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https://www.courtlistener.com/api/rest/v3/opinions/2444977/	645 S.W.2d 310 (1983) Ex parte George Washington SMITH. No. 69062. Court of Criminal Appeals of Texas. February 9, 1983. Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State. Before the court en banc. OPINION CLINTON, Judge. In this habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P., the Court will determine whether charging instrument purporting to allege an offense of theft denounced by V.T.C.A. Penal Code, § 31.03(a) and (b)(1)[1] must allege, as well 311 as a specific intent to deprive, a culpable mental state with respect to appropriating property without the owner's consent.[2] Germane to our inquiry, the indictment alleges that appellant did "unlawfully appropriate property ... with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant." It tracks relevant statutory provisions and follows the teaching of Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977). That is, since an allegation of "unlawful" appropriation is but a conclusion, it is indispensable to the fundamental adequacy of such a pleading that it allege the appropriation was "without the owner's effective consent." Ex parte Payne, 618 S.W.2d 380, 382 (Tex.Cr.App.1981). So far as can be ascertained, this Court has never addressed the question of whether in addition to "the forbidden conduct"[3] there is also an element in the offense of theft under § 31.03(a) and (b)(1) of "the required culpability," V.T.C.A. Penal Code, § 1.07(a)(13). However, when identifying elements of the offense of theft the Court has never suggested an independent culpable mental state is required by the statutory definition of theft. See, e.g., Ex parte Cannon, 546 S.W.2d 266, 273 (Tex.Cr.App. 1976); Reynolds v. State, supra; Smith v. State, supra; Ex parte Payne, supra. By implication at least the Court has thus indicated that neither intentionally nor knowingly nor any other culpable mental state as distinguished from specific intent to deprive of propertyis a required element of the offense of theft defined by § 31.03(a) and (b)(1). Today we make explicit that which has heretofore been implicit in germane decisions. One who acquires or otherwise exercises control over personal property of another with intent to deprive the owner of it has not yet committed theft. To constitute theft such conduct must be without the owner's "effective consent"a concept, we are told, was the "most farreaching change" made in the present penal code.[4] Practice Commentary to § 31.03, supra. The concept is spelled out in § 31.01(4), delineating instances where though assent may have been given the circumstances prescribed render consent ineffective. See Broadnax v. State, 626 S.W.2d 548, 549 (Tex.App.-Texarkana 1981). Thus, the sine qua non of the offense of theft under § 31.03(a) and (b)(1) is lack of effective consent on the part of the owner. In consolidating all prior offenses in the nature of theft, the Legislature did not prescribe a culpable mental state in its definition of the kind of theft proscribed by § 31.03(a) and (b)(1). On the other hand it did not plainly dispense with "any mental element," V.T.C.A. Penal Code, § 6.02(b), for the definition requires a specific intent "to deprive the owner of property." No doubt the Legislature was satisfied that its definition met the traditional mens rea requirement of the criminal law. When the Court addresses sufficiency of allegations of mens rea in an indictment, we generally insist that the legislative prescription of a culpable mental state be followed, but we reject a contention that culpable mental 312 state "outside the penal statute" is additionally required. See, e.g., Ex parte Santellana, 606 S.W.2d 331 (Tex.Cr.App.1980); Kennedy v. State, 641 S.W.2d 912 (Tex.Cr. App., 1982). Accordingly, consistent with the definition of theft provided by the Legislature, we now hold that there is no required culpability in the offense of theft alleged herein beyond that of a specific intent to deprive the owner of property. See Rogers v. State, 598 S.W.2d 258, 262, (Tex.Cr.App.1980). The habeas corpus relief is denied. ONION, P.J., and ODOM, J., concur in result. MILLER, J., dissents. TEAGUE, Judge, dissenting. The majority opinion makes the following statement: "So far as can be ascertained, this Court has never addressed the question of whether in addition to `the forbidden conduct' there is also an element in the offense of theft under Sec. 31.03(a) and (b)(1) of `the required culpability,' V.T.C.A. Penal Code, Sec. 1.07(a)(13)." This statement is partly incorrect because a panel of this Court did consider the issue in Minx v. State, 615 S.W.2d 748 (Tex.Cr.App.1981), in which may opinion did not carry the day and it became necessary to convert it into a dissenting opinion. In Minx, Id., the panel majority held, in construing a similarly worded indictment as here: Contrary to the position taken by the minority, we find the indictment sufficient. In Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976) (State's motion for rehearing), this Court set out the requisites for a theft indictment under V.T. C.A. Penal Code, Section 31.03 (1974).... Accord: Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977) (State's motion for rehearing). In applying the criteria established in Cannon, and reaffirmed in Reynolds, we find that the indictment sufficiently set forth all the necessary elements of theft. The `with the intent to deprive the owner' element was placed at the end of the allegations. However, we fail to find that such drafting was `fundamental error.' (p. 750) Today, the majority of this Court holds: "... there is no required culpability in the offense of theft alleged herein beyond that of a specific intent to deprive the owner of property." After carefully reading what the majority has stated in this cause, in conjunction with what I stated in my dissenting opinion in Minx, supra, I find that once again a majority has failed to see the light. I am therefore relegated to a minority position and must therefore again file a dissenting opinion. Without repeating all of what I stated in my dissenting opinion in Minx, supra, but reaffirming all of that opinion, I will simply point out to the majority the following: The word "unlawfully" means absolutely nothing under our law, see Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), because such word pleads only a conclusion of law, omitting the facts necessary to that conclusion. Sec. 6.02(b) of the Penal Code explicitly states the following: "If the definition of an offense does not prescribed a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." The indictment at bar fails to allege that the applicant intentionally or knowingly appropriated the property. The "gist" of the offense of theft is that the offender must initially intend to appropriate the property of another wrongfully or unlawfully, and thereafter wrongfully or unlawfully appropriates it to his own use and benefit with the intent to deprive the lawful owner of said property. The indictment at bar literally tracks the provisions of Sec. 31.03(a) of the Penal Code. However, it fails to allege in the beginning of the pertinent part a culpable mental state. The statute does not *313 plainly dispense with a culpable mental state. The culpable mental state of intentionally or knowingly deals with the thief's state of mind in initially obtaining the property in question. His state of mind thereafter is literally unimportant. When a culpable mental state is an element of an offense and the indictment fails to allege that element, the indictment is fundamentally defective and will not support a conviction. Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.1977). The offense of theft quite plainly is committed where the offender has a guilty mind (mens rea) or is acting with a culpable mental state of intentionally or knowingly and, acting with that guilty mind, he commits the wrongful deed (actus reus). I observe by the indictment in this cause that the date of the offense is December 16, 1979, which is long after this Court decided Reynolds v. State, supra. And yet, virtually all of the theft indictments which have come before this Court in recent times do allege the culpable mental state of intentionally or knowingly. See also Jones v. State, 611 S.W.2d 87 (Tex.Cr.App.1981). By the many decisions of this Court which have reversed convictions because it was held that a charging instrument failed to alleged a culpable mental state, we do a disservice today to the conscientious prosecutors of this State by denying this applicant relief. I fear that today's decision will in the future encourage prosecutors of this State to carelessly draft charging instruments. Because I believe that the statute does require a culpable mental state, I must therefore respectfully dissent to the majority's contrary holding. NOTES [1] The statute prescribes that one kind of theft is committed when a person "unlawfully appropriates property with intent to deprive the owner of property," adding that appropriation is "unlawful" if done "without the owner's effective consent." (All emphasis is added through-out by the writer of this opinion unless otherwise indicated.) [2] The judgment of conviction was affirmed June 16, 1982 in an unpublished opinion by the Beaumont Court of Appeals in its Cause No. 09-81-110 CR. Applicant did not then challenge sufficiency of the evidence showing that he had stolen twenty six pieces of meat and several other items from a supermarket in Houston. [3] One element of an offense is "the forbidden conduct," V.T.C.A. Penal Code, § 1.07(a)(13). "Conduct" means "an act ... and its accompanying mental state," id., § 1.07(a)(8). Here, as alleged, the act is appropriating property and its accompanying mental state is "intent to deprive the owner of property." See Smith v. State, 571 S.W.2d 917 (Tex.Cr.App.1978). [4] In the former penal code Article 1410 required as an essential element of the general offense of theft that taking of personal property of another be "without his consent." Musick v. State, 121 Tex.Cr.R. 616, 51 S.W.2d 715, 716 (1932).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1040971/	United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-3681 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Travis D. Oberg lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Western District of Missouri - Kansas City ____________ Submitted: September 6, 2013 Filed: September 17, 2013 [Unpublished] ____________ Before SMITH, BOWMAN, and SHEPHERD, Circuit Judges. ____________ PER CURIAM. Travis Oberg appeals the 100-month prison sentence the district court1 imposed upon his guilty plea to a wire-fraud charge, in violation of 18 U.S.C. § 1343. His 1 The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri. counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967). Oberg pleaded guilty pursuant to a plea agreement, the recommendations in which did not bind the court, and which contained a waiver of his right to appeal his conviction and sentence. He has filed a pro se supplemental brief arguing that the waiver should not be enforced because the court did not “accept” the parties’ agreement to a particular sentencing range. He also moves for new counsel. After carefully reviewing the record, we will enforce the appeal waiver here. Although the court did not personally address Oberg about the waiver of the right to appeal his sentence, contrary to the requirement of Federal Rule of Criminal Procedure 11(b)(1)(N), we conclude that the error did not affect his substantial rights, because the record demonstrates that he entered into both the waiver and the agreement knowingly and voluntarily. At the time of his plea, Oberg was a 44-year- old high school graduate whose first language was English, and who had operated a sophisticated fraudulent business scheme; at no time did he contend--below or on appeal--that he did not understand he was waiving his appellate rights. See United States v. Michelson, 141 F.3d 867, 871-72 (8th Cir. 1998) (standard of review; examining personal characteristics of defendant and circumstances surrounding plea agreement when assessing knowledge and voluntariness of waiver). Although his pro se brief might be read to suggest that he did not enter into the plea agreement knowingly and voluntarily because he thought the agreement guaranteed a certain sentencing range, the plain language of the agreement (which Oberg testified he had read and understood) does not support such an interpretation: the agreement states clearly and repeatedly that Oberg understood that the court could impose any sentence authorized by law and would not be bound by the parties’ estimate or recommendation. See United States v. Selvy, 619 F.3d 945, 950 (8th Cir. 2010) (because plea agreement could not be fairly read as defendant asserted, finding he entered into agreement and appeal waiver knowingly and voluntarily). -2- We also conclude that this appeal falls within the scope of the waiver, and that no miscarriage of justice would result from enforcing it. See United States v. Jennings, 662 F.3d 988, 990 (8th Cir. 2011), cert. denied, 132 S. Ct. 2407 (2012). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we have found no nonfrivolous issues for appeal beyond the scope of the waiver. Accordingly, we dismiss the appeal, deny Oberg’s motion for new counsel, and grant counsel’s motion to withdraw, subject to counsel informing appellant about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ -3-	01-03-2023	09-17-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873246/	752 N.W.2d 32 (2008) IN RE MARRIAGE OF MILLER. No. 07-1330. Court of Appeals of Iowa. February 13, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873250/	752 N.W.2d 31 (2008) TORNBLOM v. TORNBLOM. No. 07-0638. Court of Appeals of Iowa. February 13, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2613001/	35 Cal. App. 2d 700 (1939) LUTHER A. PRICE, Appellant, v. WALTER J. SCHROEDER, Respondent. Civ. No. 2344. California Court of Appeals. Fourth Appellate District. December 4, 1939. C. H. Van Winkle for Appellant. Luce, Forward & Swing, Fred Kunzel and Herbert Kunzel for Respondent. 