract may allocate their risks by agreement and do not need the special protections of tort law to recover for damages caused by a breach of the contract." South Carolina Elec. & Gas Co. v. Westinghouse Elec. Corp., 826 F. Supp. 1549, 1557 (D.S.C.1993). In this case, Rissler did not contract with HKM for the design of the Project and therefore had no opportunity to negotiate directly with HKM regarding the limits of its liability. However, Rissler had the opportunity to allocate the risks associated with the costs of the work when it contracted with the Board and, in fact, entered into a detailed contract which allowed it the means, method and opportunity to recover economic losses allegedly caused by HKM's negligence. Rissler, 929 P.2d at 1234-35 (footnote omitted). Excel argues that this Court should modify its ruling in Rissler to permit suit by a contractor against a professional project engineer like HKM on theories of negligence and negligent misrepresentation. It argues that other states have permitted suit against design and construction management professionals on this basis in spite of the economic loss rule. It points out that in Century Ready-Mix Co. v. Campbell County Sch. Dist., 816 P.2d 795, 801 (Wyo.1991), the Court recognized that "a majority of jurisdictions now recognize a tort duty of care in the absence of contractual privity" between an architect/engineer and a contractor. [¶ 16] As an example of this approach, Excel points to the Montana Supreme Court's decision in Jim's Excavating Service, Inc. v. HKM Associates, 265 Mont. 494, 878 P.2d 248 (1994). In that case, the Montana court held that a third party contractor may recover from an architect or engineer when that design professional knew or should have known that the particular plaintiff or an identifiable class of plaintiffs were at risk if they relied upon information supplied. Id. at 254-55. [¶ 17] The Montana decision in Jim's Excavating Service preceded the decision in Rissler, and it is inconsistent with that ruling. The Court continues to believe that parties to a construction contract have the opportunity to allocate the economic risks associated with the work, and that they do not need the special protections of tort law to shield them from losses arising from risks, including negligence of a design professional, which are inherent in performance of the contract. Rissler, 929 P.2d at 1235. A respectable number of states continue to follow the same rule. E.g., BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71-75 (Colo.2004) 46 (holding that economic loss doctrine barred subcontractor's negligence and negligent misrepresentation claims against engineering firm and inspector); SME Indus., Inc. v. Thompson, Ventulett, Stainback & Assoc., Inc., 28 P.3d 669, 680-83 (Utah 2001) (relying on Rissler and holding that economic loss doctrine barred subcontractor's negligence and negligent misrepresentation claims against members of the design team); Blake Constr. Co., Inc. v. Alley, 233 Va. 31, 353 S.E.2d 724, 726-27 (1987) (holding that a contractor cannot recover economic losses against a design professional in the absence of contractual privity); Berschauer/Phillips Constr. Co. v. Seattle Sch. Dist., 124 Wash.2d 816, 881 P.2d 986, 989-93 (1994) (recovery of economic loss by contractor against architect, structural engineer, and project inspector due to construction delays was limited to remedies provided by construction contract). [¶ 18] For these reasons, we will decline Excel's invitation to overrule Rissler as it applies to claims arising involving negligence or negligent misrepresentation in claims between a contractor and design professional/project manager. This decision disposes of Excel's claim of negligence. If Excel claims negligent representation as opposed to intentional misrepresentation, this ruling disposes of that claim as well. Excel's allegations with regard to HKM's conduct involve performance of contractual duties, at least as they involve theories of negligence, and are barred by the economic loss rule in Rissler. [¶ 19] In footnote 1 to the Rissler decision, this Court declined to apply the economic loss rule to all tort claims alleging solely pecuniary harm. 929 P.2d at 1234 n. 1. As noted in JBC of Wyoming Corp. v. City of Cheyenne, 843 P.2d 1190, 1197 (Wyo.1992), tort liability may still be premised on a duty independent of contractual duties. We therefore examine the remainder of Appellant's claims to determine whether summary judgment was appropriately granted as to those claims. Is Excel Entitled to Maintain Its Claim of Tortious Interference with Contract? [¶ 20] Excel argues that even courts rigorously applying the economic loss rule do not bar claims based on intentional tort theories, and therefore contends that it can pursue a claim against HKM for tortiously interfering with its contract with the Town of Lovell. The agreement between HKM and the Town of Lovell provided that HKM was to act as the town's agent in administering the construction contract, including making determinations concerning change orders, etc. The parties agree that HKM was acting as the Town of Lovell's agent in that respect, and the amended complaint filed by Excel specifically alleges that HKM "acted as Lovell's [agent] throughout the project." Nowhere in Excel's amended complaint or in the briefing of the parties does Excel suggest that HKM acted outside the scope of its duties as the Town of Lovell's agent in any of the actions complained of. [¶ 21] It has long been the rule in this state and elsewhere that a claim for intentional interference with contract cannot survive if it involves an assertion that an agent for one party to the contract interfered with it. In Kvenild v. Taylor, 594 P.2d 972 (Wyo. 1979), the plaintiffs claimed that a real estate agent interfered with their contractual rights to purchase a piece of property by recommending that her principal sell the real property to another buyer. This Court reversed a judgment for money damages in favor of the plaintiffs because the real estate agent was acting as the sellers' agent. It quoted Board of Trustees of Weston Cty. Sch. Dist. # 1 v. Holso, 584 P.2d 1009, 1017 (Wyo.1978), to this effect: These theories [intentional interference with contract and intentional interference with prospective advantage], however, do not apply to actions between parties to an existing contractthey lie only against outsiders who interfere with contractual expectancies of others. Kvenild, 594 P.2d at 977. [¶ 22] The Court reached the same result in Chasson v. Community Action of Laramie County, Inc., 768 P.2d 572, 579-580 (Wyo. 1989), holding that corporate officers could not be held liable for interference with the contract of an employee of the corporation. 47 In Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, ¶ 69, 75 P.3d 640, 662 (Wyo. 2003), the holding in Kvenild was summarized to be that a "vendor and her real estate agent could not be liable for tortious interference with a contract to which vendor was a party." [¶ 23] In this case, HKM was charged with determining compliance with the contract, approving change orders, and otherwise serving as decision-maker for the Town of Lovell by the express terms of its agreement. HKM therefore acted not only as an agent, but as an agent with the power to make decisions on behalf of the town. Its actions, if they breached the contract, may entitle Excel to recover against the town for that breach, but Excel may not recover from HKM on a theory of intentional interference with a contract for actions taken as the town's agent. The trial court properly granted summary judgment on this claim, although it did so for different reasons. Is Excel entitled to maintain its claim of misrepresentation? [¶ 24] As already noted, this Court's decision in Rissler would bar claims against HKM based upon negligent misrepresentation. Excel argues that its claim of misrepresentation is really a claim of intentional misrepresentation or fraud. It contends that even courts which apply the economic loss rule to disputes between contractors and design professionals exclude claims of fraud from the rule because fraud is a remedy for purely economic loss. HKM responds that Excel made a claim of negligent misrepresentation, not intentional misrepresentation or fraud. HKM also responds that in those jurisdictions in which fraud or other intentional torts are treated as exceptions to the economic loss rule, such claims are only allowed if they arise from an independent duty and if they involve claims for damages which are not available for a breach of contract. HKM denies that Excel's claim meets these criteria. [¶ 25] The trial court held that a claim for intentional misrepresentation was barred by Rissler because fraud shares common elements with the tort of negligent misrepresentation. A claim for intentional misrepresentation is not necessarily barred by the economic loss rule. Such a claim could be predicated on an independent duty. Rissler, 929 P.2d at 1234 n. 1; JBC, 843 P.2d at 1197. Of course, a claimant may not use a fraud claim as an artifice to sidestep contractual duties or the economic loss rule. Rissler, 929 P.2d at 1235. [¶ 26] Both parties cited cases in which the courts of other states have taken a case-by-case approach to the question of whether an intentional tort claim is based upon an independent duty, or whether it has been pled simply to avoid contractual limitations. In Giles v. General Motors Acceptance Corp., 494 F.3d 865 (9th Cir.2007), the Ninth Circuit applied Nevada law to a claim that General Motors Acceptance Corporation ("GMAC") had misrepresented the terms of a lien and tricked a car dealer into signing backdated assignments of accounts. GMAC asserted the economic loss rule as a defense. The Ninth Circuit noted that the economic loss rule is in part intended to prevent tort law from progressing so far that "contract law would drown in a sea of tort," quoting East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866, 106 S. Ct. 2295, 2300, 90 L. Ed. 2d 865 (1986). Giles, 494 F.3d at 874. [¶ 27] The Giles court also pointed out that application of the economic loss rule has historically been difficult because courts have stated that purely economic losses may not be recovered in tort in overly broad terms. Id. These statements are not completely accurate, it noted, because torts such as fraud and conversion exist to remedy purely economic loss, quoting Grynberg v. Questar Pipeline Co., 70 P.3d 1, 11, 13 (Utah 2003). Some courts apply the economic loss rule only in products liability cases and negligence actions, and not to claims for fraud and other intentional torts. Giles, 494 F.3d at 875. [¶ 28] The Giles court further pointed out that some courts, including those of Nevada, analyze fraud claims on a case-by-case basis in an effort to determine whether a particular claim really alleges nothing more than a 48 failure to perform a promise contained in a contract. Giles, 494 F.3d at 876. The Nevada Supreme Court has treated the phrase "purely economic loss" as a term of art referring to losses which could be recovered in a contract suit. Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259, 1263-64 (2000). As a result, it has held that it could not delineate the entire universe of intentional torts which would or would not be subject to the economic loss rule, and concluded that each case had to be examined to determine whether or not the economic loss rule would apply to bar intentional tort claims. Id. at 1266 n. 3. [¶ 29] The Ninth Circuit summarized the Nevada rule as follows: Based on our reading of the Nevada cases, Nevada's economic loss doctrine is generally consistent with the principles discernable in the case law of other jurisdictions. Broadly speaking, Nevada applies the economic loss doctrine to bar recovery in tort for purely monetary harm in product liability and in negligence cases unrelated to product liability. Nevada law may also bar recovery for tort claims where the plaintiff's only complaint is that the defendant failed to perform what was promised in the contract. But it does not bar recovery in tort where the defendant had a duty imposed by law rather than by contract and where the defendant's intentional breach of that duty caused purely monetary harm to the plaintiff. Giles, 494 F.3d at 879. Based on its analysis, the Giles court held that the fraud claims involved in that case were not barred because they related to behavior outside the contract and violated an obligation under Nevada law not to commit fraud. Id. at 880. [¶ 30] HKM cited Hamon Contractors, Inc. v. Carter & Burgess, Inc., ___ P.3d ___, 2009 WL 1152160 (Colo.App.2009) (currently unpublished).[1] In that case, which involved a construction contract, the intermediate appellate court held that a claim that the project engineer concealed the inadequacy of its design and thereby committed fraud was barred by the economic loss rule. The court interpreted a three-factor test set out by the Colorado Supreme Court in BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 74 (Colo. 2004) as (1) whether the duty allegedly breached is independent of the parties' contract; (2) whether there is a recognized common law duty of care; and (3) whether the tort duty differs in any way from the contractual duty. Hamon, 9. [¶ 31] Both cases are consistent with this Court's decisions in previous cases. A party may not sidestep contractual limitations by simply pleading an intentional tort. Rissler, 929 P.2d at 1235. Recovery on a tort theory requires a showing that a duty independent of contract was violated. Id. at 1235 n. 1; JBC of Wyoming Corp, 843 P.2d at 1197. Determining whether a particular intentional tort claim is simply a repackaged contract claim requires consideration of the conduct alleged, its relationship to the contractual duties of the parties, the source of the tort duty alleged to have been breached, and the nature of the damages claimed. [¶ 32] In this case, the record consisted only of the pleadings and a few pages from the contracts Excel and HKM had with the Town of Lovell. This limited record would make it impossible to determine whether or not Excel's claim arises from an independent duty if Excel has adequately pled a claim for intentional misrepresentation or fraud. To determine whether such a claim has been pled obviously requires an analysis of the pleadings in this case. [¶ 33] The elements of intentional misrepresentation or fraud are as follows: (1) the defendant made a false representation intended to induce action by the plaintiff; (2) the plaintiff reasonably believed the representation to be true; and (3) the plaintiff relied on the false representation and suffered damages. Birt, ¶ 42, 75 P.3d at 656. In order to prove intentional misrepresentation, the plaintiff must show that the misrepresentation was made intentionally, with knowledge of its falsity, 49 or that the maker of the misrepresentation was at least aware that he did not have a basis for making the statement. Id.; Restatement (Second) of Torts § 526 (1977). Fraud must be proven by clear and convincing evidence, as opposed to by a preponderance of the evidence for negligent misrepresentation claims. Birt, ¶ 42, 75 P.3d at 656. Fraud must be pled with particularity. W.R.C.P. 9(b). [¶ 34] Excel alleged as follows in its complaint: 33. HKM represented to Excel that at least some of Excel's claims for impacts from extra work would be addressed at the end of the Project without adhering to the formal contract requirements ("Representation"). 34. The Representation made by HKM was false. 35. HKM made the Representation to induce Excel into believing that Excel would not have to provide documentation for every impact at the time of the impact because the parties would address those impacts at the end of the Project. 36. Excel relied on the Representation by not submitting documentation for every impact per the contract requirements. 37. Excel reasonably believed HKM's Representation was true. 38. Excel has suffered damages in an amount to be proven at trial as a result of HKM's negligent misrepresentation. [Emphasis added]. [¶ 35] The Wyoming Rules of Civil Procedure permit "notice pleading," and pleadings are to be liberally construed to do substantial justice. However, even notice pleading requires fair notice to opposing parties of the nature of a party's claim. Krenning v. Heart Mtn. Irr. Dist., 2009 WY 11, ¶ 30, 200 P.3d 774, 783 (Wyo.2009). Liberal construction of pleadings does not excuse omission of that which is material and necessary in order to entitle one to relief. William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, ¶ 9, 206 P.3d 722, 726 (Wyo.2009). [¶ 36] The claim made by Excel can only be construed as one for negligent misrepresentation. Excel did not allege that HKM intentionally made representations which it knew to be false, even though fraud must be pled with particularity. In addition, Excel specifically described its claim as one for "negligent misrepresentation." The record does not suggest that Excel ever sought to amend its claim to add allegations of fraud. Under the circumstances, the Court can only conclude that Excel made a claim for negligent misrepresentation and not for fraud. Under Rissler, a claim for negligent misrepresentation falls within the bar of the economic loss rule, as the parties can allocate the risks related to such misrepresentations by the terms of the contract itself. The trial court therefore correctly granted the motion for summary judgment as to Excel's claim of misrepresentation. Is Excel entitled to maintain its claim of breach of a covenant of good faith and fair dealing? [¶ 37] As noted above, HKM's agreement with the Town of Lovell provided as follows in ¶ 9.10(A): Neither ENGINEER's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by ENGINEER in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by ENGINEER shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by ENGINEER to CONTRACTOR, and Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. The contract between Excel and the Town of Lovell incorporated these provisions. Excel argues that this language created an obligation on the part of HKM to act in good faith in its decision-making as the town's agent, and that it failed to do so. HKM makes a highly technical and somewhat implausible argument that the quoted language does not impose a duty to act in good faith, but only to decide in good faith whether to exercise its authority or not, after which the 50 clause is inapplicable. Neither interpretation is correct. [¶ 38] The language in question is drawn from the standard "general conditions" portion of an owner-engineer form developed by a group of professional associations. This particular provision has been referred to in the case law as an "exculpatory clause." See, e.g., Lyndon Prop. Ins. Co. v. Duke Levy & Associates, L.L.C., 475 F.3d 268, 271-72 (5th Cir.2007). It is so called because it purports to exculpate project managers for liability for torts which do not involve bad faith. At least some courts have held the clause invalid even for that purpose. Id. [¶ 39] This Court has recognized that all contracts contain an implied covenant of good faith and fair dealing. Scherer Constr., LLC v. Hedquist Constr., Inc., 2001 WY 23, ¶ 24, 18 P.3d 645, 655 (Wyo.2001). With some rare exceptions in insurance and employment law, a suit based on the implied covenant sounds in contract and not in tort. Id., ¶ 17, 18 P.3d at 652. The implied covenant imposes an obligation to act honestly in fact in the transaction, and to refrain from actions which would injure the rights of the other party to receive the benefit of its bargain. Id., ¶ 19, 18 P.3d at 653. Obligations under the implied covenant must arise from and may not conflict with the express obligations of the parties' contract. Id. [¶ 40] Excel did not contract directly with HKM, and there is therefore no implied covenant under Scherer. However, Excel argues that the language of ¶ 9.10(A) imposes the same duties upon HKM as the implied covenant would if Excel had contracted directly with HKM. [¶ 41] The Court does not construe the clause as creating an obligation on the part of the engineer to act in good faith in all decisions affecting the contractor as might arguably be the case under an implied covenant of good faith and fair dealing. The exculpatory clause would just limit the engineer's liability to claims which involve an element of bad faith. Negligence does not require proof of bad faith. On the other hand fraud or intentional misrepresentation requires proof of bad faith to the extent of knowingly making a false representation intended to induce reliance by another party. [¶ 42] In other words, the clause means that the contractor may not recover from the engineer for careless errors which were not made in bad faith, while it does not bar claims involving bad faith such as fraud, provided that Excel might pursue those claims as a matter of substantive law. The "exculpatory clause" is thus limited to claims which do not involve bad faith. The clause appears to be an effort to allocate the risks of certain types of conduct in performance of the contract, as encouraged by the economic loss rule. See Rissler, 929 P.2d at 1234-35. [¶ 43] As previously held, Excel may not maintain a claim of intentional interference with contract against the agent of a party to its contract, and it did not present a claim of intentional misrepresentation or fraud to the trial court on the pleadings in this case. Thus, although the clause did not purport to exculpate HKM for actions taken in bad faith, those claims either could not be maintained as a matter of substantive law, or were not presented by the pleadings before the trial court. CONCLUSION [¶ 44] The Court declines to modify the economic loss rule in Rissler to permit actions against a design professional based on negligence. Although a party may be able to maintain an action for the intentional tort of interference with contract under Rissler, Excel may not maintain such a claim against HKM for actions taken in its capacity as the Town of Lovell's agent under the Excel-Town of Lovell contract. While a party may be entitled to maintain a claim for intentional misrepresentation or fraud under certain circumstances notwithstanding the economic loss rule enunciated in Rissler, Excel did not present such a claim to the district court, and Excel's claim for negligent misrepresentation is barred by Rissler. The language of ¶ 9.10(A) of the HKM-Town of Lovell contract did not impose a duty similar to that of the implied covenant of good faith and fair dealing on HKM, but rather limited the exculpatory *51 language contained in that paragraph to claims not involving bad faith. The clause would not have barred tort claims involving an element of bad faith, but Excel either could not maintain its intentional tort claims as a matter of substantive law or did not raise them in the trial court. [¶ 45] The judgment of the district court is therefore affirmed. NOTES [1] The opinion has not yet been released for publication, perhaps pending a petition for rehearing or for certiorari to the Colorado Supreme Court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3096818/	COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ' ' No. 08-12-00273-CR IN RE: JOHNNIE DEMPSEY WOOD, ' AN ORIGINAL PROCEEDING Relator. ' IN MANDAMUS ' ' MEMORANDUM OPINION ON MOTION TO DISMISS Pending before the Court is a motion filed by Relator, Johnnie Dempsey Wood, to dismiss this mandamus proceeding. Relator states in his motion that the Respondent has granted the relief he sought by his mandamus petition. Accordingly, we grant the motion and dismiss the mandamus proceeding. September 26, 2012 _______________________________________________ ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rivera, and Antcliff, JJ. (Do Not Publish)	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1902392/	390 So.2d 202 (1980) Leroy HARPER v. Ray Preston WILLIS. No. 80-C-1406. Supreme Court of Louisiana. September 12, 1980. Denied. The result is correct. DIXON, C. J., and LEMMON, J., would grant the writ.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1902335/	390 So.2d 1121 (1980) Ex Parte: Benjamin McLOYD. (Re: Benjamin McLoyd v. State of Alabama). 80-70. Supreme Court of Alabama. December 19, 1980. MADDOX, Justice. WRIT DENIED-NO OPINION. TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2227444/	617 N.W.2d 400 (2000) In re Petition for REINSTATEMENT to the Practice of Law OF Michael A. PINOTTI. No. C8-97-1955. Supreme Court of Minnesota. September 12, 2000. AMENDED ORDER On August 3, 1999, this court reinstated petitioner Michael A. Pinotti to the practice of law subject to one year of supervised probation and numerous conditions, including the following: Until further order, petitioner shall not engage in litigation of any matters except routine debt collection and personal injury without associating with counsel experienced in the area of the proposed litigation and obtaining that attorney's signature on all pleadings and briefs. It appears petitioner has completed supervised probation without incident. Petitioner now moves the court for an order lifting the above-stated practice restriction. The Director takes no position on the motion. Petitioner has not submitted any evidence that he is currently fit to handle matters more complex than routine debt collection or personal injury on his own. The motion is based solely on petitioner's completion of probation. The fact that he successfully completed probation does not, by itself, establish that petitioner should be permitted to engage in more complex litigation on his own in light of the underlying misconduct in this matter. Therefore, this court concludes that the practice restriction should remain in effect. However, if petitioner supplements his motion with additional evidence that the practice restriction is no longer necessary, this court will reconsider the motion. IT IS HEREBY ORDERED that petitioner's motion to lift the practice restriction *401 contained in the August 3, 1999 reinstatement order is denied. BY THE COURT: Alan C. Page Associate Justice RUSSELL H. ANDERSON, J., took no part in the consideration or decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2007546/	77 S.W.3d 752 (2002) Brenda Lynn HOWSMON, Appellant, v. John Thomas HOWSMON, Respondent. No. 24392. Missouri Court of Appeals, Southern District, Division Two. July 2, 2002. 753 Anita K. Oakes, Elizabeth Davis, The Glades Law Firm, P.C., Joplin, for appellant. Robert R. Parrish, Joplin, for respondent. JOHN E. PARRISH, Judge. Brenda Lynn Howsmon (wife) appeals the maintenance and child support provisions of the judgment in her and John Thomas Howsmon's (husband) dissolution case and the trial court's denial of her 754 request to reopen her case and present additional evidence at a date subsequent to completion of the trial. This court affirms. Husband and wife were married June 3, 1989. They have two sons born February 10, 1992, and July 18, 1994. They separated on or about August 23, 2000. The trial court entered judgment dissolving the marriage. Husband and wife were awarded joint legal custody and joint physical custody of the children. Wife's residence was designated as the children's primary residence. A parenting plan was adopted designating the parents' respective "parenting times." Husband was ordered to pay child support to wife in the amount of $1,128 per month. Husband was ordered to "keep said minor children covered by health insurance." The judgment declares husband and wife are "equally responsible for any medical, dental or other health related expense not covered by insurance." Marital property and marital debts were divided. Wife was awarded maintenance in the amount of $600 per month for six consecutive months. The trial court declared the award of maintenance nonmodifiable. For purposes of its review, this court considers fact issues as having been found in accordance with the result the trial court reached. In re Marriage of Gilmore, 943 S.W.2d 866, 871 (Mo.App.1997). "All evidence and permissible inferences therefrom are considered in the light most favorable to the trial court's decision, and all contrary evidence and inferences are disregarded." Id. Wife's first point on appeal argues the trial court erred in limiting the duration of her maintenance award to six months and designating it nonmodifiable. She contends the evidence revealed she lacked the "necessary skills to become self-supporting within the time frame" for which she was allowed maintenance; that in view of the fact that she "did not receive substantial marital assets, did not receive nonmarital or income producing assets, has limited work experience, did not possess a marketable degree or skills," her job opportunities were speculative. She further complains that the trial court made no specific findings as to the "necessary factors" that she had "primary custody of two minor children, [and] [husband] was guilty of substantial misconduct." Section 452.335[1] permits a trial court to grant maintenance in a dissolution of marriage action when the spouse seeking maintenance "(1) [l]acks sufficient property, including marital property apportioned to him [or her], to provide for [the spouse's] reasonable needs; and (2)[i]s unable to support himself [or herself] through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home." In determining a party's request for maintenance, the trial court is to consider "all relevant factors including:" (1) The financial resources of the party seeking maintenance, including marital property apportioned to him [or her], and [the party's] ability to meet his [or her] needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) The comparative earning capacity of each spouse; 755 (4) The standard of living established during the marriage; (5) The obligations and assets, including the marital property apportioned to him [or her] and the separate property of each party; (6) The duration of the marriage; (7) The age, and the physical and emotional condition of the spouse seeking maintenance; (8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) The conduct of the parties during the marriage; and (10) Any other relevant factors. § 452.335.2. Wife complains that limiting her maintenance to a six-month period and designating it as nonmodifiable was error. She argues the trial court either failed to consider, or did not sufficiently consider, that marital property she received, together with her job skills and job-finding skills, was inadequate to permit her to meet her financial needs. Wife's claim of error in Point I appears to be that the trial court failed to consider the factors denominated (1) and (9) in § 452.335.2. She faults the trial court for having "made no specific findings as to these necessary factors." It is appropriate to first note that the factors enumerated in § 452.335.2 are neither all-inclusive nor mandatory. Burnett v. Burnett, 18 S.W.3d 27, 31 (Mo. App.2000). A trial court is not required to examine each factor. Id. Further, with respect to wife's complaint that the trial court made no specific findings regarding these factors, the record reveals no request on the part of either party for findings on these or other controverted fact issues as permitted by Rule 73.01(c). Thus, all fact issues are considered as having been found in accordance with the result the trial court reached. Rule 73.01(c); Sawtell v. Sawtell, 569 S.W.2d 286, 288 (Mo.App.1978). No appeal lies from a trial court's failure to make findings on controverted facts absent counsel having made a request for such findings specifying particular fact issues for which findings are requested. In re Marriage of Colley, 984 S.W.2d 163, 171 (Mo.App.1998). Section 452.335.3 directs that maintenance orders shall state whether they are modifiable or nonmodifiable. It continues: The court may order maintenance which includes a termination date. Unless the maintenance order which includes a termination date is nonmodifiable, the court may order the maintenance decreased, increased, terminated, extended, or otherwise modified based upon a substantial and continuing change of circumstances which occurred prior to the termination date of the original order. L.E.B. v. J.L. B., 768 S.W.2d 638 (Mo. App.1989), explains: In determining wife's ability to support herself, the court is not confined to a consideration of present earnings but can consider prior earning capacity and probable future prospects. In re Marriage of Witzel, 727 S.W.2d 214, 216 (Mo.App.1987). Awards of limited duration are proper when the trial court has before it evidence that there is some reasonable expectation that the financial condition of the parties will change prior to termination of the award. Sansone v. Sansone, 615 S.W.2d 670, 671 (Mo.App. 1981). Id. at 640. "[Maintenance] [a]wards of limited duration are entirely proper where the trial court has before it evidence of some impending change in the financial conditions of the parties or at the least some 756 reasonable expectation that such a change will occur." In re Marriage of Powers, 527 S.W.2d 949, 956 (Mo.App.1975). See also Sansone v. Sansone, 615 S.W.2d at 671. "[I]f there is any rational basis to support the trial court's determination to limit maintenance, that decision should be affirmed." Tucker v. Tucker, 778 S.W.2d 309, 311 (Mo.App.1989). See also Russell v. Russell, 740 S.W.2d 672, 674 (Mo.App. 1987). Wife was asked about prospects for her employment. She confirmed that she was healthy; that she was articulate, college educated and employable. She was asked, "You could find a job today if you wanted one, couldn't you." She answered, "Yes, I could." Wife was employed in the early years of the marriage. She discontinued working outside the home about 1992 in order to stay home with the parties' children. A conscious decision was made that it would be better for the children for her to spend more time at home with them. Her work experience includes working as a department manager at Famous-Barr and as a secretary at Dawson Furniture. She also had part-time jobs selling jewelry and doing graphic design work at home. She has a college degree, a Bachelor of Science in home economics, fashion design. Her earnings at Famous-Barr were $18,000 per year. At the time of trial, wife was training to become a certified webmaster. Upon completion of her training, she anticipated getting a job with income potential of $25,000 to $30,000 per year. She testified that she would complete her training the following September (the date of the trial was April 6, 2001); that she planned to begin working then. Husband was ordered to pay monthly maintenance "commencing April 6, 2001 and ending September 6, 2001." A finding consistent with the result the trial court reached would be that wife had a reasonable expectation that her financial condition would improve prior to the termination of the maintenance award. Wife's testimony of her past education, her past work experience, her present training and job expectations was sufficient evidence for the trial court to conclude her financial condition would change upon completion of her training in September 2001. Consideration of this evidence was consideration of wife's financial resources and her ability to meet her needs independently, the factor § 452.335.2(1) deems relevant in determining a party's request for maintenance. Further, wife's suggestion that the trial court failed to consider misconduct by husband is not evidenced by the record. Wife testified husband admitted to her that he had two extra marital affairs. She acknowledged, however, that she also "had sex during the marriage with another person." Wife testified that husband drank to excess; that he would become violent after drinking. She was asked if he ever struck her when he was violent. She said he had not. All of this was before the trial court. The trial court is presumed to have considered all the evidence in making its determinations. Halupa v. Halupa, 980 S.W.2d 325, 331 (Mo.App.1998). There was a rational basis for the trial court to limit the duration of maintenance awarded to wife. There is no support in the record that the trial court failed to consider the factors identified in § 452.335.2(1) and (9). Point I is denied. Points II and III are directed to the calculation of presumed child support as required by Rule 88.01. Wife complains the trial court erred in not imputing income to her (Point II) and in not imputing childcare expenses she could be expected to incur at such point as she becomes *757 employed (Point III). She asserts this was inconsistent with the trial court limiting the maintenance award to a period of six months. As this court understands wife's argument with respect to Points II and III, she suggests a greater amount of presumed child support would have been calculated if amounts had been imputed for expected earnings by her and likely child care expenses. Her brief states, "Even by imputing a minimum wage income to [wife] of Eight Hundred Ninety Three Dollars ($893.00) and imputing work-related childcare expenses of Four Hundred Dollars ($400.00), the lower court could have calculated a more accurate sum for the presumed amount of child support." She contends this would have resulted in presumed child support of $1,302.46 rather than the $1,128 calculated and awarded by the trial court. The amount of child support awarded by the trial court was the amount wife requested. It was the amount calculated on the Form 14 she filed with the trial court. "A party will not be heard to complain on appeal of an alleged error in which, by his [or her] own conduct at the trial, [the party] joined or acquiesced." In re Marriage of Medlock, 749 S.W.2d 437, 440 (Mo.App.1988). "On appeal, a party is bound by the position he [or she] took in the circuit court and will not be heard on a different theory." Id. If error occurred by the trial court not taking the actions wife now, via hindsight, suggests should have been taken, an issue this court does not address, the error was invited by wife. Points II and III are denied. Point IV argues the trial court erred in not vacating or reopening the judgment to permit additional evidence regarding the division of marital property and debts. Point IV is directed to the trial court ruling on wife's Motion for New Trial and Motion to Vacate, Reopen and Present Additional Evidence filed May 24, 2001. The motion asserted both parties were indebted by means of guarantees of indebtedness of husband's family business (of which he is CEO) in an approximate sum of $1,000,000. It further asserted that after trial, wife found out the business was not in default on its obligations as had been suggested by husband at trial. On that and other bases, wife's motion requested that the trial court order a new trial or, in the alternative, reopen or vacate the part of the proceeding regarding maintenance, child support, division of marital property and debts, and husband's employment status to permit further proceedings on those issues. Wife's motion was denied. Among the things a party is required to show to warrant reopening a judgment to consider newly discovered evidence is that failure of the evidence to come to his or her knowledge sooner was not the result of a lack of due diligence, and the evidence sought to be produced is so material it would probably produce a different result if there were a new trial. Anderson v. Anderson, 854 S.W.2d 32, 37 (Mo.App.1993). See also Vanderson v. Vanderson, 668 S.W.2d 167, 172 (Mo.App. 1984). Mindful that the trial court was in the best position to determine these issues, this court finds no basis for concluding the trial court abused its discretion in denying the motion. Point IV is denied. The judgment is affirmed. GARRISON, P.J., and PREWITT, J., concur. NOTES [1] References to statutes are to RSMo 2000.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2007554/	39 B.R. 758 (1984) In the Matter of INVESTMENT CORPORATION OF NORTH AMERICA, Debtor. Bankruptcy No. 83-02246-BKC-JAG. United States Bankruptcy Court, S.D. Florida. April 10, 1984. William S. Cassel, Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, Fla., for petitioning creditors. Melvin Schwartz, Baskin & Steingut, P.A., Boca Raton, Fla., for Inv. Corp. of North America. ORDER DISMISSING INVOLUNTARY CASE JOSEPH A. GASSEN, Bankruptcy Judge. Upon motion of the Court, an evidentiary hearing was held on March 12, 1984 to consider abstention or dismissal of this proceeding pursuant to 11 U.S.C. Sec. 305(a)(1), and due notice of said motion having been given by mail to the debtor and petitioning creditors, and after hearing the evidence presented by debtor and petitioning creditors, the Court is of the opinion that abstention would best serve the interests of the creditors and the debtor, the bases of the Court's decision being: The debtor has made arrangements, out of court, with many creditors as to past due obligations. (See, House Report No. 95-595, 95th Cong., 1st Sess. (1977) 325; Senate Report No. 95-989, 95th Cong., 2d Sess. (1978) 35, U.S.Code Cong. & Admin.News 1978, p. 5787.) In addition to the out-of-court arrangements between the debtor and creditors, other creditors *759 who have obtained judgments against debtor have not sought execution upon those judgments and have been content to have their judgments of record and to work out suitable arrangements for the payment of said judgments. No additional creditor has supported the involuntary petition. Furthermore the prospects of the alleged debtor's business seem to be improving. The evidence presented disclosed the benefits that will result from accreditation including substantial increase in enrollment due to the availability of federal loan funds. The evidence presented further disclosed that a Chapter 11 proceeding makes it a virtual impossibility to obtain accreditation. The alleged debtor has also made arrangements for accounts receivable financing and VA approval, both of which would be of substantial benefit to the alleged debtor and to all creditors. The Court is of the opinion that Liss is comparable to the "recalcitrant" creditor described in the legislative history of § 305(a)(1). The circumstances herein are similar to the case of, In re Win-Sum Sports, Inc., 14 B.R. 389 (U.S.Bkrtcy.Ct.D. Conn.1981). In Win-Sum, the involuntary Chapter 11 petition was filed by three petitioning creditors at the request of a Win-Sum stockholder, Benson, after negotiations for a stock transfer broke down. In the case at hand, we had three different entities as petitioning creditors, but Liss is the individual or controlling shareholder with respect to each of the petitioning creditors. Both Benson, in Win-Sum, and Liss, in the case at hand, had been active in the management of the alleged debtor's business and sought to gain control of the alleged debtor's business. For abstention purposes, pursuant to § 305(a)(1), the motivation of the petitioner becomes significant. Win-Sum, Id. at 394. There existed a personal relationship between Liss and Mrs. Kaufman, the principal of the debtor. While this relationship existed, Liss had assumed a dominant role in the operation of the business. During this period Liss advanced substantial sums and subsequently obtained promissory notes payable to the petitioning creditors (on two different occasions). There was also evidence of Liss's attempt to have controlling stock issued to his designees. Upon the cessation of this personal relationship, Liss filed actions in the State Court seeking the repayment of alleged loans to the debtor. The issues regarding debt repayment and stock issuance could be litigated in the appropriate State Court forum. However, Liss chose to allow the State Court actions to lie dormant in favor of using the Bankruptcy Court as the vehicle to resolve these issues. As was the case in Win-Sum, it is evident that Liss was using the Bankruptcy Court proceeding as an alternative to pre-existing State Court proceedings to resolve intra-company management and stockholder problems. Further evidence of this intent is the fact that the business does not appear to be in any worse financial condition than it was when Liss had primary management responsibility. The facts that the petition was filed by a few disgruntled creditors without any support from additional creditors, the apparent motivation of the petitioning creditors (obtaining control of the debtor's business), the existence of pending State Court actions, the arrangements made out-of-court by the debtor and numerous creditors, and the promising prospects for the viability of the debtor's business, lead to the conclusion that it would be in the best interest of the debtor and all of the creditors to abstain in this case. By reason of the foregoing the Court does hereby abstain and this case is dismissed pursuant to 1 U.S.C. § 305(a)(1).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2007533/	295 S.W.3d 780 (2009) Rodney Dick HELM, Jr., Appellant, v. The STATE of Texas, State. No. 2-07-430-CR. Court of Appeals of Texas, Fort Worth. August 31, 2009. 781 Jerry L. Wood, Fort Worth, TX, for Appellant. Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Chief, Appellate Division, and Debra Ann Windsor and Melinda Westmoreland, Assistant District Attorneys for Tarrant County, Fort Worth, TX, for Appellee. Panel: DAUPHINOT, GARDNER, and WALKER, JJ. OPINION ANNE GARDNER, Justice. Rodney Dick Helm, Jr. appeals from his conviction for driving while intoxicated ("DWI"). In three points, he complains that the trial court erred by overruling his objection to a jury charge instruction, that the trial court abused its discretion by overruling his motion for new trial complaining of that jury instruction, and that the improper jury instruction harmed him. The State agrees that the trial court erred by giving the improper jury instruction but argues the error was harmless. We affirm. Facts While waiting at a stop sign, Officer Ismael Espinoza of the Fort Worth Police Department observed Appellant turn in front of another truck, which had to slam on its brakes to avoid a collision and skidded. Officer Espinoza considered the turn dangerous. Appellant drove past Officer Espinoza and into the parking lot of a striptease bar. Officer Espinoza then made a u-turn and followed Appellant into the lot. His overhead lights were not on. He parked behind Appellant and saw Appellant "moving something or placing something or possibly retrieving something" on his vehicle's floorboard. Appellant exited his truck and walked toward the bar's entrance, swaying and not acknowledging Officer Espinoza's presence. Officer Espinoza exited his car, approached Appellant, and detected an odor of alcohol about his person. He placed Appellant in the back of his squad car, in the confined space of which the smell of alcohol on Appellant's breath was much stronger. Appellant admitted that he had been drinking; he said he had consumed "maybe two" drinks. Officer Espinoza found a 750-milliliter bottle of whiskey on the floor of Appellant's truck, and the bottle was 80% empty. Appellant's speech was "a little bit slurred." 782 Officer Espinoza was not trained to administer field sobriety tests, so he called for backup. Sergeant Weldon Norman responded to the call. Appellant told him "right off the bat that he wasn't going to take any field sobriety tests" before Sergeant Norman had even spoken to him. Sergeant Norman then administered the HGN test, and Appellant exhibited four out of six clues of intoxication. Appellant's eyes were "a little bloodshot." Officer Espinoza arrested Appellant for driving while intoxicated. He transported Appellant to the jail and gave him the DIC 24 warning. Appellant refused to provide a breath specimen. Appellant points out that there were no police video cameras in either patrol vehicle; therefore, the only evidence of the events leading up to and including the arrest is the officers' testimony. Also, a video recording of Appellant and his actions at the city jail was admitted and published to the jury. The trial court instructed the jury, over Appellant's objection, that "[y]ou are instructed that you may consider the defendant's breath test refusal as evidence in this case." The jury convicted Appellant, and the trial court sentenced him to ninety days' confinement in the Tarrant County Jail and a fine of $550, with the confinement portion of the sentence probated for twenty-four months. The trial court's instruction was error In Hess v. State, this court held that it was error for a trial court to give an instruction identical to the one in this case. 224 S.W.3d 511, 515 (Tex.App.-Fort Worth 2007, pet. ref'd). In Bartlett v. State, the Texas Court of Criminal Appeals, citing our Hess opinion, recently explained, A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the "independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties." Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention. In the instant case, the question is whether the trial court's seemingly neutral explanation of the law with respect to the admissibility of the refusal to take a breath test constituted such an impermissible comment. 