701 Barnard, P. J. This is an action for damages for injuries received by the plaintiff while riding in an automobile as a guest of the defendant. The complaint contained two causes of action, one alleging intoxication of the defendant and the other wilful misconduct. The answer alleged that the plaintiff did not exercise ordinary care or prudence to avoid the accident and that his resulting injuries were directly and proximately contributed to and caused by his own fault and negligence. During the trial the first cause of action, based upon intoxication, was dismissed. Findings of fact were signed and filed on November 25, 1938, and on the same day a judgment was entered in favor of the defendant. The plaintiff moved for a new trial and in denying that motion and "as a part of said order" the court, after stating that the findings of fact and conclusions of law had been inadvertently signed, directed that they be amended and changed in certain respects as set out in the order. The amended findings were filed on January 31, 1939, and on the same day a judgment was entered in favor of the defendant. The plaintiff again moved for a new trial, which motion was denied, and this appeal was taken from the second judgment. In the amended findings it is found that at about 4:20 o'clock A. M. on January 1, 1938, the plaintiff was riding as a guest in an automobile which was being driven along a certain highway by the defendant. It is then found as follows: "II." "That it is true that at said time and place, said defendant continued to drive his said automobile after he had knowledge of the fact that he was in a sleepy and drowsy condition, and that it is true that a short time prior to the accident in question, and while driving his said automobile, the defendant had become drowsy, and that it is true that the accident in question resulted by reason of the fact that the defendant had gone to sleep, and thereby allowing said car to run into a telephone pole on the right hand side of the road." "III." "That it is true that the plaintiff had knowledge of the fact that the defendant had been working at his place of 702 business on the day preceding the accident, and that the plaintiff had knowledge that the defendant had not had any sleep from approximately 7 o'clock a. m. on the day preceding the accident up to the time of said accident. That between approximately 8 o'clock p. m., and 11 o'clock p. m., on the night preceding the accident, the plaintiff served to the defendant and to three other members of the party at his home, more than five whiskey sours each; that during said time the plaintiff used approximately three pints of whiskey in the making of said whiskey sours. That most of said drinks were had before dinner. That the said party proceeded to Tia Juana and arrived at Tia Juana at approximately 12 o'clock m., and that between 12 o'clock m., and 4 o'clock a. m. the defendant consumed in plaintiff's presence approximately five glasses of beer, one whiskey sour, and one Scotch whiskey and soda. That it is true that the plaintiff should have had knowledge that because of defendant's activities and drinking the defendant in driving his car would have a tendency to become sleepy and drowsy, and that it is true that the injuries to plaintiff resulting from said accident were proximately caused by his own acts in serving liquor to defendant and drinking with defendant, and by his own carelessness and negligence in entering the said automobile with knowledge then and there of the facts hereinbefore found." The conclusions of law are: That the accident resulted from the wilful misconduct of the defendant, that the plaintiff was guilty of contributory negligence, and that the plaintiff take nothing by reason of his complaint. [1] The appellant first contends that the original findings did not support the original judgment and that the court was without power to amend or change the findings after a judgment had been entered. This contention is without merit in view of section 662 of the Code of Civil Procedure, adopted in 1929. (Spier v. Lang, 4 Cal. 2d 711 [53 PaCal.2d 138]; Bureau of Welfare, etc., v. Drapeau, 21 Cal. App. 2d 138 [68 PaCal.2d 998].) [2] It is next contended that the defense of contributory negligence on the part of a plaintiff is based upon and relates to ordinary negligence upon his part, and that such negligence cannot defeat a recovery against a defendant who was guilty of wilful misconduct. Assuming, but not holding, that continuing to drive an automobile after he 703 has knowledge of the fact that he is in a sleepy and drowsy condition constitutes wilful misconduct on the part of a driver, the point raised is of no avail to the appellant under the facts here found. In considering a like contention in a case involving somewhat similar facts the court, in Schneider v. Brecht, 6 Cal. App. 2d 379 [44 PaCal.2d 662], said: "While it is true, generally speaking, that ordinary negligence on the part of a plaintiff is not a defense upon which a defendant may rely when the complaint is based upon a charge of wilful misconduct, this overlooks a principle which we think must be considered, to wit: That where the negligence of the plaintiff is of such a character that it contributes to, and really becomes a part of, and the inducing cause of the defendant's wilful misconduct, no recovery can be or should be had. ..." "While the words 'intoxication' and 'wilful misconduct' are used in the same sentence, and appear to be conjoined, we think that the intent of the legislature was that the wilful misconduct should be something different and apart from the acts and conduct of one whose reckless driving is superinduced by intoxication, that is to say, if the acts of the driver which would be classed as wilful misconduct if not laboring under the influence of intoxicating liquor, when induced and brought about by the use of intoxicating liquor, then and in that case the action is to be regarded solely as the result of drunken driving or driving while one is under the influence of intoxicating liquor, and though the acts apparently are wilful, intentional and reckless, yet if, as found by the court, they proximately resulted from the use of intoxicating liquor, and the circumstances of the case show that the guest was a participant in the drunken orgy in all the acts and events which led up to the intoxicated condition, recovery cannot be had, for the simple reason that both parties are equally culpable." ... "The efficient cause in the instant case was intoxication, intoxication superinduced by the active participation of the plaintiff, and we find no line of demarcation separating the result from the cause, upon which the plaintiff can rely, and at the same time hold the defendant liable in damages." "The case cited by the appellant to the effect that ordinary negligence constitutes no defense to a charge of wilfulness or wantonness, we think inapplicable where the facts 704 show that the plaintiff was guilty of every act complained of, as against the defendant, and participated in bringing about the mental condition of the defendant which culminated in the collision." In that case the court quoted from Spillers v. Griffin, 109 S. C. 78 [95 S.E. 133, L.R.A. 1918D, 1193], including the following: "If there is no law to allow the defense of contributory wilfulness, so there is no law that allows a plaintiff to recover when he has himself contributed wilfully as a proximate cause to the injury. The plaintiff must show his right to recover in law and in fact." The salutary principle announced in Schneider v. Brecht, supra, was followed in Reposa v. Pearce, 11 Cal. App. 2d 517 [54 PaCal.2d 475]. The appellant seeks to distinguish these cases on the ground that there was no positive finding of intoxication in the instant case. The court here found that the respondent became drowsy and sleepy as a result of drinking a large quantity of liquor and of his activities through practically an entire night following a day's labor, and further found that the appellant should have known that these things would cause the respondent to become drowsy, and that the injuries to the appellant were proximately caused by his own acts in serving liquor to the respondent and drinking with him, and by his own negligence in entering the automobile with knowledge of the other facts found. In principle, this case cannot be distinguished from the cases cited, although the finding is that the accident resulted by reason of drowsiness which naturally followed a night of drinking, rather than a specific finding of complete intoxication. The inducing cause of the mental condition of the respondent, which is the basis of the charge of wilful misconduct on his part, was the large amount of liquor he had consumed and his nocturnal activities, in connection with all of which the appellant had been a most active participant. The appellant was equally at fault in bringing about the very mental condition of which he complains and which led to the accident. For the reasons given the judgment is affirmed. Marks, J., and Griffin, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2613006/	36 Cal. App. 2d 63 (1939) THE PEOPLE, Respondent, v. JOHN C. HURST, Appellant. Crim. No. 2081. California Court of Appeals. First Appellate District, Division Two. December 12, 1939. Kenneth Carlton Zwerin for Appellant. Earl Warren, Attorney-General, and William F. Cleary, Deputy Attorney-General, for Respondent. Spence, J. Defendant was charged with petty theft and a prior conviction of a felony. He entered a plea of not guilty but admitted the prior conviction. After a waiver of a jury trial, he was tried by the court sitting without a jury, was found guilty and was sentenced to imprisonment in the state prison. He appeals from the judgment of conviction. The proceedings upon the trial were very informal as is frequently the case when a jury trial is waived. The entire 64 transcript of the testimony consists of but nine pages. The prosecution read certain testimony from the transcript of the preliminary hearing and a police inspector testified. Defendant did not take the stand and he offered no testimony. Both sides rested and after the court declared defendant guilty, defendant's counsel waived time for sentence and replied in the negative when asked if there was any legal cause why judgment should not be imposed. Defendant's counsel did request, however, a reference to the probation officer for investigation and the request was granted. When the cause was again called several weeks later, the motion for probation was denied and defendant was sentenced to the state prison. After sentence was imposed, defendant's counsel made a motion for new trial but subsequently withdrew said motion. The appeal from the judgment of conviction followed. The evidence shows that on February 25, 1939, an overnight bag of the complaining witness, containing wearing apparel and toilet articles, was left in a locked automobile. The automobile was broken into and the bag was stolen during the absence of the complaining witness. Defendant was arrested later the same day while in the act of breaking into another automobile. The bag of the complaining witness was found in the room of the defendant. On the following day, defendant confessed that he had broken into the car of the complaining witness and had stolen the bag in question. [1] Defendant contends that "The evidence is insufficient to support the verdict for the reason that the purported confession is inadmissible." In this connection, defendant points to certain testimony of the officers which indicates that they had told defendant, immediately before he confessed, that if "he cleaned up all the complaint", they did not care if he had "pulled a hundred jobs", he "would be booked on one charge, just one charge". Such inducement on the part of the officers was improper and would have been sufficient, if timely objection had been made in the trial court, to render the confession inadmissible. (People v. Siemsen, 153 Cal. 387 [95 P. 863]; People v. Gonzales, 136 Cal. 666 [69 P. 487]; People v. Castro, 125 Cal. 521 [58 P. 133]; People v. Bateman, 80 Cal. App. 151 [251 P. 335]; 8 Cal.Jur., p. 109 et seq., secs. 201 and 202.) 65 The peculiar circumstance presented by the record before us is that no objection whatever was made to the introduction of the confession. After defendant's counsel had been permitted to examine the officer prior to the admission of the confession, the officer was asked to relate the conversation with defendant. No objection was interposed and the officer related the main part of the conversation including the confession by defendant of the crime in question. The officer then said, "We asked him how many jobs he had actually pulled." Defendant's counsel interrupted by saying, "I don't think that that is admissible, your Honor. That will properly be before the court on the motion for probation. (To the witness.) In other words, you can confine yourself to this particular charge. He said he stole this bag, which is the subject of this prosecution, out of this automobile?" The witness replied, "He said he had broken into Mr. Gobler's car and took the bag out of the car." It is apparent that the foregoing suggestion of an objection went merely to the defendant's statement regarding the number of "jobs he had actually pulled". The only other suggestion of an objection found in the record was made later on redirect examination of the inspector. The prosecuting attorney propounded the following questions and received the following answers: "Q. You said you asked him how many jobs he had done? A. Yes. Q. What did he say? A. He did not know exactly." Counsel for defendant then said, "I think that would be inadmissible." After discussion, the court overruled the objection and the witness continued, "He said he did not know exactly how many, but he figured about twenty or twenty-five." It is therefore clear that the only objections interposed were not objections to testimony regarding the confession of the particular crime but were objections to testimony as to defendant's statements concerning the number of crimes which he had committed. As the confession of the particular crime was admitted in the trial court without objection, the objection raised by defendant on this appeal comes too late. (8 Cal.Jur. 500, sec. 516.) In addition, it appears that defendant's counsel, by the question hereinabove set forth, did himself bring defendant's confession into the record, and defendant therefore cannot complain. (People v. Silvers, 6 Cal. App. 69 [92 P. 506].) There was ample evidence, *66 with or without the confession, to sustain the conviction and a reading of the record convinces us that defendant's present contention was merely an afterthought following the imposition of sentence in the state prison rather than in the county jail. 