270 S.W.3d 147, 151-52 (Tex.Crim.App. 2008) (citations omitted). The Bartlett court explained that there are three situations when a trial court may properly comment on a specific item of evidence: First, the trial court may specifically instruct the jury when the law directs it to attach a certain degree of weight, or only a particular or limited significance, to a specific category or item of evidence, [such as accomplice testimony under article 38.14 of the code of criminal procedure or evidence admitted for a limited purpose under rule 105 of the Texas Rules of Evidence]. Second, the Legislature has expressly required the trial court to call particular attention to specific evidence in the jury charge when the law specifically identifies it as a predicate fact from which a jury may presume the existence of an ultimate or elemental fact.... Under section 22.05(c) [of the Penal Code, the deadly-conduct statute], recklessness and danger, two separate elements of the offense of deadly conduct, may each be presumed if a person knowingly points a firearm at or in the direction of another. Third, the trial court may instruct the 783 jury with respect to evidence that is admissible contingent upon certain predicate facts that it is up to the jury to decide. For example, when the law specifically assigns to jurors the task of deciding whether certain evidence may be considered, as it does under Article 38.23 of the Code of Criminal Procedure, it is essential that jurors be told exactly what evidence is in question [before] they can[] pass upon its admissibility. Id. at 151 (citations and quotation marks omitted). These are the only three circumstances under which the law authorizes singling out particular evidence in the jury instruction. Instructing the jury about the refusal to take a breath test does not fall within any of these three exceptions. As the State candidly concedes, the trial court clearly erred in instructing the jury that it could consider Appellant's refusal to take a breath test. We sustain Appellant's first issue. The error was harmless Having determined that there was error in the charge, we now must decide if sufficient harm was caused by the error to require a reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether the Appellant objected. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim.App.2006) (interpreting Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh'g)). When the Appellant has made a timely objection at trial, as Appellant has in this case, an appellate court will search only for "some harm." Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). In other words, a properly preserved error will require reversal as long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this determination, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id.; see also Hutch, 922 S.W.2d at 171; Hess, 224 S.W.3d at 516-17. After reviewing the entire jury charge, the state of the evidence, and the arguments of counsel, we hold that the instruction in this case, albeit improper, was not harmful to Appellant. Absent the instruction in question, the charge is wholly unexceptional. It contains no other erroneous or questionable sections, and the application paragraph properly instructs the jury to find Appellant guilty if "you find from the evidence beyond a reasonable doubt that in Tarrant County, Texas, on or about the 18th day of September, 2006, the defendant, Rodney Dick Helm, Jr., did then and there operate a motor vehicle in a public place while ... intoxicated." See Tex. Penal Code Ann. § 49.04 (Vernon 2003). The charge then states "[u]nless you do so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, not guilty." The charge also properly defined intoxication to mean "not having the normal use of one's mental or physical faculties by reason of the introduction of alcohol into the body." See Tex. Penal Code Ann. § 49.01(2)(A). Assuming, as we must, that the jury followed the instructions of the trial court, Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998), we cannot say that the erroneous instruction reduced the State's burden of proof in any way. The weight of the probative evidence militates against harm, too. See Almanza, 686 S.W.2d at 171. Appellant turned in 784 front of an oncoming vehicle, almost causing a wreck that was averted only because the other vehicle slammed on its brakes. His breath smelled of alcohol, his eyes were bloodshot, his speech was slurred, and he swayed when he walked. Officer Espinoza saw him place something on the floor of his vehicle, which the jury could have reasonably concluded was the mostly-empty whiskey bottle. Appellant exhibited four clues of intoxication on the HGN test, and he refused to take other field sobriety tests or submit a breath sample. Evidence favorable to Appellant's defense is the video made at the jail, in which he does not exhibit obvious signs of intoxication, though he does sway back and forth. While this is not a "slam-dunk, falling-down drunk" type of case, we cannot say, given the weight of the evidence as a whole, that the court's instruction harmed Appellant. See Hess, 224 S.W.3d at 516. Additionally, once the trial court admitted testimony regarding Appellant's refusal to take the breath test, both parties were free to argue that fact to the jury. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001); Hess, 224 S.W.3d at 516. Accordingly, the State argued, "Don't you think if he wasn't intoxicated, he would have [submitted to additional testing]?" Appellant's counsel pointed out that a suspect does not have to submit to a breath test, but conceded that the jury could consider the fact that he refused to submit. Therefore, the jury did not need any judicial instruction to focus its attention on the refused test. See Brown v. State, 122 S.W.3d 794, 803 (Tex.Crim.App.2003); Hess, 224 S.W.3d at 517. Although the State referred to Appellant's refusal three times during its closing, the record demonstrates that the prosecution did not emphasize the court's instruction, focus the jury's attention on that instruction, or exploit the instruction by placing the weight of the trial court behind it. See Hess, 224 S.W.3d at 511. Accordingly, we hold that the instruction was harmless under the facts of this case, and we overrule Appellant's third issue. We also overrule his second issue, in which he argues that the trial court erred by failing to grant him a new trial based on the trial court's erroneous charge instruction. Conclusion Having concluded that the trial court erred by specifically instructing the jury that it could consider Appellant's refusal to a breath test but further concluding that the error was harmless under the evidence and circumstances of this case, we affirm the trial court's judgment. DAUPHINOT, J., filed a dissenting opinion. LEE ANN DAUPHINOT, Justice, dissenting. Because I believe that Appellant suffered some harm from the erroneous jury instruction, I dissent. The majority accurately sets out the underlying facts of the case and conscientiously analyzes the applicable law as applied to those facts. I must disagree, however, with the majority's interpretation of those facts. Under the Almanza analysis, "[i]f the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is `calculated to injure the rights of defendant,' which means no more than that there must be some harm to the accused from the error."[1]785 Because Appellant timely objected to the charge error, in determining whether some harm exists, this court must review the entire jury charge, the evidence, the jury argument, and "any other relevant information revealed by the record of the trial as a whole."[2] Although it is true that Officer Espinoza said that Appellant made an unlawful turn, he also testified that when Appellant turned left, the other truck was a little "less than a block" away. If the approaching truck had to skid and cause its brakes to screech, it could only be because it was approaching at an excessive speed. Under ordinary circumstances, there is ample time to turn in front of a vehicle that is a little "less than a block" away. Additionally, Officer Espinoza did not decide to pull Appellant over until he saw Appellant pull into the parking lot of a strip club. Even then, Officer Espinoza did not turn on his overhead lights, and, in fact, he did not do the things an officer normally does when giving a ticket, nor did he give Appellant a ticket. The officer instead placed Appellant in the cage in the back of his police unit. Although Officer Espinoza claimed that he saw Appellant sway as he walked, there was no sway evident in the video taken at the police station roughly an hour after the arrest. Although the officer said that he smelled alcohol about Appellant's person, it was not until he had placed Appellant in the unit that he was able to determine that the odor of alcohol was "a lot stronger." Without advising Appellant of any of the required warnings, the officer began to question him. Leaving Appellant in the back seat of the unit, from which Appellant could not exit, the officer searched Appellant's truck, which was lawfully parked in the parking lot. It was only then that the officer decided that Appellant's speech was "a little bit slurred." There was no indication that the officer was concerned for his safety. Rather, he was searching for evidence. As the Gant court pointed out, a person secured in the back seat of a police unit cannot reach any weapon in his own vehicle. An officer, therefore, is not justified in searching an empty vehicle on the basis of the officer's safety.[3] At no time was Appellant allowed to return to his truck. Appellant was seized and put into the cage of the police unit, with doors that would not open from the inside, before the officer detected a strong odor of alcohol, before he learned that Appellant had had two drinks, and before he unlawfully searched Appellant's truck and found alcohol. There was no field sobriety test. Neither officer had a functioning video camera in his unit. The only evidence of Appellant's conduct at the scene of the arrest was the testimony of the police officers. Other than Officer Espinoza's testimony that Appellant turned improperly, there was no evidence of impaired driving. After Officer Norman arrived, he performed an HGN test that showed some nystagmus, which Norman characterized as "clues of intoxication." Appellant's eyes were also "a little bloodshot." Appellant did not perform any other field sobriety tests. Although there is no visual record of Appellant's demeanor at the scene of the arrest, there is a DVD of his demeanor in 786 the police station. The DVD reveals that Appellant's speech was not slurred, he did not sway when he walked, he was steady on his feet, he was able to follow the written and oral warnings, and he repeatedly and clearly stated that he would not submit to any testing until his attorney arrived. He repeatedly requested that his attorney be present. Once a suspect has invoked his Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided or the suspect himself reinitiates a dialogue.[4] Yet the officers did not stop their attempts to question Appellant and continued to ask him to perform field sobriety tests and to submit a breath sample. I know of no rule of law that excepts DWI offenses from the mandate of the Fifth Amendment to the Constitution of the United States and Edwards v. Arizona.[5] The jury, then, was presented with the fruit of an unlawful search, the fruit of unlawful questioning, no objective evidence in the form of on-scene videos, an HGN test, a video taken at the police station that indicated that Appellant had the normal use of his mental and physical faculties, and a jury instruction that singled out the breath-test refusal as evidence that the jury could consider. In final argument, the prosecutors emphasized Appellant's refusal of the tests at the time of arrest. At one point, the prosecutor said, And he, again, refuses everything. And if you also notice on the tape, in the middle of nowhere, he says, "Okay, I'm good." And then he's offered a breath test, and he says No. He refuses everything. And again, He refused everything. Don't you think if he wasn't intoxicated, he would have done something? No, he did absolutely nothing and the defense counsel wants to fault us for that and tell us that we don't have enough evidence because the defendant refused everything. And yet again, "He refuses everything. And what does he say? My attorney told me not to do anything unless he was here." In determining that the charge error was harmless, the majority relies, in part, on improperly admitted evidence. Admittedly, defense counsel lodged not a single objection during trial, except for the objection to the jury instruction. While it is proper to rely on improperly admitted evidence in conducting a sufficiency review,[6] it is not proper to rely on improperly admitted evidence in determining that the evidence of guilt was of such magnitude that the degree of harm caused by the improper jury instruction was outweighed by the quantum of the evidence of guilt. If that were the standard, cumulative error could outweigh the harm caused by charge error, rendering the charge error harmless in comparison to the other error in the case. Whether the charge error is harmless relative to the other error in the case is not the standard for reversal based on jury charge error.[7] The trial court's instruction singling out the evidence of Appellant's refusal to submit to a breath test was an improper comment on the weight of that evidence. The prosecutor's argument magnified the injury *787 that Appellant suffered as a result of the trial court's error. Additionally, both the jury instruction and the State's argument implicate Appellant's invocation of his right to counsel. Appellant's refusal was conditioned on his attorney's absence and his reliance on his attorney's instructions. He voiced this explanation repeatedly on the video. The evidence was at best equivocal on the legality of the stop, the legality of the seizure, and Appellant's guilt of the offense. Appellant therefore suffered some harm from the improper jury charge. This court should therefore sustain Appellant's second issue, reverse the trial court's judgment, and remand the case to the trial court. Because the majority does not, I must respectfully dissent. NOTES [1] Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.App.1984) (op. on reh'g). [2] Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000). [3] Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009). [4] Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981). [5] See id.; see also U.S. Const. amend. V. [6] Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim.App.2004). [7] See Almanza, 686 S.W.2d at 171; see also Ovalle, 13 S.W.3d at 786.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601582/	228 P.3d 538 (2009) 2010 OK CIV APP 6 Billy Joseph BEAL and Ella Kay Beal, Plaintiffs/Appellants, v. WESTERN FARMERS ELECTRIC COOPERATIVE, a Rural Electric Cooperative, Defendant/Appellee. No. 106,963. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1. Court of Civil Appeals of Oklahoma, Division No. 1. October 15, 2009. Rehearing Denied November 12, 2009. 539 Thomas Hadley, Hugo, OK, for Plaintiffs/Appellants Billy Joseph Beal and Ella Kay Beal. Stratton Taylor, Toney D. Foster, Mark H. Ramsey, Clint Russell, Taylor, Burrage, Foster, Mallett, Downs & Ramsey, P.C., Claremore, OK, for Defendant/Appellee. KENNETH L. BUETTNER, Judge. ¶ 1 Plaintiffs/Appellants Billy Joseph Beal and Ella Kay Beal ("Landowners") contend that the trial court erred in granting Defendant/Appellee Western Farmers Electric Cooperative's (WFEC) Motion to Dismiss on the grounds of failure to state a claim upon which relief can be granted and another action pending between the parties for the same claims, viz., condemnation. Specifically, Landowners argue that their tort causes of action should not have been dismissed. We disagree and affirm. ¶ 2 Landowners filed their First Amended Petition September 2, 2004 alleging several causes of action, but the ones remaining on appeal are trespass, unjust enrichment, nuisance, and violation of 42 U.S.C. § 1983.[1] The petition alleges that Landowners are residents of Bryan County, Oklahoma and that WFEC filed a petition[2] in August 2002 to obtain a perpetual right of way easement for an electric transmission line which would cross Landowners' property. Landowners assert that since completing the construction, WFEC has been transmitting electricity 540 across the system and the transmissions have caused an emission of an Electro Magnetic Field (EMF) and stray electricity outside of and beyond the easement subject to the condemnation proceeding. Landowners aver that by their nature and/or intensity the transmissions are known by scientific and/or medical evidence to be dangerous and/or harmful to human and animal life. ¶ 3 Further, Landowners claim WFEC exceeded any authorized easement rights and uses because the EMF radiation and stray electricity crosses over and onto Landowners' nearby real and personal property which is not part of the easement which WFEC is attempting to condemn. Landowners state the stray electricity causes them damage or alternatively denies them the right to the use and enjoyment of their property, property which is not subject to the condemnation action. In that vein, Landowners allege that WFEC's use of their property not subject to the easement constitutes an unjust enrichment. ¶ 4 WFEC filed a Motion to Dismiss August 9, 2004 based fundamentally on the holding in Young v. Seaway Pipeline, Inc., 1977 OK 249, 576 P.2d 1148, which states that ". . . the petition alleges that a condemnation proceeding is pending, thus limiting appellant to the assertion of his alleged damage resulting from trespass in the condemnation proceedings." Id. at ¶ 10, p. 1151. WFEC argues that Landowners can recover remainder damages in the condemnation proceeding. Remainder damages are damages to property not taken.[3] In Western Farmers Electric Cooperative v. Enis, 1999 OK CIV APP 111, 993 P.2d 787, the Court of Civil Appeals held that the perceived fear of an EMF could be considered in the compensation trial as a diminution in property value upon proper evidence. In that case, the condemning authority filed a motion in limine in an attempt to keep out evidence with respect to newspaper articles and similar materials that the landowner wanted to use. The articles related to power lines and links to cancer. The Court of Civil Appeals stated, at ¶ 19, p. 793, "The offer of proof made it clear that the purpose of Ms. Long's testimony and sponsorship of these items was not to show EMFs cause cancer but `simply to demonstrate that a portion of the general public. . . potential purchasers . . . might take that [i.e., the publicly disseminated information about EMFs] into account in determining whether or not they would buy [and to show] the perception created by these articles would impact the marketability of her property.'" "An expert appraiser's opinion about the impact on value of perceived fear of EMF's based on publicly disseminated information is a relevant factor in determining fair market value." Id. at ¶ 12, p. 792. ¶ 5 Landowners responded that the law found in Curtis v. WFEC Railroad Company, 2000 OK 26, 1 P.3d 996, controlled the facts alleged in the present case. In Curtis, the Oklahoma Supreme Court held that a landowner may be entitled to damages resulting from the tortious behavior of a condemnor and further, may seek those damages in a lawsuit separately filed from the condemnation action, which is a special proceeding. ¶ 6 With respect to reviewing a Motion to Dismiss, the Oklahoma Supreme Court stated, in Fanning v. Brown, 2004 OK 7, ¶ 4, 85 P.3d 841, 844: The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiff's petition is legally sufficient. [Citation omitted.] When reviewing a motion to dismiss, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them. [Citation omitted.] "A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle 541 him to relief." Frazier v. Bryan Mem. Hosp., 1989 OK 73, ¶ 13, 775 P.2d 281, 287. (emphasis in original). Furthermore, the burden to show the legal insufficiency of the petition is on the party moving for dismissal and a motion made under 12 O.S.2001, § 2012(B)(6) must separately state each omission or defect in the petition; if it does not, the motion shall be denied without a hearing. [Citation omitted.] Motions to dismiss are usually viewed with disfavor under this liberal standard. The burden of demonstrating a petition's insufficiency is not a light one. ¶ 7 Landowners alleged damage to their property in that the EMF is a trespass. An EMF is intangible and consequently rarely supports a cause of action for the tort of trespass. Vertex Holdings, LLC v. Cranke, 2009 OK CIV APP 10, ¶ 15, 217 P.3d 120 ("A trespass is the actual physical invasion of the property of another without permission.") In San Diego Gas and Electric Company v. The Superior Court of Orange County, 13 Cal. 4th 893, 55 Cal. Rptr. 2d 724, 920 P.2d 669 (1996), an EMF case, the California Court, relying on its trespass analysis for noise, extended the "no physical invasion" element to intangibles. Consequently, intangible invasions or intrusions, such as noise, odor, or light, without damage, may be dealt with as nuisance cases, but usually not trespass. At 75 Am.Jur.2d Trespass § 27 (2009), it is stated in the observation: Generally, intangible intrusions, such as by noise, odor, or light alone, are treated as nuisance, not trespass. The basis for this distinction, in the case of intrusive odors, is that they interfere with nearby property owners' use and enjoyment of their land, not with their exclusive possession of it. To recover in trespass for an intangible invasion to property, a plaintiff must show: (1) an invasion affecting an interest in exclusive possession; (2) the act resulting in the invasion was intentional; (3) reasonable foreseeability that the act could result in an invasion of the plaintiff's possessory interest; and (4) substantial damage to the property. Thus, intangible intrusions on land, such as electric and magnetic fields emitted from power lines, are not actionable as trespasses, unless they cause physical damage to the real property. As a result, we hold that dismissal of the trespass claim was valid on both grounds relied upon by the trial court. First, the emission of an EMF or stray electricity from an electrical transmission line is insufficient to support a claim of trespass. Secondly, even if such emissions constituted a trespass, it would constitute damage to the remaining property under 66 O.S.2001 § 53(D). Young, supra requires that such a claim be asserted in the pending condemnation action.[4] ¶ 8 Landowners also fail to state a claim for unjust enrichment. The eminent domain laws grant WFEC the authority to take Landowners' property, but require just compensation for the property taken and any damages to the property not taken. There can be no unjust enrichment under our statutory scheme under the facts alleged. ¶ 9 With respect to Landowners' § 1983 claim, Landowners allege that the claim is not based on damages from the property taken by WFEC under eminent domain. Specifically, Landowners argue their claim does not involve an easement or easement rights. As a result, Landowners rely on no state action, which is a requirement for a § 1983 action. 42 U.S.C. § 1983. This claim was properly dismissed.[5] ¶ 10 Finally, we address Landowners' nuisance claim. Paragraph 19 of their Amended Petition alleges that the emission of an EMF and/or stray electricity on non-easement property constitutes a nuisance. 542 A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either: First. Annoys, injures or endangers the comfort, repose, health, or safety of others; or ... Fourth. In any way renders other persons insecure in life, or in use of property, provided, this section shall not apply to preexisting agricultural activities. 50 O.S.2001 § 1. ¶ 11 There have been two previous appeals in this case, both of which addressed the nuisance claim. In No. 104,643, the Court of Civil Appeals held the following: Additionally, the Court of Civil Appeals [in appeal No. 98,917] rejected landowners' argument that the construction of the power transmission lines constitutes a public nuisance, citing In re Petition of Grand River Dam Authority, 1971 OK 48, 484 P.2d 505, and 18 O.S.2001 §§ 437.2(d), (h), (k) and noting "nothing done under express authority of a statute can be deemed a nuisance." Because the Court of Civil Appeals previously addressed and decided these issues in its Opinion on the prior appeal of the injunction in No. 98,917, the decision therein is now the law of the case. Western Farmers Electric Cooperative v. Beal, et al. (May 17, 2007).[6] ¶ 12 Title 50 O.S.2001 § 4 provides: "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." In accordance with the law of the case, the dismissal of Landowners' nuisance action was properly dismissed. ¶ 13 AFFIRMED. BELL, P.J., and JOPLIN, J., (sitting by designation), concur. NOTES [1] The hearing on WFEC's Motion to Dismiss was conducted October 5, 2004, and a minute order was filed May 18, 2005. However, no journal entry was prepared and filed until April 30, 2009. In Landowners' Motion to Reconsider and Request for Findings of Fact and Conclusions of Law, filed January 16, 2009, Landowners state "For purposes of this Motion, Plaintiff would urge only trespass, [negative] unjust enrichment and nuisance. The other claims therein made would be agreed to be dismissed." However, the Petition In Error includes the § 1983 claim and specifically excludes the original assault claim. [2] Condemnation petition filed in Bryan County by WFEC against Landowners in No. CV-2002-409. WFEC advises that damages in the condemnation case are still pending trial. [3] OKLA. CONST. art. 2, § 24. Private property Public useCharacter of use a judicial question Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. . . . [4] Landowners argue that WFEC should have taken a larger easement which would have alleviated their concern. This demonstrates that any diminution of value of the remaining land can be determined in the condemnation proceeding. [5] While WFEC admitted state action was involved in this claim insofar as eminent domain statutes are considered, this is not the basis of Landowners' claim. Also, see Baldwin v. Appalachian Power Co., 556 F.2d 241 (4th Cir. 1977)(§ 1983 claim dismissed where power company, by being granted power of eminent domain acted under color of state law, the plaintiff, who complained of power lines on his property, failed to demonstrate a violation of a federally protected right.) [6] Appeal No. 98,917 is styled Western Farmers Electric Cooperative v. George Cotter, Billy Joseph Beal and Matilda Beal, filed October 14, 2003.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895156/	NO. 07-05-0426-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D SEPTEMBER 6, 2007 ______________________________ PANHANDLE PACKING AND GASKET, INC., Individually and d/b/a ARROW BEARINGS & INDUSTRIAL SUPPLY, and NAMMCO FABRICATION, and LUBBOCK GASKET & SUPPLY, and LONE STAR GASKET & SUPPLY, INC., Appellants v. FIRST UNITED BANK, Individually and as Successor to SHADOW HILLS NATIONAL BANK, Appellee _________________________________ FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-513,275; HON. J. BLAIR CHERRY, PRESIDING _____________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Panhandle Packing and Gasket, Inc., individually and d/b/a Arrow Bearings & Industrial Supply, Nammco Fabrication, Lubbock Gasket & Supply, and Lone Star Gasket & Supply, Inc. (hereinafter collectively referred to as Lubbock Gasket) appeal from a summary judgment granted in favor of First United Bank, individually and as successor to Shadow Hills National Bank (hereinafter referred to as First United). Lubbock Gasket also appeals from the trial court's decision to deny its motion for summary judgment upon its breach of contract claim against First United. We affirm the trial court's order. Prologue This appeal is the second chapter in the embezzlement case involving an employee of Lubbock Gasket, namely Betty Ann Ebbs Kimbrell. See First United Bank v. Panhandle & Gasket, Inc., 190 S.W.3d 10 (Tex. App.-Amarillo 2005, no pet.). During her tenure with Lubbock Gasket, Kimbrell would endorse and cash checks which were made payable to Lubbock Gasket. The checks in question were payroll reimbursement checks written to Lubbock Gasket by subsidiaries of the company. The record discloses that Lubbock Gasket would satisfy the IRS payroll tax obligations of its subsidiaries and then seek reimbursement from them for the amounts paid. And, though the subsidiaries had their own bank accounts, the treasurer and chief financial officer of Lubbock Gasket or another signatory of that company would be the one to execute the reimbursement checks on behalf of the subsidiaries. Evidence further depicted that the same chief financial officer not only had authority to draft on each account but also received and reviewed the monthly bank statements and cancelled checks of both Lubbock Gasket and its subsidiaries. After perusing them, he would forward the documents to Kimbrell. Though he personally made no effort to compare and reconcile the bank statements and checks of the various companies, he nonetheless conceded that if he had, he would have discovered Kimbrell's misdeeds. Forwarding the entities' bank statements to an accountant also would have disclosed the malfeasance, according to Lubbock Gasket's treasurer. Eventually, Lubbock Gasket discovered Kimbrell's scheme, and fired her. Thereafter, she and First United were sued by the company to recover the monies taken. Considering Entire Case and Failure to Grant Lubbock Gasket's Motion for Summary Judgment We initially address the first and third points of error given their interdependence. Through the former, Lubbock Gasket contends that the trial court erred in considering both the elements of liability and damages on remand viz its claim of breached contract. This is purportedly so because we had resolved the matter of liability (or breach) in the first appeal and remanded solely to have the trial court consider damages. Concerning the latter element, Lubbock Gasket asserts through its third issue that it showed itself entitled to judgment since it established how much damages it suffered via its motion for summary judgment. Yet, we note that its motion did not address the topic of breach. This may be so since it believed that we had settled the issue of breach during the first appeal, and having allegedly resolved that element, it apparently believed that it need not have addressed the matter again. We overrule both issues. As a result of the prior appeal, we reversed and rendered that portion of the trial court's judgment imposing liability on First United for its alleged conversion of property and negligence. First United Bank v. Panhandle Packing & Gasket, Inc., 190 S.W.3d at 19-20. However, that portion of the judgment "regarding Panhandle Packing's contract claim on its deposit agreement [was] reversed and the cause [was] remanded for further proceedings." Id. at 20. As can be seen, in remanding the proceeding we provided the trial court with no specific instructions. When that occurs, the issue or cause of action remanded stands as if it had never been tried. In re Estate of Chavana, 993 S.W.2d 311, 315 (Tex. App.-San Antonio 1999, no pet.) (stating that when the appeal is reversed and remanded without instructions, then the matter stands as if it has never been tried); Hallmark v. Hand, 885 S.W.2d 471, 475-76 (Tex. App.-El Paso 1994, writ denied) (stating the same). So, because the claim of breached contract had to be treated as if it had not been tried, not only was the trial court obligated to address both the elements of liability and damages but also Lubbock Gasket was required to address both in its summary judgment motion before the trial court could even consider whether to grant a summary judgment against First United. See Tex. R. Civ. P. 166a(c) (stating that the movant must establish its entitlement to judgment on the issues "expressly set out in the motion"); Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 643 (Tex. App.-Amarillo 2002, pet. denied) (stating that the grounds on which the movant relies for summary judgment must be stated in the motion). Summary Judgment for First United Next, we turn to the second and final issue pending for review. It concerns whether the trial court erred in granting First United's motion for summary judgment. We conclude that it did not and overrule the issue. First United sought summary judgment on several grounds, one of which implicated §4.406(f) of the Texas Business and Commerce Code and the doctrine of waiver. (1) Section 4.406(f) states that: Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer . . . discover and report the customer's unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration. Tex. Bus. & Com. Code Ann. §4.406(f) (Vernon 2002). Statute permits the parties to modify this provision and other portions of Chapter 4 of the Business and Commerce Code, in certain respects, and the parties apparently did so here and included the changes in their depository agreement. See id. §4.103 (stating that "the effect of the provisions of [chapter 4 of the Code] may be varied by agreement, but the parties . . . cannot disclaim a bank's responsibility for its lack of good faith or failure to exercise ordinary care . . . ."). Though debate exists between the parties regarding which of two depository agreements admitted into evidence controlled the outcome here, both nevertheless contain language imposing upon the account owner (or Lubbock Gasket) a duty to report to First United certain discrepancies or problems concerning its account. For instance, that which First United deems controlling stated that Lubbock Gasket was to "carefully examine [its] statement and report any errors, unauthorized withdrawals or transfers, forgeries, or alterations . . . within 60 days of when the statement [was] first made available [and if] no report is made . . . within such time, [it] waive[d] [its] right to contest any withdrawals or transfers so disclosed . . . ." In turn, the contract that Lubbock Gasket considers binding stated that the customer was to "carefully examine [the] statement and report any errors, forgeries, or alterations to [the bank] as soon as possible, but, in no event, later than 60 days after the statement is made available. . . ; if no report is made . . . within such time, [it] waive[d] [its] right to contest the payment of any items so disclosed . . . ." As can be seen by comparing the two provisions, both encompass the reporting of "errors." So too do both effectively result in the loss of any claim by the customer arising from the "errors" should those "errors" go unreported within the prescribed time. And, in comparing these provisions to the allegations and pivotal facts at issue, we cannot but hold that the circumstances before us fall within the penumbra of those agreements. Lubbock Gasket complains of its bookkeeper omitting a restrictive endorsement, i.e., "for deposit only," from the back of various checks, then presenting to First United those checks for payment, and converting the cash proceeds received from First United. Assuming arguendo that the bookkeeper was not authorized to so endorse the checks, the undisputed evidence illustrates that Lubbock Gasket knew that she omitted the restrictive phrase from the endorsement on various of the checks in question. Indeed, Lubbock Gasket's treasurer and chief financial officer discovered the omission while perusing company bank statements. He then spoke with Kimbrell, was told by her that it involved "only four or five checks a . . . month," said nothing to First United about the purportedly defective endorsement, and decided not to worry "about it." This same officer also testified that the missing deposits and machinations of Kimbrell could have been discovered had the bank statements and checks of the several accounts over which he exercised control been reconciled and compared. Next, and also assuming arguendo that First United was obligated to know of the deficient endorsements (even though Lubbock Gasket's chief financial officer opted not to worry about them or inform First United), one cannot reasonably dispute that cashing the checks instead of complying with an unmentioned restrictive endorsement constituted an "error" on the part of First United. Moreover, and as previously mentioned, these missing deposits were susceptible to discovery through reconciliation of the bank statements. Given this, Lubbock Gasket was obliged to report the "errors" within the time prescribed in the deposit agreements, and it does not dispute on appeal whether it did so. (2) See Willis v. Willoughby, 202 S.W.3d 450, 452 (Tex. App.-Amarillo 2000, pet. denied) (stating that the appellant had the burden to negate on appeal each potential ground for summary judgment). In sum, Lubbock Gasket did not negate the validity of each ground upon which summary judgment could have been founded. Since it did not, we affirm the decree. We further restrict our holding to the specific facts involved in this case. No opinion is voiced upon situations wherein the bank customer lacked access to and control over all the bank statements and checks which would have disclosed the error. Brian Quinn Chief Justice 1. Because several grounds were mentioned in First United's motion for summary judgment and the trial court did not specify upon which ground it relied in granting the motion, it is encumbent upon Lubbock Gasket to establish on appeal that none supported the decision. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). 2. To the extent that Lubbock Gasket cites §4.406(e) of the Business and Commerce Code as basis for arguing that First United was barred from claiming waiver because it acted in bad faith, we note that §4.406(e) alludes to preclusion asserted under §4.406(d). First United, however, invoked preclusion under §4.406(f), as modified by the deposit agreement. So, §4.406(e) does not apply. analyzed under the standards applicable to claims of ineffective assistance of counsel. In support, it relies on the decisions of the Eleventh Circuit in United States v. Teague, 953 F.2d 1525 (11th Cir. 1992), and the Fifth Circuit in United States v. Mullins, 315 F.3d 449 (5th Cir. 2002), Sayre v. Anderson, 238 F.3d 631 (5th Cir. 2001) (orig. proceeding), and United States v. Brown, 217 F.3d 247, 258-59 (5th Cir. 2000) each holding the standards set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), provide the proper analysis. The State also cites Ex parte Okere, 56 S.W.3d 846, 856 (Tex.App.--Fort Worth 2001, pet ref'd), Perez v. State, 960 S.W.2d 84, 88 (Tex.App.--Austin 1997, no pet.), and Perez v. State, No. 07-01-164-CR (Tex.App.-Amarillo 2001, no pet.), as examples of cases applying the Strickland analysis to defendants' claims they were denied their right to testify. Recent decisions of the Fifth Circuit have recognized a distinction between deprivations of a defendant's right to testify caused by defense counsel and those resulting from conduct of the prosecutor or trial court. For example, in Brown, the appellant claimed he was deprived of his right to testify by the trial court and his counsel. 217 F.3d at 258-59. The court considered those claims separately and applied the Strickland analysis only to the second claim. Id. The court applied that distinction in Sayre, 238 F.3d at 634, and again in Mullins, supra, where it made a point to note the Strickland standard applied because the appellant's alleged deprivation of his right to testify resulted from action of his trial counsel. Id. at 452. It held that an alleged violation of that right by the court or prosecution is subject to a different analysis. Id. at 452, n.5. See also Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991) (discussing harmless error review of denial of right to testify by the State). Although, as noted, each of appellant's issues is couched in terms of a challenge to the trial court's denial of his motion for new trial, appellant does not argue that the trial court violated appellant's right to testify. His argument is that his trial defense counsel violated that right. Appellant nonetheless contends that the effectiveness of counsel is not the appropriate inquiry in cases involving deprivation of a defendant's right to testify. Appellant argues in effect for a per se rule that would treat the violation of a criminal defendant's right to testify like structural error. (4) Citing recent decisions of the highest state courts in Tennessee (5) and Alaska (6), appellant urges us to adopt a rule requiring the trial court to insure that a criminal defendant is aware of the right to testify and that any waiver of the right was knowingly and validly made. He points us also to the Second Circuit's opinion in Brown v. Artuz, 124 F.3d 73 (2d Cir. 1997), which contains a thorough discussion of the various approaches courts have taken to the enforcement of a criminal defendant's right to testify. (7) Texas authority on this subject is sparse. (8) The Court of Criminal Appeals has not had occasion to address the violation of a criminal defendant's right to testify. Bearing in mind that federal law governs review of deprivations of federal rights, Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), our review of this case will be guided by the holdings of the Fifth Circuit. See Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex.Crim.App. 1986). Following Brown, Sayre and Mullins, we proceed, then, to an examination of appellant's claims under an ineffectiveness of counsel analysis. The test for ineffective assistance of counsel set out in Strickland and adopted by the Court of Criminal Appeals in Hernandez, 726 S.W.2d at 57, contains two prongs. Under the first prong, an appellant must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard, an appellant "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Id. at 687. The standard for judging prejudice requires an appellant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. An appellant must establish both prongs of the test. White v. State, 999 S.W.2d 895 (Tex.App.-Amarillo 1999, pet. ref'd). Appellant contends the record establishes that his right to testify was violated because he did not make a knowing waiver of that right and sought to exercise it at every opportunity. In support he refers to the evidence presented at the hearing on the motion for new trial where he stated that he was never advised the decision to testify was his alone, and to his lawyer's testimony that he did not specifically advise appellant of his right to testify. The State argues that appellant has not demonstrated deficient performance by his lawyer because "the record supports the trial court's implied determination that appellant was aware of his right to testify." Noting that the trial court did not make express findings of fact, and that we must therefore assume implied findings that support its ruling, the State points to a discussion during voir dire of a criminal defendant's right to testify or remain silent as evidence from which appellant's knowledge of his right to testify may be implied. We cannot agree that the record supports this contention. The relevant portion of the voir dire examination occurred during defense counsel's questioning of the panel where he stated: Well, my -- my philosophy on that is I make that decision [the decision whether to testify] for my clients. . . . Every time I've ever made that decision for my clients, they followed it. I've probably tried maybe 25 jury trials, and I've made that decision in every single case . . . . Counsel gave examples of cases in which his clients testified and he felt it hurt their case, then said to the panel: "So from then -- you know, just prior experience, I've learned, you know, I make that decision." Counsel then asked three individual panel members whether they would want to testify against his advice if they were defendants. All three said yes. Citing Shu Guo Kan v. State, 4 S.W.3d 38 (Tex.App.-San Antonio 1999, pet. ref'd), the State argues that appellant would have understood from this exchange that he had the right to testify and that the decision rested with him. We conclude, to the contrary, that from his lawyer's discussion with panel members, appellant would have learned that the decision rested with his lawyer. Certainly the discussion demonstrates trial counsel's belief that the right to make the decision belonged to him, not the defendant. Notably, in his hypothetical exchange with panel members about their desires to testify if they were defendants, counsel never indicated that they would be permitted to testify against his advice. The State further argues that the decision not to put appellant on the stand was sound trial strategy. That well may be correct, but it does not end the inquiry. This is not a case like Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App. 1994), White, supra, or Beck v. State, 976 S.W.2d 265 (Tex.App.-Amarillo 1998, pet. ref'd), in which the appellate court must review a record on direct appeal that is devoid of any evidence concerning counsel's reasons for making the decisions that are being challenged, and must therefore rely on the strong presumption under Strickland that counsel's "conduct falls within the wide range of reasonable professional assistance; that is, . . . the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. Here the record affirmatively shows, through counsel's testimony, supported by his statements to panel members on voir dire, that counsel did not inform appellant of his right to testify. Appellant testified at the hearing on the motion for new trial that he was not aware the decision to testify belonged to him. Nothing in his trial counsel's testimony leads to a different conclusion. The law is clear that trial strategy must take a back seat to the exercise of the defendant's constitutional right to take the stand in his own defense. In Teague, the court wrote: [I]f defense counsel never informed the defendant of the right to testify, and that the ultimate decision belongs to the defendant, counsel would have neglected the vital professional responsibility of ensuring that the defendant's right to testify is protected and that any waiver of that right is knowing and voluntary. Under such circumstances, defense counsel has not acted "within the range of competence demanded of attorneys in criminal cases" and the defendant clearly has not received reasonably effective assistance of counsel. 953 F.2d at 1534. See also Mullins, 315 F.3d at 454 (cannot be reasonable trial strategy for an attorney not to honor his client's decision to exercise his constitutional right to testify). We conclude that appellant's trial counsel deprived him of the ability to choose whether or not to testify in his own behalf, that so doing caused counsel's representation to fall below an objective standard of reasonableness, and that appellant has therefore established the first prong of Strickland. Appellant's effort fails, though, on the second prong, for which we consider whether appellant has established prejudice, that is, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. We first note that appellant urges us to presume prejudice from his counsel's denial of his right to testify. There is authority for such a presumption of prejudice. Perez, 960 S.W.2d at 88. Following the example of the Fifth Circuit's approach to the issue in Mullins and Sayre, though, we will not give effect to such a presumption. The Mullins opinion provides a template for our discussion of this issue. There, the defendant initially agreed with his defense counsel that he should not testify because it would lead to the introduction of evidence of his past convictions, but later changed his mind and wanted to testify. Mullins, 315 F.3d at 455. Although defense counsel improperly overrode the defendant's desire to testify, and thus was deemed guilty of deficient performance, prejudice to the defense was not established, in part, because counsel was able to get the defendant's version of the facts before the jury through other witnesses. Id. at 456. Appellant argues that his defense was prejudiced by his inability to testify because his version of the events was not developed before the jury. He contends that the recordings of telephone conversations with Robinson played to the jury were incomplete and "only convey a fragment" of appellant's defense, and he would have "been able to elaborate in great detail" his version had he been allowed to testify. Had he been able to testify, appellant contends, he could have explained to the jury that Robinson was the aggressor in their fight because of her mistaken belief that he was seeing another woman; that she nearly succeeded in wrecking the car; that she beat on him with fists and a stick; that she scratched his face; that he did not choke her but pushed on her while looking away with his eyes closed to prevent her from scratching him more; and that he immediately let go when she made a gagging sound. The jury heard at least part of appellant's version of the incident. The record before us contains a compact disc of appellant's recorded telephone calls to Robinson. We have listened to the conversations that were played to the jury. Although we do not suggest that a recorded conversation is the equivalent of a defendant's testimony from the stand in front of a jury, appellant's trial counsel's argument to him that the jury had an opportunity to hear his story is not entirely without merit. As in Mullins, too, the difficulty with appellant's contention is that his opportunity to testify to his version of the facts from the stand would have come at a price. Not only would his two prior felony convictions (one for theft of a firearm, the other for possession of cocaine) then have been before the jury, the State points out that appellant's taking the stand would have carried the risk of permitting the admission into evidence of such matters as the details of his prior misdemeanor conviction for choking and striking a previous domestic partner, and his res gestae statements that included his initial denial of being at the scene. The State further notes that appellant would have been subjected to cross-examination on such subjects as his efforts (memorialized in the recorded telephone conversations and in appellant's letters to Robinson) to persuade Robinson to recant her story, to sign a non-prosecution affidavit and to plead the fifth amendment (which efforts also included his suggestion to Robinson that they could then sue the police and both have plenty of money), and his statements to Robinson during the telephone conversations in which he arguably admitted choking her. Appellant acknowledges his prior criminal record would have been admissible had he testified, but argues that the most damaging aspect of his record, the prior assault conviction for choking, already was before the jury because the State introduced evidence of it to establish the enhancement allegation contained in the second count of the indictment. Appellant's argument unduly minimizes the likely impact of his other prior convictions and the other topics outlined by the State that would have been explored on cross-examination. On this record, we cannot find there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Like the court in Mullins, we conclude that appellant's testimony "might have persuaded, but not that there is a reasonable probability that it would have done so." Mullins, 315 F.3d at 456. Because appellant has failed to establish the second prong of Strickland, his federal constitutional claims fail. The trial court did not abuse its discretion in denying appellant's motion for new trial. We overrule appellant's issues one, two, three, eight and nine. Appellant does not argue that the Texas Constitution affords a criminal defendant a greater right to testify on his own behalf than the federal constitution. The available authority also indicates that it does not. In Carroll v. State, 68 S.W.3d 250 (Tex.App.--Fort Worth 2002, no pet.), the court held Article I, Section 10 of the Texas Constitution gives no greater protection than the fifth amendment. Id. at 253. Similar holdings have been made with regard to the right of confrontation, Gonzales v. State, 818 S.W.2d 756, 764 (Tex.Crim.App. 1991), and right to counsel, Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Because those rights form the foundation of the right to testify, these holdings support the conclusion that the Texas Constitution does not afford greater protection. We therefore need not address appellant's state constitutional issues separately. Brown v. State, 943 S.W.2d 35, 36 n.3 (Tex.Crim.App. 1997). His issues four, five and six are overruled. With respect to his issue seven, appellant has not presented an argument or authority that the Code of Criminal Procedure provides any greater protection of the right to testify than does the federal constitution. Indeed, appellant's arguments do not reference the statutes he alleges were violated. The issue presents nothing for our review, and is overruled. Cf. Salazar v. State, 38 S.W.3d 141 (Tex.Crim.App. 2001), cert. denied, 534 U.S. 855 (2001); Price v. State, 67 S.W.3d 512, 513 (Tex.App.--Dallas 2002, no pet.) Having overruled appellant's issues, we affirm the judgment of the trial court in the assault case. None of appellant's issues challenge the revocation of his community supervision, but his brief contains an argument that his improper conviction in the assault case "taints the revocation case," requiring its reversal. Having affirmed the trial court's judgment in the assault case, we affirm also its judgment revoking appellant's community supervision. (9) James T. Campbell Justice Publish. 1. Robinson conceded that her son was in the back seat at the time. 2. During his incarceration pending trial, jail records showed appellant made 513 telephone calls to Robinson. Fourteen of those calls were accepted, and thirteen were recorded. The State played portions of the tapes, and introduced letters appellant wrote Robinson from jail, as part of its case on guilt/innocence. 3. Appellant's issues alleging ineffective assistance of counsel relate only to counsel's deprivation of appellant's right to testify on his own behalf. Appellant does not contend on appeal that he was otherwise denied reasonably effective assistance of counsel. Our review of the record with respect to the effectiveness of counsel, and our discussion of counsel's effectiveness later in this opinion, accordingly are limited to that with respect to the right of appellant to testify. 4. Although we do not adopt appellant's suggestion, it is not without logic. The violation of a criminal defendant's right of self-representation is held to be structural error. McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). The U.S. Supreme Court has described the right to testify as "even more fundamental to a personal defense than the right of self-representation," Rock, 483 U.S. at 52, however, it has not held the deprivation of the right to testify to be structural error. See Gonzales v. State, 994 S.W.2d 170, 171 n.4 (Tex.Crim.App. 1999) (distinguishing deprivation of right to counsel from deprivation of component right to conduct voir dire). 5. Momon v. State, 18 S.W.3d 152 (Tenn. 1999) (rehearing granted in part,18 S.W.3d 174, Tenn. 2000). 6. LaVigne v. State, 812 P.2d 217 (Alaska 1991). 7. We note, though, that after extensive discussion the court in Artuz adopted the Teague court's approach and found that the primary responsibility for protection of the defendant's right to testify lies with defense counsel. Artuz, 124 F.3d at 78-79. 8. As noted, we are cited to two cases in other courts of appeals in which failures of counsel to advise criminal clients of their right to testify were raised. See Okere, 56 S.W.3d at 856, and Perez, 960 S.W.2d at 88. In both those instances, though, it appears that the issue was presented in the context of an ineffective assistance of counsel argument. 9. As an aside, we note also our disagreement with appellant's contention that reversal of his assault conviction would have required reversal of the probation revocation. It is well established that a revocation of community supervision will be affirmed if it is supportable on any ground alleged and established by the State. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980). The conduct on which the assault charge was based is only one of several grounds for revocation alleged by the State. In the hearing held March 27, 2002, the State established violations of the conditions of appellant's community supervision, unrelated to the assault charge, sufficient to support the trial court's action.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/1039916/	In the United States Court of Federal Claims No. 13-319 C (Filed: September 4, 2013) ) IAN OWEN SHARPE et al., ) ) Plaintiffs, ) ) Motion for Reconsideration; v. ) Pro Se Plaintiffs; Frivolous ) Claims; Sanctions Warranted THE UNITED STATES, ) ) Defendant. ) ) Ian Owen Sharpe, Gregory R. Young and Michael Troy Olson, Marianna, FL, pro se. Veronica N. Onyema, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. OPINION HEWITT, Chief Judge I. Background Plaintiffs are inmates at the Federal Correctional Institution in Marianna, Florida. See generally Allegation of Fed. Constitutional Question Jurisdiction (Compl.) (Complaint or Compl.), Docket Number (Dkt. No.) 1 (listing “[Federal Correctional Institution] Marianna” as plaintiffs’ address). Plaintiffs filed their Complaint in this court “challeng[ing] the Constitutional Enactment validity” of federal bill H.R. 3190 (the bill), which was passed in 1948 as Pub. L. No. 80-772 and codified as amended in title 18 of the United States Code, governing crimes and criminal procedure. See id. at 1-2. Specifically, plaintiffs’ Complaint claimed that the bill “was never passed Constitutionally by the House of Representatives,” was never “certified as ‘truly enrolled’ by” officials eligible to sign the bill into law, was “never voted upon by . . . Congress,” and was, therefore, “mistakenly signed by” President Harry Truman. Id. at 1 (emphasis and some capitalization omitted). Plaintiffs alleged that the “impermissible application of [this] unconstitutional statute . . . continues [to] depriv[e] the Plaintiffs of due process, life, liberty, and property interests and defrauds the [United States Department of the] Treasury.” Id. (emphasis omitted). “[B]ecause the Complaint [did] not address any matter within the jurisdiction of the court,” the court dismissed the Complaint sua sponte. Order of May 21, 2013, Dkt. No. 8, at 1. This case was closed on May 22, 2013. See generally J., Dkt. No. 9 (entering judgment for defendant and dismissing the Complaint). Since then, plaintiffs have submitted a number of documents to the court, most of which have been returned unfiled. See, e.g., Order of May 30, 2013, Dkt. No. 10, at 1; Order of June 5, 2013, Dkt. No. 11, at 1; Order of June 27, 2013, Dkt. No. 14, at 2-4; Order of July 31, 2013, Dkt. No. 17, at 2 (returning documents unfiled). Now before the court are plaintiffs’ Motion to Reconsider and Transfer to Cure Want of Jurisdiction (plaintiffs’ Motion or Pls.’ Mot.), Dkt. No. 15, filed June 27, 2013, and Defendant’s Response to Plaintiffs’ Motion to Reconsider and Transfer to Cure Want of Jurisdiction (defendant’s Response or Def.’s Resp.), Dkt. No. 16, filed July 15, 2013. 1 1 Plaintiffs have also submitted a document titled “Application (Motion) for Default Judgment (RCFC Rule 55(b)(2))” (plaintiffs’ Application), received on August 5, 2013. On August 12, 2013 the court received additional copies of plaintiffs’ Application. Plaintiffs’ Application has not been filed by the office of the Clerk of Court because this case was closed on May 22, 2013. See generally J., Docket Number (Dkt. No.) 9 (entering judgment for defendant and dismissing plaintiffs’ Allegation of Fed. Constitutional Question Jurisdiction (Complaint or Compl.), Dkt. No. 1). Plaintiffs’ Application argues, among other things, that the court should enter default judgment against defendant because, according to plaintiffs, defendant failed to respond to all of the points raised in plaintiffs’ motion for reconsideration, which is currently before the court. See generally Mot. to Reconsider & Transfer to Cure Want of Jurisdiction (plaintiffs’ Motion or Pls.’ Mot.), Dkt. No. 15. Pursuant to Rule 55 of the Rules of the United States Court of Federal Claims (RCFC), “a party against whom a judgment for affirmative relief is sought” is in default if that party “has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise.” RCFC 55(a). The court shall enter a default judgment against a party in default if, by application to the court, “the claimant establishes a claim or right to relief by evidence that satisfies the court.” RCFC 55(b)(2). Here, default judgment is not appropriate given the procedural posture of this case: the court has already entered judgment for defendant. See generally J. To the extent that plaintiffs seek default judgment based on the argument that defendant failed to defend against plaintiffs’ Motion, plaintiffs’ argument is inapposite. As ordered by the court, see Order of June 27, 2013, Dkt. No. 14, at 3; cf. RCFC 59(f) (allowing a response to a motion for reconsideration “only at the court’s request”), defendant filed a response in opposition to plaintiffs’ Motion, see generally Def.’s Resp. to Pls.’ Mot. to Reconsider & Transfer to Cure Want of Jurisdiction (defendant’s Response or Def.’s Resp.), Dkt. No. 16. Defendant, therefore, did not fail to defend against plaintiff’s Motion. Cf. RCFC 55(a) (describing default). Further, even if defendant’s Response 2 Plaintiffs also submitted a reply brief with respect to their Motion, which the court returned unfiled because “there was no provision for [its] filing” and because plaintiffs failed to include an original and two copies, as required by Rules of the United States Court of Federal Claims (RCFC). Order of July 31, 2013, at 1-2; cf. RCFC 5.5(d)(2) (requiring “an original and 2 copies of any filing” made after the complaint). On August 12, 2013 the court received a resubmission of plaintiffs’ reply brief, along with another document titled Ex Parte Motion for Leave to File Nunc Pro Tunc Reply Brief to Defendants’ [sic] Ordered Response (collectively, plaintiffs’ reply submission). Plaintiffs’ reply submission was not filed on receipt by the office of the Clerk of Court because, although this time plaintiffs included an original and two copies of their reply brief pursuant to the court’s rules, cf. RCFC 5.5(d)(2), there remains no provision for the filing of such a submission, 2 see RCFC 59 (providing for the filing of a response to a did not address every argument raised in plaintiffs’ Motion, there is no requirement that it do so. Cf. RCFC 59(f) (governing responses to motions for reconsideration or for altering or amending a judgment). Further, to the extent that plaintiffs argue that defendant is in default because it failed to respond to plaintiffs’ Complaint, the court dismissed plaintiffs’ Complaint sua sponte for lack of jurisdiction twenty-one days after plaintiffs’ Complaint was deemed filed, see Order of May 21, 2013, Dkt. No. 8, at 1 (dismissing plaintiffs’ Complaint); Order of June 13, 2013, Dkt. No. 13, at 5 (“Plaintiffs’ Complaint is . . . deemed filed on April 30, 2013), that is, within the sixty-day time period before any response by defendant to plaintiffs’ Complaint was due, cf. RCFC 12(a)(1)(A) (“The United States must file an answer to a complaint within 60 days after being served with the complaint.”); RCFC 4(c) (providing that the date of service of a complaint “is the date of filing with the clerk”). Accordingly, defendant is not in default because defendant did not fail to defend this case. Cf. RCFC 55(a) (stating that “a party against whom a judgment for affirmative relief is sought” is in default if that party “has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise”); RCFC 12(h)(3) (authorizing the court to dismiss an action for lack of subject matter jurisdiction “at any time”). Because a motion for default judgment is inappropriate at this juncture and because, to the extent that plaintiffs’ Application is the functional equivalent of a motion for reconsideration or to alter or amend the judgment, plaintiffs already have a motion for reconsideration or to alter or amend the judgment before the court, the office of the Clerk of Court SHALL RETURN, UNFILED, all copies of plaintiffs’ Application. 2 In their Ex Parte Motion for Leave to File Nunc Pro Tunc Reply Brief to Defendants’ [sic] Ordered Response, plaintiffs invoke RCFC 7.2 as a basis for filing their reply brief. Rule 7.2 provides in relevant part that, in general, “[a] reply to a response . . . may be filed within 7 days after service of the response.” RCFC 7.2(a)(2). However, Rule 7.2(a) applies only if the filing of a response is not “otherwise provided in these rules or by order of the court.” See RCFC 7.2(a)(1). And the court’s rules contain very specific provisions about the filing of a response to a motion for reconsideration or to alter or amend a judgment. See RCFC 59(f) (providing that a response to a motion for reconsideration or to alter or amend a judgment “may be filed only at the court’s request”); cf. Order of June 27, 2013, at 3 (ordering defendant to file a 3 motion for reconsideration or a motion to alter or amend a judgment “at the court’s request” but containing no provision for the filing of a reply to such a motion). Accordingly, the office of the Clerk of Court SHALL RETURN, UNFILED, plaintiffs’ reply submission. Plaintiffs’ Motion argues that this court erred in dismissing plaintiffs’ claims for lack of jurisdiction, see Pls.’ Mot. 1-6, and, in the alternative, that transfer is warranted to cure any lack of jurisdiction, id. at 7-8. Defendant responds that plaintiffs have “fail[ed] to demonstrate that they meet the standard for reconsideration” and that “transferring the case . . . would not be in the interest of justice.” Def.’s Resp. 1. For the following reasons, plaintiffs’ Motion is DENIED. II. Legal Standards A. Motion for Reconsideration Pursuant to RCFC 59, the court may grant a motion for reconsideration “for any reason for which a new trial has heretofore been granted in an action at law in federal court” or “for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” RCFC 59(a)(1)(A)-(B). The court may also grant a motion for reconsideration “upon the showing of satisfactory evidence, cumulative or otherwise, that any fraud, wrong, or injustice has been done to the United States.” RCFC 59(a)(1)(C). In addition, the court may open a judgment, “take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment” on a motion under RCFC 59. RCFC 59(a)(2). The moving party must support its motion for reconsideration by a showing of exceptional circumstances justifying relief, based on “a manifest error of law or mistake of fact.” Henderson Cnty. Drainage Dist. No. 3 v. United States (Henderson), 55 Fed. Cl. 334, 337 (2003) (citing Franconia Assocs. v. United States, 44 Fed. Cl. 315, 316 (1999), aff’d, 240 F.3d 1358 (Fed. Cir. 2001), rev’d on other grounds, 536 U.S. 129 (2002)); Principal Mut. Life Ins. Co. v. United States, 29 Fed. Cl. 157, 164 (1993) (same) (citing Weaver-Bailey Contractors, Inc. v. United States, 20 Cl. Ct. 158, 158 (1990)), aff’d, 50 F.3d 1021 (Fed. Cir. 1995)). “Specifically, the moving party must show: (1) the occurrence of an intervening change in the controlling law; (2) the availability of previously unavailable evidence; or (3) the necessity of allowing the motion to prevent manifest injustice.” Matthews v. United States, 73 Fed. Cl. 524, 526 (2006) (citing Griswold v. United States, 61 Fed. Cl. 458, 460-61 (2004)). Where a party seeks reconsideration on the ground of manifest injustice, it cannot prevail unless it demonstrates that any injustice is “apparent to the point of being almost response to plaintiffs’ Motion). Therefore, with respect to a motion for reconsideration or to alter or amend a judgment, it is Rule 59 that provides for briefing, not Rule 7.2. 4 indisputable.” Pac. Gas & Electric Co. v. United States, 74 Fed. Cl. 779, 785 (2006), aff’d in part and rev’d in part on other grounds, 536 F.3d 1282 (Fed. Cir. 2008). In other words, “manifest” is understood as “clearly apparent or obvious.” Ammex, Inc. v. United States, 52 Fed. Cl. 555, 557 (2002), aff’d, 384 F.3d 1368 (Fed. Cir. 2004). “A motion for reconsideration is not intended . . . to give an ‘unhappy litigant an additional chance to sway’ the court.” Matthews, 73 Fed. Cl. at 525 (quoting Froudi v. United States, 22 Cl. Ct. 290, 300 (1991)). A motion for reconsideration is not an opportunity to make new arguments that could have been made earlier; “an argument made for the first time in a motion for reconsideration comes too late, and is ordinarily deemed waived.” Bluebonnet Sav. Bank, F.S.B. v. United States (Bluebonnet), 466 F.3d 1349, 1361 (Fed. Cir. 2006); Gen. Electric Co. v. United States, 189 Ct. Cl. 116, 118, 416 F.2d 1320, 1322 (1969) (per curiam) (stating that, in general, “requests for post-decision relief will be rejected if the [movant] has, without sufficient excuse, failed to make his point prior to the decision”). B. Transfer When the court dismisses a case for lack of jurisdiction, it has an obligation to determine whether transfer to another federal court that may have jurisdiction over the claims is appropriate. See 28 U.S.C. § 1631 (2006) (stating that “the court shall, if it is in the interest of justice, transfer [a case over which it lacks jurisdiction] to any other such court in which the action or appeal could have been brought at the time it was filed or noticed”); Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1375 (Fed. Cir. 2005) (recognizing “the statutory requirement that transfer be considered to cure jurisdictional defects”); cf. 28 U.S.C. § 610 (defining “courts” to which transfer is allowed under 28 U.S.C. § 1631). C. Authority to Order Sanctions The court has “inherent powers enabling it to manage its cases and courtroom effectively and to ensure obedience to its orders.” Pac. Gas & Electric Co. v. United States (PG&E), 82 Fed. Cl. 474, 480 (2008) (internal quotation marks and brackets omitted); see In re Bailey, 182 F.3d 860, 864 (Fed. Cir. 1999) (“The United States Supreme Court and federal courts of appeals have repeatedly recognized that regulation of attorney behavior is an inherent power of any court of law and falls within the discretion of such court.”). “These powers are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotation marks omitted). “Because of their very potency, inherent powers must be exercised with restraint and discretion. A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44-45 (internal citation omitted). 5 The court also has authority to sanction based on Rule 11 of the RCFC. 3 Rule 11 requires an attorney or unrepresented party to make certain certifications about any documents presented to the court, based on “an inquiry reasonable under the circumstances.” RCFC 11(b). Rule 11 sanctions are appropriate when an attorney or unrepresented party fails to act with “candor and truthfulness” in making such certifications. See PG&E, 82 Fed. Cl. at 478 n.2; cf. RCFC 11(b)-(c) (describing bases for Rule 11 sanctions). “In evaluating whether the signer of a filing has violated Rule 11, the . . . court applies an objective standard of reasonableness . . . .” Colida v. Nokia, Inc., 347 F. App’x 568, 571 (Fed. Cir. 2009) (unpublished) (internal quotation marks omitted). In determining whether an anti-filing injunction is appropriate under Rule 11, the trial court “should make findings ‘as to any pattern’ of behavior, looking to ‘both the number and content of the filings as indicia of frivolousness and harassment.’” Hemphill v. Kimberly-Clark Corp., 374 F. App’x 41, 45 (Fed. Cir. 2010) (unpublished) (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)). A court’s inherent power to impose sanctions “is both broader and narrower than” the court’s sanctioning authority under Rule 11. See Chambers, 501 U.S. at 46. It is broader in that it “extends to a full range of litigation abuses.” Id. And it is narrower in that, with respect to “a court’s inherent power to impose attorney’s fees as a sanction” in particular, it is effectively limited to “cases in which a litigant has engaged in bad-faith conduct or willful disobedience of a court’s orders,” as distinguished from “conduct which merely fails to meet a reasonableness standard.” Id. at 47; cf. RCFC 11(b) (imposing a reasonableness standard). “[W]hen there is bad-faith conduct in the course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the Rules rather than the inherent power. But if in the informed discretion of the court, . . . the Rules are [not] up to the task, the court may safely rely on its inherent power.” Chambers, 501 U.S. at 50; see id. at 45-46 (describing conduct that may warrant sanctions pursuant to the court’s inherent powers, including “willful disobedience of a court order,” actions of a party that are “in bad faith, vexatious[], wanton[], or for oppressive reasons,” practicing fraud upon the court or defiling “the very temple of justice,” or “delaying or disrupting the litigation or . . . hampering enforcement of a court order” (internal quotation marks omitted)). III. Discussion 3 The Rules of the United States Court of Federal Claims generally mirror the Federal Rules of Civil Procedure (FRCP). See RCFC 2002 rules committee note (“[I]nterpretation of the court’s rules will be guided by case law and the Advisory Committee Notes that accompany the Federal Rules of Civil Procedure.”). RCFC 11 is substantially identical to Rule 11 of the FRCP. Compare RCFC 11, with FRCP 11. Therefore, the court relies on cases interpreting FRCP 11 as well as those interpreting RCFC 11. 6 In their Motion, plaintiffs assert several bases that, they claim, provided the court with jurisdiction over their Complaint and also argue that their Complaint alleged sufficient facts to withstand a motion to dismiss. 4 See Pls.’ Mot. 1-5. In other words, plaintiffs appear to argue that reconsideration is warranted to prevent manifest injustice because, according to plaintiffs, the court made an error of law in dismissing their Complaint for lack of jurisdiction. Cf. Matthews, 73 Fed. Cl. at 526 (requiring that, to prevail on a motion for reconsideration, “the moving party must show: (1) the occurrence of an intervening change in the controlling law; (2) the availability of previously unavailable evidence; or (3) the necessity of allowing the motion to prevent manifest injustice”); Henderson, 55 Fed. Cl. at 337 (stating that the moving party must support its motion for reconsideration by a showing of exceptional circumstances justifying relief, based on “a manifest error of law or mistake of fact”). In the alternative, plaintiffs request that their case be transferred to cure a lack of jurisdiction. Pls.’ Mot. 7- 8. Defendant responds that plaintiffs have “fail[ed] to demonstrate that they meet the standard for reconsideration,” Def.’s Resp. 1, and argues that any new arguments by plaintiffs regarding jurisdictional bases are untimely, id. at 4. Defendant also argues that “transferring the case . . . would not be in the interest of justice and would be instead a waste of judicial resources.” Id. at 1. The court considers each of these arguments in turn. A. Reconsideration Is Not Warranted Plaintiffs’ Motion has failed to show that the court made a mistake of law in dismissing plaintiffs’ claims for lack of jurisdiction. First, plaintiffs argue that the Tucker Act provides this court with jurisdiction over “any claim against the United States” and that their “Complaint certainly [fell] within [that] scope.” Pls.’ Mot. 3 (some capitalization omitted) (citing 28 U.S.C. 1491(a)(1)) 5; cf. Compl. 2 (“Congress has given 4 Plaintiffs also contend that their claims are not barred by the court’s six-year statute of limitations, see Pls.’ Mot. 5-6, but this contention is relevant only with respect to a claim that is otherwise within the court’s jurisdiction, see 28 U.S.C. § 2501 (2006) (providing that a claim over which the court would otherwise have jurisdiction “shall be barred unless the petition thereon is filed within six years after such claim first accrues”). Because none of plaintiffs’ claims are within the court’s jurisdiction, see infra Part III.A (affirming that “plaintiffs’ Complaint failed to identify any proper basis for this court’s jurisdiction” and that, accordingly, “the court was required to dismiss the case”), the court need not reach the question of whether any of plaintiffs’ claims would have been time-barred. 5 To the extent that plaintiffs also rely on 28 U.S.C. § 1491(b), see Pls.’ Mot. 3, plaintiffs’ reliance is misplaced. The provisions of 28 U.S.C. § 1491(b) pertain to this court’s bid protest jurisdiction only and are therefore not relevant to this litigation. See 28 U.S.C. § 1491(b)(1) (granting the United States Court of Federal Claims concurrent jurisdiction with the United States district courts to hear “an action by an interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed contract or to a proposed award or the award of a contract or any alleged violation of statute or regulation in connection with a procurement or 7 the United States Court of Federal Claims jurisdiction over these types of disputes in Title 28 USC §1491(a)(1) to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress.” (internal quotation marks and some capitalization omitted)). However, plaintiffs misunderstand this court’s jurisdiction. A plaintiff invoking the jurisdiction of the United States Court of Federal Claims (Court of Federal Claims) pursuant to the Tucker Act must establish an independent, substantive right to money damages from the United States--that is, a money-mandating source within a contract, regulation, statute or constitutional provision- -in order to satisfy the court that its jurisdiction is proper. See Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008); cf. United States v. Mitchell, 463 U.S. 206, 216 (1983) (“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable under the Tucker Act. The claim must be one for money damages against the United States . . . .”). Plaintiffs also contend that this court has jurisdiction pursuant to article III, section two of the United States Constitution. Pls.’ Mot. 1-2; cf. Compl. 2 (stating that “[t]his court has jurisdiction of the subject-matter of this action because the claims asserted in it arise out of the Constitution” and “request[ing] this Court of Federal Claims to convene under its original character whereby: Such court is hereby declared to be a court established under Article III of the Constitution of the United States” (emphasis, internal quotation marks and some capitalization omitted)). However, “[t]he Court of Federal Claims is an Article I trial court of limited jurisdiction that was created by Congress”; it is not an article III court. Kanemoto v. Reno, 41 F.3d 641, 644 (Fed. Cir. 1994). Accordingly, the jurisdiction of the Court of Federal Claims “does not depend on the ‘arising under’ clause of Article III.” Jan’s Helicopter Serv., Inc., 525 F.3d at 1305; cf. U.S. Const. art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority[.]”). Instead, the court’s jurisdiction depends “on a separate clause in Article III that authorizes jurisdiction over all controversies to which the United States is a party” and on the Tucker Act. Jan’s Helicopter Serv., Inc., 525 F.3d at 1305-06 (internal quotation marks omitted); cf. U.S. Const. art. III, § 2, cl. 1 (stating that the judicial power shall extend “to Controversies to proposed procurement”). In particular, plaintiffs request that the court issue declaratory judgment pursuant to 28 U.S.C. § 1491(b)(2). See Pls.’ Mot. 3-4 (arguing, for example, that declaratory judgment would “be in the interests of justice, due to the countless inconsistencies in the numerous US District Court decisions enumerated within the Complaint” (internal quotation marks omitted)). However, declaratory judgment pursuant to 28 U.S.C. § 1491(b)(2) is available only with regard to the type of actions described in subsection (b)(1), that is, actions within the court’s bid protest jurisdiction. See 28 U.S.C. § 1491(b)(1)-(2). Moreover, as defendant correctly points out, see Def.’s Resp. 3, “the [United States] Court of Federal Claims does not have jurisdiction to review the decisions of district courts,” Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994), to the extent that this is what plaintiffs seek. 8 which the United States shall be a party”); 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded . . . upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”). It is well-established that a claim is within the court’s Tucker Act jurisdiction only if the plaintiff has identified a separate money-mandating source. See Jan’s Helicopter Serv., Inc., 525 F.3d at 1306. Plaintiffs’ Complaint has “identifie[d] no source of substantive law that would create a right to money damages.” Order of May 21, 2013, at 2. Plaintiffs’ Motion invokes a number of statutes, which plaintiffs appear to assert as bases of an unjust imprisonment claim, starting with 18 U.S.C. § 4001(a). See Pls.’ Mot. 2. This provision states that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” 18 U.S.C. § 4001(a) (2006). Notwithstanding that plaintiffs appear to invoke this provision for the first time in their Motion, cf. Bluebonnet, 466 F.3d at 1361 (“[A]n argument made for the first time in a motion for reconsideration comes too late, and is ordinarily deemed waived.”); Gen. Electric Co., 189 Ct. Cl. at 118, 416 F.2d at 1322 (similar), the provision is not money mandating, cf. Jan’s Helicopter Serv., Inc., 525 F.3d at 1306 (requiring a plaintiff invoking this court’s jurisdiction pursuant to the Tucker Act to establish an independent, substantive right to money damages from the United States). Further, to the extent that plaintiffs rely on 42 U.S.C. § 1985 in conjunction with 28 U.S.C. § 1343(a)(2) as sources of substantive law that would provide a right to money damages, see Pls.’ Mot. 4-5; Compl. 15-16, plaintiffs misunderstand the scope of these provisions. Plaintiffs are correct, see Pls.’ Mot. 5, that 28 U.S.C. § 1343(a)(2) creates a right “[t]o recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent,” 28 U.S.C. § 1343(a)(2); see also 42 U.S.C. § 1985(2)-(3) (2006) (providing that conspiring to intimidate a party or a witness or to obstruct justice with the “intent to deny any citizen the equal protection of the laws” or conspiring to deprive a person of rights and privileges under the laws each constitutes a conspiracy to interfere with civil rights). However, jurisdiction to hear such a claim belongs exclusively to the district courts, see 28 U.S.C. § 1343(a) (stating that “[t]he district courts shall have original jurisdiction” over claims under 28 U.S.C. § 1343(a)(2)), and the Court of Federal Claims is not a district court, Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (per curiam). Moreover, to the extent that plaintiffs assert violations of their rights pursuant to 18 U.S.C. §§ 241-42, see Pls.’ Mot. 5; Compl. 16, such claims are misplaced. These statutes provide for criminal penalties for conspiring against rights, see 18 U.S.C. § 241, and for deprivation of rights under color of law on the basis of a person’s status as an 9 alien or by reason of color or race, id. § 242. The Tucker Act expressly excludes tort claims, including claims of civil rights violations, from this court’s jurisdiction. See 28 U.S.C. 1491(a)(1) (describing the court’s jurisdiction as including certain types of cases “not sounding in tort”); Hernandez v. United States, 93 Fed. Cl. 193, 198 (2010) (“[T]his [court’s] jurisdiction . . . does not extend to claims sounding in tort for civil wrongs committed by the United States or its agents.”); cf. Salman v. Kalil, 144 F. App’x 861, 862 (Fed. Cir. 2005) (per curiam) (unpublished) (finding that the plaintiff’s complaint was “grounded in tort” based on the plaintiff’s allegation that the circumstances of his arrest and arraignment constituted “false imprisonment and fraud”). Further, the statutes cited by plaintff create no right to bring a private civil action in this court. Plaintiffs also invoke 28 U.S.C. § 1495 in conjunction with 28 U.S.C. § 2513. See Pls.’ Mot. 5. Notwithstanding that plaintiffs failed to assert these provisions in their Complaint as a basis for their claims and, instead, invoke them for the first time in their Motion, cf. Bluebonnet, 466 F.3d at 1361 (“[A]n argument made for the first time in a motion for reconsideration comes too late, and is ordinarily deemed waived.”); Gen. Electric Co., 189 Ct. Cl. at 118, 416 F.2d at 1322 (similar), plaintiffs misunderstand what is required to assert a section 1495 claim. 28 U.S.C. § 1495 grants the Court of Federal Claims “jurisdiction to render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned.” 28 U.S.C. § 1495. However, as a condition of bringing suit under section 1495, a plaintiff must allege and prove--by a certificate of a court or a pardon--that, among other things, his wrongful “conviction has been reversed or set aside” or “he has been pardoned upon the stated ground of innocence and unjust conviction.” Id. § 2513(a)-(b). Not only did plaintiffs fail to make the required allegations for a section 1495 claim in their Complaint, they also failed to provide the required proof. Cf. id. Therefore, even if plaintiffs had not waived their right to make an unjust conviction and imprisonment argument under section 1495, they have not met the requirements for bringing such a claim. Plaintiffs’ Motion also appears to assert for the first time a standalone claim based on the Due Process Clause of the Fifth Amendment to the United States Constitution. See Pls.’ Mot. 6 (“The Plaintiffs would be remiss to not also draw the Court’s attention to the serious due process violations perpetrated by the U.S. District Courts[] in each of the 100+ cases described in the Complaint . . . .” (emphasis and internal quotation marks omitted). Notwithstanding that plaintiffs appear to invoke the Due Process Clause for the first time in their Motion, cf. Bluebonnet, 466 F.3d at 1361 (“[A]n argument made for the first time in a motion for reconsideration comes too late, and is ordinarily deemed waived.”); Gen. Electric Co., 189 Ct. Cl. at 118, 416 F.2d at 1322 (similar), this court lacks jurisdiction over plaintiffs’ due process claim because the Due Process Clause is not money mandating, cf. James v. Caldera, 159 F.3d 573, 581 (Fed. Cir. 1988) (stating that “it is well established” that this court lacks jurisdiction over due process claims because the Due Process Clause is not money mandating); United States v. Connolly, 716 10 F.2d 882, 887 (Fed. Cir. 1983) (en banc) (similar). 6 Further, to the extent that plaintiffs seek review of the alleged “serious due process violations perpetrated by the U.S. District Courts[],” Pls.’ Mot. 6, “the Court of Federal Claims does not have jurisdiction to review the decisions of district courts,” Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Because plaintiffs’ Complaint failed to identify any proper basis for this court’s jurisdiction, see Order of May 21, 2013, at 2, the court was required to dismiss the case, cf. RCFC 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Plaintiffs’ contention that their Complaint alleged sufficient facts to withstand a motion to dismiss, see Pls.’ Mot. 4, is therefore misplaced. It is irrelevant to the court’s jurisdictional analysis that, according to plaintiffs, the factual “allegations within the Complaint have never been rebutted.” Cf. id. (some capitalization omitted). For the foregoing reasons, the court concludes that plaintiffs have failed to show any manifest error of law with respect to the court’s jurisdictional determination and, accordingly, reconsideration of this issue is not warranted. Cf. Matthews, 73 Fed. Cl. at 526 (stating that a party may prevail on a motion for reconsideration by showing “the necessity of allowing the motion to prevent manifest injustice”); Henderson, 55 Fed. Cl. at 337 (stating that a motion for reconsideration may be supported by a showing of exceptional circumstances justifying relief, based on “a manifest error of law”). B. Transfer Is Not in the Interest of Justice Plaintiffs appear to request that, should their motion for reconsideration be denied, their case be transferred to the appropriate United States district court or the United States Supreme Court (Supreme Court) or that their questions be certified to the Supreme Court. See Pls.’ Mot. 7 (requesting that, in the alternative, the court “re-assign the case to a certifiable U.S. Const. Article III Judicial powers vested Judge” and invoking 28 U.S.C. § 1631); id. at 9 (requesting “that the Court also recommend and certify the questions for review . . . and recommend this entire Case in Controversy be elevated to the Supreme Court for consideration and decision” (emphasis and some capitalization omitted)). Pursuant to 28 U.S.C. § 1631, “the court shall, if it is in the interest of justice, transfer [a case over which it lacks jurisdiction] to any other such court in which the action or appeal could have been brought at the time it was filed or noticed.” 28 U.S.C. § 6 A constitutional issue may be “a factor in [a] claim for which Tucker Act jurisdiction is established.” See Holley v. United States, 124 F.3d 1462, 1466 (Fed. Cir. 1997). However, plaintiffs have failed to establish that any of their claims is within this court’s jurisdiction. See supra Part III.A. Therefore the court does not reach the question of whether due process issues are a factor with respect to any of plaintiffs’ other claims. Cf. id. 11 1631. Although the courts to which transfer is permissible include the United States district courts, they do not include the Supreme Court. See id. § 610 (defining “courts” to which transfer is allowed under 28 U.S.C. § 1631 as including “the courts of appeals and district courts of the United States” but not the Supreme Court). In addition, only a court of appeals can certify a question for review by the Supreme Court. See 28 U.S.C. § 1254 (allowing for certification “of any question of law” to the Supreme Court “by a court of appeals” but not by the Court of Federal Claims). Accordingly, this court has no authority to transfer plaintiffs’ case to the Supreme Court, cf. 28 U.S.C. § 1631; id. § 610, or to certify any of plaintiffs’ questions to the Supreme Court, cf. id. § 1254. With respect to plaintiffs’ request to transfer their case to a district court, the court finds that transfer would not be in the interest of justice. At least two of the three plaintiffs named on the caption have a history of filing frivolous claims in which the plaintiffs challenged their criminal convictions in various ways. See, e.g., Am. Report & Recommendation & Order at 1-2, Olson v. English, No. 5:13-cv-195-RS-GRJ (N. D. Fla. July 24, 2013), Dkt. 8 (recommending denial of plaintiff Michael Troy Olson’s (Mr. Olson) petition for writ of habeas corpus and discussing Mr. Olson’s history of filing multiple “pro se motions attacking his convictions and sentence in various ways,” multiple motions purportedly asserting First Amendment rights and multiple “‘First Amendment Petitions,’ in which he argued that the district court lacked subject matter and legislative jurisdiction over him,” all of which were denied as without merit, untimely, successive or as procedurally deficient), approved and incorporated by Order of Aug. 22, 2013, Olson v. English, No. 5:13-cv-195-RS-GRJ (N. D. Fla. Aug. 22, 2013), Dkt. 9 (dismissing petition); Order of Jan. 31, 2011 at 1-2, Olson v. Holinka, No. 10-cv- 824-bbc (W.D. Wis. Jan. 31, 2011), Dkt. No. 3 (denying Mr. Olson’s petition for writ of habeas corpus after concluding that Mr. Olson did “not even attempt to make the [requisite] showing” and that his argument, to the extent that the court could discern it as his argument, was “a frivolous one”); Order of May 12, 2009 at 2, 4, Olson v. Holinka, No. 09-cv-161-slc (W.D. Wis. May 12, 2009), Dkt. No. 7 (denying Mr. Olson’s petition for writ of habeas corpus regarding the same conviction because Mr. Olson’s arguments that 28 U.S.C. § 2255 was not properly enacted and that “the district court in which he was convicted had no authority to sentence him because it [was] an Executive Tribunal without Article II powers” were both “frivolous” (internal quotation marks omitted)); Report & Recommendation at 1-2, Sharpe v. “Doe” Agent, U.S. Customs, No. C02-607R (W.D. Wash. Apr. 1, 2002), Dkt. No. 5 (finding that the Bivens action filed by plaintiff Ian Owen Sharpe against a federal customs agent was “frivolous” and rejecting plaintiff’s claim that he should be granted clemency with respect to his illegal reentry conviction on the grounds that the agent advised him that he could reenter the United States), adopted by Order of Dismissal, Sharpe v. “Doe” Agent, U.S. Customs, No. C02-607R (W.D. Wash. Apr. 30, 2002), Dkt. No. 6. Plaintiffs’ history of a pattern of filing in bad faith suggests that this action was filed in bad faith as well. In the court’s opinion, the repeated filing of frivolous 12 actions--alleging that, for a variety of reasons, plaintiffs’ convictions should be overturned--wastes judicial resources and abuses the judicial process. Accordingly, it is not in the interest of justice to transfer this case. Cf. 28 U.S.C. § 1631 (providing that the court shall transfer a case if, in addition to other requirements, transfer “is in the interest of justice”). C. Sanctions Warranted Based on a review of plaintiffs’ history in this and other courts, plaintiffs’ conduct warrants sanction pursuant to the court’s inherent power to impose sanctions. Cf. Chambers, 501 U.S. at 50-51 (affirming appeals court finding of “no abuse of discretion in resorting to the inherent power” even though sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure could have been employed because only the inherent power could reach an “entire course of conduct” that “evidenced bad faith and an attempt to perpetrate a fraud on the court”). Sanctions under the court’s inherent power are more appropriate in the present case than sanctions under Rule 11 of the RCFC because plaintiffs have not failed to act with candor and truthfulness in their dealings with the court. Compare PG&E, 82 Fed. Cl. at 478 n.2 (“Because counsel never attempted to mislead the court nor acted with dishonesty toward the court in a pleading or filing, RCFC 11 is not an appropriate basis upon which to fashion sanctions or remedies in this case.”), and RCFC 11(b)-(c) (describing bases for Rule 11 sanctions), with Chambers, 501 U.S. at 50-51 (stating that only the inherent power could provide authority to sanction an “entire course of conduct” that “evidenced bad faith”). As described below, plaintiffs’ filings demonstrate an entire course of conduct evidencing bad faith. Cf. Chambers, 501 U.S. at 44-45, 47 (stating that the court may rely on its inherent powers to “fashion an appropriate sanction for conduct which abuses the judicial process,” including “bad-faith conduct or willful disobedience of a court’s orders”). Specifically, Mr. Olson and Mr. Sharpe have a history of filing frivolous actions. See supra Part III.B (stating that it is the court’s opinion that “repeatedly filing frivolous actions” is bad faith conduct that wastes judicial resources and abuses the judicial process). Mr. Sharpe has also had multiple actions dismissed for failure to follow court rules and orders. See, e.g., Order of June 28, 2002 at 1, Sharpe v. U.S. Customs Serv., No. 02-35455 (9th Cir. June 28, 2002), Dkt. No. 5 (dismissing appeal for failure to prosecute owing to plaintiff’s failure to pay filing fees); Order of July 22, 2003 at 1, Sharpe v. USP Leavenworth, No. 5:03-3215-GTV (D. Kan. July 22, 2013), Dkt. No. 5 (dismissing case owing to plaintiff’s failure “to show cause why this action should not be dismissed . . . due to his failure to exhaust administrative remedies”); Order of Apr. 17, 2003 at 1, Sharpe v. U.S. Dep’t of Justice, No. 5:02-3320-GTV (D. Kan. Apr. 17, 2003), Dkt. No. 6 (dismissing case owing to plaintiff’s failure to supplement the record as directed by the court); Order of July 5, 2002 at 1, Sharpe v. Stratman, No. 5:02-3006- GTV (D. Kan. July 5, 2002), Dkt. No. 5 (dismissing case owing to plaintiff’s failure to pay filing fees). Although the court is not aware of a similar history of bad faith filings in 13 other courts by plaintiff Gregory R. Young, in the present case, all three plaintiffs have participated in sending an excessive number of submissions to this court that had to be returned, unfiled, by the office of the Clerk of Court. See Order of May 21, 2013, Dkt. No. 7, at 1-2 (returning plaintiffs’ submission because it failed to comply with the court’s rules and made premature discovery requests); supra Part I (noting additional submissions that have had to be returned, unfiled, since this case was closed and returning, unfiled, plaintiffs’ reply submission and multiple submissions of plaintiffs’ motion for default judgment); supra note 1 (describing the return, unfiled, of multiple submissions of plaintiffs’ “Application (Motion) for Default Judgment (RCFC Rule 55(b)(2))”). Accordingly, the court concludes that, through this course of conduct, plaintiffs have demonstrated “conduct which abuses the judicial process.” Cf. Chambers, 501 U.S. at 44-45. Such conduct is the proper subject of an exercise of this court’s discretion to “fashion an appropriate sanction” pursuant to its inherent power. Cf. id. at 44-45, 47 (stating that the court may rely on its inherent powers to “fashion an appropriate sanction for conduct which abuses the judicial process,” including “bad-faith conduct or willful disobedience of a court’s orders”). IV. Conclusion For the reasons stated, reconsideration of plaintiffs’ claims is not warranted and transfer of any of plaintiffs’ claims is not in the interest of justice. Plaintiffs’ Motion is therefore DENIED. Further, because plaintiffs have demonstrated a course of conduct that abuses the judicial process, the office of the Clerk of Court SHALL REFER, unfiled, any future proposed filing by any of the plaintiffs, together with a copy of this Opinion, to a judge of the court, who will determine if any such proposed filing demonstrates indicia of being filed in bad faith. If so directed by a judge of the court, the office of the Clerk of Court will reject such document for filing. IT IS SO ORDERED. _________________ EMILY C. HEWITT Chief Judge 14	01-03-2023	09-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/8326451/	Ricciardone, David, J. The defendants’ attorney was questioning the plaintiff at a deposition when she began to inquire as to the reasons for “counseling” within the last few years (but before the cause of action arose here). The plaintiffs counsel objected and instructed his client not to answer. The defendants’ attorney then suspended the deposition, declining the opposing counsel’s request that the deposition continue on with testimony as to other areas. The issues raised have been addressed preliminarily by Judge Lu’s order of May 25, 2010 in which he found that the plaintiffs claim of intentional infliction of emotional distress pleads emotional damage that is only “minimally more” than a “garden variety” claim of emotional distress. See, Sabree v. United Brotherhood of Carpenters & Joiners, 126 F.R.D. 422, 426 (D.Mass. 1989). Judge Lu also ruled that the psychotherapist privilege protects any communications between the plaintiff and relevant providers “since she does not intend to call her psychotherapist as a witness or to testify herself” as to the communications. Nevertheless, the psychotherapist privilege under M.G.L.c. 233, §20B does not prohibit all inquiry into such treatment. For example, the patient must dis*184close information from which it may be determined whether the therapist qualifies as a “psychotherapist” under the statute. Commonwealth v. Oliveira, 438 Mass. 325, 330 (2002). Also, the privilege is not waived by patient disclosure of the identity of the psychotherapist or dates and costs of treatment, or by revealing the general description of the substance of communications. Sorenson v. H&R Block, Inc., 197 F.R.D. 199, 205 (D.Mass. 2000). Moreover, portions of records that are not privileged must be disclosed, such as a diagnosis. Adoption of Saul, 60 Mass.App.Ct. 546, 553 (2004) (“. . . where [a] diagnostic term does not reveal or convey the content of privileged communication, it is not protected . . .”). Accordingly, at least the general and preliminary inquiries put to the plaintiff by the defendants’ counsel were permissible. The questions did not require disclosure of privileged communications. Also, the plaintiff does claim “depression” as a result of the defendants’ alleged misconduct and admits to some counseling within three years of this lawsuit, a fact that may go to causation. Therefore, I conclude that the plaintiffs objection was at least, premature. On the other hand, I agree with the plaintiff that the deposition could have continued on to address the other areas of liability, causation and damages that could have been covered once this issue was preserved. ORDER Based on these findings and conclusions, I issue the following order with regard to this discovery dispute: 1) The plaintiffs deposition must be rescheduled and she is required to appear, i.e., the plaintiffs motion for a protective order is denied; the parties must confer beforehand as to a mutually convenient date and time for the continuation of the deposition: 2) The plaintiff must disclose the identity of any provider whose treatment is said to come under the asserted privilege, as well as the provider’s qualifications to determine if he/she is a “psychotherapist”: 3) The plaintiff must disclose the general reasons for the “counseling” undergone within the last three years, with specific dates thereof, but if the provider is a “psychotherapist,” the plaintiff shall not be made to testify as to actual communications with him/her; 4) The plaintiff must disclose in a writing to the defendants, no later than one week before the rescheduled date of the deposition, whether she intends to call any psychotherapist as a witness or otherwise intends to testify as to communications with a psychotherapist; 5) In the same writing, the plaintiff must compile a privilege log pursuant to Rule 26(b)(5) in which she specifically identifies any document in which in whole or part she asserts a privilege under M.G.L.c. 233,§20B; 6) The defendants may not seek to discover or offer any such privileged records without further order of the court based on a showing, required by M.G.L.c. 233, §20B(c), that the interests of justice require disclosure more than protection of the patient/ psychotherapist relationship; 7) Since both parties have had some basis for their actions here, which were undertaken without the specific confines of this order, I decline to assess costs or impose sanctions, and the defendants’ motion for same is also denied; 8) The parties are reminded of the need to comply in all respects with Superior Court Rule 9C regarding this or other discovery disputes.