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/3347258/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE: MOTION TO STRIKE The Second Amended Complaint filed by the plaintiffs alleges that they maintained a flood insurance policy on their property obtained through the defendant Milford Insurance Agency, Inc. acting through its President and authorized agent the defendant Robert Ehorn ("the defendants"). The plaintiffs have alleged that they contacted the defendants about the possibility of receiving, in addition to their existing coverage, contents coverage for the ground level of their home. Based upon the representation of the defendants, the plaintiffs revised their flood insurance policy so as to include the contents coverage for the first floor and paid an increased annual premium to maintain such coverage. The plaintiffs allege that the defendants represented to them that the contents coverage would include the items on the ground level and further represented to them that they had contacted Federal Emergency Management Agency ("FEMA") and confirmed that the contents coverage CT Page 9290 would be in effect for the ground level. A flood occurred causing damage to the contents located on the ground level and FEMA denied coverage on the claim because of certain exclusions which the defendants had represented were not applicable to the plaintiffs. The First, Second, Third and Fourth Counts assert liability upon theories of misrepresentation, breach of contract, fraudulent misrepresentation and negligent misrepresentation. The Fifth Count of the complaint alleges that the defendants actions constituted misrepresentations and false advertising of insurance policies in violation of the Connecticut Unfair Insurance Practices Act ("CUIPA"), General Statutes 38a-816 (1) and 38a-816 (6)(a). The Sixth Count of the complaint alleges that the conduct of the defendants constitutes a violation of the Connecticut Unfair Trade Practices Act ("CUTPA") General Statutes 42-110a et seq. The defendants have moved to strike the Fifth Count of the complaint on the grounds that there is no private right of action under CUIPA and on the ground that the plaintiffs have failed to allege the existence of a general business practice on the part of the defendants. The defendants have also moved to strike the Sixth Count of the complaint on the grounds that the failure to allege a proper cause of action under CUIPA prevents an assertion of a CUTPA claim. The Motion to Strike is addressed to the original complaint filed by the plaintiffs. However, the parties have treated the Motion to Strike as applying to the Second Amended Complaint and, accordingly, the court will view the Motion to Strike as applying to the Second Amended Complaint without the necessity of refiling the pending papers as to make clear that the Motion to Strike applies to the Second Amended Complaint. CUIPA, General Statutes 38a-815 through section 38a-831 defines unfair practices in the business of insurance and provides for hearings and subpoenas to be conducted by the Commissioner of Insurance. The Fifth Count of the Second Amended Complaint purports to set forth a private cause of action for a violation of CUIPA. Our Supreme Court has noted that an issue exists as to whether CUIPA permits a private right of action but has not found it necessary to decide that issue. Mead v. Burns, 199 Conn. 651, 657, n. 5 (1986); Griswold v. Union Harbor Life Insurance Co., 186 Conn. 507,521, n. 12 (1982). The plaintiff has cited various cases from the Superior Court indicating that such a private right of action does exist. See Schott v. Great American Insurance Co., 8 Conn. Super. Ct. 988 (October 4, 1993) (Hendel, J.); Covino v. Jacovino, 8 Conn. Super. Ct. 822 CT Page 9291 (August 16, 1993) (Sullivan, J.); Sambuca v. Aetna Casualty Surety Co., 4 Conn. L. Rptr. 74 (May 14, 1991) (Karazin, J.); Cecere v. EBA Indemnity Co., 2 Conn. L. Rptr. 520 (October 2, 1990) (Hammer, J.); Thompson v. Aetna Casualty Co., 2 Conn. Super. Ct. 648 (May 15, 1987) (Satter, J.). However, CUIPA authorizes the imposition of criminal penalties for the commission of the conduct which it proscribes and ambiguities in penal statutes require a construction limiting rather than expanding civil liability. Mead v. Burns, supra at 658. Accordingly, the defendant has cited cases indicating that a private right of action under CUIPA does not exist. See, Warner v. Sanford Hall Agency, 1993 CT Case Base, 1508 (February 9, 1993) (Wagner, J.); Lees v. Middlesex Insurance Co., 7 Conn. L. Rptr. No. 11, 297 (October 9, 1992) (Lewis, J.); Langlais v. Guardian Life Insurance Co., 1992 CT Case Base, 6470 (July 7, 1992) (Lewis, J.); Scheer v. Chubb Son, Inc., 9 Conn. L. Trib. No. 17, pp. 13 (Burns, J., D. Conn. 1982). Clearly, CUIPA does not expressly provide for a private cause of action in contrast to CUTPA, and the court cannot find in the language of the statute any implication that a private cause of action exists. Accordingly, the court holds that a private cause of action does not exist under CUIPA and the Motion to Strike the Fifth Count of the complaint is hereby granted. The Sixth Count of the complaint purports to allege a cause of action under CUTPA based upon a claim that the defendants have violated provisions of CUIPA particularly General Statutes 38a-116 (1) regarding misrepresentations and false advertising of insurance policies and General Statutes 38a-816 (6) regarding unfair claim settlement practices performed with such frequency as to indicate a general business practice. The plaintiff may bring a private cause of action under CUTPA for a violation of CUIPA. Lees v. Middlesex Insurance Co., 219 Conn. 644, 654 (1991); Mead v. Burns, supra. Insofar as the allegations of the Sixth Count are based upon claims of unfair settlement practices, the plaintiffs must contend with the language of General Statutes 38a-816 (6) which requires that such acts be performed "with such frequency as to indicate a general business practice." The plaintiffs have not alleged that the conductor the defendants were performed with such frequency and, therefore, such allegations standing alone, would not be sufficient to withstand a Motion to Strike. See, Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 672 (1992); Marandino v. United States Fidelity Guaranty Co., (J.D. at Stamford) (August 12, 1993, Rush, J.). However, the Sixth Count also asserts claims based upon General Statute 38a-816 (1) dealing with misrepresentations and false advertising of insurance policies and CT Page 9292 that subsection does not require allegations with respect to a general business practice. Thus, insofar as the plaintiff's CUTPA claim is based upon a violation of CUIPA as expressed in General Statutes 38a-816 (1) the plaintiffs need not allege more than a single act nor need they allege a general business practice. See, Schott v. Great American Insurance Company, supra. Accordingly, the Motion to Strike the Sixth Count of the Second Amended Complaint is denied.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/868400/	Filed 5/20/13 Pedroza v. Pedroza CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA CHRISTOPHER D. PEDROZA, a Minor, D060263 etc., et al., Plaintiffs and Respondents, (Super. Ct. No. 37-2009-00082385- v. CU-PA-CTL) ANGELA PEDROZA, as Executor, etc., Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed. Neil, Dymott, Frank, McFall & Trexler, David P. Burke and Andrea P. Bayly for Defendant and Appellant. James E. Friedhofer; Law Offices of Robert Ryan and Robert Ryan for Plaintiffs and Respondents. Angela Pedroza, as the executor of the Estate of John P. Pedroza, Sr., (the Estate) appeals from a jury verdict in a personal injury and wrongful death lawsuit against the Estate by the surviving passengers of an automobile accident in which John P. Pedroza, Sr. (Pedroza, Sr.) was the driver. The Estate contends that the verdict against it should be reversed because of purportedly erroneous evidentiary rulings and because substantial evidence did not support the verdict. We conclude that the Estate's arguments lack merit, and we affirm the judgment. I FACTUAL AND PROCEDURAL BACKGROUND On the morning of January 9, 2009, members of the Pedroza family were on a long-distance drive through Mexico on their way home to San Diego. In their van were the mother and father, Rosa Garcia and Raymond Pedroza, Sr.; the 10- and 13-year-old sons, Raymond M. Pedroza, Jr., and Christopher D. Pedroza; and the paternal grandfather, Pedroza, Sr. The family had been driving since the previous morning, stopping only for short breaks to buy gas, to eat or to use the restroom. The father and grandfather (Raymond Pedroza, Sr., and Pedroza, Sr.) were taking turns driving, with each having driven twice by the time they reached Altar, Mexico, near the city of Hermosillo, at approximately 6:00 a.m. While Pedroza, Sr., was driving, the van crashed into the side of a large tractor-trailer truck that was parked on the side of the highway near the entrance to a convenience store and gas station in Altar. Only the children (Raymond and Christopher) survived the crash, with both of them sustaining injuries that required hospitalization. Raymond and Christopher, through their guardian ad litem Maria Refugio Garcia (collectively, plaintiffs), filed a lawsuit against the Estate alleging that Pedroza, Sr., 2 negligently operated a motor vehicle. They sought to recover for the wrongful death of their parents and for their own injuries. The original complaint also included claims against the owners and operators of the truck involved in the collision, but those defendants were dropped from the amended complaint. No witness testified at trial who saw the collision occur. However, plaintiffs presented details of the accident through the testimony of (1) a convenience store worker, Maria del Socorro Portillo Rodriguez (Portillo), who heard the crash and saw its immediate aftermath; and (2) a journalist, Rafael Leon Pineda (Pineda), who arrived shortly after the collision and took photographs of the scene, some of which were displayed to the jury. Both Portillo and Pineda, referring to photographs and to their recollection, testified that the truck involved in the collision was parked in a shoulder area of the highway that was separated from the four lanes of traffic by a dotted white line. Portillo and Pineda both explained that under Mexican traffic law, a dotted white line next to the highway indicates a rest area where vehicles can park, and trucks regularly park where the truck was parked during the collision. The photographs and Portillo's and Pineda's testimony established that during the collision, the truck was parked completely within the area indicated by the dotted white line and was not protruding into the lane of traffic. The photographs showed that the van crossed over the dotted white line and hit the side of the parked truck at an angle and at a high enough speed to cause major damage to the van and to kill three of the van's five occupants. There was no evidence of a tire blowing out, screeching brakes, skid marks on the road or the sound of a car horn that would have 3 indicated an attempt to stop or take evasive action. Portillo testified that the area in which the truck was parked was illuminated by the lighting of the convenience store, and the truck also had on small lights around the trailer and its rear. According to witness testimony, no rain or clouds were present on the morning of the collision. In a special verdict, the jury found that Pedroza, Sr., was negligent,1 and judgment against the Estate was entered in the amount of $2,061,581.60, inclusive of costs. II DISCUSSION A. The Estate Did Not Preserve the Argument that Testimony About the Location of Truck Was Improperly Admitted Lay Opinion The Estate contends that the trial court abused its discretion by (1) admitting testimony from Portillo and Pineda that the area in which the truck was parked was a designated parking and rest area under Mexican traffic law, and (2) allowing Pineda to state that the van driven by Pedroza, Sr., "invaded" the area in which the truck was parked.2 According to the Estate, the testimony consisted of improper lay witness 1 In assigning a percentage of responsibility for the harm to plaintiffs, the special verdict form assigned 80 percent of the responsibility to Pedroza, Sr., and 20 percent of the responsibility to "Other." 2 Specifically, Pineda gave the following testimony during questioning by plaintiffs' counsel that the van "invaded" the truck's area: "Q: And what was your observation with respect to the angle, if any, or the position of the van with respect to the dotted white line? "A: The one that came into that lane was the van. "Q: And what was your observation with respect to the angle of that, or the position of that van? 4 opinion testimony because it concerned matters "sufficiently beyond the competence of common persons" and should have been presented through an expert witness. The argument fails because counsel for the Estate did not preserve the objection in the trial court. "Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was 'timely made and so stated as to make clear the specific ground of the objection.' Pursuant to this statute, ' ". . . 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable," ' " and the defendant forfeits his appellate arguments based on the erroneous admission of the evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) " 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' " (People v. Partida (2005) 37 Cal.4th 428, 434.) "What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond "A: It was the one that came in, the one that invaded, let's say, invaded that place. "Q: Now, why do you use the word 'invaded'? "A: Because it shouldn't have been driving into that lane." 5 appropriately and the court can make a fully informed ruling." (Id. at p. 435.) Even when counsel raises an objection at some point in the proceedings but fails to obtain a ruling on the objection, "counsel's failure to obtain a ruling is fatal to defendant's appellate contention, for a party objecting to the admission of evidence must press for an actual ruling or the point is not preserved for appeal." (People v. Hayes (1990) 52 Cal.3d 577, 619.) Here, it is undisputed that, during Pineda's and Portillo's testimony, counsel for the Estate made no objection to the admission of the evidence that it now claims should have been excluded. The Estate contends that although it did not object during Portillo's and Pineda's testimony, it preserved the objection during pretrial discussions of jury instructions and motions in limine. Specifically, the Estate points to discussions of a proposed jury instruction on opinion testimony of lay witnesses. While discussing that jury instruction, the trial court asked whether the parties would be presenting lay witness opinion testimony. Plaintiffs' counsel indicated, "We may have some." Counsel for the Estate stated, "Your Honor, I think that if anything tries to come in, you'll hear objections." Plaintiffs' counsel agreed, explaining that "[o]n both sides you're going to hear objections, but it may — both sides may try to introduce some opinion testimony of lay witnesses." When Plaintiffs' counsel stated that he did not currently know what kind of lay witness opinion testimony might be presented, counsel for the Estate stated, "Your Honor, I don't think that there is any lay opinion testimony in a case like this that's proper." The trial 6 court ended the discussion by stating "We'll reserve on that." The record reflects no further discussion about the admissibility of lay witness opinion testimony. Indeed, at no point did counsel for the Estate ever indicate that he objected to a lay witness testifying about the proper designation, under Mexican traffic law, of the area in which the truck was parked. On the contrary, during a pretrial hearing the next day, when discussing whether plaintiffs had made a judicial admission in the original complaint about the location of the truck, plaintiffs' counsel stated that, during Pineda's testimony, he