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/1913527/	981 A.2d 327 (2009) G.G. v. S.M.C. No. 1243 MDA 2008. Superior Court of Pennsylvania. June 22, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2225998/	236 N.W.2d 612 (1975) STATE of Minnesota, Respondent, v. Wade RUSSELL, Appellant. No. 44610. Supreme Court of Minnesota. November 28, 1975. *613 C. Paul Jones, Public Defender, Minneapolis, for appellant. Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Michael McGlennen, David W. Larson, and Vernon E. Bergstrom, Asst. County Attys., Minneapolis, for respondent. Considered and decided by the court without oral argument. PER CURIAM. Defendant was charged by indictment with aggravated robbery and first-degree murder, Minn.St. 609.185 and 609.245. Pursuant to a plea agreement negotiated by his attorney, defendant pleaded guilty to a reduced charge of second-degree murder, Minn.St. 609.19, and was sentenced by the district court to a prison term of 3 to 25 years, with the sentence to run concurrently with a sentence of 3 to 10 years defendant was then serving for another crime. On this appeal from judgment of conviction, defendant contends that the district court should not have accepted his guilty plea because the record does not disclose an adequate factual basis for the plea nor contain sufficient evidence that he understood the nature and elements of the charge to which he pleaded guilty. We affirm. The rule is that a trial court may not accept a defendant's guilty plea unless it is first satisfied that, among other things, the plea is supported by an adequate factual basis. There must be sufficient facts on the record to support a conclusion that the defendant actually committed a crime at least as serious as the one to which he pleaded guilty. Beaman v. State, 301 Minn. ___, 221 N.W.2d 698 (1974); State v. Gustafson, 298 Minn. 200, 214 N.W.2d 341 (1974). Defendant's answers to questions by the prosecutor in this case disclose a factual basis for the plea even though no question was specifically directed to the element of intent to kill. State v. Hopkins, 293 Minn. 522, 198 N.W.2d 542 (1972). As a result of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), we cannot presume from a silent record that a defendant who pleaded guilty did so intelligently and voluntarily. However, the record in this case is not silent but shows that defendant had a full opportunity to consult with his counsel before entering the plea. We therefore may safely presume that counsel informed him adequately concerning the nature and elements of the offense. State v. Propotnik, 299 Minn. 56, 216 N.W.2d 637 (1974). Affirmed. SCOTT, J., took no part in the consideration or decision of this case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3107452/	NUMBER 13-11-00047-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ____________________________________________________________ SUMER LATREECE BIANO, Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________ On appeal from the Criminal District Court of Jefferson County, Texas. ____________________________________________________________ MEMORANDUM OPINION Before Justices Garza, Vela, and Perkes Memorandum Opinion Per Curiam Appellant, Sumer Latreece Biano, by and through her attorney, has filed a motion to dismiss her appeal because she no longer desires to prosecute it. See Tex. R. App. P. 42.2(a). Without passing on the merits of the case, we grant the motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.2(a) and dismiss the appeal. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith. Any pending motions are dismissed as moot. PER CURIAM Do not publish. See Tex. R. App. P. 47.2(b). Delivered and filed the 10th day of March, 2011.	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/1029223/	569 F.3d 175 (2009) INDEMNITY INSURANCE COMPANY OF NORTH AMERICA; Continental Insurance Company; Baltimore Harbor Shuttle, LLC, d/b/a Seaport Taxi; National Historic Seaport of Baltimore, Incorporated; Living Classrooms Foundation, Incorporated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 08-2148. United States Court of Appeals, Fourth Circuit. Argued: May 13, 2009. Decided: June 25, 2009. 177 ARGUED: Robert Hopkins, Duane Morris, LLP, Baltimore, Maryland, for Appellants. Stephen Robert Campbell, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Susan M. Euteneuer, Duane Morris, LLP, Baltimore, Maryland; George R. Zacharkow, Faust Mattioni, Mattioni, Ltd., Philadelphia, Pennsylvania, for Appellants. Michael F. Hertz, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C., Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Robert E. Kelly, United States Department of Justice, Torts Branch, Civil Division, Washington, D.C., for Appellee. Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and MALCOLM J. HOWARD, Senior United States District Judge for the Eastern District of North Carolina, sitting by designation. Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge DUNCAN and Senior Judge HOWARD joined. OPINION HAMILTON, Senior Circuit Judge: The present civil action stems from the capsizing in the Baltimore Harbor of a double-pontoon vessel called the "Lady D," resulting in the death of five persons thrown overboard and numerous injuries to others on board (the Accident). Prior to the Accident, the United States Coast Guard (the Coast Guard) had certified the Lady D to carry no more than twenty-five persons, based upon the results of a stability proof test performed on a sister vessel called the Fells Point Princess. After the Accident, the Coast Guard's retesting of the Fells Point Princess established that such vessel should have been certified to carry no more than fifteen persons. After the owners and operators of the Lady D settled the personal injury and death claims flowing from the accident, the owners and operators of the Lady D and their insurers (collectively Plaintiffs) filed the present civil action against the United States of America (the Government) under the Suits in Admiralty Act (SIAA), 46 U.S.C. §§ 30901-30918[1], and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. In such action, Plaintiffs have alleged causes of action for negligence, negligent misrepresentation, 178 contribution, indemnity, equitable subrogation, and violations of the Good Samaritan Doctrine. Plaintiffs initially based each cause of action upon two actions of the Coast Guard: (1) the Coast Guard's waiver of the Lady D undergoing its own stability proof test (the Failure to Test Error); and (2) negligence in the performance of the original stability proof test on the Fells Point Princess (the Underlying Testing Error). Upon the Government's motion, the district court dismissed Plaintiffs' civil action in toto for lack of subject matter jurisdiction on the basis that the entire action was barred by the discretionary function exception to the Government's respective waivers of sovereign immunity under the SIAA and the FTCA. On appeal, Plaintiffs challenge the district court's dismissal of their action to the extent their causes of action are premised on the Underlying Testing Error. Plaintiffs expressly do not challenge the district court's dismissal of their action to the extent their causes of action are premised upon the Failure to Test Error. For reasons that follow, we affirm the district court's dismissal of Plaintiffs' action for lack of subject matter jurisdiction. I. The Lady D weighed approximately two gross tons and measured thirty-six feet in length. Construction of the Lady D began in 1995. The Coast Guard inspected the Lady D's pontoons in November 1995.[2] The Coast Guard also conducted a dry-dock inspection on the nearly completed Lady D on March 18, 1996. In accordance with the authority and discretion provided under the then applicable administrative regulations and guidance, the Coast Guard's Officer in Charge for Marine Inspection deemed the Lady D a sister vessel of the Raven and waived the requirement that the Lady D undergo its own stability proof test before being issued a Certificate of Inspection. 46 C.F.R. § 170.175 (1996); 46 C.F.R. § 175.400 (1996); 46 C.F.R. § 178.115 (1996). The Raven's stability proof test, in turn, had been waived based upon its sister ship status with the Fells Point Princess a/k/a the Patricia P. The Coast Guard had performed the original stability proof test upon the Fells Point Princess in 1992. The record on appeal contains the deposition testimony of Charles Collins (Inspector Collins), the Coast Guard inspector who was in charge of conducting the stability proof test on the Fells Point Princess in 1992. Inspector Collins testified that, in conducting the transverse stability portion of such test, he "did not move the weight to the extreme outboard position," (J.A. 182), as "recommended" by the Marine Safety Manual for conducting a stability proof test on a pontoon-type small passenger vessel, (J.A. 202). Instead, for that singular portion of the test, Inspector Collins testified that he inadvertently applied the weight-shift procedure used for a monohull vessel. As a result, the stability calculations for the Fells Point Princess were inaccurate.[3] The Coast Guard issued a Stability Letter for the Lady D on March 29, 1996, "deem[ing it] to have satisfactory stability for passenger service under reasonable operating conditions for the carriage of not more than 25 total persons on protected waters." (J.A. 36). The record also contains 179 a Certificate of Inspection for the Lady D, issued by the Coast Guard on February 28, 2002, with an expiration date five years later, certifying the Lady D to carry no more than twenty-five persons. The Lady D operated in the Baltimore Harbor without incident until the Accident on March 6, 2004. On that day, the Lady D encountered a wind storm en route from Fort McHenry to Fells Point and capsized. At the time of the Accident, twenty-three passengers and two crew members were aboard the Lady D. A total of five persons perished and numerous others were injured. The Lady D also suffered physical damage. At the time of the Accident, the owners and operators of the Lady D were Baltimore Harbor Shuttle, LLC, d/b/a Seaport Taxi, National Historic Seaport of Baltimore, Inc., and Living Classrooms Foundation, Inc.[4] Their insurers were Indemnity Insurance Company of North America and Continental Insurance Company. As previously stated, the owners and operators of the Lady D and their insurers have brought the present action. II. On appeal, Plaintiffs seek reversal of the district court's dismissal of their action and a remand for further proceedings to the extent their causes of action are based upon the Underlying Testing Error of the Fells Point Princess in 1992. According to Plaintiffs, "[b]ut for the Underlying [Testing] Error, the Lady D would not have been certified as safe to carry 25 individuals, and the Accident would not have occurred." (Plaintiffs' Reply Br. at 3). Plaintiffs contend that the Underlying Testing Error does not fall within the discretionary function exception to the Government's respective waivers of sovereign immunity under the SIAA and the FTCA, and therefore, the district court committed reversible error in dismissing their action to the extent their causes of action are based upon the Underlying Testing Error. In support, Plaintiffs argue, in relevant part, that "pursuant to Coast Guard policy between the 1960's and March 11, 1996..., Coast Guard inspectors were not permitted to apply the Monohull Weight Shift in the test of a pontoon vessel, because to do so would be contrary to established scientific procedures of naval architectural and marine engineering and would provide invalid test results." (Plaintiffs' Opening Br. at 13). Whether the Underlying Testing Error falls within the discretionary function exception is a narrow question, which we review de novo. Suter v. United States, 441 F.3d 306, 310 (4th Cir.2006); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). Under the discretionary function exception to the Government's waiver of sovereign immunity under the FTCA, the Government is not liable for "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Although the SIAA does not expressly contain a parallel exception to the Government's waiver of sovereign immunity under the SIAA, we have previously held that one implicitly exists by virtue of the constitutional doctrine of separation of powers. McMellon v. United States, 387 F.3d 329, 338 (4th Cir.2004) (en banc) (noting that the SIAA does not contain a statutory exception from suit for discretionary functions, but holding that such an 180 exception nonetheless implicitly exists by virtue of the constitutional doctrine of separation of powers). Notably, Plaintiffs bear the burden of proving that the discretionary function exception does not apply to the Underlying Testing Error. Welch v. United States, 409 F.3d 646 (4th Cir.2005). If the discretionary function exception does apply, the district court must dismiss the affected claims for lack of subject matter jurisdiction. Williams v. United States, 50 F.3d 299, 304-05 (4th Cir.1995) (federal court lacks subject matter jurisdiction if discretionary function exception applies). "To determine whether conduct by a federal agency or employee fits within the discretionary function exception, we must first decide whether the challenged conduct `involves an element of judgment or choice.'" Suter v. United States, 441 F.3d 306, 310 (4th Cir.2006) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). "[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" because "the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. If we determine that the challenged "conduct does involve such discretionary judgment, then we must determine `whether that judgment is of the kind that the discretionary function exception was designed to shield,' i.e., whether the challenged action is `based on considerations of public policy.'" Suter, 441 F.3d at 311 (quoting Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954). Critical to proper analysis, this inquiry focuses "not on the agent's subjective intent in exercising the discretion..., but on the nature of the actions taken and on whether they are susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Thus, "in the usual case" a court should "look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect inherently to be grounded in considerations of policy." Baum v. United States, 986 F.2d 716, 721 (4th Cir.1993). "Moreover, when a statute, regulation, or agency guideline permits a government agent to exercise discretion, `it must be presumed that the agent's acts are grounded in policy when exercising that discretion.'" Suter, 441 F.3d at 311 (quoting Gaubert, 499 U.S. at 324, 111 S.Ct. 1267). Application of the legal principles just outlined reveals that Plaintiffs' appeal is without merit. First, the Marine Safety Manual was the only administrative guidance on the subject of conducting a stability proof test on pontoon-type small passenger vessels such as the Lady D and the Fells Point Princess in existence in 1992 when the Coast Guard conducted its stability proof test on the Fells Point Princess, and such manual did not set forth a mandatory testing methodology. Rather, the Marine Safety Manual only set forth a recommended testing methodology. In relevant part, the Marine Safety Manual provided: Pontoon Type Vessels. Figures 6-2 and 6-3 outline the recommended procedures for a stability proof test for pontoon-type small passenger vessels under 65 feet in length and restricted to protected waters.... A proof test is to be used when the number of pontoons does not exceed two. (J.A. 97) (bold emphasis added). Because the testing methodology for conducting a stability proof test on a pontoon-type small passenger vessel, such as the Fells Point Princess, was only recommended at the 181 time the Coast Guard performed the stability proof test on the Fells Point Princess, logic dictates that the Coast Guard was permitted to use its discretion in how it conducted such test. Indeed, the Marine Safety Manual makes such discretionary authority clear by stating in a preceding portion of the manual that "the policies and guidance issued herein are intended as a guide for the consistent and uniform execution of the marine safety program, without undue restriction of independent judgment and action on the part of marine safety personnel." (J.A. 333). Thus, with respect to the first inquiry prescribed by the applicable discretionary function analysis, we hold that the Coast Guard possessed discretion in conducting the stability proof test on the Fells Point Princess and certifying it to carry no more than twenty-five persons. We so hold despite the Marine Safety Manual's statement that: "A proof test is to be used when the number of pontoons does not exceed two." (J.A. 97). Focusing on the word "is," Plaintiffs seize upon this sentence to argue that the procedures outlined in Figures 6-2 and 6-3 of the Marine Safety Manual are mandatory. It is a particular weight-shifting step set forth in Figure 6-2 that Plaintiffs contend the Coast Guard improperly performed in conducting the stability proof test on the Fells Point Princess in 1992. Plaintiffs' argument is without merit for two reasons. First, language in the same paragraph as the sentence upon which Plaintiffs seize expressly states that the "procedures for a stability proof test for pontoon-type small passenger vessels under 65 feet in length and restricted to protected waters," as outlined in Figures 6-2 and 6-3, are only "recommended." (J.A. 97) (emphasis added). Second, the use of the indefinite article "a" at the beginning of the sentence upon which Plaintiffs seize means that such sentence does not specify a particular stability proof test. In sum, the answer to the first inquiry of the applicable discretionary function analysis favors the Government. Having determined that the challenged conduct involves discretionary judgment, we must next determine whether the challenged conduct is "based on considerations of public policy." Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954. We hold in favor of the Government on this inquiry also. We do so because, "[w]hen," as here, "established governmental policy, as expressed or implied by ... agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion," Gaubert, 499 U.S. at 324, 111 S.Ct. 1267, and Plaintiffs have put forward no evidence to carry their burden of showing that, in certifying the number of persons a vessel can carry (based in part upon the results of a stability proof test), the Coast Guard's acts are not grounded in considerations of public policy. Moreover, the fact that Inspector Collins characterized his failure to shift the weight to the extreme outboard position in conducting the stability proof test on the Fells Point Princess in 1992 as a mistake, as opposed to an exercise in judgment, is of no moment in our analysis. This is because, according to the Supreme Court, "[t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325, 111 S.Ct. 1267. With respect to inspecting pontoon-type small-passenger vessels, the Coast Guard inspector's judgment concerning the application of inspection standards based on the intended use of the vessel is the type of policy decision the discretionary function exception is designed to protect. 182 Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 508, 514-15 (7th Cir.1995) (judgments made by Coast Guard employees in conducting vessel inspections "require balancing considerations of safety and economics with reference to the needs and uses of the particular vessel being inspected"). This situation is materially analogous to the aviation inspections at issue in United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). In that case, the Supreme Court considered whether the Federal Aviation Administration's (FAA) system of spot-checking airplanes fell within the discretionary function exception. The Court held that not only was the FAA's creation of the spot-checking system discretionary, but so too were the acts of the FAA employees in executing the program since they had a range of discretion to exercise in deciding how to carry out the spot-check activity. Id. at 820, 104 S.Ct. 2755. Based upon the foregoing analysis, the district court was correct in holding that the discretionary function exception to the Government's respective waivers of sovereign immunity under the SIAA and the FTCA barred Plaintiffs' action against the Coast Guard to the extent Plaintiffs' causes of action are based upon the Underlying Testing Error. Accordingly, we affirm the district court's dismissal of Plaintiffs' action for lack of subject matter jurisdiction. AFFIRMED NOTES [1] Prior to October 6, 2006, the SIAA was cited as 46 U.S.C. app. §§ 741-752. [2] By statute, the Coast Guard is charged with inspecting small passenger vessels like the Lady D. See 46 U.S.C. § 3301(8). [3] As previously stated, stability testing of the Fells Point Princess conducted after the Lady D capsized showed that the Fells Point Princess could only qualify to be certified to carry no more than fifteen persons. [4] On October 7, 2004, victims of the Accident settled all tort claims filed in a prior separate action against the owners and operators of the Lady D.	01-03-2023	07-05-2013
https://www.courtlistener.com/api/rest/v3/opinions/1040150/	September 6 2013 IN THE SUPREME COURT OF THE STATE OF MONTANA OP 13-0590 STATE OF MONTANA, Petitioner, v. DISTRICT COURT OF THE THIRTEENTH ORDER JUDICIAL COURT OF MONTANA, YELLOWSTONE COUNTY, THE HONORABLE G. TODD BAUGH, PRESIDING JUDGE, Respondent. The State of Montana has filed an Emergency Petition for Writ of Prohibition requesting that this Court arrest the hearing scheduled today, September 6, 2013, at 1:30 p.m., before Respondent District Court in the matter of State of Montana v. Stacey Dean Rambold, Cause No. DC-OS-62S. Following the District Court's oral pronouncement of sentence in this matter, in open court on August 26, 2013, the State submitted to the District Court, in regular course, a proposed written judgment conforming to the oral pronouncement of sentence. The District Court has not signed the judgment, but instead issued a Notice and Order on September 3,2013, scheduling today's hearing. The purpose of the hearing, as stated in the Notice and Order, is to consider "amend[ing] the mandatory minimum portion of the sentence" that was orally imposed. The District Court also stated in its Notice and Order that a greater statutory minimum sentence appeared to be applicable. Despite the lack of written judgment, the State filed a notice of appeal from the oral sentence. In its petition, the State argues that the post-sentencing proceeding initiated by the District Court to amend the sentence is clearly unlawful and in excess of that court's jurisdiction, and that a writ of prohibition is warranted, citing § 46-18-116(3), MCA, and State v. Peterson, 2011 MT 22,359 Mont. 200, 247 P.3d 731. The State argues its appeal should proceed. The petition states that Stacey Rambold has no objection to the State's request that today's proceeding be arrested. Both the State and Rambold have filed pleadings with the District Court requesting the District Court to vacate today's hearing. We conclude that the stated intent of the District Court to alter the initially imposed oral sentence in today's scheduled hearing is unlawful and that the proceeding should be arrested pursuant to § 27-27-101, MCA. We take no position on the legality of the imposed sentence, and will address the parties' arguments in that regard on appeal. Therefore, IT IS HEREBY ORDERED that the petition for writ of prohibition is GRANTED in part. The hearing scheduled for today in State of Montana v. Stacey Dean Rambold, Cause No. DC-08-628, before Respondent District Court, is hereby VACATED. IT IS FURTHER ORDERED that the District Court will enter a written judgment in State of Montana v. Stacey Dean Rambold, Cause No. DC-08-628, which conforms to the sentence orally imposed by the District Court on August 26, 2013. The Clerk is directed to provide immediate notice hereof to counsel of record and Respondent District Court, Hon. G. Todd Baugh, presiding. DATED this tttaay of September, 2013. - 2 \/ .-..~ -- hiLtd i'o/tt1L Chief Justice Mike McGrath and Justice Brian Morris would deny the petition. 3	01-03-2023	09-06-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895344/	NO. 07-07-0127-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JULY 25, 2007 ______________________________ JERRY WAYNE HILL, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE CRIMINAL DISTRICT COURT NO. ONE OF TARRANT COUNTY; NO. 1007370D; HONORABLE SHAREN WILSON, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. ON ABATEMENT AND REMAND Appellant, Jerry Wayne Hill, appeals from his conviction for driving while intoxicated, enhanced to a felony, and sentence of two years incarceration in the Institutional Division of the Texas Department of Criminal Justice. The appellate record was due in this case by June 26, 2007. The clerk's record was filed on June 27, 2007. Neither the reporter's record nor a motion for extension of time to file the reporter's record was filed with this court by June 26, 2007. On July 5, 2007, this court directed the court reporter by letter "to advise the Court of the status of the reporter's record on or before Monday, July 16, 2007." To date, no response has been received by the court. Accordingly, we abate this appeal and remand the cause to the Criminal District Court Number One of Tarrant County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following: 1. why the reporter's record has not been filed, 2. when the reporter's record can reasonably be filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of his right to appeal, and 3. whether an alternate or substitute reporter should or can be appointed to complete the record in a timely manner. The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk's record to be developed containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and (3) cause a reporter's record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk's record and any reporter's record transcribing the hearing with the clerk of this court on or before August 24, 2007. Should further time be needed by the trial court to perform these tasks, then same must be requested before August 24, 2007. It is so ordered. Per Curiam 3"/> NO. 07-09-00323-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 19, 2010 ROCKY A. HILL, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2008-419,474; HONORABLE CECIL G. PURYEAR, JUDGE Before CAMPBELL and HANCOCK and PIRTLE, JJ. CONCURRING OPINION The court construes Gomez to hold that the trial court had no duty sua sponte to order a psychiatric examination to determine the defendants sanity at the time of the offense because the defendant failed to file the notice required by statute of his intention to offer evidence on such a defense. See Gomez, 2001 Tex. App. Lexis 2094, at 9-12 (citing Tex. Code Crim. Proc. Ann. art. 46.03 § 2(a)(1) (Vernon 1979) (now art. 46C.052)). While not inaccurate, the courts description of Gomez and its application to this case could leave the impression that the outcome here might be different if counsel simply had filed the statutorily-required notice. But such is not the case, as a broader application of Gomez makes clear. As Gomez says, the defendant there neither filed the notice of intention to offer evidence on an insanity defense, nor specifically alleged she was insane. Gomez, 2001 Tex. App. Lexis 2094, at 10-11. The opinion goes on to state that insanity was not an issue at [Gomezs] plea hearing or sentencing; rather, [Gomez] submitted the affidavits [allegedly containing indications of insanity] for the purpose of obtaining community supervision in lieu of confinement. Id. at *11. Similar statements can be made in this case. Although appellants experienced trial counsel sought both competency and insanity examinations of appellant, and both examinations were conducted, by the time of appellants plea hearing, neither his competency to stand trial nor his sanity at the time of the offenses was at issue. Moreover, as the court points out, the statutory consequence of a defendants failure to give notice of intention to offer evidence on an insanity defense is that the evidence is not admissible absent good cause for the lack of notice. Tex. Code Crim. Proc. Ann. art. 46C.052 (Vernon 2006). Here, the trial court deferred a finding of guilt until it heard the punishment evidence. Before the finding of guilt, without objection from the State, appellant called four witnesses, including the psychologists who performed the competency and insanity examinations. He thoroughly examined both experts. So appellant suffered no exclusion of evidence. Moreover, as I read it, his questioning of the psychologists was not directed at showing an insanity defense (which, of course, would have been inconsistent with his guilty plea in the first place, see Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986) ([a] plea of guilty waives all nonjurisdictional defenses . . .)), but at showing his need for treatment rather than merely a long prison sentence. In that effort, appellant had some success, as his sentence was far short of the maximum available to the trial court. As I see it, appellant is like Gomez in that insanity was not an issue at his plea hearing or his sentencing, and his evidence of his mental condition was aimed at mitigating his punishment, not asserting his insanity. His ability to accomplish that aim was not affected by his failure, vel non, to give notice of an intention to assert insanity. With these additional comments, I join the opinion and judgment of the court. James T. Campbell Justice Publish.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/1873212/	752 N.W.2d 452 (2008) HANISCH v. BRACKER. No. 07-0095. Court of Appeals of Iowa. May 14, 2008. Decision without published opinion. Reversed and Remanded.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612994/	35 Cal. App. 2d 659 (1939) MARGARET SMITH et al., Respondents, v. MORRIS J. SCHWARTZ, Appellant Civ. No. 10820. California Court of Appeals. First Appellate District, Division One. November 30, 1939. Kirkbride & Wilson for Appellant. Francis N. Foley for Respondents. Goodell, J.,pro tem. The collision which gave rise to this litigation resulted in the instant death of Frederick Smith, who was the father of the three respondents, and in severe injuries to Lorraine Smith, one of them. An action filed by Lorraine Smith against the appellant for her personal injuries was tried by the late Judge Swart without a jury and resulted in a $7,000 judgment which, on appeal, was affirmed. (Smith v. Schwartz, 14 Cal. App. 2d 160 [57 PaCal.2d 1386].) The present case, brought by the three daughters and heirs of the deceased Frederick Smith for damages for the death of their father, resulted in a verdict for $10,000. The appeal is from the judgment entered upon that verdict. Between four and five o'clock on December 24, 1931, a Buick automobile driven by the appellant, traveling southerly along Bayshore Highway collided with a Studebaker automobile driven by said Frederick Smith on Bayshore Highway at its junction with Winchester Drive at Burlingame. The Studebaker had been headed northerly and had made, or was making, a left turn to go westerly on Winchester Drive when it was struck on its right side near the front by the front of appellant's Buick in the westerly southbound lane. Bayshore Highway has four ten-foot traffic lanes, the two westerly lanes being for southbound, and the two easterly ones for northbound, traffic. There is a fairly wide shoulder on each side. 661 The impact was a violent one. When the cars came to rest the Studebaker was lying on its right side pointed easterly toward the bay, southerly of the Buick, and under it were pinned its driver and his daughter Lorraine who had been riding beside him. The Buick, still on its wheels, was pointed northerly, the direction from which it had come. Winchester Drive is sixty feet wide over all with an asphalt pavement for vehicular traffic thirty feet wide, but the curb lines on the edges of the pavement flare out so that where they touch the westerly edge of Bayshore Highway the width of the mouth of Winchester Drive is approximately one hundred feet. Rain had fallen just before the collision and the highway was wet; the day was dull and overcast but the visibility was good. In the first case there was no issue of contributory negligence and could have been none, for even if Lorraine Smith's father had been guilty of negligence it could not have been imputed to her, and this court so held in deciding that case. In the instant case, however, the issues are different. Contributory negligence of the respondents' father was pleaded, and at the trial most of the evidence was addressed to that defense. There was the sharpest possible conflict between the plaintiffs' witnesses who saw the collision and those of the defendant who saw it. Briefly, the plaintiffs' witnesses on the one hand testified that the Studebaker had gone from the outer to the inner lane, northbound, and at a speed of from twelve to fifteen miles an hour had made the left turn northerly of the center of the intersection, while the Buick, traveling over fifty miles an hour was still a considerable distance away. On the other hand, the appellant and his wife testified that they had seen the Studebaker some two hundred fifty feet away; that it was traveling as fast as they were and coming at them "like a locomotive" and that it suddenly made the left turn into and across their path at a distance of some fifty or sixty feet south of the intersection. The two versions presented a sharp issue which, of course, was purely a jury question. There is no conflict in the testimony, however, as to the force of the impact. Witnesses for both sides saw the Studebaker in the air. In addition to oral evidence, the position of the cars after the collision, the glass and other debris surrounding them, and skid marks on the highway, were circumstances relied upon by the appellant in an effort to convince 662 the jury that the collision was south of the center line of the intersection, which would mean, of course, that the Studebaker had "cut the corner". [1] The appellant's first contention is that the testimony of three of respondents' witnesses "materially changed to obviate deficiencies pointed out in a former decision, without sufficient explanation given, is discredited as a matter of law and will be disregarded". We cannot agree with this position. The witness against whose testimony the attack is chiefly directed was an eye-witness, and at the first trial in 1934 marked the map then in use to illustrate her testimony as to the manner in which the Studebaker made the left turn, and was vigorously cross-examined at that trial respecting her delineations as well as respecting what she said. At the 1937 trial a different map was in use and she marked it, and was confronted with the testimony she had given in 1934 and with the old map. There were some changes in her delineations, and under cross-examination she explained that the maps were different, and that the relative distances looked different to her. These changes do not appear to us nearly so glaring as appellant's counsel contends. Another one of respondents' witnesses testified in 1934 that when the cars came to rest there was a distance of about twenty feet between them, while at the 1937 trial he testified that they were from fifty to one hundred feet apart. When confronted with this he answered that it seemed to him then (in 1937) that they were about as far apart as "the length of this courtroom", but the record does not disclose what that was. The jury, of course, could see for themselves. The third witness at the first trial, whose testimony is criticized, had testified that when he first saw the Studebaker it had commenced to make the left turn and at the last trial he testified that it had completed the turn. He was thoroughly cross-examined on this as well as upon his delineations. It is interesting to note that there were changes in testimony made by appellant's witnesses as well. One of them in 1937 testified that he was traveling at about forty-five miles an hour behind appellant's car and gradually overtaking it. In 1934 it was developed by his cross-examination then, that he had admitted that appellant's car might have been traveling as fast as forty-eight or forty-nine miles an hour. Another of appellant's witnesses in 1937 testified that the Studebaker, after the accident, was 663 fifty or sixty feet south of Winchester Drive, while at the first trial he had testified that it was only twenty-five or thirty feet south of the Buick, which was an inconsistency. It must be assumed that these five witnesses on both sides, all of whom were disinterested, were equally honest. There is no more basis for the claim that respondents' witnesses changed their testimony wilfully than that the appellant's witnesses did so. At the time of the last trial almost six years had elapsed after the accident, and more than three years had elapsed after the first trial. But be that as it may, any variations or inconsistencies in their testimony between the two trials in legal effect would be no different than such variations or changes as are developed between testimony given at a pretrial deposition, for instance, and that given later in a courtroom. It is an every day occurrence in the trial of cases that witnesses are confronted with statements made by them elsewhere, whether under oath or not, and it is always a question of fact for the jury to decide as to which statement is correct, or is more in accord with the probabilities, as well as for the jury to say whether the witness has wilfully changed the testimony, in which case, presumably, the jury rejects it. Who can say, in the instant case, but that the jury was just as critical of the changes in the testimony of appellant's witnesses as appellant's counsel now is of the changes in the testimony of respondents' witnesses. The implication from their verdict is that they were more so. After all, the weighing of all this evidence on both sides was the jury's own function. It involved the attempted impeachment of witnesses. The trial judge heard it and heard a motion for new trial and we fail to see how this case presents a question of law on appeal any more than any other case where there is impeaching testimony in the record. There is, however, an altogether different answer to this contention. It might well be that the jury, because of the matters just discussed, or for other reasons, concluded that the driver of the Studebaker had, in fact, "cut the corner" and hence had been guilty of contributory negligence, but that such negligence did not directly or proximately contribute to the accident. This argument is made by counsel for respondents (citing Ingram v. Wessendorf, 14 Cal. App. 2d 16 [57 PaCal.2d 989]) and appellant's counsel concedes that "This elementary principle needs no citation of authority." 664 The question, however viewed, was purely one of fact for the jury. [2] The appellant contends that "The trial court committed prejudicial error in admitting into evidence the testimony of Linda Holzwarth given in the trial of a former case" on the grounds, first, that the parties in the two actions were not the same, and, second, that the foundation for the admission of her former testimony was insufficient. Section 1870, Code of Civil Procedure, provides that "... evidence may be given upon a trial of the following facts: ... 