would inquire about how to characterize the lane where the truck was parked. Counsel for the Estate expressed no objection to such a line of questioning. Further, as we have discussed, counsel for the Estate made no objection whatsoever during Portillo's and Pineda's testimony as to the admission of the evidence that the Estate now contends should not have been admitted. The Estate contends that it would have been futile for counsel to make an objection during Portillo's and Pineda's testimony because the trial court had already indicated it would admit the testimony. (See People v. Chavez (1980) 26 Cal.3d 334, 350 fn. 5 [argument that admission of witness's prior statements violated defendant's constitutional rights was cognizable on appeal, despite lack of objection in trial court, when an objection would have been futile due to the current state of the case law on the issue].) The record does not support such an assertion. As we have explained, when the parties raised the issue of lay opinion testimony during a pretrial hearing, the trial court expressed no view at all and simply reserved the issue, with an implicit understanding that, as counsel both indicated, they would object during trial if opposing counsel 7 attempted to introduce objectionable testimony. Further, when counsel for the Estate did make a specific objection at trial to the admission of lay witness opinion testimony on Mexican traffic law, the trial court was receptive to the objection and sustained it. Specifically, plaintiffs' counsel asked Pineda whether a sign with an "E" is required if the shoulder of a highway is intended to be used as a parking or rest area. Counsel for the Estate objected on the basis that the question "calls for expert testimony." The trial court sustained the objection, and it sustained a further objection when plaintiffs' counsel reworded the question by basing it on Pineda's personal driving experience. In light of this ruling, and the trial court's specific reservation on the general issue of the admissibility of lay opinion testimony, the Estate cannot establish that it would have been futile to make a similar objection to admission of other lay opinion testimony about Mexican traffic law. In sum, counsel for the Estate simply never indicated any objection to Portillo's and Pineda's testimony about the proper designation, under Mexican traffic law, of the area in which the truck was parked and did not object to Pineda's testimony that the van "invaded" a lane where it was not supposed to be driving. The trial court had no opportunity to pass on the admissibility of such evidence, and the Estate therefore may not complain on appeal that the evidence was improperly admitted. B. The Trial Court Did Not Abuse Its Discretion in Rejecting the Estate's Contention that the Original Complaint Contained a Judicial Admission as to the Location of the Truck During pretrial motions, the Estate argued that the trial court should treat a statement in the original complaint about the location of the truck at the time of the 8 collision as a binding judicial admission by plaintiffs on that subject. Counsel for the Estate explained, "If they're going to try to put on evidence during this trial that is contrary to their admission that the vehicle was stopped in a lane of traffic, . . . I'm going to be objecting to it, because it's an issue that should already be conclusively proved." At issue is a statement in plaintiffs' original complaint relevant to the claims against the owners and operators of the truck involved in the collision. The original complaint alleged, "An 18-wheel truck owned by defendant A. Perez Alba and 'Transportes Refrigerados "Peral" ' operated by defendant Eduardo Perez Garcia, is believed to have been parked on the side of the highway to Santa Ana Sonora, Mexico, with a portion of it sticking onto the lane of traffic." Along with removing the owners and operators of the truck as defendants, the amended complaint deleted that allegation, pleading instead that the truck "is believed to have been parked on the side of the highway." The trial court rejected the Estate's argument that plaintiffs should be bound to their pleading that the truck was "sticking onto the lane of traffic" and barred from presenting evidence to the contrary, but it allowed the Estate to introduce evidence of the original complaint's allegation to the jury. "The admission of fact in a pleading is a 'judicial admission.' " (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.) " ' "A judicial admission in a pleading . . . is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues . . . ." ' " (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 218.) "Well pleaded allegations in the complaint are binding on the plaintiff at the trial." (4 Witkin Proc., Pleading, § 455, 9 p. 587.) "[T]he trial court may not ignore a judicial admission in a pleading, but must conclusively deem it true as against the pleader." (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1156.) However, "[a] judicial admission is a party's unequivocal concession of the truth of a matter . . . ." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48, italics added.) "An unclear or equivocal statement does not create a binding judicial admission." (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 385.) Thus, for example, a party's testimony that an event " 'probably' " occurred on a certain date, was too equivocal to constitute a judicial admission. (Howard v. American Nat. Fire Ins. Co. (2010) 187 Cal.App.4th 498, 515-516 (Howard); see also Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1066 [judicial admission was not created by "an ambiguous statement in an unverified complaint"]; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596 [observing in dicta that "[m]aking a statement on information and belief . . . might avoid a judicial admission].) We apply an abuse of discretion standard of review to the trial court's conclusion that plaintiffs did not make a binding judicial admission about the location of the truck. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 871.) Here, the original complaint did not make an unequivocal statement admitting that the truck was sticking into the lane of traffic. Instead, the original complaint expressly stated a belief about the location of the truck. As plaintiffs' counsel explained to the trial court during motions in limine, and as witness testimony established during trial, that allegation was amended because the belief was disproved when the parties obtained more 10 evidence about the circumstances surrounding the collision. When applying the doctrine of judicial admissions, "[a] court may disregard fragmentary and equivocal statements, especially when contradicted by other credible evidence." (Howard, supra, 187 Cal.App.4th at p. 516.) The trial court was within its discretion — in light of the equivocal nature of the original complaint's allegation and the clear photographic evidence showing that the truck was not sticking into the lane of traffic — to conclude that plaintiffs did not make a judicial admission about the location of the truck. C. The Trial Court Did Not Abuse Its Discretion in Sustaining an Objection to Questions About the Status of a Witness's Visa The Estate contends that the trial court prejudicially abused its discretion in sustaining an objection when counsel attempted to elicit testimony about the status of Pineda's visa to be in the United States. According to the Estate, the excluded testimony was relevant because it could have called into question Pineda's credibility. During direct examination of Pineda on March 29, 2011, plaintiffs' counsel engaged Pineda in the following line of questioning: "Q. Mr. Pineda, when did you come to San Diego to give testimony in this case?" "A. March 4th. "Q. And was there any reason you came March 4th? "A. Because my visa was going to expire right after. "Q. And have you since reapplied to reinstate your visa so it's going to be effective since you came here? "A. No, I just applied for an extension. 