8. The testimony of a witness deceased, or out of the jurisdiction, or unable to testify, given in a former action between the same parties, relating to the same manner; ..." Counsel for respondents testified as to his efforts to produce this witness, who was ill, to testify in his case. Objection was made because of the inadequacy of the showing but the court ruled that the showing was sufficient. With respect to the objection that the parties were not the same, we are satisfied that the objection was good and the ruling to the contrary was erroneous. In the first action Lorraine Smith, a minor, sued by a guardian ad litem for her personal injuries sustained in this accident. She was suing purely in her own right, and, as already observed, this court, in passing upon that appeal, held that where "the infant is not an active participant in the accident, but was merely passively present, the negligence of the father in the operation of the car cannot be imputed to the infant". (Smith v. Schwartz, supra, p. 166.) In the present case the three daughters invoke the statutory remedy provided by section 377, Code of Civil Procedure, and sue as heirs of their deceased father. Legally they stand in his shoes, and had he been guilty of contributory negligence, such negligence would bar their recovery, as it would have barred his. The evidence in the last trial was confined almost entirely to the question of contributory negligence. It is obvious that had this case been tried first, and the Lorraine Smith case later, the evidence here could not have been read in her later case, for reasons already stated. The rule, of course, must work both ways. It is true that the California cases hold that section 1870, subdivision 8, should receive a liberal construction, but no case has been cited, and we have found none, where it has been held that the parties are the 665 same where one action is brought for one individual's personal injuries and the other is brought by three individuals (of whom the first plaintiff happens to be one) suing upon the purely statutory right granted by section 377, Code of Civil Procedure, as heirs, for the death of their ancestor, where in the former case contributory negligence could not be, and was not, in issue, and in the latter it was. Conceding that the admission of Mrs. Holzwarth's testimony was error because of lack of identity of parties, and conceding that there was no sufficient foundation on the other ground, i. e., that her illness was not sufficiently shown--still there was no reversible error for the following reasons: Mrs. Holzwarth's testimony at the 1934 trial was addressed almost entirely to the speed of the Buick and that factor has been by appellant's concessions, eliminated from the present case. Her testimony showed that she was sitting beside her husband in his automobile, traveling southerly, following the Buick, and saw the collision at a distance of about 250 or 300 feet; that she saw the machines collide and "saw the Studebaker going up in the air, that is all I saw"; that the collision "was on the dirt and on the pavement" on her right; that she identified the Buick because as she had seen it up the road she had noticed Indian blankets piled high in the back of it; that the last time the Buick had passed her car it was "about 500 feet" (presumably northerly of the intersection). She testified that her husband drives no faster than thirty or forty miles an hour and that the Buick, when it passed them, was traveling "fifty-five or sixty miles". On direct examination she was asked whether after the collision she had made any observations as to where the cars were, or whether there was a side street, and answered that she paid no attention as she was giving all her attention to the injured child. In response to a question whether the Studebaker was opposite another street she answered in the negative, and when asked whether she knew where Winchester Drive is she answered that she did not. The only questions she was asked on cross-examination were with respect to the Indian blankets in the Buick, with respect to the place where the injured child was when they were extricating her from the wreck, and lastly, the question "As you just testified, you did not notice any side street", which she answered "No". Her testimony with respect to the dirt, simply placed the wrecked Studebaker on 666 the westerly edge of the paved highway, as other witnesses had done, but had no significance as to its location with relation to Winchester Drive--as to how far south of the intersection the Studebaker might have been. She did not even notice Winchester Drive, so, manifestly, could not have given testimony as other witnesses had, from which the jury could have deduced where the collision had taken place based upon the collocation of physical objects afterward. She was not cross-examined at all with respect to the speed of the Buick, nor with respect to what she had observed of the impact itself. Her testimony with respect to speed was purely cumulative. Mrs. Kassner had testified for the respondents that her attention had been attracted to the appellant's Buick by its speed as it passed Morrell Avenue, which she judged to be fifty-five miles an hour and that she kept her eyes upon it and it did not slacken its speed. Respondents' witness Hazeltine estimated the Buick's speed "as around between fifty, fifty-five or fifty-eight miles an hour" and that it did not decrease. Both were disinterested witnesses. The appellant's witness Bird could not testify as to the Buick's speed, but did say, "I saw two cars come together, and the car that was going north [Studebaker] seemed to raise right up in the air and turn over." He, too, was a disinterested witness. The appellant's witness Gurley, a disinterested witness, testified that he was following the appellant's Buick down the Bayshore Highway (and, incidentally, narrowly averted crashing into the intersection wreck himself) and judged his own speed at about forty-five miles an hour and said his recollection was that he was gradually overtaking the Buick. He was then read his cross-examination at the first trial as follows: "Mr. Foley: Q. Now, on the speed of the Schwartz car, do you recall telling me last Saturday that for anything you could say positively, the Schwartz' car might have been going as much as forty-eight or forty-nine miles an hour? A. I do. Q. And that was your best judgment at that time? A. Correct." The appellant testified that as he approached Winchester Drive he was traveling approximately forty or forty-two miles an hour in the fast lane. His wife testified that she knew the maximum speed limit to be forty-five miles an hour, and that she was under the impression "we were just below" that. To summarize: there were two disinterested witnesses for respondents, aside from Mrs. Holzwarth, who fixed the Buick's speed 667 well over the maximum,--one at fifty-five, the other at fifty, fifty-five or fifty-eight miles an hour. And one of appellant's witnesses at one time (before the first trial) admitted the Buick's speed might have been forty-eight or forty-nine miles an hour. It must be remembered that this was on a wet pavement. Then there was the evidence of the violence of the crash, with the Studebaker lifted into the air, spun around and thrown on its side, with no conflict at all on that score. In addition to what has been said, certain concessions were made in appellant's briefs which virtually eliminate all questions of speed from the case on this appeal. In appellant's opening brief counsel say: "The crux of this case, factually, is whether the decedent obeyed this [Vehicle Code provisions respecting left turn] law. Most of the evidence related to where decedent's car was when it turned left" and "Except for inherent incredibility of plaintiffs' witnesses below discussed, the evidence of speed is in conflict. So we must assume, for this discussion, that defendant's speed was excessive and that decedent's was lawful." (Emphasis ours.) And in appellant's closing brief: "In our appeal from the judgment in favor of Lorraine Smith in her former action for her personal injuries, upon the ground that the evidence showed as a matter of law that decedent's negligence was the sole proximate cause of the accident, the evidence of plaintiff's witnesses as to the speed of defendant's car was held sufficient to preclude the appellate court. (14 Cal.App. [2d] 165. ... We have therefore carefully avoided raising any issue on this appeal that would come within the rule as to conflict of evidence. On pages 11 and 12 of our opening brief, we started our discussion of the evidence of the case by admitting that the evidence of speed was in conflict, and therefore the finding of the jury thereon is binding upon this court on the question of defendant's negligence." (Emphasis ours.) In addition to what has been said there is another interesting feature in this case. The witness Walter Bird testified for the appellant at the 1934 trial and passed away before the last trial, and appellant's wife at the time of the last trial was out of the jurisdiction. Appellant offered their testimony under subdivision 8 of section 1870, Code of Civil Procedure, without objection. The testimony of these witnesses was just as vulnerable to an objection that the parties 668 were different as was the testimony of Linda Holzwarth to which appellant objected. The appellant therefore had the advantage of having this former testimony before the jury although he had objected to similar testimony when offered by his adversary. It may well be that by thus offering this evidence, he waived any error in the admission of the Holzwarth testimony. (10 Cal.Jur., p. 825, sec. 111; 24 Cal.Jur. 777, sec. 59; Jameson v. Tully, 178 Cal. 380, 384 [173 P. 577]; Estate of Visaxis, 95 Cal. App. 617, 624, 625 [273 P. 165].) But independently of this possible waiver, we are satisfied for the reasons first given, and after a careful examination of all the evidence contained in this record, that the error was not prejudicial and that there should not be a reversal because of it. In our opinion the case comes clearly within the provisions of section 4 1/2 of article VI of the Constitution. [3] With respect to the appellant's claim that there was such misconduct on the part of respondents' counsel in the trial of this case as to require a reversal, it is sufficient to say that from a careful study of the record and the numerous exchanges between counsel which are shown therein we are not convinced by any means. There were provocations and recriminations on both sides and the trial judge was careful to admonish the jury, either on the suggestion of counsel or on his own motion, to disregard the remarks of counsel. In most of these instances no assignment of misconduct was made. In the trial of this case there were more occasions than usual where intemperate language was used and that is not to be encouraged or condoned, but each side indulged in it. Under the circumstances of this particular case it would be extremely unfair to reverse a judgment on this ground where counsel now complaining was himself subject to the same criticism which he now directs at his adversary. In any event, we are of the opinion that the admonitions of the trial court sufficiently safeguarded appellant's rights. The judgment is affirmed. Peters, P. J., and Ward, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612997/	35 Cal. App. 2d 643 (1939) HARRY BURFORD, Respondent, v. OSCAR HUESBY et al., Defendants; W. B. JUETT, Appellant. Civ. No. 10906. California Court of Appeals. First Appellate District, Division Two. November 28, 1939. Charles V. Barfield and John J. Healy, Jr., for Appellant. J. Francis Shirley and Joseph W. Robb for Respondent. Spence, J. Plaintiff sought damages for personal injuries against defendants Huesby and Juett, the former being the operator of a certain Dodge automobile involved in the accident, and the latter being the owner thereof. The cause was tried by the court sitting without a jury and from a judgment in favor of plaintiff and against said defendants in the sum of $1570, defendant Juett appeals. Defendant contends that the evidence was insufficient to sustain certain findings of the trial court in which it was found that defendant Huesby was acting as the agent of defendant Juett and that defendant Huesby was driving the 644 automobile of defendant Juett with the permission of said defendant Juett. It is conceded, however, that if the evidence was sufficient to sustain the finding that defendant Huesby was driving defendant Juett's automobile with the permission of the latter, the judgment should be affirmed. We are of the opinion that the evidence was sufficient for that purpose and we therefore deem it unnecessary to discuss the question of the sufficiency of the evidence to sustain the finding of agency. Section 402 of the Vehicle Code imposes liability upon the owner of an automobile when the driver, whose negligent operation of the automobile caused the injury, operated the automobile "with the permission, express or implied, of such owner." It is therefore apparent that the permission may be either express or implied and that evidence showing an implied permission is sufficient to sustain the above-mentioned finding and judgment. Speaking of the word "implied", it is said in Black's Law Dictionary, third edition, page 924, "This word is used in law as contrasted with 'express'; i. e., where the intention in regard to the subject-matter is not manifested by explicit and direct words, but is gathered by implication or necessary deduction from the circumstances, the general language or the conduct of the parties." Defendant admits that "prior knowledge that the driver intends to use the car is not necessary to find an implied permission", for as was said in Phipps v. Shacklett, 137 Cal. App. 109, at page 111 [29 PaCal.2d 917], "prior knowledge that the driver intends to so use the car is not necessary. That seems to be necessarily implied from the use of the words 'express or implied' in connection with the owner's 'permission'. 'Express' necessarily implies previous knowledge of the intended private use. 'Implied' must mean without such previous knowledge, but under circumstances from which consent to use the car is necessarily implied". The accident in the present case occurred around 11:00 P. M. on the highway between Pittsburg and Antioch. Plaintiff was riding in an automobile which was struck by the automobile operated by defendant Huesby and owned by defendant Juett. At that time defendant Huesby was accompanied by his wife and a Mr. Eaby. He was driving from his home in Pittsburg to Antioch, a distance of about five miles, for the purpose of returning Mr. Eaby to Antioch from 645 whence Mr. Eaby had been driven a few hours earlier by defendant Juett. Defendant Juett was not in the automobile at the time but was asleep at the home of defendant Huesby in Pittsburg. Defendant Juett owned a beer and soft drink parlor in Antioch. He also was a commission salesman for Investor's Syndicate, a concern which sold some form of investors' certificates. Defendant Huesby was the manager of a brokerage company in Pittsburg which company was engaged in the loan business. Said defendants were intimate friends and visited each other frequently. Mr. Eaby had become acquainted with both defendants but was not an intimate friend of either. Defendant Juett was apparently very liberal in permitting his friends and prospective customers to use his automobile. He testified, "I have always been very liberal that way, tried to help out. Anybody can drive my car if I think they are right. ... I generally like to have them tell me where they are taking it. ... Every day it is being done. ... Most every day around my place, someone will come in and say, 'Juett, I have to go up here a block or two, can I use your car?' 'Sure'. ... They generally come to the door and holler." He further testified that it was his habit to leave his keys in his car. On a previous occasion defendant Huesby had used a truck belonging to defendant Juett. Defendant Juett testified that he knew that defendant Huesby was moving at that time and he thought he "volunteered the truck" for defendant Huesby's use without being asked for it. There are some minor conflicts in the evidence regarding what was said and done on the evening in question but on this appeal we must resolve these conflicts in favor of plaintiff. It appears that Mr. Eaby met defendant Juett in the latter's place of business in Antioch on that evening and that said defendant invited Mr. Eaby to take a ride with him to Pittsburg. He testified "My purpose was to see Huesby on Investors' Syndicate and just meeting Eaby, I thought it was a good time to get acquainted with him, always looking for business." In other words, defendant Juett believed both men were business prospects. Before consenting to go to Pittsburg, Mr. Eaby told defendant Juett that he had to go to work at midnight and defendant Juett assured him that he would get him back. Mr. Eaby left his own car in Antioch and the two men proceeded to Pittsburg 646 and to the home of defendant Huesby in the car of defendant Juett arriving at about 8 P. M. There they visited with defendant Huesby and his wife, the two defendants conversing together most of the time regarding Investors' Syndicate while Mr. Eaby and Mrs. Huesby had a conversation. There was considerable beer consumed during the evening. Defendant Juett had brought eight pints himself, all of which was consumed. He admitted that he drank a quart of beer at the Huesby home. He had been up all night the previous night, had been drinking beer that afternoon, had not had dinner, and he became sleepy as the evening wore on. On several occasions during the evening, Mr. Eaby mentioned the fact that he had to get back to Antioch in time to go to work. Finally defendant Juett fell asleep on the davenport and Mr. Eaby became very anxious about getting back. Defendant Huesby then undertook to drive Mr. Eaby back in order to avoid the necessity of awakening his good friend from his much needed sleep. As they left the house, it was noticed that defendant Juett's car partially blocked the driveway in which defendant Huesby's car was parked. The last-mentioned car was seven years old and the headlights were defective. Defendant Huesby said, "We'll take Fat's car," meaning the car of defendant Juett. The keys had been left in the car according to the custom of defendant Juett and the parties started for Antioch in that car, leaving defendant Juett slumbering at the Huesby home. When asked why he did not awaken defendant Juett and request express permission to use the car, defendant Huesby testified, "Well, he was a good friend and he seemed to be very tired and we didn't think it was necessary to do that." Defendant Juett was not awakened until about 1 A. M. when someone was sent to the Huesby home for that purpose after the accident had happened. Defendant Juett did not criticize defendant Huesby for using the car and upon the trial he testified that such use of his car on the night in question was perfectly agreeable to him. After the accident and before the trial, plaintiff told defendant Juett that he understood said defendant was claiming that defendant Huesby had no permission to use the car. Said defendant replied, "After this accident, I was faced with four damage suits amounting to 647 $75,000. You see what kind of a spot I was in and I had to rely on some out." [1] In disposing of this appeal, we do not deem it necessary to discuss the question of whether a mere showing of ownership by defendant Juett was sufficient to give rise to an inference of permissive use by defendant Huesby. This question is touched upon but not decided in the recent case of Engstrom v. Auburn Automobile Sales Corp., 11 Cal. 2d 64 [77 PaCal.2d 1059], where it was assumed, solely for the purpose of that decision, that such showing was sufficient for that purpose. In the present case there was ample evidence, without resort to such inference, to show that there was implied permission for defendant Huesby to use defendant Juett's car. It appears that defendant Juett made it a general and daily practice of lending his automobiles to his friends for their use; that defendant Huesby was one of his intimate friends; that defendant Juett had previously loaned defendant Huesby an automobile for the latter's use at which time he had "volunteered" it; that on the occasion in question, defendant Juett had taken Mr. Eaby, a friend and business prospect, from Antioch to defendant Huesby's home in Pittsburg upon the promise to get him back to Antioch in time to go to work at midnight; that either through the use of intoxicating liquor or because of lack of sleep or both, defendant Juett had fallen asleep in the Huesby home and it was doubtful, to say the least, whether he was in any proper condition to fulfill his promise to Mr. Eaby; that defendant Huesby was willing to perform that service for defendant Juett and knowing defendant Juett's attitude regarding the use of his car, he felt it entirely unnecessary to disturb defendant Juett from his slumber for the purpose of obtaining express permission. It may be conceded that there was no evidence to show that express permission had been given with prior knowledge of the intended use at the particular time and place, but, as indicated by the above-mentioned authorities, it was not necessary to show such express permission or such prior knowledge. Implied permission was sufficient and we are of the opinion that the evidence relating to the conduct of the parties and the circumstances existing at the time fully justified a finding that defendant Huesby had implied permission to use said automobile of defendant *648 Juett for the purpose for which he was using it at the time the accident occurred. The judgment is affirmed. Nourse, P. J., and Sturtevant, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895263/	NO. 07-06-0469-CR 07-06-0470-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A AUGUST 13, 2007 ______________________________ WALTER EARL HARRELL, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 121ST DISTRICT COURT OF TERRY COUNTY; NO. 4252, 4983; HONORABLE KELLY G. MOORE, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Walter Earl Harrell, seeks to appeal orders recouping court appointed attorney fees and court costs from appellant’s inmate trust fund account. We find that the orders being appealed are non-appealable orders and dismiss for want of jurisdiction. On August 19, 1997, appellant was convicted and placed on community supervision for possession with intent to deliver a controlled substance, cocaine. On February 22, 2000, appellant’s community supervision was revoked and appellant was sentenced to 10 years confinement in the Institutional Division of the Texas Department of Criminal Justice and ordered to pay $200 in attorney fees. On July 9, 2003, appellant pled guilty to the offense of possession of a controlled substance, cocaine. Appellant was sentenced to 18 years confinement in the Institutional Division of the Texas Department of Criminal Justice and ordered to pay $248 in court costs and $300 in attorney fees. On October 27, 2006, the trial court signed two withdrawal orders notifying the Department that appellant had been assessed court costs and attorney fees totaling $200 in the first cause and $548 dollars in the second cause. The two withdrawal orders to the Texas Department of Criminal Justice ordered the Department to withdraw money from the trust account of appellant in accordance with section 501.014 of the Texas Government Code. On November 18, 2006, appellant filed notice of appeal in each case complaining of the October 27th withdrawal order. On November 27, appellant filed, in the trial court, a Motion to Rescind Order requesting the trial court to rescind its withdrawal order. On February 20, 2007, appellant requested a preparation of the clerk’s record requesting documents of the original proceedings including the plea agreements, judgments of guilt, and trial docket sheets, as well as the reporter’s record of the plea and sentencing proceedings. Appellant also requested all pleadings, documents, and transcription of any hearing relevant to the court’s withdrawal orders. The trial court denied the Motion to Rescind and the request for preparation of the record. Since appellant was not appealing 2 the judgment or sentence, the trial court held that appellant was not entitled to a free record of those proceedings. The trial court further stated that no hearing was held on the withdrawal orders and, therefore, no reporter’s record exists regarding the withdrawal order. We have found no authority giving us jurisdiction to review a withdrawal order issued under section 501.014(e) of the Texas Government Code. See Gross v. State, No. 07-06- 0489-CR, 2007 WL 2089365, at *2 (Tex.App.–Amarillo July 23, 2007, no pet. h.).1 Therefore, we conclude that we must dismiss the appeal for want of jurisdiction. Mackey K. Hancock Justice Do not publish. 1 On April 9, appellant filed a motion for records in this cause requesting that the clerk’s record be provided to him. On April 30, appellant filed his brief with this court. On July 9, he filed another motion for the clerk’s records seeking that we order the trial court to produce the clerk’s records. Appellant also filed a motion for appellee’s brief; however, the State did not file a brief in this matter. Having found that this court does not have jurisdiction, we do not have the power to act on appellant’s motions before this court. See Olivo v. State, 918 S.W .2d 519, 523 (Tex.Crim.App. 1996). 3	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/3107453/	COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00434-CR Tiffney Lynne McAdoo § From the 372nd District Court § of Tarrant County (1247940R) v. § December 13, 2012 § Per Curiam The State of Texas § (nfp) JUDGMENT This court has considered the record on appeal in this case and holds that the appeal should be dismissed. It is ordered that the appeal is dismissed for want of jurisdiction. SECOND DISTRICT COURT OF APPEALS PER CURIAM COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-12-00434-CR NO. 02-12-00435-CR TIFFNEY LYNNE MCADOO APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY ---------- MEMORANDUM OPINION1 ---------- Appellant Tiffney Lynne McAdoo attempts to appeal following her pleas of guilty to theft of property valued between $1,500 and $20,000 from an elderly individual and to making a false statement to obtain property or credit. See Tex. Penal Code Ann. § 31.03(e)(4), (f) (West Supp. 2012); id. § 32.32 (West 2011). Following the plea agreements, the trial court sentenced Appellant to five years’ 1 See Tex. R. App. P. 47.4. 2 incarceration in each case but suspended her sentence, ordering that Appellant be placed on community supervision for five years and that Appellant make restitution. The trial court’s certifications of Appellant’s right to appeal state in each case that this “is a plea-bargain case, and the defendant has NO right of appeal.” See Tex. R. App. P. 25.2(a)(2). On September 17, 2012, we notified Appellant that these appeals could be dismissed unless she or any party desiring to continue the appeals filed a response showing grounds for continuing the appeals. We have to date not received any response. The Texas Rules of Appellate Procedure are clear that in a plea-bargain case, an appellant may appeal only those matters that were raised by written motion filed and ruled on before trial or after getting the trial court’s permission to appeal. See Tex. R. App. P. 25.2(a)(2). Because the trial court’s certifications reflect that Appellant has no right of appeal, we dismiss these appeals for want of jurisdiction. See Tex. R. App. P. 25.2(a)(2), (d), 43.2(f). PER CURIAM PANEL: GARDNER, WALKER, and MCCOY, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: December 13, 2012 3	01-03-2023	10-16-2015
https://www.courtlistener.com/api/rest/v3/opinions/2234949/	929 N.E.2d 165 (2006) 367 Ill. App.3d 1084 GRASSANO v. ILLINOIS CENT. R.R. CO. No. 1-06-0379. Appellate Court of Illinois, First District September 29, 2006. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1423351/	829 P.2d 1025 (1992) 112 Or. App. 451 STATE of Oregon, Respondent, v. Roddy Dean HENDERSON, Appellant. 87-0074; CA A60607. Court of Appeals of Oregon. Argued and Submitted August 24, 1990. Decided April 22, 1992. 1026 Ingrid A. MacFarlane, Deputy Public Defender, Salem, argued the cause, for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem. Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem. Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ. BUTTLER, Presiding Judge. This case is before us a second time. Defendant, a black man, was convicted of raping, ORS 163.375, and kidnapping, ORS 163.235, a white woman. During voir dire, the prosecutor exercised a peremptory challenge, thereby excusing DuBoise, the only black venireman. Defendant's attorney objected and requested that a neutral reason be given. The trial court accepted the challenge as made, resulting in an all white jury. Defendant was convicted. On the first appeal, 94 Or.App. 87, 764 P.2d 602 (1988), we held that defendant had made a prima facie showing under Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S. Ct. 1712, 1722-23, 90 L. Ed. 2d 69 (1986), of purposeful discrimination and remanded the case to the trial court "to determine whether the prosecution had a neutral explanation related to this case, consistent with Batson, for excusing the juror." 94 Or. App. at 93, 764 P.2d 602. On remand, the trial court conducted a hearing, almost two years after the event, and accepted the deputy district attorney's statements relating to his challenge, from which it concluded that "a neutral explanation has been provided." The judgment of conviction was reinstated. This appeal followed. The neutral explanation required to rebut an inference of discrimination transforms what would otherwise be a peremptory challenge, for which no explanation need be given, into something between a peremptory challenge and a challenge for cause. Although the explanation need not rise to the level of cause, a prosecutor's 1027 general assertion that merely denies a discriminatory motive or affirms his good faith will not suffice. Batson v. Kentucky, supra, 476 U.S. at 97, 106 S.Ct. at 1723. A prosecutor may not assume that a juror will be partial to the defendant solely because the two are of the same race.[1] Rather, he "must articulate a neutral explanation related to the particular case to be tried." Batson v. Kentucky, supra, 476 U.S. at 98, 106 S.Ct. at 1724. (Emphasis supplied.) On remand, the deputy district attorney, by way of argument, not by testimony, explained his reasons for the challenge. They are set out in full in the margin.[2] After stating his personal, subjective reactions to the juror, he stated that he really based his challenge on what other deputy district attorneys had done in previous trials with respect to jurors called during the same term. He explained that his office keeps records of juries for each term and that he had them with him when selecting 1028 the jury in this case. The first time that DuBoise had been called in another case, defense counsel had excused him, and the prosecutor had noted: "Black. Liked my cir[cumstantial] evid[ence] example. Seemed intelligent." Although those comments suggest that DuBoise would have been a good juror for the prosecution, the prosecutor added: "I might have bumped." He did not say why. The second time that he had been called, DuBoise was challenged by the prosecutor, who noted that he had problems with circumstantial evidence, which appears to be inconsistent with the comment in the earlier case. The third time, although DuBoise was not challenged, the prosecutor noted: "Young black machinist; didn't really like him; seems aggressive toward state." DuBoise voted for conviction in that case. Those records, which had been updated after the trial in this case, were admitted in evidence on remand. They show that the deputy district attorney who presented this case noted his challenge to DuBoise, with only one comment: "See previous trials." In at least two of those, the prosecutors had made specific notes that DuBoise was black. If he had been challenged, even in part, for that reason, reliance on that history does not present a racially neutral reason. In the only criminal case on which DuBoise sat, which was after he had been challenged by the prosecutor in an earlier trial, he voted for conviction. The state argues that the deputy district attorney stated that he had also challenged a white female prospective juror in this case for the same reason: that is, because other attorneys in his office had challenged her in previous cases. The record shows that she had been called 6 times during that jury term and had been challenged 5 times by the prosecution and once by the defense. In 4 of those cases, the prosecutor explained that he did not like her or did not trust her. The state argues that the prosecution's motives were not discriminatory if a white panelist sharing the same characteristics as a black was also challenged. That argument seems to be that, because other prosecutors had had a bad feeling or a subjectively adverse reaction to a white juror whom they had challenged, the prosecutor was free to challenge a black juror in this case because other prosecutors had also challenged that juror, noting that he was black. Even if it can be said that the previous challenges were racially neutral, the reason for the challenge in this case had to be, not only neutral, but "related to the particular case to be tried," not to some other case. If the prosecutor does that, "[t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination." Batson v. Kentucky, supra, 476 U.S. at 97, 106 S.Ct. at 1723. Given the prosecutor's explicit statement that he had intended to challenge DuBoise before he asked any questions and that he had asked questions only to "make it not appear obvious that he was going to be challenged," it is clear that his reason for challenging DuBoise was not related to this case and that the other stated reasons based on his voir dire[3] of DuBoise had no bearing on the challenge. 1029 The burden was on the state on remand to overcome the inference that the reasons for challenging DuBoise were racially motivated and to show that the reasons for the challenge were related to this case. The state failed to sustain its burden. Reversed and remanded for a new trial. NOTES [1] After Batson was decided, the United States Supreme Court decided Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), and Edmonson v. Leesville Concrete Co., Inc., ___ U.S. ___, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991). Although the later cases are not directly relevant to this case, they indicate clearly that the Court, rather than limiting Batson, is extending it to the point where peremptory challenges might be a thing of the past in all cases in which a juror who is a member of a minority group is challenged without cause. In Powers, a white defendant convicted of 2 murders was entitled to make a Batson challenge to the prosecutor's peremptory challenge of a black juror. In Edmonson, the Court extended Batson to civil cases, holding that race-based exclusion violates the equal protection rights of the challenged jurors, which may be asserted by a litigant. The New York Court of Appeals, given its experience since Batson, has suggested the elimination of peremptory challenges. People v. Bolling, 79 N.Y. 317, 582 N.Y.S.2d 950, 591 N.E.2d 1136 (1992). [2] "[Prosecutor]: The reason for bouncing the juror and exercising my peremptory challenge, Your Honor, is that I had a bad sort of personal sense about the juror. His demeanor was a little stiff, kind of a military sort of bearing, not particularly communicative, didn't seem to me, and, perhaps, also not a real good mixerwasn't going to get along with the panel as a whole. I had the feeling about himjust the feeling that he didn't particularly want to be there. "Secondly, that was kind of reinforced because in our office we keep track of previous juries for each particular term, and I had them with me at the time of the Henderson case, and he was one of two jurors that I chose to exercise a peremptory on, at least in part, based upon what they had done in previous trials. "That juror was called in three trials during the panel. On the first one, Henry Loebe from our office tried it, and the juror was challenged by Wayne Rapp for the defense, and the comment by the deputy from our office was: `I might have bumped him, as well.' "He sat, second, on the fifth or sixth jury trial of the term, a case that Rob Bletko from our office tried, and he also challenged him, and his comment was: `He had problems with circumstantial evidence,' or at least that's the feeling that he got from the juror. "The third time he sat was a D.U.I.I. case. Bob Bianchi from our office tried the case, left him on the case, but he made a specific note next to him on the result sheet that he didn't really like him, `seems aggressive towards the State,' and with that combination of things, I meant by challenging to exclude him from the jury without even questioning him based upon the record. "I also did the same thing with another lady, * * * who was a juror during that panel, also, when she was challenged "THE COURT: On Mr. Henderson's case? "[Prosecutor]: Right, and I challenged her for basically the same reasons. She had appeared in six other criminal trials and had been challenged in each case, once byor five, I guessonce by the defense and four times by the State, and with that kind of a track record, I excluded her for primarily the same reasons, and it's reflected in the sheet that I filled out, not the Friday of the result, but the following week when I listed the result and listed my comments of the jurors in this case. "* * * * * "THE COURT: [Prosecutor], anything further? "[Prosecutor]: Nothing in addition, Your Honor. I do want to make one comment. There was a reference in the appellate opinion that nothing appeared in particular about the questioning of this individual juror. I made up my mind to challenge him prior to asking him anything based upon what I knew from the previous juror sheets and the state of the case and that I had four remaining challenges. The only reason I asked him any questions at all is to make it not appear obvious that he was going to be challenged. It was nothing whatsoever to do with the content of what he might have said." [3] This is the voir dire in its entirety: By [Defense Counsel]: "Q Hello. I can't pronounce your last name. Could you do it for me? "[ANDERSON DUBOISE:] A Duboise. "Q Mr. Duboise, can you be completely objective and honest in this case? "A I think so. "Q Can you listen to the facts only and make a determination strictly based upon the facts? "A Yes. "[Defense Counsel]: Thank you. I have no more questions. I pass for cause. "Q [By Prosecutor]: Mr. Duboise, does a woman have to fight or be injured in order to be the victim of a rape? "A No. "Q If the Court were to instruct you that just the threat is enough to be forcible compulsion under some circumstances, could you follow that kind of instruction? "A Yes. "Q It indicates on the jury questionnaire that you or a member of your family on one occasion were the victim of a crime. What was that about? "A Well, once I thought about it and realized what you wanted, it was a cousin that had been assaulted down in California. I don't know enough about it to speak any more about it. "Q So it's nothing that really causes you much concern one way or the other about the legal system or how it works? "A They asked if I knew about it, but it had no bearing on it. "Q How do you feel about the use of alcohol? "A It's "Q Any strong feelings about it one way or another? "A No. "Q What about the use of alcohol as an excuse for behavior that's otherwise criminal? "A I agree with most of the other jurors. I have been able to hear from the back there. It's no excuse. "Q If the Court were to instruct you that if you intend to causeif you intend to rape someone, that's equal to or the same as intending to cause them physical injury, could you follow that instruction? "A If instructed by the Court, yes. "[Prosecutor]: I have no questions in addition, Your Honor. We will pass the juror for cause."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2234951/	929 N.E.2d 795 (2010) TOWN OF CEDAR LAKE v. CEDAR LAKE VENTURES I, LLC. Supreme Court of Indiana. June 17, 2010. Transfer denied. All Justices concur, except for Shepard, C.J., who votes to grant petition to transfer.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1167559/	779 P.2d 531 (1989) NEVADA POWER COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION OF NEVADA; Designated Parties of Record in Docket Nos. 83-707 and 83-667 Before the Public Service Commission of Nevada; and The Attorney General's Office of Advocate for Customers of Public Utilities, Respondents. No. 18423. Supreme Court of Nevada. September 18, 1989. Beckley, Singleton, DeLanoy, Jemison & List, Las Vegas, Allison, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for appellant. William H. Kockenmeister, Carson City, for Public Service Com'n. Jon Wellinghoff and Elizabeth Elliott, Reno, for Attorney General's Office of Advocate for Customers of Public Utilities. OPINION PER CURIAM. In this case, Nevada Power Company appeals a decision of the Public Service Commission (PSC). Nevada Power applied to the PSC for a rate increase. The PSC granted Nevada Power a lesser rate increase than requested in part because it ruled that shareholders and ratepayers should share the capital gain from the sale of land and Nevada Power's headquarters. The PSC noted that conflicting methods of distributing such gain existed, but determined that the gain should be equitably divided between shareholders and ratepayers. The only testimony regarding how the gain could be equitably distributed between shareholders and ratepayers came from three expert witnesses. Each expert testified that the gain should be distributed to the ratepayers in the form of lower rates. Mr. Skirpan recommended that the gain be distributed within a year. Mr. Romero and Mr. Frerichs recommended that the gain be distributed over a three-year period. These experts determined that Nevada Power and its shareholders would benefit from the use of the money, while ratepayers would benefit in receiving lower rates. The PSC concluded that a three-year amortization of the gain would be an equitable distribution in this case. The district court denied Nevada Power's petition for judicial review. This appeal followed. On appeal, Nevada Power contends that PSC erred in failing to recognize and apply the correct rule to determine how the gain realized upon the sale of real property should be treated. Specifically, Nevada Power contends that the single governing rule in such cases is that the benefit of *532 capital gain follows the risk of capital loss. We disagree. This court will not interfere with PSC decisions other than to keep them within the framework of the law. See PSC v. Continental Tel. Co., 94 Nev. 345, 580 P.2d 467 (1978). No single rule exists to determine how capital gains derived from the sale of real property should be treated for rate-making purposes. See Democratic Central Committee v. Washington Metropolitan Area Transit Commission, 485 F.2d 786 (D.C. Cir.1973), reh. den., cert. den. sub. nom. D.C. Transit System, Inc. v. Democratic Central Committee, 415 U.S. 935, 94 S. Ct. 1451, 39 L. Ed. 2d 493 (1974). In this case, PSC chose to balance the equities between ratepayers and shareholders and distributed the gain in a manner that was fair according to the experts who testified. That ruling, based upon this record, was proper. See Democratic Central Committee, supra; Re Boston Gas Company, 49 PUR4th 1 (Mass. DPU 1983); Re The Detroit Edison Co., 20 PUR4th 1 (Mich. PSC 1977); Re Calgary Power Ltd., 34 PUR4th 398 (Alberta PUB, 1980). Accordingly, we affirm the decision of the district court. YOUNG, C.J., STEFFEN, SPRINGER and MOWBRAY, JJ., and ZENOFF, Senior Justice[1], concur. NOTES [1] The Honorable David Zenoff, Senior Justice, participated in this appeal in the place of Chief Justice E.M. Gunderson pursuant to this court's general order of assignment filed September 14, 1988.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873227/	752 N.W.2d 32 (2008) IN RE M.R. No. 07-2133. Court of Appeals of Iowa. February 13, 2008. Decision without published opinion. Affirmed on both Appeals.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612993/	35 Cal. App. 2d 499 (1939) THE PEOPLE, Respondent, v. MARTIN CARKEEK, Appellant. Crim. No. 1695. California Court of Appeals. Third Appellate District. November 17, 1939. Martin Carkeek, in pro. per., for Appellant. Earl Warren, Attorney-General, and J. Q. Brown, Deputy Attorney-General, for Respondent. Tuttle, J. This is an appeal from an order denying a motion to set aside a final judgment of conviction of the crime of burglary in the second degree which carried with it an adjudication that appellant was an habitual criminal under the provisions of section 644 of the Penal Code. The appeal is prosecuted under section 1237, subdivision 3, of the Penal Code, which provides that the defendant may appeal "from any order made after judgment affecting the substantial rights of the party". An information was filed against appellant, as follows: "The District Attorney of the County of Tuolumne, State of California, hereby accuses Martin L. Carkeek and Fred Redenbaugh of a felony, to-wit: burglary, in that on or about the 9th day of October, 1938, in the County of Tuolumne, 501 State of California, they did enter the office of Hales and Symons adjacent to the southerly city limit of the City of Sonora, Tuolumne County, State of California, with intent to commit theft therein. That before the commission of the offense hereinabove set forth in this information, the said Martin L. Carkeek was convicted of a felony, to-wit: forgery, and was received at, and confined in Colorado State Penitentiary at Canon City, Colorado, on the 21st day of January, 1930, and did serve a term in said State Penitentiary for said offense. That before the commission of the offense hereinabove set forth in this information, the said Martin L. Carkeek was convicted of a felony, to-wit: grand larceny, and was received at, and confined in Oklahoma State Penitentiary at Macalester, Oklahoma, on June 4th, 1931, and did serve a term in said State Penitentiary for said offense." "That before the commission of the offense hereinabove set forth in this information, the said Martin L. Carkeek was convicted of a felony, to-wit: burglary, and was received at, and confined in Indiana State Reformatory at Pendleton, Indiana, in February, 1936, and did serve a term in said Reformatory for said offense." "Dated: October 28th, 1938." Thereafter, appellant appeared in court and plead guilty to the charge of burglary, which the court found to be of the second degree, and also plead guilty to the prior convictions. He was adjudged to be an habitual criminal, and sentenced to imprisonment in the state prison on November 9, 1938. On August 5, 1939, appellant filed in the superior court a motion to set aside the judgment of conviction upon the following grounds: 1. The information does not charge a public offense; (2) The two prior convictions are not properly charged; (3) The second prior conviction had no term served therefor. The motion was regularly heard and denied, and this appeal is taken from the order of denial. [1] It appears that appellant is not lacking in a sense of humor when he sets forth his first ground of appeal in the following language: "Respondent Attorney General will contend that everyone knows what an 'office' is, and that offices are in buildings. Appellant calls attention to the fact that respondent heads 502 the 'office' of Attorney General, and that recent cases in Kansas City and New Orleans indicate that some politicians enter office with intent to commit theft therein, which entry could certainly not be called burglary. The trial court should have taken judicial notice of the fact that there was nothing before the court to indicate that the 'office' in the information was not a political office, or that it was in any one of the enclosures described in the Burglary Statute. (Pen. Code, sec. 459, cited supra.)" It might be observed, however, that an entry into a "room" with the necessary intent, makes out a case of burglary under section 459 of the Penal Code, and it might not be too great a strain upon the vernacular to hold that an "office" is a "room". [2] The second ground is that the designation of the particular court in which prior convictions occurred is not given in the information. The statute does not so provide. [3] Also, it is urged that the Habitual Criminal Act (section 644 of the Penal Code), provides not only that the prior conviction must be proved, but that the defendant served a "term" in the state prison of another state. While appellant plead guilty to having been convicted and having served a term upon each of the prior convictions charged, he admitted later, in answer to questions propounded by the trial court, that he escaped from one of the prisons. He urges, therefore, that he did not actually serve a "term". But the legislature does not require that a full term be served, and a reasonable construction of the word would seem to be any period of time, otherwise, a premium would be placed upon the act of escape. [4] It is contended by the state that the appeal should be dismissed, for the reason that the record shows that this court has no jurisdiction to entertain it. It therefore becomes necessary to determine whether an appeal will lie from every "order made after final judgment, affecting the substantial rights of the party", or whether the legislature intended to restrict the right of appeal to those orders which were not subject to attack under an appeal from the final judgment. The cases arising in this state appear to be in some confusion, but a close examination of them reveals an attempt to follow a definite rule upon the scope of the code section mentioned. 503 The general rule is thus stated in 8 California Jurisprudence, at page 495: "Ordinarily a party who has a right to appeal from a judgment or order is not allowed to move to set it aside and then appeal from an order denying his motion." (Citing People v. Walker, 132 Cal. 137 [64 P. 133]; People v. Mayne, 118 Cal. 516 [50 P. 654, 62 Am. St. Rep. 256].) In the case of People v. Walker (above), it is said: "Ordinarily, of course, where a party may appeal from a judgment or order he must appeal direct, and is not allowed to move to set aside and then appeal from the order denying his motion. But this is only a rule of practice, and it does not apply when the case is such that a direct appeal would afford no relief by reason of the impossibility of securing a record showing the error complained of. (Pignaz v. Burnett, 119 Cal. 157, 162 [51 P. 48], and cases cited.)" In People v. Brattingham, 91 Cal. App. 527 [267 P. 120], where an appeal was taken from an order denying a motion to modify a final judgment, it was there contended that the trial court was without jurisdiction to include in the sentence a provision that if the fine was not paid, defendant should be imprisoned at the rate of one day for each two dollars of the fine not paid. In dismissing the appeal the court said: "Appellant contends that an appeal is authorized by subdivision 3 of section 1237 of the Penal Code, which provides that an appeal may be taken from an order after judgment affecting the substantial rights of the defendant. It is also said that the court had inherent power at any time to vacate a void judgment. Generally this is true, but the rule is well established that an order made after judgment is not appealable where the motion merely asks the court to repeat or overrule the former ruling on the same facts. As said in De La Montanya v. De La Montanya, 112 Cal. 101 [53 Am. St. Rep. 165, 32 L.R.A. 82, 44 P. 345], this is so because to permit such an appeal 'would be virtually allowing two appeals from the same ruling, and would in some cases have the effect of extending the time for appealing, contrary to the intent of the statute'. To the same effect are Kent v. Williams, 146 Cal. 3 [79 P. 527], Alpers v. Bliss, 145 Cal. 565 [79 P. 171], and other cases. 504" "A number of decisions cited by appellant hold that the trial court has jurisdiction to vacate or modify a void judgment, but they do not mention the question here presented, namely, will an appellate court entertain an appeal from an order made after judgment where the appeal from the judgment would present precisely the same question, and in every way afford protection to the rights of the defendant? The authorities sustain the contention of the People upon this issue." "Applying the rule to the record before us, it is apparent that upon an appeal from the judgment alone the judgment roll would contain everything necessary to a determination of the contention of the appellant, and to consider the appeal from the order refusing to modify the judgment would have the effect of allowing the right to two appeals. It is ordered that the appeal be dismissed." In the case of People v. Van Buren, 134 Cal. App. 206 [25 PaCal.2d 32], an appeal was taken from an order denying a motion to vacate a final judgment of conviction. The court quoted from the Brattingham case (above), and in dismissing the appeal, said: "It is apparent that the merits of appellant's contention cannot be considered on the hearing of the instant motion. The point here at issue is whether, considering the facts hereinbefore set forth, appellant is entitled to have his contention considered by this court. Not only is it clear that on the original appeal from the judgment appellant might have presented for decision by this court the identical point which he now urges, but also (assuming, but not deciding, the propriety of his first motion to vacate the said judgment) that he might have done so on his appeal from the order by which his motion to vacate the said judgment was denied. In other words, appellant heretofore has had at least one opportunity, and possibly two separate opportunities, to have determined the very point which on his third appeal he now seeks to have decided. If such a course of procedure is in accordance with the law and the practice of the several interested courts, it is manifest that by presenting a single point on his appeal from the judgment against him, in the event that such judgment should be affirmed, the defendant thereafter by successive motions to vacate the judgment, each for a reason differing from either of the others, followed by an appeal from 505 the order in each case by which his said motion was denied, would occupy the attention of the trial court and this tribunal indefinitely. In that regard the authorities of this State appear to be against the position assumed by appellant." There is a line of cases which hold that an appeal will lie under these circumstances where the judgment is void, and these are relied upon by appellant, although he does not contend that the judgment here is void. In People v. Perez, 9 Cal. App. 265 [98 P. 870], it was allowed, where it was contended that a confession of guilt was obtained through fear and duress. The court states that "a confession of guilt obtained by duress is void and cannot be made the basis for a valid judgment". In People v. Schwarz, 201 Cal. 309 [257 P. 71], it was held proper to appeal from an order denying a motion to set aside a judgment of conviction where fraud was practiced by the officers upon the defendant in inducing her to change her plea from not guilty to guilty. A plea obtained by such means would vitiate the entire proceeding. The right to such an appeal has been sustained several times where the record on its face showed that the offense of which the defendant was convicted was barred by the statute of limitations, and hence, the judgment was void. (See People v. McGee, 1 Cal. 2d 611 [36 PaCal.2d 378].) None of the contentions made in the foregoing cases is made here. The reason is obvious. The rulings and orders under attack were made by the court in the exercise of its jurisdiction, and at the most are errors which could have been urged upon an appeal from the final judgment. It is our conclusion that the legislature, in enacting section 1237, subdivision 3 of the Penal Code, did not intend to give a defendant the right to raise any question which might have been raised under an appeal from a final judgment of conviction, and that this court had no jurisdiction to entertain an appeal based upon such grounds. On the other hand, if the judgment is attacked as being void, either upon its face or by reason of fraud or duress practiced upon the defendant, it may be attacked at any time under the provisions of said statute. This appears to be the rule which may be gleaned from the various cases where such an attack upon a final judgment has been made. To hold otherwise, would, in the language of De La Montanya v. De La Montanya, 112 Cal. 101 [44 P. 345, 53 Am. St. 506 Rep. 165, 32 L.R.A. 82] (quoted with approval in People v. Van Buren, supra, and People v. Brattingham, 91 Cal. App. 527 [267 P. 120]) "be virtually allowing two appeals from the same ruling, and would in some cases have the effect of extending the time for appealing, contrary to the intent of the statute". [5] If the contention of appellant here should prevail, a convicteed defendant could wait several years after his trial until the witnesses for the People had died or moved away, and then proceed to make the motion to set aside the judgment. If the appellate court were compelled to treat the appeal with the same force and effect as from the final judgment, and if the conviction was reversed and a new trial ordered, the proper administration of justice would be seriously impaired, if not entirely thwarted. We do not believe that the legislature ever intended to open the doors of our prisons in this manner. The Penal Code definitely fixes the time for an appeal from the judgment. It must be within five days from the rendition of the judgment or order. (Pen. Code, sec. 1239). Allowing an appeal from an order denying a motion to set aside or modify the final judgment, where such appeal is based upon errors and rulings which might properly be considered under an appeal from the judgment, would have the effect, in all criminal appeals, of entirely removing the time limitation mentioned. It is unreasonable to believe that such was the legislative intent. The record shows that this court has no jurisdiction to entertain the appeal, and it is therefore ordered that it be dismissed. Pullen, P. J., and Thompson, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3347771/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ORDER RE: MOTION TO IMPLEMENT/CLARIFY/MODIFY AND #118 MOTION FOR COUNSEL FEES The parties' 22 year marriage was dissolved on June 7, 1990 after an uncontested hearing. The parties placed an oral stipulated agreement on the record on that date. The transcript of the proceedings indicates that the family residence at 6 Mortimer Drive, Old Greenwich is to be sold and the proceeds equally divided. It was further provided that upon the sale, the proceeds would be paid as follows: First to the brokers commission, the conveyance taxes and other reasonable costs of closing including attorney's fees; second, to the first mortgage to the Equitible and thirdly, the proceeds would be divided 50/50. The real estate in question has been solely in the defendant's name since prior to May 4, 1968. Both parties indicated on their financial affidavits filed in June 1990, that the defendant was the sole title owner of the family home. The home has now been contracted for sale. The defendant alleges that if he is forced to sell the real estate in his name only, and absorb the total potential capital gains tax on the sale, he will suffer a great financial loss. The defendant's Motion to Implement/clarify/Modify requests an order that the plaintiff accept delivery of a quit claim deed transferring 50% of the interest to the home prior to the sale and thus have the plaintiff absorb 50% of the capital gains tax. Both parties were aware that the title to the real estate was solely in the defendant's name at the time the decree was entered, as indicated on the parties financial affidavits submitted at the time of trial. The court is without authority to modify a property settlement agreement, (Sec. 46b-86(a) C.G.S.A.), and thus declines to order the plaintiff to accept delivery of a quit claim deed transferring 50% of the interest to the home prior to the sale. To do so would alter the property division and/or result in a modification of the original judgment. The defendant's motion to implement/clarify/modify is denied. CT Page 5267 The plaintiff is awarded counsel fees of $250. COPPETO, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1871011/	478 So.2d 845 (1985) Mario BURNETT, Appellant, v. George BRITO and Diana Brito, and Pedro Realty, Inc., Appellees. No. 84-2818. District Court of Appeal of Florida, Third District. November 5, 1985. Rehearing Denied December 10, 1985. 846 Rufus Sundie and Joyce Brown, Miami, for appellant. Gary R. Siegel, Miami, for appellees. Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ. HENDRY, Judge. The action giving rise to this appeal was commenced as an interpleader by a real estate broker who held a disputed deposit claimed by both the buyer and the seller. The facts are as follows. On November 24, 1982 appellant Mario Burnett entered into a contract to purchase a condominium unit from appellees George and Diana Brito for $43,800. Mr. Burnett gave a deposit of $4,700, which was held in escrow by appellee Pedro Realty, Inc. (broker).[1] Mr. Burnett planned to pay $8,400 in cash at closing, with the balance to be financed by a mortgage loan. The contract required the purchaser to seek a first mortgage within sixty days from the date of the agreement. The contract provided, "[i]f after diligent effort on the part of the Purchaser, the Purchaser is unable to obtain and/or qualify for said 847 first mortgage, all monies deposited hereunder shall be refunded to Purchaser... ." On November 24, 1982 Mr. Burnett applied for an assumption of the existing mortgage at Flagler Federal Savings & Loan Association. He did this based on advice given him by the broker. On January 14, 1983 Mr. Burnett was notified by the institution that he did not qualify for an assumption of the mortgage loan for the amount he was seeking. Mr. Burnett demanded that the broker return his deposit. The broker refused. After the sixty days had passed, Mr. Burnett applied to two Illinois banks for a loan, but was turned down by both institutions. Mr. Burnett also filled out a loan application given him by the broker. He was never told what happened to that application. On March 23, 1983 the Britos' attorney wrote Mr. Burnett's attorney informing him that the Britos still wanted to complete the sale. Based upon this letter, Mr. Burnett applied for a first mortgage at Amerifirst Federal Savings & Loan Association on March 27, 1983. That application was denied. Mr. Burnett again requested the return of his deposit and the broker again refused. On May 24, 1983 the broker filed an interpleader action. In its complaint it sought an award of part of the deposit as a commission, and sought a determination of the entitlement to the balance of the deposit as between the buyer and the seller. The broker moved the court to permit it to deposit the $4,700 into an interest-bearing account. On August 5, 1983 the trial court ordered the broker to place the disputed deposit in an interest-bearing account. The broker complied with the order on January 30, 1984. This account earned $378 in interest. The Britos filed a counterclaim against the broker and a cross-claim against the buyer for the deposit, less the brokerage commission. Mr. Burnett, in turn, filed a counterclaim and a cross-claim alleging that he was entitled to the full deposit. At trial, testimony was offered by a Flagler Federal Savings & Loan Association representative. The representative testified that had Mr. Burnett applied for a first mortgage at that institution, he would not have qualified. The trial court, in a second amended final judgment, awarded to the buyer the deposit, plus the interest actually earned in the account ($378). The court denied Mr. Burnett's claims for attorney's fees, compensatory damages, costs and interest from the date he first demanded the return of the deposit. The court also entered a default against the broker for its failure to appear at trial. On appeal, Mr. Burnett contends the trial court erred in denying him attorney's fees, compensatory damages, costs and an adequate interest award. The Britos cross-appeal contending the trial court erred in finding that Mr. Burnett had complied with the contract. We will consider the issues raised seriatim beginning with the cross-appeal. The question to be decided on cross-appeal is whether Mr. Burnett made a bona fide attempt to secure a mortgage in accordance with the contract. The Britos contend Mr. Burnett's failure to apply for a first mortgage within sixty days of the agreement placed him in default. We disagree. The Britos' agent, the broker, advised Mr. Burnett to apply for an assumption of the existing mortgage. A principal is liable for the acts of his agent, even though not authorized, if the agent was acting within the scope of his employment or his apparent authority. Life Insurance Co. of North America v. Del Aguila, 417 So.2d 651 (Fla. 1982). It was undisputed at trial that even if Mr. Burnett had applied for a first mortgage at Flagler Federal Savings & Loan Association, he would have been turned down. Given these facts, as well as Mr. Burnett's repeated efforts to obtain financing and the Britos' acquiescence in such efforts, we find there was substantial, competent evidence to sustain the judgment on the basis that Mr. Burnett made a diligent effort to secure financing in accordance 848 with the contract. See Meyers v. Cunningham, 415 So.2d 802 (Fla. 3d DCA 1982); Merritt v. Davis, 265 So.2d 69 (Fla. 3d DCA 1972). This leaves the buyer's contentions for consideration. Mr. Burnett first contends the trial court erred in denying him an award of attorney's fees. He bases his argument on a provision of the contract and upon section 57.105, Florida Statutes (1983).[2] The contract provides, "[i]f the sale is not closed due to default or failure on the part of the Seller, the Purchaser, at his option may take action to enforce this contract; in which event, the Seller shall be obligated to pay reasonable attorney's fees ... to the Purchaser... ." The seller's liability for attorney's fees under this contract arises only upon the seller's failure to complete the sale. In fact, the closing was prevented by Mr. Burnett's failure to obtain financing. The sellers, the Britos, were not at fault. Since contractual attorney's fee provisions are to be strictly construed, Keys Lobster, Inc. v. Ocean Divers, Inc., 468 So.2d 360 (Fla. 3d DCA 1985); Fairways Royale Association, Inc. v. Hasam Realty, Corp., 428 So.2d 288 (Fla. 4th DCA 1983); Venetian Cove Club, Inc. v. Venetian Bay Developers, Inc., 411 So.2d 1323 (Fla. 2d DCA 1982); see Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 (Fla. 1974), we find the instant attorney's fee provision does not provide for recovery of the buyer's attorney's fee. Mr. Burnett's other basis for contending he is entitled to an award of attorney's fees is without support. Section 57.105 is applicable only to those cases where the losing party's position is so devoid of merit, both in fact and law, as to be completely untenable and frivolous. Atlantic National Bank of Florida v. Tworoger, 448 So.2d 616 (Fla. 3d DCA 1984); see Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla. 1982). This is not such a case. Mr. Burnett secondly argues that the trial court erred in denying him an award of compensatory damages for such items as the cost of mortgage applications, lost wages and traveling expenses. We do not agree. In breach of contract cases the damages recoverable are limited to those damages which are the natural and proximate result of the breach, or such as may reasonably be supposed to have been within the contemplation of the parties at the time they made the contract. Hobbley v. Sears, Roebuck and Co., 450 So.2d 332 (Fla. 1st DCA 1984); Travelers Indemnity Co. v. Parkman, 300 So.2d 284 (Fla. 4th DCA 1974). There was no evidence in this case that the compensatory damages claimed by Mr. Burnett were contemplated by the parties at the time they entered into the contract. The ruling of the trial court was therefore correct. As to Mr. Burnett's claim regarding costs, we find the trial court erred in failing to award costs to Mr. Burnett as the prevailing party. The general rule in equity suits is that costs follow the judgment unless there are circumstances that render application of this rule unjust. Schwartz v. Zaconick, 74 So.2d 108 (Fla. 1954); Calder Race Course, Inc. v. Gaitan, 430 So.2d 975 (Fla. 3d DCA 1983); Foley v. Peckham, 256 So.2d 65 (Fla. 3d DCA 1971). It is not unjust, under the circumstances of this case, to charge the Britos with the reasonable costs Mr. Burnett incurred for the enforcement of his claim. Finally, Mr. Burnett contends interest should have been awarded on the deposit from January, 1983, when he first demanded its return. The trial court awarded the interest earned on the $4,700 from the date it was actually deposited in an interest-bearing account pursuant to the court's order. While we are unpersuaded by Mr. Burnett's contention, we nonetheless find the interest award was inadequate. 849 The general rule in interpleader cases is that interest is not allowable for the period during which the disputed funds are on deposit with the court. Powers v. Metropolitan Life Insurance Co., 439 F.2d 605 (D.C. Cir.1971). However, any interest earned on interpleaded and deposited funds follows the principal and shall be allocated to whomever is found entitled to the principal. Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980), on remand, 394 So.2d 1009 (Fla. 1981). Where there is an unreasonable delay in placing disputed funds into the court, interest will run to the time of such deposit. Powers v. Metropolitan Life Insurance Co., 439 F.2d at 608. In the instant case, the broker filed the interpleader action on March 24, 1983, while Mr. Burnett was still seeking financing. It cannot be justifiably argued, therefore, that the broker unreasonably delayed in bringing suit to determine who was entitled to the deposit. However, the broker did unreasonably delay in placing the deposit in an interest-bearing account, pursuant to trial court order. The court ordered the broker to place the deposit in such an account on August 5, 1983. The broker did not comply with the order until January 30, 1984. Mr. Burnett is entitled to recover interest for the period of time the broker unreasonably delayed in making such court-ordered deposit. The period of the unreasonable delay and the amount of interest resulting therefrom is to be determined by the trial court on remand. For the foregoing reasons and based upon the authorities cited, the final judgment is affirmed, except inasmuch as the trial court denied costs and an adequate award of interest to the buyer. On remand, the trial court is instructed to award Mr. Burnett such costs as are reasonable and additional interest in accordance with this opinion. Affirmed in part, reversed in part and remanded. NOTES [1] Pedro Realty, Inc. has filed nothing in this appeal. [2] 57.105 Attorney's fee. The court shall award a reasonable attorney's fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3777008/	The plaintiffs alleged that the defendant, assuming to act as the agent for a real estate owner, employed them to find a purchaser for the real estate; that he warranted he had authority to enter into the contract with them; that they relied upon such warranty and found a purchaser who was ready, willing and able to purchase the real estate at the price fixed by defendant; and that they so notified the defendant and sent to him the purchaser's written offer, but defendant, instead of submitting the offer to his pretended principal, returned it to them. The plaintiffs alleged also that the defendant was not authorized to represent the owner and that by reason of his breach of his warranty of his authority, the plaintiffs lost their commission, and have been damaged in the sum of $1,500. By answer, the defendant, as a first defense, denied that he represented or warranted that he was authorized to make a contract with the plaintiffs on behalf of the real estate owner, and, as a second defense, pleaded a judgment in a prior action between the same parties as an election and estoppel, and, as a third defense, the same judgment was pleaded as res judicata. By way of explanatory denial, the plaintiffs replied that the prior action was not on the contract or warranty of the agent of his authority, but was on a contract to sell the real estate and that the court held that no such contract had been entered into. After the issues were thus made, the court, on the plaintiffs' motion, ordered that the issues raised by Page 17 the second and third defenses and the reply thereto be heard before the trial of the first issue. In accordance with that order, a trial took place at which a jury was waived. We quote the entire bill of exceptions, excepting the formal parts, to wit: "Counsel for plaintiff and defendant informed the court that they both felt that the matters set forth in the defendant's second and third defenses should be heard prior to a hearing of the entire case on its merits; that in the event that the court decided in favor of the defendant on its affirma-(tive) defenses it would eliminate the necessity of an extended hearing of the case on its merits; thereupon it was stipulated by and between counsel for plaintiffs and defendant that the issues raised by the second and third defenses of the defendant's answer should be submitted to the court without the intervention of a jury upon an agreement that the pleadings and entries made in case No. A-92071 in the Hamilton county Common Pleas Court should comprise all the evidence submitted by the plaintiffs and defendant on such issues. "Thereupon such pleadings and entries were considered as offered in evidence and accepted by the court. "Such pleadings and entries are attached hereto, made a part hereof, and marked exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10. "Thereupon both plaintiffs and defendant rested and counsel for the respective parties argued their sides of the case to the court." As a result of that trial, the court found on the issues raised by the second and third defenses in favor of the defendant and on that finding entered judgment that the defendant "go hence without day and recover of the plaintiffs his costs." This appeal is from that judgment. Page 18 It will be observed that there was no finding as to the first issue, no waiver of it, and no stipulation as to what judgment should be rendered in the event the court found for the plaintiffs on the issues raised by the second and third defenses. Nor was there an agreement that the final judgment should be made to depend on the finding on the second and third issues. In 53 American Jurisprudence, 789 et seq., it is stated that: "Findings as to certain issues may become unnecessary in view of other findings made by the court. Thus, where the finding of a certain fact necessarily controls the judgment, the omission of the court to find on other issues does not constitute reversible error." We are, therefore, presented here with the question of whether the second or third defenses, or both, have been proven, and, therefore, bar a recovery, no matter how valid the plaintiffs' original claim may have been. If both the second and third defenses are found to be insufficient in law upon the proof, the judgment must be reversed and the cause remanded for further proceedings according to law. An examination of the pleadings in the action upon which the second and third defenses of election of remedies and resjudicata are predicated discloses that the plaintiffs, in direct and specific language, alleged that the defendants, who were this defendant and the owner of the real estate, "employed the plaintiffs to find a purchaser" for certain described property at a price of $22,500, and agreed that as a commission for finding such a purchaser they could retain all over that sum which the purchaser was willing to pay. And the court in rendering judgment for the defendant, specifically found "that no contract was entered into between the plaintiffs and the defendant W.M. Anderson, individually, as alleged in plaintiffs' petition." Page 19 In the petition in the action at bar, the plaintiffs allege that the defendant assumed to act as agent for the property owner in negotiating a contract between them and the property owner, whereby he was to employ them as her agents to find a purchaser for the real estate, but that no such employment resulted because the defendant was not authorized to act for the property owner. The plaintiffs allege that the defendant warranted his authority, that they relied upon his assumption of authority, acted upon it, found a purchaser, and were damaged by his breach of his warranty of authority. It is manifest that the contract sued on in the first action is an entirely different contract from that alleged in this action. In Norwood v. McDonald, 142 Ohio St. 299, at page 306,52 N.E.2d 67, it is said: "It is to be observed that `in the application of the doctrine of res judicata, if it is doubtful whether a second action is for the same cause of action as the first, the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different states of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other.' 30 American Jurisprudence, 918, Section 174. See, also, 2 Freeman on Judgments (5 Ed.), 1447, Section 687; Bell v. Merrifield,109 N.Y., 202, 16 N.E. 55, 4 Am. St. Rep., 436; Curtiss v. Crooks,Trustee, 190 Wn. 43, 66 P.2d 1140." Now in order to recover on the cause of action in the Page 20 prior case, it was necessary for the plaintiffs to prove that the defendants employed them to secure a purchaser ready, willing and able to buy the real estate from them. In other words, they were required to prove that defendant employed them to find a person with whom he would personally enter into contractual relations. In the case at bar, it is sufficient for a recovery to produce evidence that defendant assumed, without authority to do so, to represent himself as agent for a third person, on whose behalf he employed the plaintiffs to find a purchaser for the third person's real estate, and that plaintiffs accepted the employment by the third person and found such purchaser. Now would this proof be sufficient for a recovery in the prior action? It could be sufficient only if as a matter of law an unauthorized agent, by failing to bind his pretended principal, is automatically substituted in the contractual relation and bound by the same terms. In Comment a under Section 329 of the Restatement of the Law of Agency, it is stated: "The rule stated in this section applies irrespective of whether or not the agent is a party to the transaction which he purports to conduct for the principal. His lack of authority does not make him a party to the contract, except when he signs a negotiable instrument." The law of Ohio is in accord with that statement. In Trust Co. v. Floyd, 47 Ohio St. 525, 26 N.E. 110, 21 Am. St. Rep., 846, 12 L.R.A., 346, it was held that the unauthorized agent, although acting in good faith, is personally responsible to those who in ignorance of his want of authority, act upon his assumption of authority. In that case, however, the facts were fully set forth in the petition and there was no necessity to determine Page 21 the exact basis of the liability. However, the court, at page 540, said: "The rule, on this subject, as stated in Story on Agency, is, that an agent cannot be sued on the very instrument itself, as a contracting party, unless there be apt words to charge him. Section 264a. Still another class of cases establish the rule, which we are inclined to adopt, that in cases like the one we are considering, the agent is liable upon his implied promise that he possesses the authority he assumes to have. Smith's Leading Cases, vol. 2, pt. 1, 408 (eighth ed.,) and cases there cited.Lewis v. Nicholson, 83 Eng. C.L., 512. "In White v. Madison, supra, in a learned opinion it is held, that the liability of the agent in such cases, rests upon the ground that he warrants his authority, and not that the contract is to be deemed his own." See, also, 1 Ohio Jurisprudence, 798. In Hagen v. Candler, Inc., 189 Ga. 250, 5 S.E.2d 739, 126 A.L.R., 108, in which it was held that a person who assumed to act for a non-existing person was liable on the contract made in the name of such nonexisting person, the court discussed the distinction between that case and the case of a person assuming to act for another existing person, and, at page 258, said: "In every contract there is a legal presumption that the parties thereto intend that it shall be an enforceable obligation. This is true whether the principals actually enter into the contract by themselves or through the medium of agents. In cases where the contract is entered into by an agent in the name of an existing principal, there is an additional presumption that the agent intended to bind the principal. For this to be true, however, it must appear, not only that the contract is entered into in the name of a principal who is in existence, but also that there is nothing in the contract indicating Page 22 an intention to bind the agent. Where such appears from the contract, the legal inference is that the principal and not the agent is to be bound. On the contrary, where the contract is entered into by an agent in the name of a non-existent principal, no such inference is possible; for it would be a legal absurdity to assume that an agent intended to bind a principal who was not in existence. Under such circumstances, the agent having entered into a contract which as a matter of legal presumption he intends can be enforced, and it being manifestly impossible to enforce the contract against a principal who has no existence, it is assumed that the agent intended that the contract should be enforced against him. It therefore appears that the decision of the Court of Appeals in this case is not contrary to the rulings in the cases we have had under discussion." See, also, 2 American Jurisprudence, 251. In the case at bar there was an existing person for whom it is alleged the defendant assumed to act and, therefore, the case comes under the Ohio rule, which conforms to the great weight of authority to the effect that the agent is not liable on the contract which he assumes to negotiate for such person, but is liable upon his warranty of authority. In the first case, the plaintiffs clearly stated a case for liability against the defendant for breach of a contract, whereby he personally employed them as real estate brokers to find a purchaser of real estate. They never departed from that basis of liability. And the court by its recital in its judgment clearly indicated that the only issue adjudged was whether the defendant had so employed the plaintiffs. We, therefore, hold that the record offered in proof of the second and third defenses does not prove either an election of remedies or res judicata. *Page 23 For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law. Judgment reversed. HILDEBRANT, P.J., MATTHEWS and ROSS, JJ., concur in the syllabus, opinion and judgment.	01-03-2023	07-06-2016
https://www.courtlistener.com/api/rest/v3/opinions/2983091/	November 20, 2014 JUDGMENT The Fourteenth Court of Appeals QUINTEN McINTYRE, Appellant NO. 14-13-00407-CR V. THE STATE OF TEXAS, Appellee ________________________________ This cause was heard on the transcript of the record of the court below. Having considered the record, this Court holds that there was no error in the judgment. The Court orders the judgment AFFIRMED. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/843962/	725 N.W.2d 342 (2007) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earland James COLLINS, Defendant-Appellant. Docket No. 132322. COA No. 261217. Supreme Court of Michigan. January 4, 2007. On order of the Court, the application for leave to appeal the September 21, 2006 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.	01-03-2023	03-01-2013
https://www.courtlistener.com/api/rest/v3/opinions/2007795/	145 Ill. App. 3d 880 (1986) 495 N.E.2d 1364 DONALD P. CARONA, Plaintiff-Respondent, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Petitioner. No. 5-85-0756. Illinois Appellate Court Fifth District. Opinion filed July 24, 1986. Robert G. Wuller, Jr., of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellant. Victor J. Mosele, of Paul L. Pratt, P.C., of East Alton, and James T. Williamson and John C. Webster, both of Williamson, Webster, Groshong, Moorman & Falb, of Alton, for appellee. Reversed and remanded. JUSTICE KARNS delivered the opinion of the court: We granted defendant's petition for leave to appeal under Supreme Court Rule 306(a)(1)(ii) (87 Ill.2d R. 306(a)(1)(ii)) from an order of the circuit court of Madison County denying defendant's forum non conveniens motion to decline jurisdiction of plaintiff's action 881 to recover damages under the Federal Employers' Liability Act (45 U.S.C. sec. 51 et seq. (1976)). Plaintiff's complaint, filed on January 4, 1984, alleges that he was injured while employed by defendant railroad as a brakeman-conductor on July 29, 1983, at New Orleans, Louisiana. He was injured when he threw a switch at the Mays Yard in New Orleans, and he claims that his injuries resulted from the negligence of defendant railroad. At the time of the incident, plaintiff resided at McComb, Mississippi, where he continued to reside until December 1983, at which time he moved with his family to East Alton, Illinois. His three children are enrolled in the Roxana, Illinois, public schools. Defendant supported its motion to decline jurisdiction with affidavits from supervising employees of the railroad showing that when plaintiff eventually returned to work, he continued to work in and around McComb, Mississippi, and received his paycheck there. Nonetheless, we assume that his move to East Alton, Illinois, was bona fide as his wife and children reside there, and citizens of this country are free to move about at their pleasure. It would appear that no one witnessed the accident in which plaintiff was injured. All fellow employees and supervising employees of the defendant who might be called as witnesses reside and work in Mississippi and Louisiana. Plaintiff was originally treated by doctors who practice at Vicksburg, Mississippi, and New Orleans, Louisiana. Surgery was performed on his injured shoulder at Vicksburg. He received physical therapy at St. Margaret's Hospital in Spring Valley, Illinois, while there on a visit apparently unrelated to this lawsuit. After moving to East Alton, plaintiff has seen doctors in Wood River, Illinois, and St. Louis, Missouri, and a manipulative procedure was performed on his injured shoulder at St. Joseph's Hospital at Alton under general anesthesia in December 1984. He received physical therapy at St. Joseph's Hospital and continued to do so at the time this matter was decided in the trial court. This occurrence and the plaintiff obviously had no connection with Illinois when the plaintiff was injured in July of 1983. Under the reasoning and holding of Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111, and the numerous decisions of the supreme court and this court that followed, it would clearly have been an abuse of discretion for the trial court not to decline jurisdiction but for plaintiff's move to East Alton, Illinois, the situs of plaintiff's attorney's law offices, shortly before this lawsuit was filed. E.g., Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 882 478 N.E.2d 370; Foster v. Chicago & Northwestern Trans. Co. (1983), 102 Ill. 2d 378, 466 N.E.2d 198; Moore v. Chicago & Northwestern Trans Co. (1983), 99 Ill. 2d 73, 457 N.E.2d 417; Petersen v. Chicago & Northwestern Trans Co. (1983), 117 Ill. App. 3d 163, 453 N.E.2d 27. Plaintiff argues that it was not an abuse of discretion for the trial court to deny defendant's motion to decline jurisdiction because the action was filed in the forum of his residence. He cites in support of this argument language taken from the supreme court's decision in Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98. There, the plaintiff's decedent was killed while employed by defendant railroad near Wagoner, Oklahoma. At the time of the accident, decedent and his wife resided in Barling, Arkansas, where she apparently continued to reside. The court held that the denial of the motion to dismiss on the grounds of forum non conveniens constituted an abuse of discretion on the part of the trial court. In Wieser, in weighing the factors that should be balanced by the trial court in exercising its discretion in ruling on such motions, the court stated that "[w]hen the home forum is chosen, it is reasonable to assume that the choice is convenient. When the plaintiff is foreign to the forum chosen, however, this assumption is much less reasonable and the plaintiff's choice deserves less deference." Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 360, 456 N.E.2d 98, 102. The opinion stated further that "[i]f Illinois has any connection with the litigation such as the residence of the plaintiff, or the principal place of business of the defendant, or the situs of the accident, or of the decedent's employment, it would have had an interest in providing a forum in which to resolve the dispute." (98 Ill. 2d 359, 371-72, 456 N.E.2d 98, 104.) Similar language appears in the recent decision in Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694. The plaintiff extrapolates from the quoted language of Wieser a rule that plaintiff's choice of forum is proper, regardless of antecedent facts, if the chosen forum is the place of residence of the plaintiff at the time of filing suit. We do not believe the language of Wieser can be so interpreted. In our opinion, the quoted language was intended to express the idea that a plaintiff who is a resident of Illinois at the time he is injured can be said to have an expectation of protection from the laws of Illinois as a citizen of the State of Illinois. This cannot be said of a plaintiff who did not reside in Illinois at the time of his injury and who later moved to Illinois. *883 The residence of the plaintiff is only one factor to be considered by the trial court in deciding the question of convenience of the chosen forum. Here it is the only factor weighing in favor of Madison County, aside from the fact that it is the chosen forum, that the prior decisions of the supreme court have considered appropriate in considering the private and public interests that must be balanced by the trial court in determining the question of an appropriate forum. In Wieser, the supreme court also emphasized the costs and burdens of jury service on both the jurors and the financial resources of the courts in furnishing a forum for litigation that has no real nexus to Illinois. While this case may be considered to present a new or undecided question, or at least a new effort to vest an Illinois county with the color of propriety as an appropriate forum, we do not believe that the spirit, if not the precise holding, of any case heretofore decided would approve a holding of this court, the effect of which was to encourage nonresidents to move to Illinois to file lawsuits that otherwise have no connection with Illinois other than the place of residence of the litigant's chosen attorney, a practice often referred to as "forum shopping." We hold that the circuit court of Madison County abused its discretion in denying defendant's motion to dismiss because Madison County is an inconvenient forum. The judgment of the circuit court of Madison County is reversed and the cause is remanded to the circuit court of Madison County with directions to grant defendant's motion to dismiss on the condition that defendant will accept service of process and will waive the defense of the statute of limitations if the cause is filed in an appropriate Mississippi or Louisiana forum within one year of the date of dismissal. Reversed and remanded, with directions. HARRISON and WELCH, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2613003/	35 Cal. App. 2d 691 (1939) MARGARET L. THEW, Respondent, v. CORA A. THEW, Appellant. Civ. No. 2458. California Court of Appeals. Fourth Appellate District. December 4, 1939. Fred A. Watson for Appellant. John A. Hadaller for Respondent. Griffin, J. This is an action to enforce the provisions of a property settlement agreement upon the theory that the covenant therein contained constitutes a covenant running with the land. The parties filed a stipulation setting forth the facts. The plaintiff (herein referred to as "first wife") had instituted an action for divorce from one Hollie H. Thew. While the action was pending, the plaintiff and Hollie H. Thew (herein referred to as "husband") entered into a property settlement agreement dated February 21, 1933. Included in the property divided by the agreement was section of desert land which is the land involved in this action. The title to this land stood in the name of the husband, although it constituted community property. This section of land, as well as other real and personal property, was conveyed under the agreement by the first wife to the husband, the conveyance being thus expressed: "(1) The party of the second part, (the wife) for and in consideration of the covenants and agreements hereinafter contained, does by these presents absolutely and forever relinquish, release, surrender, transfer, grant and convey to the party of the first part all the right, title and interest she may now have as a joint 693 tenant, tenant in common, or otherwise, and any and all right, title and interest she may now have or hereafter acquire as the wife of the party of the first part in and to all that certain real and personal property described as follows, ... all of section 1, township 8, north range 4 East, S. B. B. M. consisting of 640 acres and 38/100 acres, subject to certain reservations and exceptions now of record, reserving the right to extract Jasper from 20 acres of said land ... said real and personal property hereinbefore described to be and become, by virtue of this instrument, the sole and separate property of the party of the first part ... said party of the first part ... accepts the said real and personal property as his sole, and separate property." Other real and personal property was conveyed by the husband to the first wife, with similar recitals. The agreement contains mutual waivers of interest. In addition to setting forth these mutual conveyances and waivers, the document contains a covenant by the first wife and several covenants by the husband. One of the covenants of the husband is thus expressed: (4) The Party of the first part does further contract and agree that he will pay to the party of the second part ten (10%) per cent of the net profit derived from the sale ... (of the property here in question) or in the event of the extraction of any mineral deposits herefrom, ten (10%) per cent of the profit derived from such mineral deposits." (Italics ours.) After the agreement was executed, an interlocutory decree of divorce was granted, followed by the final decree of divorce on September 4, 1934. Immediately thereafter, to wit, on September 5, 1934, the husband and the appellant (herein referred to as "second wife") were married. It was stipulated that within six months after her marriage, the second wife was informed of the property settlement agreement and the covenant in question and had actual knowledge thereof." The court found that appellant and her husband, from the money received from the sale of minerals extracted from the property in question under contract with the Chamberlain Company, since January 4, 1937, paid respondent one-tenth of the sums which they received until the death of Hollie H. Thew on May 14, 1937. In the verified complaint there appears as exhibit A a quitclaim deed of the property in question dated March 18, 1935, 694 executed by Margaret L. Thew to Hollie H. Thew, and recorded January 18, 1937, at 10:10 A. M., which contains the following provision: "In consideration of this conveyance, the said Hollie H. Thew hereby agrees to pay to the said Margaret L. Thew ten per cent (10%) of the net profit he may receive from the sale of said real property, or in the event of the extraction of any mineral deposits therefrom, then ten per cent (10%) of the net profit he may receive from such mineral deposits." The due execution of this deed is admitted by the verified answer of Cora A. Thew. On January 16, 1937, conveyances were executed which resulted in placing the land in question, as well as other property, in the names of the husband and second wife as joint tenants. These instruments were recorded January 18, 1937, at 10:11 and 10:12 A. M. respectively. Subsequent to the death of the husband, the second wife received $985.74 from the sale of bentonite extracted from the land in question. The second wife is still the owner of the land, except as her right, title or interest is or may be affected by the covenant to which we have referred. The stipulation of the parties attempted to dispose of all admissions contained in the pleadings in conflict with the facts set forth in the stipulation. By the judgment the court decreed "That Margaret L. Thew, the plaintiff, do have and recover of and from the defendant Cora A. Thew, the sum of $98.57, which is ten per cent net of $985.74 admitted by defendant to have been received ... for Bentonite extracted ... from the land ... pursuant to an agreement since May 14, 1937" and that "... in addition ... is entitled to 10 per cent of the net of any and all additional money received or to be received by defendant for Bentonite and/or other mineral substance extracted and sold from the land ... and is likewise entitled to 10% net of the amount which shall be received from the sale of the said land as a whole ... whenever the same may be sold" and "that the covenant in the property settlement agreement ... whereby Margaret L. Thew quitclaimed and granted her rights ... to Hollie H. Thew ... and whereby Hollie H. Thew agreed to give said wife 10% net of sale price of the said land or in the event of extraction of any mineral deposits therefrom, that he would pay her 10% net of the profits derived from the sale of such 695 mineral deposits, same being the consideration going to Margaret L. Thew from Hollie H. Thew for the conveyance of the rights of said wife ..., constituted and does constitute a covenant running with the said real property so conveyed; and that the said plaintiff is now vested with an estate, interest, lien and incumbrance on, to or with respect to said real property by reason of said covenant" and "that Cora A. Thew is the owner of and entitled to possession of the said real property, subject to the interest, estate, lien, covenant and incumbrance thereon in favor of plaintiff. ..." From this judgment the defendant has taken this appeal. [1] Appellant argues that the covenant is void for uncertainty; that it reads in the disjunctive "or" and that therefore the parties to the agreement did not contemplate that the first wife should participate in both the sale price and the profit from the mineral extracted; that the agreement does not set forth the means by which the "profit" as that term is used, can be ascertained, citing Civil Code, section 1598, and Prince v. Lamb, 128 Cal. 120, 126 [60 P. 689]. Respecting the provision relating to the profit from the extraction of mineral deposits, it appears to us that the term "profit" in its ordinary interpretation as here applied, clearly indicates and embraces the excess of returns over expenditures and cost of production. The record indicates that the second wife and her husband made payments to the first wife from the profits above mentioned under the property settlement agreement for a period of several months. Apparently there was no confusion, during that period, as to its interpretation, or the intention of the parties. [2] It is a general principle that whenever uncertainty arises concerning the provisions of an agreement the court will always inquire as to how the parties themselves understood the language and when they have acted upon that understanding, the finding of the court that it should be construed as acted upon will not be disturbed by an appellate tribunal. (Sutliff v. Seindenberg, Stiefel & Co., 132 Cal. 63 [64 P. 131, 469]; secs. 1649, 1655 and 1656, Civ. Code.) [3] The remaining portion of the covenant relating to the ten per cent of the net profit to be derived from "the sale" of the land is deserving of more serious consideration. Since no sale actually took place, we do not have the conduct of the parties to guide us but must resort to inferences 696 and other facts proven and found for its construction. The expressed intention of the parties in the property settlement agreement should determine this point. It seems to have been in the minds of both parties to the agreement that a sale of the property was either contemplated at that particular time, or was thought of as a possible happening in the near future, in which event the first wife was to receive her ten per cent of the net profit immediately and which would thus conclude their property division. This seems the more probable because the definite article "the" is used in connection with "sale", instead of the indefinite article "a". Hollie H. Thew may have thought that if any deal for a sale should not be consummated and he should decide to mine the property himself, and reduce its value by mining, respondent should not be deprived of her interest. He provided for that contingency and, therefore, agreed to compensate her for such diminution of the value of the property by mining as would come about in the ordinary process of mining that kind of mineral, namely, bentonite. By mining the property over a period of years, and extracting the mineral that made it valuable as a mine, a sale of the property after such extraction would bring considerably less than if the sale took place shortly after the property settlement agreement. To obtain her total one-tenth of the value of the property, as it existed at the date of the property settlement agreement, she had to receive it from both transactions. That construction, we think is rational and logical and should be adopted. Sections 1641 and 1643 of the Civil Code provide: "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other" and "a contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties". It could not be reasonably contended that the intention of the contracting parties to the property settlement agreement meant a net profit on "every" sale that might or would take place after "the sale" or one sale, or the first sale made after the agreement was signed. [4] As to the mode or method of arriving at what is commonly understood to be the net profit from "the sale" section 1656 of the Civil Code helps 697 to determine that: "All things that in law or usage are considered incidental to a contract to carry it into effect, are implied therefrom, unless some of them are expressly mentioned therein, when all other things of the same class are deemed to be excluded." What is usage in the division of a net profit from a sale of land? Were this a matter of a sale among partners some of whom had expended more labor and time in the development of property than the others, usage might decree that those who had spent more money, time and labor on the development should receive more of the net profit, but here there is no evidence of inequality in time and labor or money. For all the record shows, Hollie H. Thew did not personally mine the land and whatever labor might have been hired to develop it originally, as we can readily assume from the stipulation of fact that it was community property, was paid out of community funds. The mining of the land by the Chamberlain Company from which the revenue was derived did not impose any special labor or expenditure on Hollie H. Thew or the appellant. Hence, appellant's argument that the parties may have not only contemplated the actual cash outlay of the husband in the acquisition and maintenance of the property but also the unliquidated demands as recompense for services of the husband in supervising and maintaining the property is not only not based upon any facts in evidence supporting the view, but is answered by the stipulation that the property was community property, and was not personally mined by the owner. We observe that there is no specific law defining what are "net profits from sales". Since the language of the covenant relates "ten (10%) per cent of the net profit derived from the sale" the implied parts can relate only to net profit from the sale. The customary and usual costs of the sale are an escrow fee, a policy of title, execution and recording of deeds, payment of taxes, judgment liens, if any, relator's commission for making the sale, etc. Excluding the original cost to the community estate, what is left is a "net profit". This particular property was community property at the time of making the agreement. Subsequent to the execution and delivery of that instrument, it became the sole and separate property of the husband, Hollie Thew, but subject to the reservation and covenant. On the basis 698 of the community interest prior to the property settlement agreement, we cannot see that Hollie Thew would have been in any position to make an extra claim for the purchase price of the land, because that came out of the community earnings and all other expenditures made on the land prior to that property settlement agreement would be in the same category. As to any extra claim for management or expenditure of work and time after the separation, there is no evidence that he expended any extra time on it or mined the land himself. The only rational charges he could have had in mind would have been the ones which came about in the sale of the land as we have enumerated above. To hold otherwise would result in a forced construction predicated on facts not in evidence and the drawing of inferences from facts not proven. If, as we have seen, Hollie Thew intended to give his wife the one-tenth of the net value of the land as of the day and date of the property settlement agreement, either by an immediate sale thereafter, which would have concluded his pact with his first wife, or, lacking a sale, then by ten per cent of the money received by him as royalties, we must also assume that, whether he himself remained alive to effect the payment of that one-tenth value either by a sale or by mining the land, the original intention to pay the one-tenth of the value of the land could not expire with his death if the debt was not fully paid, but would have to pass on to those who took the title impressed with that obligation. If he did not in truth and fact intend that she should have the one-tenth of the value of the land, he most likely would not have made the provision that it was to come out of the land itself. Doubtless he would have made some other provision for the payment of the one-tenth of the value of the land, either in instalment payments that had nothing whatever to do with the land, or provision for payment of a lump sum based on an agreed valuation of the land as of the date of the property settlement agreement. This he did not do. It is a fair construction that the one-tenth was to come out of the land and only the land. Section 1654 of the Civil Code states the rule of construction which is most applicable to the facts related. "In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most *699 strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party; ..." [5] Appellant argues that there was no intention that the first wife should retain any interest in the property. In the instant case Cora A. Thew, the appellant, took title to the land with full and actual knowledge of the covenant concerning the percentage respondent was to receive out of the land, and this knowledge she had long prior to the time she acquired title and long prior to the making of the agreement for the mining of the property with the Chamberlain Company. The quitclaim deed from the first wife to Hollie H. Thew was recorded prior to the recordation of appellant's joint tenancy deed. She had full knowledge of similar reservations and covenants therein. We will not endeavor to discuss, analyze, or distinguish the difference between personal covenants and covenants which run with the land. In so far as the facts of this case are concerned, a complete answer is stated in Richardson v. Callahan, 213 Cal. 683 [3 PaCal.2d 927], where the court said: "The marked tendency of our decisions seems to be to disregard the question of whether the covenant does or does not run with the land and to place the conclusion upon the broad ground that the assignee took with knowledge of the covenant and it was of such a nature that when the intention of the parties coupled with the result of a failure to enforce it was considered, equity could not in conscience withhold relief." (See, also, Pomeroy's Equity Jurisprudence, 2d ed., secs. 688 and 689; Whitney v. Union Ry. Co., 11 Gray (Mass.), 359 [71 Am. Dec. 715], 7 Rawle C. L., p. 1102, sec. 18; Washburn on Real Property, vol. 2, sec. 1205; Sacramento S. F. L. Co. v. Whaley, 50 Cal. App. 125 [194 P. 1054].) We conclude, therefore, that having taken title with knowledge of the covenant and having acted upon it without evidencing any uncertainty as to its provisions, and knowing the intention of the parties who made the covenant, appellant is bound both in law as well as in equity, to carry out the covenant according to the original intention of the makers thereof. The judgment is affirmed. Barnard, P. J., and Marks, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612990/	14 Cal. 2d 617 (1939) THE PEOPLE, Respondent, v. ANTHONY STRALLA et al., Defendants; HAROLD ADAMS, Appellant. Crim. No. 4227. Supreme Court of California. In Bank. November 20, 1939. Joseph L. Fainer, Chauncey Tramutolo, Samuel L. Rummel, Louis P. Pink, Jerry Giesler and George M. Naus for Appellant. Ben L. Blue, as Amicus Curiae, on Behalf of Appellant. Earl Warren, Attorney-General, Bayard Rhone, Deputy Attorney-General, Buron Fitts, District Attorney, and A. H. Van Cott, J. J. Sullivan and Thomas F. O'Brien, Deputies District Attorney, for Respondent. Frank E. Hinckley, Ben Harrison, United States Attorney, and Irl Brett, Assistant United States Attorney, as Amici Curiae, on Behalf of Respondent. SHENK, J. The grand jury of the county of Los Angeles returned an indictment against the defendant Adams and others, charging the violation of subdivision 2, section 337a, of the Penal Code. The specific accusation was the keeping and operating of the gambling ship "Rex" anchored in the waters of what is known as Santa Monica Bay, at a point four miles oceanward from the end of the municipal pier of the city of Santa Monica and approximately six miles landward from a line drawn between the headlands, Point Vicente on the south and Point Dume on the north. The defendant Adams appealed from the judgment of conviction and from the order denying his motion for a new trial. There is no dispute as to the sufficiency of the evidence to support the jury's verdict if the offense was committed within the jurisdiction of the state. The appeal presents the single question whether the territorial jurisdiction of the State of California extends over the area of the waters known as Santa Monica Bay. If it does, an affirmance of the judgment will be required. The territorial boundaries of the state were defined in the Constitution of California of 1849, article XII, section 1, which fixed the ocean boundary of the state as: "thence running west ... to the Pacific Ocean and extending therein 620 three English miles; thence running in a Northwesterly direction and following the direction of the Pacific Coast to the forty-second degree of north latitude; thence on the line of said forty-second degree of north latitude to the place of beginning. Also, including all the islands, harbors, and bays along and adjacent to the coast." That language was readopted in the Constitution of 1879, section 1, article XXI, without substantial change. Section 33 of the Political Code enacted in 1872 provides that the sovereignty and jurisdiction of this state extends to all places within its boundaries as established by the Constitution, subject to qualification in cases where jurisdiction has been ceded to or acquired by the United States Government. [1] The immediate problem for solution is whether the waters commonly known as Santa Monica Bay were intended to be included within the designated territorial boundary. The answer comprehends not one, but several factors, namely: Is this body of water a bay geographically? Is it a bay historically? Is it a bay legally? For the purpose of considering those factors this court may examine historical data and maps, public papers and records, and may take judicial notice of such geographical, historical and political data even though the same have not been introduced in evidence in the trial court. (Code Civ. Proc., sec. 1875; Rogers v. Cady, 104 Cal. 288 [38 P. 81, 43 Am. St. Rep. 100]; Varcoe v. Lee, 180 Cal. 338, 343 [181 P. 223].) [2] The waters known as Santa Monica Bay lie in an indentation of the California coast between Point Vicente and Point Dume. The points are distant from each other about 25 nautical miles or about 29 statute miles. The line of the coast forms a curve inward to a distance of about ten miles from a line drawn between the headlands. The line of the shore recedes slightly from Rocky Point, which is to the north of Point Vicente, making the distance between shores landward from Point Dume and Rocky Point greater than the distance between those two points. Otherwise the bay is widest between Point Vicente and Point Dume. The foregoing geographic description appears to conform to the definition of a bay. Funk & Wagnalls New Standard Dictionary defines "bay" as "an indentation in the shoreline of a body of water; the water between two projecting headlands; sometimes, an arm of the sea connecting with 621 the ocean". We find in Webster's International Dictionary: "An inlet of the sea, usually smaller than a gulf, but of the same general character. The name is used, often for large tracts of water, around which the land forms a curve, or for any recess or inlet between capes or headlands; as, the Bay of Biscay; Hudson Bay." The Oxford English Dictionary (1933) gives: "An indentation of the sea into the" Graphic Material Omitted 622 line. This may be of the same origin as 'bay', in the architectural sense, or from a Latin word which is seen in the place named Baiae." "A bay is a bending or curving of the shore of a sea or of a lake, and is derived from an Anglo-Saxon word signifying to bow or bend. For a similar reason the word bay is in Latin termed sinus, which expresses a curvature or recess in the coast." (State v. Town of Gilmanton, 14 N. H. 467, 477.) A visual illustration of the outline of the land surrounding the waters known as Santa Monica Bay, and of the land and waters constituting San Pedro Bay, is reproduced herein from a portion of a map designated as "United States--West Coast California, San Diego to Santa Rosa Island" (geodetic survey charts numbers 5144 and 5147), with lines drawn between headlands added. The waters known as San Pedro Bay extending from Point Fermin to the city of Huntington Beach, formerly called Point Lasuen, have been judicially declared to be a "bay." (United States v. Carrillo, 13 Fed. Supp. 121.) This map serves to give an easy and affirmative answer to the question whether the waters known as Santa Monica Bay are geographically a bay. Visually, if one of these bodies of water is a bay geographically, the other would seem also to be a bay." Historically it appears that both Cabrillo (in 1542) and Viscaino (1603) noted this body of water as "Gran Ensenada" or "Grand Bay" (Bancroft's Works, vol. 18, History of California, vol. 1, 1541-1800, p. 71; Paulen's Atlas of Historical Geography of the United States, plate No. 17). Both Spain and Mexico claimed and exercised exclusive jurisdiction over the waters of this coast as far as the mouth of the Columbia River, for a distance of ten leagues into the ocean, and such claim was confirmed by treaty with Great Britain in 1790. (See Ocean Industries, Inc., v. Superior Court, 200 Cal. 235, 242 [252 P. 722].) Historians refer to the waters as Santa Monica Bay (Ingersoll's Century History of Santa Monica Bay Cities, p. 121; Charles Sumner Warren, History of Southern California; California Blue Book, 1932, p. 520.) They indicate that the bay received its present name probably earlier than 1827, and that the city of Santa Monica was named later. Rand-McNally & Co.'s Atlas of the World (United States, 1908, p. 277), contains the following statement: "The sea-coast of California extends the entire length of the State and is indented 623 by many bays and harbors, that of San Francisco being the finest on the Western coast, nearly fifty miles long and about nine miles wide. Other bays or harbors of importance are San Diego, San Pedro, Santa Monica, Santa Barbara, San Luis Obispo, Monterey, Tomales, Bodega, and Humboldt." Before 1872 "Shoo Fly Landing" on Santa Monica Bay afforded shipping facilities for the La Brea rancho. (Ingersoll, Century History of Santa Monica Bay Cities, p, 141.) The same writer, states (pp. 144, 145) that in 1875, in conjunction with the construction of a railroad, a new wharf, 1700 feet in length, reaching a depth of 30 feet at low tide, was completed and the first ship landed at this wharf in June of that year. Collis P. Huntington, about 1892-1893, was instrumental in building the "Long Wharf", 4600 feet, at a cost of about $1,000,000. (Newmark, Sixty Years in Southern California, 1853-1913.) Guinn's Historical and Biographical Record of Southern California (printed 1902, p. 139 et seq.), states facts showing the importance of Santa Monica as a shipping point. The long struggle to obtain funds to establish a breakwater in either of Santa Monica or San Pedro Bays as a port for Los Angeles, which ended in the selection and establishment of the port in San Pedro Bay, has become part of historical Californiana. (Article "The Battle for Southern Pacific Ports", by Lanier Bartlett, in "Westways", August, 1935, pp. 26-29.) The defendant quotes the following from the United States Coast Pilot, issued by the United States Department of Commerce under the supervision of the Coast and Geodetic Survey, page 57: "From Point Vicente to Point Dume, about 25 miles, the coast forms a broad open bight about ten miles wide known as Santa Monica Bay". He thus argues that an open bight is not a bay within the accepted terminology of what constitutes a bay. But we are also referred to the statement in the same survey that "Monterey Bay ... is a broad, open bight, twenty miles long, between Point Pinos and Point Santa Cruz, and nine miles wide ..." Monterey Bay was determined to be territorial waters in the case of Ocean Industries, Inc., v. Superior Court, 200 Cal. 235 [252 P. 722]. 624 [3] The defendant contends that a body of water which may answer the definition of a bay, does not constitute a bay unless it also affords protection and safe anchorage to vessels engaged in shipping, and that Santa Monica Bay does not offer the advantages of a harbor. The evidence and the historical facts do not support the statement. The defendant refers to the discussion before the 54th Congress, 1896, as indicating a lack of secure refuge in Santa Monica Bay. But the evidence there produced does not necessarily negative the characteristics of Santa Monica as a bay or a harbor. The controversy centered on the problem of which bay, Santa Monica or San Pedro, was the better site for the project of establishing a port for Los Angeles. In a history of the Los Angeles Harbor district, compiled by Ella A. Ludwig and published by the Historical Record Company, Inc. (California), referring to the report of the board of engineers appointed to investigate the question of which bay was the more eligible location for such a harbor, it is stated: "There was a lengthy and full comparison of the two places, Santa Monica and San Pedro. On the comparative advantages for arrival and departure, the board held that there was no essential difference between the sites of San Pedro and Santa Monica. The question of distance from Los Angeles was declared to be unimportant ... On the question of construction, after going into all details, it was declared in substance that the cost of San Pedro would be much less than at either of the locations suggested at Santa Monica". The fact that San Pedro Bay was finally selected does not refute the evidence of use of Santa Monica Bay as a harbor. Nor is the fact that Santa Monica Bay affords less protection from northwesterly winds a controlling consideration. San Pedro Bay, situate on the southerly curve of the peninsula or projection of land formed by Point Vicente and Point Fermin, is open to southeasterly gales, as to which Santa Monica Bay, along the northerly curve of that peninsula, affords protection. Leading into the latter curve in Santa Monica Bay, a deep canyon, known as Redondo Canyon, provides passage for ships almost to the breakwater line along Redondo beach. Also, oceanward and to the northwest of Santa Monica Bay lie the islands of Santa Cruz and Santa Rosa; and to the southwest, Catalina and San Clemente Islands. The position of the islands undoubtedly 625 affords some protection against gales coming from their direction. In his Century History of Santa Monica Bay Cities, chapter 1, page 121, Ingersoll notes that "the waters of this bay are ordinarily quiet since the force of the waves is broken by the seaward islands and the deep, recessed position of the shoreline". Moreover, the "Rex", which has no motive power of its own, has been anchored at the same point in Santa Monica Bay for the past five or six years. If the question whether Santa Monica Bay is a harbor were important in the solution of the problem presented, the foregoing fact would tend strongly to refute the contentions of the defendant that Santa Monica Bay, as a harbor, is not within the territorial waters of the state. In discussing the legal sources on the question of what constitutes a bay, the defendant places reliance upon the case of United States v. Morel, 26 Fed. Cas. 1310, No. 15,807, wherein a distinction was made between high seas, and roads, harbors and ports. After noting the distinctions made by Lord Hale in the fourth chapter De Jure Maris, the court said: "We see here a clear and reasonable distinction taken between the main sea or ocean, and such parts of its waters as may flow into places so situate and secured by the circumjacent land as to afford a harbor or protection for vessels from the winds, which make the sea dangerous. The open sea, the high sea, the ocean, is that which is the common highway of nations, the common domain, within the body of no country, and under the particular right or jurisdiction of no sovereign, but open, free, and common to all alike, as a common and equal right". And, quoting from Lord Hale, the court continued "The expression [high seas] describes the open ocean where the dominion of the winds and waves prevails without check or control. Ports and harbors, on the contrary, are places of refuge in which protection and shelter are sought, within the enclosures and projections of land." It is obvious that the extent of the harborage offered by the places so described will vary; but mere variations which become apparent in making comparisons with other harbors may not preclude judicial recognition of Santa Monica Bay as a harbor, in view of its geographic conformation and the history of its uses as such. [4] Furthermore it does not appear that the law of nations defines, circumscribes or restricts the character of a body of water which may be included within the territorial boundaries 626 of a country in accordance with the defendant's contentions. Many writers and courts have dealt with the question of what arms of the sea washing its coast may constitute the territorial waters of a sovereign state. It is now uniformly agreed that adjacent waters to the distance of three miles or a marine league are territorial waters subject, however, to the right of innocent passage by foreign ships. (Moore, International Law Digest, vol. 1, pp. 698 et seq; The Marianna Flora, 11 Wheat. (24 U.S.) 1 [6 L. Ed. 405]; The Ann, 1 Fed. Cas., p. 926, No. 397; In re Marincovich, 48 Cal. App. 474, 477 [192 P. 156].) The prevailing claims of territorial jurisdiction over bordering waters and enclosed arms of the sea represent a diminution of the exclusive sovereignty over large bodies of water, such as the Adriatic, the Gulf of Genoa, the North Sea, and the Baltic Sea, which in earlier days were closed seas. "Thenceforward the progress of maritime jurisdiction was reversed--from mare clausum to mare liberum. And the Sovereignty allowed by International law over portions of the sea is in fact a decayed and contracted remnant of the authority once allowed to particular states over a great part of the known sea and ocean. ... The English claims dwindled to claims over territorial water close to the coast, and over portions of the sea interposed between promontory and promontory known as the King's Chambers, and over the whole of the narrow seas for ceremonial purposes." (Maine, International Law, 77, 79; see also Maxey, International Law, p. 228 et seq.) The latter authority says: "That the jurisdiction of a state over its marginal waters rests upon international rather than municipal law seems to admit of little doubt;" but he at the same time admits that there is no room for doubt that there exists the right to exercise such jurisdiction, and that the only dispute is as to the extent of it. What are territorial waters for the purpose of excluding foreigners from exercising unregulated fishing privileges therein has generally been the subject of convention between nations. (See Moore, supra, p. 716 et seq.; note 46 L.R.A., p. 270.) In 1884 (150 MS Dom. Let. 6; Moore, supra, p. 718), Mr. John Davis, assistant secretary of state, in a reply concerning the subject of whale fishing off Bahia Bay on the Brazilian coast, expressed the following: "The general law and rule is understood by this Government to be 627 that beyond the marine league or three-mile limit, all persons may freely catch whale or fish. In computing this limit, however, 'bays' are not taken as a part of the high seas; the three miles must be outside of a line drawn from headland to headland." ' It is of important significance that our state legislature has designated nearly the entire area of Santa Monica Bay as state territory for the purpose of regulating fishing privileges in those waters (Fish and Game Code, Stats. 1929, p. 1181, Stats. 1933, p. 394, sec. 88), and has thus asserted the jurisdiction of the state for that purpose in and over the waters wherein the "Rex" is anchored. One of the rights which it is stated justifies the doctrine of the territoriality of adjacent waters, is the right to exercise "surveillance of ships which enter those waters, whether passing through or stopping there ... in order to guarantee the efficient police and the development of the political, commercial, and fiscal interests of the bordering state". (Moore, Digest of International Law, supra, pp. 698, 699.) Such right exercisable in adjacent waters would necessarily also be appropriate in territorial bays, harbors and inlets. The same authority indicates that the headland doctrine has received some limitation when the question has become the subject-matter of convention between nations. The three-mile limit applicable to adjacent waters was in some instances taken as restricting other coastal territorial waters to those inlets having an entrance six miles or two marine leagues in width. (See Commonwealth v. Manchester, [1890] 152 Mass. 230 [25 N.E. 113, 23 Am. St. Rep. 820, 9 L.R.A. 236]; Manchester v. Commonwealth, 139 U.S. 240 [11 S. Ct. 559, 35 L. Ed. 159]; Mahler v. Norwich & New York Transportation Co., 35 N.Y. 352, 355.) A ten-mile headland doctrine has been asserted (Moore, supra, p. 720.) In 1896, when the extension of the territoriality of adjacent waters from one to two marine leagues was a subject of diplomatic conversation, Mr. Richard Olney, secretary of state, observed that "an extension of the headland doctrine, by making territorial all bays situated within promontories twelve miles apart instead of six, would affect bodies of water now deemed to be high seas and whose use is the subject of existing conventional stipulation". (Moore, supra, p. 735.) 628 Prior to that time, however, the United States had asserted jurisdiction over the waters of Delaware Bay. (Opinion of the Attorney-General, Edmund Randolph, 1793, Am. State Pap. For. Rel. L. 148; 1 Op. At. Gen. 32; Emory v. Collings, 1 Harr. [Del.] 325, 326.) The opinion of the attorney-general was concerned with the question whether the brig "Grange" was seized within territorial waters of the United States. The attorney-general quoted from and discussed the opinions of early text writers as authority for his conclusion that such waters were territorial, and then made this statement: "These remarks may be enforced by asking, What nation can be injured in its rights, by the Delaware being appropriated to the United States? And to what degree may not the United States be injured, on the contrary ground? It communicates with no foreign dominion; no foreign nation has, ever before, exacted a community of right in it, as if it were a main sea; under the former and present governments, the exclusive jurisdiction has been asserted. ..." Bristol Channel was held to be British territorial waters. (Reg. v. Cunningham, [1859] Bell's C. C. 72, 86.) Conception Bay on the coast of Newfoundland, having an average width of fifteen miles with the distance between the headlands more than twenty miles, has also been declared to be British territorial waters. (Direct United States Cable Co. v. Anglo-American Telegraph Co., [1877] L. R. 2 App. Cas. 394.) In the course of the opinion in that case it was said: "Passing from the Common Law of England to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbours, estuaries, and bays land-locked belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine what is 'bay' for this purpose." "It seems generally agreed that where the configuration and dimensions of the bay are such as to shew that the nation occupying the adjoining coasts also occupies the bay it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; some suggesting therefore a width of one cannon shot from shore to shore, or three miles; some a cannon shot from each shore, or six miles; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude 629 Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham (Bell's Cr. C. 72) was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdiction over much more extensive bays, and Chancellor Kent, in his Commentaries, though by no means giving the weight of his authority to this claim, gives some reasons for not considering it altogether unreasonable." "It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule the difficulty of the task would not deter their Lordships from attempting to fulfil it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British Government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland." On the other hand, we may note that by treaty between the United States and Great Britain, it was settled that the former government has no exclusive jurisdiction in the waters of Behring Sea outside of the three-mile limit. (27 Am. L. Rev. 703; La Ninfa, 75 Fed. 513.) Chesapeake Bay, with an entrance of twelve miles between the headlands, was declared to be territorial waters. (Second Court of Commissioners of Alabama Claims, Stetson v. United States, No. 3993, Class 1. See Moore, Digest of International Law, vol. 1, p. 742.) It was there said: "Considering, therefore, the importance of the question, the configuration of Chesapeake Bay, the fact that its headlands are well marked, 630 and but twelve miles apart, that it and its tributaries are wholly within our own territory. ...; that from the earliest history of the country it has been claimed to be territorial waters, and that the claim has never been questioned; that it cannot become the pathway from one nation to another; and remembering the doctrines of the recognized authorities upon international law, as well as the holdings of the English courts as to the Bristol Channel and Conception Bay, and bearing in mind the matter of the brig Grange and the position taken by the Government as to Delaware Bay, we are forced to the conclusion that Chesapeake Bay must be held to be wholly within the territorial jurisdiction and authority of the Government of the United States and no part of the 'high seas' within the meaning of the term as used in section 5 of the act of June 5, 1872." In Manchester v. Massachusetts, 139 U.S. 240, at page 264 [11 S. Ct. 559, 35 L. Ed. 159], the Supreme Court of the United States said: "The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation; and except so far as any right of control over this territory has been granted to the United States, this control remains with the State. ... The statutes of the United States define and punish but few offences on the high seas, and, unless other offences when committed in the sea near the coast can be punished by the States, there is a large immunity from punishment for acts which ought to be punishable as criminal. Within what are generally recognized as the territorial limits of States by the law of nations, a State can define its boundaries on the sea and the boundaries of its counties; and by this test the Commonwealth of Massachusetts can include Buzzard's Bay within the limits of its counties." [5] Therefore the "jurisdiction of the State of California over the sea is that of an independent nation" (Humboldt Lumber Manufacturers' Assn. v. Christopherson, 73 Fed. 239 [19 C.C.A. 481, 44 U.S. App. 434, 46 L.R.A. 264, 282]), with the right to decide and prescribe its own boundaries. [6] The extent of territorial jurisdiction is primarily a question for the law-making power. (See note 46 L.R.A., p. 268.) In the case entitled La Ninfa, 75 Fed. 513, 518, it was said that in such controversies doubtful questions not thus decided are beyond the sphere of judicial cognizance and must 631 be met by the appropriate department of the state. It is true that the legislature has not expressly designated the boundaries of the state. But the fundamental law (Const., art. XXI, sec. 1) has declared that the territorial bounds of the state shall include the bays and harbors along its coast; and in enacting the Fish and Game Code the legislature has followed the constitutional declaration in respect to the waters of Santa Monica Bay. Moreover, it is doubtful whether the legislature, in view of the constitutional section, could renounce a right of territorial domain or abdicate any rights of dominion over waters which for a period of at least 400 years have been considered to be a bay, and over which the state has exercised territorial jurisdiction. (Ocean Industries, Inc., v. Superior Court, 200 Cal. 235 [252 P. 722]; Mahler v. Norwich & N.Y. Transp. Co., 35 N.Y. 352.) And certainly this court will not presume to do what the legislature could not do. What was said in the case of Ocean Industries, Inc., v. Superior Court, supra, also serves to refute any inferences which might otherwise be considered to flow from legislative acts fixing the boundaries of Los Angeles County and the city of Santa Monica. (See Stats. 1850, p. 59; Muchenberger v. City of Santa Monica, 206 Cal. 635, 638 [275 P. 803].) [7] In the absence of any controlling legislative or executive act or judicial decision, the court will look to the international law, namely, the customs and usages of civilized nations. (The Paquete Habana, 175 U.S. 677, 700 [20 S. Ct. 290, 44 L. Ed. 320].) But resort to the law of nations does not disclose any agreed definition of what constitutes a bay which may be included within the territorial waters of a state. (See, also, Ocean Industries, Inc., v. Superior Court, supra, p. 246.) On the contrary, as the foregoing discussion indicates, the usage and custom appears to be established to the effect that where, as here, the facts are that the bay is not and cannot become a pathway between nations; that exclusive jurisdiction has been asserted under both the present and former governments; that it has been recognized as a bay and as a harbor within the territorial boundaries of the state as prescribed by the law of the land, the courts have decided in accordance with the jurisdictional claim. [8] That a state has policing jurisdiction over its territorial waters may be said to be settled by the authorities 632 herein cited. (See, also, Cunard S. S. Co. v. Mellon, 262 U.S. 100 [43 S. Ct. 504, 67 L. Ed. 894, 27 A.L.R. 1306].) In that case it was said: "It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes the land areas under its dominion and control, the ports, harbors, bays and other enclosed arms of the sea along its coast and a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles. ... 'The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.' " (Quoting from opinion of Chief Justice Marshall, in The Exchange v. M'Faddon, 7 Cranch, 116, 136 [3 L. Ed. 287].) In line with the foregoing considerations the Bay of San Pedro (United States v. Carrillo, 13 Fed. Supp. 121), and Monterey Bay (Ocean Industries, Inc., v. Superior Court, 200 Cal. 235 [252 P. 722]), have been judicially recognized as territorial waters of the state. There is not such a difference between the configuration and expanse of those bays and of Santa Monica Bay as would compel the invocation of the "rule of reason" referred to in the Carrillo case, for the purpose of rejecting the contention that Santa Monica Bay is within the territorial boundaries of California. That rule of reason does not persuade us to conclude that the waters of Santa Monica Bay, per se, beyond three miles from the shore, constitute a part of the open or high seas. We are not here concerned with a body of water comparable to the Behring Sea, or to the Gulf of Mexico mentioned as an example in the Carrillo case. We conclude that geographically the waters known as Santa Monica Bay conform to the definition of a bay; that historically for a period of at least 400 years they have been known as a bay and during a large portion of that period have been used as a harbor; that the claimed jurisdiction of 633 the executive department of the state is in conformity with the law of nations; therefore, that Santa Monica Bay is one of the bays and harbors included within the territorial boundaries of the state by the Constitution. It follows that the jurisdiction of the state extends over the waters of Santa Monica Bay landward from a line drawn between its headlands, Point Vincente and Point Dume, and at least for a distance of three miles oceanward from that line, and that such jurisdiction may be exercised by the state for all proper purposes including the prosecution of violators of the penal laws of the state. The judgment and the order are and each is affirmed. Curtis, J., Waste, C.J., Gibson, J., and Carter, J., concurred. Houser, J., did not participate in the foregoing decision.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873231/	241 S.W.3d 268 (2006) Moses JONES, Appellant, v. STATE of Arkansas, Appellee. No. CR 06-988. Supreme Court of Arkansas. October 12, 2006. No response. *269 PER CURIAM. Fernando Padilla, a full-time, state-salaried public defender in Pulaski County, was appointed by the trial court to represent appellant, Moses Jones, an indigent defendant, on a charge of rape. Following a trial held on February 24, 2006, appellant was found guilty and sentenced to serve ten years in the Arkansas Department of Correction. A timely notice of appeal was filed with the circuit clerk, pursuant to Ark. R.App. P.-Crim. 2, and the record has been lodged in this court. Mr. Padilla now asks to be relieved as counsel for appellant in this criminal appeal, based upon the case of Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000) (holding that full-time, state-salaried public defenders were ineligible for compensation for their work on appeal) and Ark.Code Ann. § 16-87-201, et seq. (1998). Since the court's decision in Rushing, the law was changed by the General Assembly. Act 1370 of 2001 provides in part: "[P]ersons employed as full-time public defenders, who are not provided a state-funded secretary, may also seek compensation for appellate work from the Arkansas Supreme Court or the Arkansas Court of Appeals." That provision is now codified as Ark.Code Ann. § 19-4-1604(b)(2)(B) (Supp.2005). Mr. Padilla's motion states that he is provided with a full-time, state-funded secretary. Accordingly, we grant his motion to withdraw as attorney. Ms. Sara Rogers will be substituted as attorney in this matter. The Clerk will establish a briefing schedule. GLAZE, J., not participating.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2421433/	145 F. Supp. 2d 350 (2001) Verne LYDE, Plaintiff, v. NEW YORK CITY, P.O. Morales, Shield # 11398, Fox 5 News and Fox Broadcasting Company, Defendants. No. 00 CIV. 1764(WCC). United States District Court, S.D. New York. May 30, 2001. 351 Verne Lyde, Fishkill Correctional Facility, Fishkill, Plaintiff Pro Se. 352 Michael D. Hess, Corporation Counsel for the City of New York, Attorneys for Defendants New York City and P.O. Morales, New York, Stacy Laine Matthews, Asst. Corporation Counsel, Of Counsel. OPINION AND ORDER WILLIAM C. CONNER, Senior District Judge. Plaintiff pro se Verne Lyde brings this action against defendants New York City ("NYC"),[1] Police Officer Morales, Fox 5 News and Fox Broadcasting Company pursuant to 42 U.S.C. § 1983. He alleges that in violation of his rights guaranteed under the Fourth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution, he was: (1) forced to submit to a staged "perp walk;" (2) denied his right to counsel; and (3) denied his right to a prompt probable cause hearing.[2] Defendants NYC and Morales now move to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6) based upon the failure to state a claim.[3] For the reasons stated hereinafter, the motion is granted in part and denied in part. BACKGROUND The relevant facts, as alleged in plaintiff's Amended Complaint, are as follows: On April 10, 1997, at approximately 3:13 p.m., plaintiff was arrested without a warrant. At 6:49 p.m., a search warrant was signed. On April 11, 1997, at approximately 1:00 a.m. and after a confession had been coerced, plaintiff was instructed by defendant Morales to stand on the steps of the 49th Precinct and pull a jacket over his head while defendant Fox 5 News videotaped him. The videotape was aired that night. After the airing, plaintiff appeared before an alleged "non-partial" judge. (Am.Complt.¶ IV.) As a result of the staged "perp walk," plaintiff has suffered emotional distress and mental anguish. He was also placed in protective custody. (Id. ¶ IV-A.) Plaintiff was also denied his right to counsel and was not arraigned for over 30 hours. (Id. ¶ IV.) He seeks damages in the amount of $10 million: $5 million against defendant NYC; $5 million against defendant Morales; and $1 million against defendants Fox 5 News and Fox Broadcasting Company. (Id. ¶ V.) DISCUSSION I. Applicable Standard On a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all of the well pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984); Hertz Corp. v. City of New York, 1 F.3d 353 121, 125 (2d Cir.1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993). On such a motion, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S. Ct. 1683. A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir.1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed.1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir.1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, are insufficient as a matter of law. See Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.1978). II. Section 1983 Section 1983 creates a cause of action against any person who, acting under the color of state law, abridges rights guaranteed by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). The section does not create any new substantive rights. See Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). It merely provides a remedy for the violation of federal constitutional or statutory rights. See id. A. Perp Walks in Violation of the Fourth Amendment The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. Amend. IV. Its protection does not end when an individual is taken into police custody. Instead, the protection afforded by the Amendment is implicated by "police conduct that unreasonably aggravates the intrusion on privacy properly occasioned by the initial seizure." Lauro v. City of New York, 219 F.3d 202, 212 (2d Cir.2000). Plaintiff claims that defendant Morales subjected him to a staged perp walk. A perp walk occurs when an individual, after being arrested, is "`walked' in front of the press so that he can be photographed or filmed." Id. at 203. On July 28, 2000, the Second Circuit, in Lauro, declared certain perp walks to be unconstitutional as violative of an arrestee's Fourth Amendment right to be free from unreasonable seizures. See id. at 206-13. In that case, the plaintiff had been arrested and had remained in the precinct for several hours when the arresting detective received a telephone call from the Police Department's Office of the Deputy Commissioner of Public Information. See Lauro, 39 F.Supp.2d at 356. It was suggested that the plaintiff be taken on a perp walk for the benefit of the media. Pursuant to this request, the plaintiff was handcuffed, escorted out the front door and down the stairs into an unmarked car. The plaintiff was driven around the block and then escorted back into the precinct. During this procedure, the plaintiff was filmed by Fox 5 News. See id. 1. Defendant Morales The threshold issue is whether defendant Morales is afforded immunity from the suit. The general rule is that "`doctrine of qualified immunity shields public officials performing discretionary functions from civil liability insofar as their 354 conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Whitton v. Williams, 90 F. Supp. 2d 420, 429 (S.D.N.Y.2000) (Conner, J.) (quoting Bradway v. Gonzales, 26 F.3d 313, 317-18 (2d Cir.1994)); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). "Even where the law is `clearly established' and the scope of an official's permissible conduct is `clearly defined,' the qualified immunity defense also protects an official if it was `objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Warren v. Dwyer, 906 F.2d 70, 74 (2d Cir.1990) (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). In this case, it is obvious that defendant Morales is entitled to qualified immunity. On April 11, 1997, three years prior to the Second Circuit's decision in Lauro, it was objectively reasonable for her to believe that a perp walk was constitutional. Indeed, to date, the Second Circuit has never declared that all perp walks are unconstitutional. In Lauro, it specifically stated that: [W]e do not hold that all, or even most, perp walks are violations of the Fourth Amendment. Thus, we are not talking about cases in which there is a legitimate law enforcement justification for transporting a suspect. Accordingly, we do not address the case seemingly much more common than the kind of staged perp walk that occurred here where a suspect is photographed in the normal course of being moved from one place to another by the police. Nor do we reach the question of whether, in those circumstances, it would be proper for the police to notify the media ahead of time that a suspect is to be transported. 219 F.3d at 213. See also Caldarola v. County of Westchester, 142 F. Supp. 2d 431, 442 (S.D.N.Y. 2001) (holding that Lauro should be limited to its facts).[4] Furthermore, in Lauro, the arresting detective was granted qualified immunity "because the unconstitutionality of the staged perp walk was, until today, not clearly established." Id. at 216. The Court of Appeals recognized that "[t]here have been no reported decisions of which we are aware establishing the proposition that staged perp walks violate the Fourth Amendment," id. at 215, and that the plaintiff's "Fourth Amendment challenge to the perp walk may seem, in some respects, to be a case of first impression." Id. at 209. In this case, defendant Morales did not violate the clearly established rights of plaintiff. At the time of the alleged walk, there appears to be no case law that would provide any guidance to police officers concerning the lawfulness of the walk. Accordingly, defendant Morales is granted qualified immunity with respect to the staged perp walk claim. 2. Municipality Pursuant to § 1983, a municipality can be held liable for damages and either injunctive or declaratory relief. See Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 690-91, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). However, liability is not predicated on the theory of respondeat superior. See id. at 691, 98 S. Ct. 2018. Instead, the plaintiff must show that the deprivation of his constitutional right, privilege or immunity was the result of a "policy statement, ordinance, *355 regulation, or decision officially adopted and promulgated by [the municipality's] officers" or by the municipality's custom or policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 497, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (quoting Monell, 436 U.S. at 690, 98 S. Ct. 2018). A municipal custom may be established by showing facts that circumstantially support such an inference. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993). The statements alleged in plaintiff's complaint are sufficient to withstand a motion to dismiss. In Lauro, the Second Circuit recognized that perp walks are a "widespread police practice in New York City." See 219 F.3d at 203; see also Lauro, 39 F.Supp.2d at 367 & n. 14 (recognizing that perp walks have been routinely performed by members of the NYPD for many years). Therefore, it appears that prior to July 28, 2000, perp walks were a time-honored (or dishonored) custom of the NYPD. However, the fact that the policy was not declared unconstitutional until July 28, 2000 does not imply that the practice was constitutional until that date. B. Denial of Right to Counsel and Failure to Receive Prompt Judicial Decision of Probable Cause In addition to the claims surrounding the staged perp walk, plaintiff also alleged that he was denied his constitutional rights to counsel and a prompt probable cause hearing. He claims that his probable cause hearing was unreasonably delayed in excess of 30 hours, during which time the NYPD gathered evidence to justify his arrest. In response to the instant motion to dismiss, plaintiff further alleged that "defendants ... then presented themselves as the arresting officer, which she was not, to circumvent the violation." (Pl. Mem. Opp. Mot. Dismiss at 3.) It is well settled that a probable cause determination within 48 hours of the arrest may be unconstitutional if such determination was "delayed unreasonably." County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991). "Examples of unreasonable delays are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill will against the arrested individual, or delay for delay's sake." Id. However, in this case, plaintiff's allegations that the NYPD used this time to gather additional evidence to justify the arrest are conclusory. Plaintiff failed to allege facts tending to establish that a search for additional evidence was conducted. Similarly, plaintiff's claims concerning his denial of the right to counsel are vague and are not supported by any factual allegations. Accordingly, these claims are dismissed without prejudice for failure to state a claim. CONCLUSION For the above stated reasons, the motion to dismiss served on behalf of defendants NYC and Morales is granted in part and denied in part. It is denied with respect to the claim against defendant NYC for the violation of his constitutional rights by being subjected to a staged perp walk. However, as against defendant Morales the motion is granted for the reason that she is entitled to qualified immunity. Finally, the motion is granted with respect to the claims of denial of the right to counsel and failure to receive a prompt probable cause hearing and those claims are dismissed without prejudice. Plaintiff may file within 20 days a Second Amended Complaint supplying the deficiencies in the allegation of those claims. SO ORDERED. NOTES [1] Plaintiff's Amended Complaint includes "New York City (N.Y.PD)" as a defendant. The New York City Police Department ("NYPD") is not a suable entity. See Lauro v. City of New York, 39 F. Supp. 2d 351, 368 (S.D.N.Y.1999), aff'd in part and rev'd in part, 219 F.3d 202, 205 n. 2 (2d Cir.2000). Therefore, any claims asserted against the NYPD are dismissed with prejudice. [2] In response to the instant motion to dismiss, plaintiff conceded that all state law claims were time-barred. (Pl. Mem. Opp. Mot. Dismiss at 3.) [3] Defendants Fox 5 News and Fox Broadcasting Company have also moved to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6), (c) or in the alternative for summary judgment pursuant to FED. R. CIV. P. 56. At this time, the motion has not been fully submitted. [4] The Second Circuit also declined to consider whether perp walks are violative of the Due Process Clause of the United States Constitution. See Lauro, 219 F.3d at 208 n. 5.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3350505/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION This is an action by the plaintiff, R.A.C. Corporation, Inc. (R.A.C.), claiming violations by The Great Atlantic Pacific Tea Company (AP), and the other defendants, of two Connecticut statutes prohibiting antitrust and unfair trade practices. The other defendants are Remo Tartaglia and several other individuals, all of whom who own a shopping center on Boston Avenue in Bridgeport, and who are collectively referred to as the landlords. In a two count complaint, the plaintiff R.A.C. claims that the defendants violated General Statutes 35-24 et seq., which prohibits "[e]very contract, combination, or conspiracy in restraint of any part of trade or commerce." The second count claims that the defendants violated General CT Page 2837 Statutes 42-110a through 42-110g, the Connecticut Unfair Trade Practices Act (CUTPA), which prohibits "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." See Lester v. Resort Camplands International, 27 Conn. App. 59, 70-71, A.2d (1992), for a recent summary of the elements of a CUTPA claim. The underlying facts in this case were described by the Appellate Court in Tartaglia v. R.A.C. Corporation, 15 Conn. App. 492, 545 A.2d 573, cert. denied, 209 Conn. 810, 548 A.2d 443 (1988). This case points out that R.A.C. was a tenant of Tartaglia, and operated a liquor store at the shopping center on Boston Avenue. This lease contained an option to renew. The court pointed out that the plaintiff failed to exercise its option in a timely fashion, and therefore the court ruled in the summary process action in favor of the landlord, Tartaglia, the defendant in this action. The plaintiff claims that the AP masterminded this eviction by pressuring the landlord to not renew the lease, and thus to terminate the relationship with the plaintiff, in order that the AP could take over the plaintiff's location for its own liquor store. The defendants have now moved for summary judgment (#231). The criteria for the granting of summary judgment were reiterated recently by the Appellate Court in Cummings and Lockwood v. Gray, 26 Conn. App. 293,296-297, 600 A.2d 1040 (1991), and can be summarized as follows: (i) such a judgment may be granted if there is no genuine issue as to any material fact; (ii) the moving party has the burden of proving the nonexistence of any material fact, the evidence must be viewed in the light most favorable to the nonmovant, and the test is whether the moving party would be entitled to a directed verdict on the same facts; (in) a material fact is one that will make a difference in the outcome of the case; and (iv) once the movant presents evidence supporting a motion for summary judgment, the nonmoving party must demonstrate the existence of a genuine issue of material fact by submitting evidence disclosing the existence of such an issue. The court's function, according to Lomangino v. LaChance Farms. Inc., 17 Conn. App. 436, 438, 553 A.2d 197 (1989), is not to decide the merits of any issues of material fact, but merely to determine whether such issues exist. Construing the complaint most favorably for the plaintiff, it is assumed that AP pressured the landlords not to renew the lease so that it could establish its own liquor store at the plaintiff's location, and also that the A P, not the landlords, initiated negotiations for the eventual lease of the plaintiff's premises between itself as tenant, and the Tartaglia group as landlords. Nevertheless, we are left with two inescapable facts. The first is that the Appellate Court in the summary process case found as a matter of law that the plaintiff corporation had failed to renew its lease in a timely fashion. Secondly, the president of the plaintiff corporation, in her deposition, concedes that had her corporation taken steps to renew the CT Page 2838 lease at the proper time, the lease would have been renewed, and the corporation would have retained possession of the liquor store. It follows, therefore, in my opinion, that no matter how evil AP's scheme to take over the plaintiff's liquor store location may have been, the fact remains that the plaintiff caused its own loss by not renewing the lease in a timely fashion, according to the Appellate Court. With regard to CUTPA, General Statutes 42-110g(a) provides for compensation to a person suffering an ascertainable loss "as a result of the use or employment of a method, act or practice prohibited by section 42-110b." In like manner, General Statutes 35-35, the antitrust statute, provides for recovery by one injured "by any violation of the provisions of this chapter." It appears, therefore, that a defendant must cause the plaintiff's loss, whereas in this case it was the plaintiff corporation's own neglect in not renewing the lease that caused its loss. In Connecticut Bank and Trust Company v. Katske, 40 Conn. Sup. 560, 566,535 A.2d 836 (1986), the court stated that there must be a "nexus" between a defendant's conduct and the harm caused to a plaintiff in a CUTPA case. There does not appear to be any nexus in this case between the alleged conduct of AP in interfering with a landlord-tenant relationship, and the loss to the plaintiff. The Appellate Court refused to consider any equitable claim of R.A.C. in the eviction action, because the delay in renewing the lease was so great. In the affidavit in opposition to the motion for summary judgment, plaintiff's president reiterates exactly the same claim to the effect that her husband's impending death caused her to neglect to renew the lease, a claim previously rejected by the Appellate Court. Moreover, the claimed interference with a business relationship is contrary to the Appellate Court's determination that the lease was properly terminated, that the right to renew had expired, and that the plaintiff had no further interest in the premises. See New Britain National Bank v. Vecchiolla, 1 CSCR 275 (1986), which stated that: "[t]here is nothing unfair or deceptive where a contract is terminated for good cause pursuant to the terms of the agreement itself," citing McKeown Distributors, Inc. v. Gyp-Crete Corporation, 618 F. Sup. 632, 644 (D.Conn. 1985). Duhaime v. American Reserve Life Insurance Company, 200 Conn. 360, 366,511 A.2d 333 (1986), held that a CUTPA claim was barred by the principles of res judicata or claim preclusion, where the plaintiff attempted to relitigate in a second suit his claim in a prior action that the insurer refused to pay him in accordance with an insurance policy. "It is of no moment mat the plaintiff's original claim, on the insurance contract, alleged the breach of a common law duty, while the present CUTPA claim invokes an alleged right to statutory relief." R.A.C., in the eviction action, sought to invoke equitable principles that its president neglected to renew the lease because of health problems in her family. The plaintiff attempts to reiterate in this case the same claim which was not accepted by the Appellate Court in the summary process case. Hence, the CUTPA claim must also be rejected for the reasons stated in the Duhaime case. CT Page 2839 Because the plaintiff has failed to establish any genuine issues of material fact, a summary judgment may enter in favor of the defendants and against the plaintiff. Costs are to be taxed by the Clerk. So Ordered. Dated at Bridgeport, Connecticut this 24th day of March, 1992. WILLIAM B. LEWIS, JUDGE	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2983081/	Order filed August 12, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-14-00291-CV ___________ IN THE ESTATE OF RUTH BAILEY, DECEASED On Appeal from the Probate Court No 2 Harris County, Texas Trial Court Cause No. 531010002 ORDER No reporter’s record has been filed in this case. The official court reporter for the Probate Court No 2 informed this court that appellant had not made arrangements for payment for the reporter’s record. On July 16, 2014, the clerk of this court notified appellant that we would consider and decide those issues that do not require a reporter=s record unless appellant, within 15 days of notice, provided this court with proof of payment for the record. See Tex. R. App. P. 37.3(c). Appellant has not provided this court with proof of payment. Accordingly, we order appellant to file a brief in this appeal within thirty days of the date of this order. If appellant fails to comply with this order, the court will dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/3347257/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The plaintiff, 56, whose birth name is Van Voorhies, and the defendant, 58, married on November 14, 1959 in Greenwich, Connecticut. The court has jurisdiction based on the plaintiff's continuous residence in the state for over one year prior to January 12, 1995, the filing date in court, returnable to January 24, 1995. The plaintiff, who had finished one year of college, was employed in secretarial positions until the birth of the parties' first child in August, 1962. A second child was born in July, 1966. Thereafter, the plaintiff returned to part-time work until 1982 when she was employed by a real estate office as secretary full time. In late 1985, the parties moved to Sherman, Connecticut. The plaintiff then obtained seasonal employment, teaching skiing and working for a landscaping company and then for a farm, again as a secretary. In October, 1990, the parties moved back to Greenwich, Connecticut. The defendant is a carpenter by trade, having been employed by his father from 1960 until the defendant elected to go into the business for himself in 1980. He remained self-employed until 1989. His business was not a success. After their marriage the parties resided in a Glenville rental until May, 1962 when they moved to the plaintiff's family home, again as a rental. In 1966 they were able to purchase a home at 42 River Road, Cos Cob with a $10,000.00 gift from the defendant's father. In 1973 they built a house at 77 Gregory Road, North Mianus, using the proceeds from the sale of the initial home and mortgaging for the balance of $35,000.00. In 1983 the mortgage went into foreclosure but was saved via $40,000.00 received from the defendant's father. In 1985 the house was sold. At this time, the defendant had undertaken the construction of a home in Sherman. This was sold with the proceeds used to buy a condominium unit put in the plaintiff's name and their daughter Kristina's name. The unit was lost in foreclosure in 1990. The court concludes that when the parties retreated to the home of the defendant's parents in 1990, they had no more estate than they had when married. It was not for lack of effort. The plaintiff admitted in testimony that the defendant did the best he could at least through 1985, and that he provided the bulk of the family's income during these more than two decades. CT Page 3059 The court concludes further that the defendant's decision to move his construction business upstate ultimately strained the marriage to a point beyond repair. Not only did the general housing market in Connecticut decline shortly thereafter, a fact of common knowledge, but the defendant's efforts met with adversity. After constructing the upstate house, the defendant was obliged to have three wells dug before a sufficient water flow was found. The plaintiff characterized its disposition as a desperation sale. The court notes that after returning to Greenwich the plaintiff stayed at her adult daughter's home three nights weekly from 1990 through 1993. For the 4 month winter season of 1991-1992 the plaintiff resided in Vermont while employed as a ski instructor. In 1990 the plaintiff was obliged to accept $4,500.00 from her mother to enable her to buy a used car. During this time the defendant was unable to sustain steady employment. In the spring of 1992 the plaintiff found employment with a trade show company, ULLO International, Inc., as registration manager at an annual salary of $25,000.00 and medical insurance coverage for both plaintiff and defendant for $31.00 weekly. The parties final separation occurred on Labor Day weekend, 1993. The defendant requested a divorce. The plaintiff testified that he wanted to be with another woman. On cross-examination the plaintiff acknowledged that the defendant said the marriage was over and that he told other family members the same thing on that same weekend. The court concludes that the defendant was articulating the fact that the marriage had irretrievably broken down. The plaintiff vacated the defendant's father's home on the same weekend. The defendant acknowledged that he met a woman in July, 1992 that he began dating in October, 1993. There is no other evidence to contradict the chronology. The court does not find that the defendant's affaire de coeur was a precipitating factor in the marriage breakdown as it was in Kroop v Kroop, 186 Conn. 211, 215. On the contrary, the court concludes the parties' marriage had irretrievably broken down sometime prior to the Labor Day weekend of 1993, Venuti v. Venuti, 185 Conn. 156, and the defendant's subsequent liaison did not contribute to the breakdown. On June 27, 1994, the defendant's father died. The parties have stipulated that the defendant received: CT Page 3060 1. Executor's fee of $40,000.00 on January 20, 1995; 2. tangible personal property valued at $2,787.50; 3. other assets and cash with a date of distribution value of $451,191.21; and 4. distribution of income totaling $17,809.33. Thereafter, the defendant's aunt, Ruth Richter died. The parties have stipulated that the defendant has or will inherit $73,785.70 in cash, $1,620.00 of personalty, and one-half ownership in real property located on Firestone Road, East Hampton, New York valued at $45,000.00. In addition, the defendant was paid $14,356.00 in executor's commissions. Herein lies the difficulty in fashioning an equitable judgment. The plaintiff made no contribution in the acquisition, preservation or appreciation in value of the defendant's estate. The court finds that it was a viable marriage for 33 years. The court finds the causes for the dissolution are the defendant's repeated business failings. He tried and failed. However, such is not equated with fault. For her part, the plaintiff could not accept the final failure. Again, this does not equate with fault. The defendant (d.o.b. May 7, 1937) is 22 months older than the plaintiff (d.o.b. March 21, 1939). The plaintiff had a shoulder operation in 1992 and she complains that repetitive actions caused pain, hampering her secretarial skills. However, she has been continuously employed in her present managerial position for four years. She is otherwise in good health. The defendant is in "excellent" health. The parties are in similar stations in life. Each party has occupational skills. The plaintiff's recent employability has proven to be superior to the defendant's. Neither party has any major liabilities. The record in this case would make a determination of opportunity for future acquisition of capital assets and income by the plaintiff purely speculative. The defendant has been presented with the opportunity to increase his capital assets and thereby enhance his income. To date, it has not been clear he will nor can the court conclude he will. The plaintiff's needs are to be addressed. She was and is to be treated as a spouse who worked diligently both in and out of the home during the marriage. CT Page 3061 The defendant urges me to view it as an alimony case with a terminal date of March 21, 2004, her 65th birthday and that the defendant be allowed to retain his assets. Since inheriting his assets, the defendant has purchased a lakefront farm located in North Hero, Vermont. He created a corporation, McHolm, Inc., which holds title to the property. He is the sole stockholder. He values this asset's equity at $215,000.00. He is in the process of subdividing the land with 9 lots approved, with three lots ready for sale, two of which are for sale at $59,000.00 and $62,000.00. Each is two acres in size. The entire farm comprises 200 acres. He has spent $125,000.00 in improving the farm house. The court concludes his assessment of value to be overly modest. There was a restraining of assets order obtained. Notice to the defendant was questioned. The court sees no need to address it further in light of its decision. He also holds title to Lot A, Montauk, New York which he values at $110,000.00 and 50% interest in Lot B, Montauk which he values at $45,000.00. He owns a 1995 Ford F-250 truck free of lien valued at $30,000.00 and farm equipment valued at $43,000.00 He has no dependable income. The court finds that a $1.00 per year alimony order is appropriate. The plaintiff's needs greatly exceed her net disposable income, all as itemized on her financial affidavit. The court finds that an appropriate way of assuring the plaintiff of some security in the future and to allow defendant to meet his continuing duty to support the plaintiff is to order lump sum alimony, nontaxable to the plaintiff and not tax deductible by the defendant, Dubicki v. Dubicki, 186 Conn. 709, 714, footnote #2. Having reviewed the evidence in light of § 46b-81 and § 46b-82, C.G.S., the court enters judgment dissolving the parties' marriage on the ground of irretrievable breakdown and enters the following orders as part of the judgment. 1. The defendant is ordered to convey Lot A, Montauk, New York, free of lien and with taxes paid to date of transfer, to the plaintiff. The defendant is ordered to pay title insurance company charges and the premium for an owner's title policy in the plaintiff's name. The transfer shall be completed with due diligence. CT Page 3062 2. The defendant shall pay to the plaintiff the sum of $15,000.00 from the proceeds of the first lot to be sold from the North Hero, Vermont subdivision as an allowance to prosecute to allow plaintiff to defray her legal expenses. If no sale occurs before September 1, 1996, the sum shall be unconditionally due as of October 1, 1996. 3. The defendant is ordered to pay $1.00 per year to the plaintiff as periodic alimony until the death of either party, the plaintiff's remarriage, or further court order. 4. The parties shall otherwise retain their respective assets as now owned and be responsible for their respective debts as now owed. Counsel for the plaintiff is directed to prepare the judgment file and counsel for the defendant is directed to prepare all documents and to take all necessary steps to complete order #1 supra. HARRIGAN, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2242020/	4 Ill. App.2d 385 (1954) 124 N.E.2d 643 John Prassas, Plaintiff-Appellee, v. Joseph Jana et al., Defendants, Steve Economou et al., Intervening Petitioners-Appellees, Joseph F. Ropa, Registrar of Titles, Cook County, Illinois, Defendant-Appellee, and Unknown Owners, Defendants-Appellants. Gen. No. 46,372. Illinois Appellate Court First District, First Division. December 13, 1954. Rehearing denied January 26, 1955. Released for publication March 7, 1955. 386 387 Kriebel, Hubbard, Berdine & Corwin, of Chicago, for appellants. Bernard M. Peskin, of Chicago, for certain appellees. MR. PRESIDING JUSTICE BURKE delivered the opinion of the court. In December 1922, two vacant lots in Berwyn were registered under the Torrens land title system. On February 15, 1927, Frank J. Slifka and Adolphine Slifka, his wife, the then owners of the premises, being indebted in the sum of $5,000, executed and delivered their promissory note for that amount due on or before February 15, 1929, with interest at six per cent per 388 annum payable semiannually, and to secure payment of which they also executed and delivered a trust deed. Thereafter the Slifkas conveyed their interest to Joseph Jana and Jessie Jana, his wife. On June 8, 1927, the Registrar of Titles of Cook county issued certificate of title No. 193452 and the owner's duplicate thereof certifying that Joseph Jana and Jessie Jana, his wife, were the owners of an estate in fee simple in joint tenancy of the two lots, subject to the lien of the trust deed. The payment of the note was extended to February 15, 1934. In a complaint filed on September 6, 1952, John W. Prassas sought a strict foreclosure of the trust deed. All parties to the foreclosure suit, including "Unknown Owners," were served by publication and no notice by mail or otherwise was sent to any of them. On March 31, 1953, a decree of strict foreclosure was entered. Thereafter a deed was issued to Prassas by a master in chancery. On July 16, 1953, Prassas and his wife conveyed title to Steve Economou who, with his wife, conveyed on August 10, 1953, to Frank J. Gradishar and Frances Gradishar, who claim to be bona fide purchasers. The decree, the deed to Prassas and the deed from him and his wife to Economou were registered on July 16, 1953, against the Jana certificate of title No. 193452, and the deed from Economou and his wife to the Gradishars was registered against the same certificate on August 10, 1953. On September 9, 1953, a petition to vacate the decree and set aside the subsequent deeds was filed under section 50 (8) of the Practice Act [Ill. Rev. Stats. 1953, ch. 110, § 174, subd. (8); Jones Ill. Stats. Ann. 104.050, subd. (8)] by Ella Kveton and Berwyn Lumber Company, a corporation, alleging that the corporation held the fee title to the real estate; that less than one year had expired after the entry of the decree; that the statute of limitations had run against the note and trust deed; that there was no proof of insolvency of any defendant; that there was no proof that any sum was 389 due upon the note and trust deed; that there was no proof that the premises were scant security for the debt; and that no strict foreclosure could be decreed because the premises were not owned by the mortgagors at the time the complaint was filed. Attached to the petition are copies of deeds showing that the fee interest of the Janas in the property was conveyed on April 10, 1947, to Ella Kveton who, on June 25, 1953, transferred her interest to the corporation. The last two deeds have not been registered. The petition further alleged that Ella Kveton was at all times after the conveyance of the premises to her holding title as a nominee for the corporation. Steve Economou and the Gradishars, having intervened, filed a petition asserting that Economou purchased the title of Prassas, acquired in the foreclosure suit, and thereafter conveyed to the Gradishars, who paid a valuable consideration therefor; that Economou and the Gradishars were bona fide purchasers as the registrar "represented to both petitioner, his grantees and grantors, that title to said property was free and clear of all objections save taxes, and petitioner relied on these representations in paying over to his grantor the purchase price for said property and in conveying to the aforesaid Frank J. Gradishar and Frances Gradishar." The petition charged that the petitioners were misled into paying money to Prassas because of the failure of Ella Kveton and Berwyn Lumber Company to file their deeds. The claim that Economou and the Gradishars were bona fide purchasers was denied in an answer by Ella Kveton and the corporation. The basis for claiming a bona fide purchase is reliance upon the original Torrens certificate. It appears from the record of the original certificate of title No. 193452 that Joseph Jana and Jessie Jana are in title; that memorials referring to the trust deed and the extensions are marked "out" by the assistant examiner of titles; that the deeds from the master to Prassas, 390 from Prassas to Economou and from Economou to the Gradishars are registered against certificate No. 193452. The original Torrens certificate also shows that a decree was filed for registry on July 16, 1953, at the same time the deeds from the master to Prassas and from Prassas to Economou were filed. This was the condition of the title as shown by the certificate of title at the time of the deed to the Gradishars was filed on August 10, 1953. It appears from the certificate that no mortgagee's duplicate certificate was ever issued upon the trust deed and consequently no certificate of title of any kind was or could have been produced for cancellation by the registrar at the time the deed to Prassas was filed. The owner's duplicate certificate of title No. 193452 showing title in the Janas was produced by the corporation and received in evidence as an exhibit, and bore notations that a decree and two deeds were filed on July 16, 1953, as documents Nos. 1472740-41 and 42. On October 14, 1953, subsequent to the entry of the foreclosure decree and the filing of the petitions, the registrar of titles was made a party hereto and filed an answer. After a hearing the chancellor dismissed the petition of Ella Kveton and the corporation and they appeal. [1, 2] We agree with the contention of the appellants that as the grantees in unregistered deeds they have a right to appear and assert their claims in due time under section 50 (8) of the Practice Act. Walker v. Ogden, 192 Ill. 314; Glos v. People, 259 Ill. 332; Schuster v. Elsner, 250 Ill. App. 192. Although the deeds to appellants were not registered they conveyed an immediate interest in the premises. By joining "Unknown Owners" as parties the plaintiff obtained jurisdiction as to appellants and their equitable interests would have been cut off if they had not in due time moved to vacate the decree. The right of a person served by publication to attack a decree within one 391 year from its entry applies to real estate registered under the Torrens Act. [3] Appellees say that the original Torrens certificate of title issued to the Janas was canceled. There is nothing in the record to support the statement. A copy of the original certificate, received as an exhibit, shows the Janas as the fee owners and that the certificate of title is not canceled. The appellees maintain that they are bona fide purchasers for value and without notice of defects in the title to the premises. They claim to have relied upon what the registrar or someone in the Torrens office told them about the title and on the "canceled" certificate of title showing the Janas as the fee owners. In order to protect a buyer, he or his attorney must examine the Torrens certificate. People v. Mortenson, 404 Ill. 107; Balzer v. Pyles, 350 Ill. 344; Eliason v. Wilborn, 335 Ill. 352. Appellees also base their claim to being bona fide purchasers on the assertion that "the original Torrens certificate of title listed no uncanceled memoranda." When Economou obtained and filed his deed the certificate showed the Janas as the owners. The deed to Economou was filed on July 16, 1953, at the same time the foreclosure decree and the master's deed to Prassas, Economou's grantor, were filed. The document numbers appear upon the certificate as Nos. 1472740, 1472741 and 1472742. Economou, in order to trace the chain of title of Prassas, would necessarily examine the deed to Prassas which was issued by a master in chancery and was based upon the foreclosure decree filed with the deeds. The Gradishars, in obtaining and filing their deed from Economou, which deed was registered against the same uncanceled certificate of title on August 10, 1953, would necessarily follow the same procedure in checking the title. Economou had no title clearly appearing of record and any examination of his claim to ownership would reveal at once 392 that the record showed title in the Janas, and that the claimed fees in Prassas and then in Economou were based upon a foreclosure decree and not upon a conveyance from the Janas. Any person in the position of either Economou or the Gradishars would be required under the circumstances, in order to assert any claim as bona fide purchasers, to examine both the certificate of title, and since the certificate showed no title in any of the grantors, the deeds and the foreclosure suit. [4] Even a cursory inspection of the certificate and the suit would reveal that no mortgagee's duplicate certificate of title had been issued; that the owner's duplicate certificate was not surrendered for cancellation; that no court order was entered requiring the registrar to cancel the outstanding certificate of title and issue a new one; that the title of Prassas was based upon a judicial sale and was subject to a possible motion to vacate for one year after March 31, 1953; that all parties to the suit were served by publication; that the time to file a motion under section 50 (8) of the Practice Act would not expire until March 31, 1954; that no lis pendens notice of the foreclosure suit was filed; that an unsigned and therefore void certificate of title was allegedly shown to the purchasers; and that the face of the certificate of title showed that there could be a valid claim that the note and trust deed upon which the foreclosure suit and title of Prassas were based were barred by the statute of limitations on February 15, 1944. The appellees knew or should have known of the defective title and they could not be bona fide purchasers without notice. There is no provision of the Torrens Act exempting Torrens titles from the operation of section 50 (8) of the Practice Act. Proceedings under the Torrens Act are governed by the rules of equity, except as the statute otherwise provides. Klouda v. Pechousek, 414 Ill. 75, 86. The cases cited by the appellees hold that one purchasing a Torrens 393 title may rely on the original certificate of title if it shows a clear title in the grantor and if the owner's duplicate certificate is surrendered for cancellation. [5, 6] Appellees urge that since the deeds to the appellants were not registered prior to the filing of the complaint to foreclose they do not have a right to question the foreclosure decree, citing Eliason v. Wilborn, 335 Ill. 352, and People v. Mortenson, 404 Ill. 107. In our opinion these cases are not applicable to the factual situation presented in the case at bar. In the Eliason case the court held it necessary for the grantee to inspect the certificate of title. There were no apparent defects in the title. Furthermore, the owner's duplicate certificate of title was surrendered for cancellation. In the instant case the certificate showed on its face that the title was defective and in addition there was the highly suspicious circumstance that no owner's duplicate certificate of title was surrendered for cancellation. Economou and the Gradishars are charged with notice that their deeds were accepted for registration in complete disregard of section 88 of the Torrens Act (par. 125, ch. 30, Ill. Rev. Stats. 1953 [Jones Ill. Stats. Ann. 132.081]) that in case of sale of registered land by a master in chancery or other person pursuant to a decree, no transfer of the title shall be made by the registrar except upon the surrender and cancellation of the certificate of title or upon an order of the court filed with the registrar directing such transfer, and in case of the transfer of the fee, directing the cancellation of the outstanding certificate and granting to the transferee a writ of assistance to put him in possession of the premises. No such situation arose in the Eliason case. In the Mortenson case the court said (112): "When title is registered under the Torrens system in the name of one person, it cannot again be registered in another's name until the duplicate certificate is surrendered to the registrar." 394 Furthermore, there was no compliance with the requirement of section 47 of the Torrens Act (par. 91, ch. 30, Ill. Rev. Stats. 1953 [Jones Ill. Stats. Ann. 132.047]) that upon the filing of a deed or other instrument in the registrar's office and surrendering to the registrar the duplicate certificate of title and upon it being made to appear to the registrar that the transferee has the title or interest proposed to be transferred and is entitled to make the conveyance and that the transferee has the right to have such estate or interest transferred to him, the registrar shall make out and register a new certificate and also an owner's duplicate certifying the title to the estate or interest in the land to be in the transferee and shall stamp across the original and surrendered duplicate the word "canceled." Regardless of their knowledge of the basis of Prassas' title, Economou and the Gradishars were put upon notice of any defect by reason of the failure of anyone to surrender the owner's duplicate certificate of title or to produce and file a court order directing its cancellation. [7] Economou and the Gradishars contend that they relied upon the Torrens records and that they were misled by the failure of the appellants to file their deeds. An injury does not arise because of the failure to file the deeds. All the defendants to the foreclosure complaint were served by publication. If no deed had been issued to the appellants, nonetheless the Janas, the Slifkas, the trustee or any "Unknown Owner" could have filed a motion to vacate the decree at any time prior to March 31, 1954. The damage, if any, to Economou and the Gradishars was not caused by any failure to register the deeds but by the fact that they were parties to the action who were served by publication, which rendered any decree subject to a motion to vacate for the period of one year. The addition of "Unknown Owners" to the list of defendants served in a suit by publication permits anyone having any interest by unrecorded 395 deed, dower, lien, reversion, remainder or otherwise to question a decree under section 50 (8) of the Practice Act. Walker v. Ogden, 192 Ill. 314; Glos v. People, 259 Ill. 332. The right to file a motion to vacate a decree is dependent on service by publication. The only time limitation is that specified in the section. [8] The appellees rely on section 42 of the Torrens Act (par. 86, ch. 30, Ill. Rev. Stats. 1953 [Jones Ill. Stats. Ann. 132.042]) that except in case of fraud or as otherwise provided no person taking a transfer of registered land shall be held to inquire into the circumstances under which any previous registered owner was registered, or be affected with notice, actual or constructive, of any unregistered interest therein, and conclude that so long as the registrar exhibited to them as purchasers a canceled certificate of title which showed no uncanceled memorials and the registrar accepted and registered the deeds, that Economou and the Gradishars, in the absence of fraud, were entitled to a certificate of title and were not required to inquire into the circumstances under which their grantors were registered. The appellants concede that if the original Torrens certificate of title shows a clear fee title in the registered owner with no notations on the certificate which might tend to arouse suspicion, and if at the time of registration of the grantee's deed, the grantor, who also appears on the certificate as the registered owner, surrenders for cancellation the owner's duplicate certificate of title, the grantee will be protected as to unregistered titles or claims. We do not believe the cases cited by the appellees (Eliason v. Wilborn, 335 Ill. 352; People v. Mortenson, 404 Ill. 107; Chicago & Riverdale Lumber Co. v. Vellenga, 224 Ill. App. 505; Bjornberg v. Myers, 212 Ill. App. 257); support their contention. In People v. Mortenson, supra, the court said (112) that when title is registered under the Torrens system in the name of one person, it cannot 396 be registered in another's name until the duplicate certificate is surrendered to the registrar. No cases have been cited to us indicating that a purchaser of a Torrens title will be protected if he ignores defects or suspicious entries on the original certificate of title or if he accepts title without requiring cancellation of the outstanding owner's duplicate certificate, or of the filing of an order of court directing the cancellation of such certificate. As previously stated, the assumption by the appellees that the registrar of titles exhibited to the purchasers a canceled certificate of title has no foundation in the record. In fact, the owner's duplicate certificate of title remains uncanceled and no mortgagee's duplicate was ever issued. There has been no canceled certificate of title for the premises since the Janas acquired the present uncanceled certificate on June 8, 1927. The decisions relied on by the appellees are cases in which the original certificate of title showed the immediate grantor of the purchaser as the fee owner. There were no irregularities or unusual notations upon the original certificate and the outstanding duplicate certificate was surrendered for cancellation when the purchaser filed his deed. As an alternative to the surrender of the owner's duplicate certificate, a court order requiring the cancellation of the certificate can be obtained and registered when title is based on a judicial sale. The appellees state that a default judgment will not be set aside where the defaulted party, though having a meritorious defense, has been guilty of negligence. The cases cited in support of this statement deal with the rights of parties personally served to vacate judgments entered against them for failure to file defenses. They do not refer to the time limit for a motion under section 50 (8) of the Practice Act. Appellees suggest that appellants have a right of action for any loss against the county in the event of any omission, mistake or misfeasance of 397 the registrar or an examiner of titles. This possibility is immaterial to the issues in this case. For the reasons stated the order of the superior court of Cook county is reversed and the cause is remanded with directions to proceed in a manner not inconsistent with the views expressed. Order reversed and cause remanded with directions. FRIEND and NIEMEYER, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1391013/	388 S.E.2d 273 (1990) Harold W. FRANTZ v. COMMONWEALTH of Virginia. Record No. 1383-87-1. Court of Appeals of Virginia. January 30, 1990. 274 Anthony J. Nicolo (Darell Sayer; Sayer & Nicolo, on brief), for appellant. Leah A. Darron, Asst. Atty. Gen. (Richard C. Smith, Asst. Atty. Gen., Mary Sue Terry, Atty. Gen., on brief), for appellee. Present: BAKER, COLE and MOON, JJ. COLE, Judge. Harold W. Frantz was convicted by a jury of two counts of violation of Code § 18.2-374.1(B)(1) and three counts of violation of Code § 18.2-370(6), offenses which involve the solicitation or encouragement of children under the age of eighteen to appear in sexually explicit visual material. He was sentenced to a total of twenty-five years in prison, with fifteen of those years to be served concurrently with other sentences.[1] In this appeal Frantz contends that the evidence was insufficient to prove that the photographs he took were sexually explicit visual material as contemplated by the statute.[2] We agree, and therefore reverse his convictions. When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it. Traverso v. Commonwealth, 6 Va.App. 172, 176, 366 S.E.2d 719, 721 (1988). The evidence at trial showed that Frantz operated a photography development business in Portsmouth called "Photo One." He often hired young boys who lived in his neighborhood to perform chores at the store. D.A.F., 13, testified that he went to Photo One with his friend M.S. during the summer of 1983 after M.S. told him they could make some money there. The boys talked to Frantz in his office at the store, and he asked to photograph them in the nude after his employees left. D.A.F. was reluctant, but agreed after Frantz told him it was "easy." The boys returned later that same day when Frantz was alone at Photo One. The photographs were taken in a studio in the store. D.A.F. removed his clothes and "posed" facing the camera in a standing position with his hands behind his head. After Frantz had photographed D.A.F., he gave him twenty-five dollars, offered him cigarettes and suggested that they could take more photographs another time. D.A.F. never posed again, but helped Frantz with chores at another photo shop and visited Frantz's home on several occasions. On one of those visits, D.A.F. testified that Frantz took him into his bedroom and held him against his will, but finally let him go. R.S., 15, testified that he went to Photo One with his friend, D.W., in July or August, 1986. Frantz asked if he could photograph R.S. nude for $10. Frantz told R.S. and D.W. to come back on another day, and the two returned a day or two later after business hours. R.S. testified he was "just 275 standing there" as Frantz took nude pictures of him in the studio, and that Frantz made no effort to touch him. D.W., 14, testified that he had been to Photo One before his 1986 visits with R.S. In the summer of 1985, he was at the store while Frantz took nude pictures of M.S. and J.D. On that day he also saw developed photographs that Frantz had taken of M.S. and J.D. on an earlier occasion. D.W. testified that M.S. and J.D. appeared nude in separate photographs, but gave no further description. Later that summer, D.W. came to the store with J.D. and Frantz paid D.W. five dollars to be photographed with his shirt off. D.W. came back to Photo One during the summer of 1986 with R.W., and Frantz asked both of them to appear in nude photographs. When the two returned later, Frantz took frontal nude pictures of D.W., instructing him to "[d]o what you want." D.W. testified he was "[j]ust standing there" as the pictures were taken. Frantz paid him fifteen dollars. M.S., 12, testified that Frantz had paid him ten dollars to be photographed nude more than once, but he could not remember when or how many times. On one occasion, Frantz took his own clothes off when he photographed M.S., but never attempted to touch M.S. J.D., 16, testified that he met Frantz "sometime around `85" at Photo One and Frantz persuaded him to appear in nude photographs for money. J.D. testified on direct examination that Frantz photographed him "about ten or fifteen times;" on cross-examination, he stated it happened "about twenty" times. Each time, Frantz paid him twenty dollars. The first time J.D. was photographed, he and M.S. posed nude together. J.D. appeared alone in the later photo sessions, including one in a wooded area outside Portsmouth. J.D. testified that while being photographed, he was "[j]ust standing there or walking around or something." On one occasion while he was photographing J.D., Frantz took off his own clothing, lay on the floor and masturbated until he ejaculated in front of the boy. Three other boys testified that Frantz asked them to pose for nude photographs, but they refused. A.T., 14, stated that Frantz showed him pictures of a nude woman "modeling" in a bedroom and asked him several times to pose nude. He offered to pay A.T. amounts ranging from two hundred to two thousand dollars to pose. D.S., 13, testified that Frantz asked him twice to "take nude pictures for twenty dollars." J.A., 15, was offered ten thousand dollars by Frantz to pose nude. Frantz was convicted under Code § 18.2-374.1 of soliciting J.D. and M.S. with intent to induce or force each of them to be the subjects of sexually explicit visual material.[3] He was convicted of violating Code § 18.2-370(6) by knowingly encouraging with lascivious intent R.S., D.W. and D.F. to be the subjects of sexually explicit visual material.[4] Code § 18.2-374.1(A) defines 276 "sexually explicit visual material" for purposes of both statutes as "a picture, photograph, drawing, sculpture, motion picture film or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse...." No photographs taken by Frantz were offered at trial. The only evidence of their content was the testimony of the boys who posed for them. There was no testimony from the victims that they were sexually aroused or that they took part in any type of sexual conduct while being photographed by Frantz. To sustain the convictions, the photographs as described by the boys must have represented "lewd exhibition[s] of nudity" to qualify as sexually explicit visual material under the Code § 18.2-374.1(A) definition. Code § 18.2-390(2) states: "Nudity" means a state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernible turgid state. This court has addressed the meaning of the terms "lewd, lascivious or indecent" in previous cases: We have defined "lascivious" to mean "a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite." "Lewd" is a synonym of "lascivious" and "indecent." Webster's Third New International Dictionary 1301 (1949). Foster v. Commonwealth, 6 Va.App. 313, 329, 369 S.E.2d 688, 697-98 (1988) (quoting Dickerson v. City of Richmond, 2 Va.App. 473, 479, 346 S.E.2d 333, 336 (1986)). In Foster, we concluded that a proposed photograph of a young girl's exposed nipples was not, without more, a lewd exhibition of nudity. Foster, 6 Va.App. at 329, 369 S.E.2d at 698. Similarly, there is nothing in the record before us to suggest that the nude photographs taken by Frantz were lewd within the meaning of the statute. There is no evidence that the boys assumed erotic or provocative poses. R.S. and D.W. testified they were "just standing there" as the photographs were taken; J.D. testified he was "just standing there or walking around or something." D.W. testified he "posed" facing the camera with his hands behind his head. Evidence that Frantz himself was sexually aroused by the poses is irrelevant.[5] "[N]udity alone is not enough to make material legally obscene." Freeman v. Commonwealth, 223 Va. 301, 311, 288 S.E.2d 461, 466 (1982). The Commonwealth argues that actual creation of sexually explicit visual material is not a required element of the offenses defined by Code §§ 18.2-370(6) and 18.2-374.1(B)(1). We agree. The statutes prohibit solicitation or knowing encouragement of children to appear in such material. When the photographs or other visual material are never made, the finder of fact may infer from other evidence that the defendant intended that they be sexually explicit. See Foster, 6 Va.App. at 327, 369 S.E.2d at 697 (defendant's intent in one incident inferred from his showing closeups of male, female genitalia to child, his telling the child not to tell anyone what happened, his asking the child to model as his corpse, and his written account of encounter). It is necessary only that the defendant knew the nature and character of the material he intended to produce, not whether they met the legal standard of sexually explicit material. See Freeman, 223 Va. at 311, 288 S.E.2d at 466. Here, however, Frantz actually made the photographs in which he solicited or encouraged D.A.F., R.S., D.W., M.S. and J.D. to appear. All five boys testified, but not one offered evidence indicating that the photographs were sexually explicit. Under 277 these facts, Frantz's actions do not constitute violations of Code §§ 18.2-374.1(B)(1) or 18.2-370(6). Accordingly, we reverse his convictions. Reversed. BAKER, Judge, dissenting. Because I am convinced that Frantz's intent was to produce sexually explicit material which, at least as far as he was concerned, had the desired effect, I respectfully disagree with the majority. In my view, the record contains sufficient evidence to support the convictions. Accordingly, I would affirm the judgments of the trial court. NOTES [1] At the same trial, Frantz was convicted of one count of aggravated sexual battery and one count of sexual battery. We have denied his petitions for appeal of those convictions. [2] Because of our disposition of the case, we do not reach three other issues raised by Frantz. They are: (1) whether the evidence was sufficient to prove that Frantz possessed the requisite intent for the offenses; (2) whether the trial court erred in allowing evidence of crimes other than those alleged in the indictments; and (3) whether the trial court erred in refusing instructions on the lesser offense of contributing to the delinquency of a minor. [3] The relevant portions of Code § 18.2-374.1 are as follows: A. For the purposes of this article and Article 4 (§ 18.2-362 et seq.) of this chapter, the term "sexually explicit visual material" means a picture, photograph, drawing, sculpture, motion picture film or similar visual representation which depicts sexual bestiality, a lewd exhibition of nudity, as nudity is defined in § 18.2-390, or sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390, or a book, magazine or pamphlet which contains such a visual representation. An undeveloped photograph or similar visual material may be sexually explicit material notwithstanding that processing or other acts may be required to make its sexually explicit content apparent. B. A person shall be guilty of a Class 5 felony who: 1. Accosts, entices or solicits a person less than eighteen years of age with intent to induce or force such person to perform in or be a subject of sexually explicit visual material. [4] Code § 18.2-370 states in pertinent part: Any person eighteen years of age or over, who with lascivious intent, shall knowingly and intentionally: . . . . (6) Receive money, property, or any other remuneration for allowing, encouraging, or enticing any person under the age of eighteen years to perform in or be a subject of sexually explicit visual material as defined in § 18.2-374.1 or who knowingly encourages such person to perform in or be a subject of sexually explicit material; shall be guilty of a Class 6 felony. [5] Such evidence would, however, be relevant to the issue of whether Frantz acted with lascivious intent as required by Code § 18.2-370(6).	01-03-2023	10-30-2013

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