11 "Q. You applied for an extension, and that's in process; is that right? "A. Yes." On cross-examination of Pineda, counsel for the Estate undertook the following line of questioning: "Q: [A]s I understood it, sir, you came on March 4th because your visa was going to expire literally within days?" "A: Yes. "Q: Okay. As you're here today, your visa has expired, true?" Plaintiffs' counsel objected on relevancy grounds, and the trial court sustained the objection, rejecting defense counsel's assertion that the question "goes to credibility."3 The Estate argues that the trial court should not have sustained the objection to the question about the expiration of Pineda's visa because the answer would likely have undermined Pineda's credibility. According to the Estate, "Given the lengthy process of applying for and obtaining a ruling on a visa extension, it is highly unlikely Mr. Pineda actually obtained a visa extension. In turn, any questioning on this matter would have served to diminish his credibility." The Estate argues that if the trial court had not sustained the objection, counsel would have been able "to show the jury Mr. Pineda had been dishonest regarding the status of his visa." 3 On redirect examination of Pineda, plaintiffs' counsel asked: "Q: . . . Mr. Pineda, you have applied and have a current visa, is that right, an extension on your visa? "A: That's right. "Q: [T]here's nothing illegal about your presence in the United States? "A: No, of course not." 12 We review "for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 717.) We conclude that the trial court was well within its discretion to determine that Pineda's response to the inquiry about his current visa status would not have been relevant to attack Pineda's credibility as a witness. Although counsel for the Estate was attempting to elicit testimony from Pineda that his visa had expired, that testimony would not have called Pineda's credibility into question because it would not have contradicted anything that Pineda stated during direct examination. As we have explained, Pineda testified on direct examination that because his visa was expiring "right after" March 4, he came to San Diego on that date, instead of closer to the March 29 date of his testimony. The most logical implication from this testimony is that Pineda's visa had expired before March 29, and that Pineda was attempting to extend it. Further, Pineda did not testify on direct examination that his application to extend his expired visa had been approved. Instead, he testified that it was "in process." In light of that testimony, Pineda would not have been revealed as untruthful if he had testified on cross- examination that his visa had expired. Accordingly, the excluded testimony would not have been relevant to attack Pineda's credibility, and the trial court was well within its discretion to sustain the objection on the basis of relevancy. D. Substantial Evidence Supports the Verdict The Estate contends that insufficient evidence supports the jury's verdict that Pedroza, Sr., negligently caused the collision. In a very brief and undeveloped argument, the Estate asserts that insufficient evidence supports the verdict because "[t]he only 13 established facts in this case are the occurrence of the accident, the lack of any eyewitnesses, and the presence of a parked truck." According to the Estate, "[w]ithout any eyewitnesses and without any experts, the jury's findings are merely inferences derived from speculation." "When a party challenges the jury's findings based on insufficient evidence to support those findings, we apply the substantial evidence standard of review." (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096.) Substantial evidence is defined as evidence of " ' " ' " 'ponderable legal significance . . . reasonable in nature, credible, and of solid value [, and]' " ' . . . ' "relevant evidence that a reasonable mind might accept as adequate to support a conclusion" ' . . . ." ' " (Young v. Gannon (2002) 97 Cal.App.4th 209, 225.) We review the record as a whole, resolving all conflicts in favor of the prevailing party and indulging all legitimate and reasonable inferences in favor of the jury's findings. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) If the jury's findings are supported by substantial evidence, contradicted or uncontradicted, the judgment must be upheld regardless of whether the evidence is subject to more than one interpretation. (Ibid.) Here, the record contains sufficient evidence to support a finding that Pedroza, Sr., caused the collision through his negligence. The photographic evidence and witness testimony supports a finding that the truck was properly parked in plain view outside of 14 the lane of traffic.4 Based on the extensive damage to the van, as shown in the photographs, a juror could reasonably conclude that Pedroza, Sr., veered out of the normal lane of traffic and slammed into the side of the truck at a high speed. Further, because witnesses testified to the favorable weather conditions and the lack of any skid marks, squealing tires, horn sounds or any other evidence of an evasive maneuver, a reasonable juror could conclude that it was Pedroza's own inattention rather than an unexpected obstacle or foul weather that caused Pedroza to veer into the side of the truck. The fact that the family had been driving for almost a full day without sleep or extended rest breaks also supports a reasonable inference that the collision was caused by Pedroza, Sr.'s tiredness or lack of attention. The verdict is supported by substantial evidence. 4 To the extent that the Estate argues that insufficient evidence supports the verdict because Portillo and Pineda were purportedly not competent, as lay persons, to offer testimony about Mexican traffic law, we reject that argument. " 'It is settled law that incompetent testimony . . . if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding. [Citations.] "Evidence technically incompetent admitted without objection must be given as much weight in the reviewing court in reviewing the sufficiency of the evidence as if it were competent." ' " (People v. Bailey (1991) 1 Cal.App.4th 459, 463.) 15 DISPOSITION The judgment is affirmed. IRION, J. WE CONCUR: MCCONNELL, P. J. BENKE, J. 16	01-03-2023	05-21-2013
https://www.courtlistener.com/api/rest/v3/opinions/2592644/	57 N.Y.2d 305 (1982) Beverly Crosby, Appellant, v. State of New York, Workers' Compensation Board, Respondent. Court of Appeals of the State of New York. Argued October 7, 1982. Decided November 16, 1982. Dirk A. Galbraith and William R. Bartholomae for appellant. Robert Abrams, Attorney-General (Howard Friedland, Peter H. Schiff and Henriette Frieder of counsel), for respondent. Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur. 308GABRIELLI, J. This appeal presents for our determination the issue of whether section 24 of the Workers' Compensation Law, requiring that attorneys' fees sought in connection with a claim arising under that law must be approved by the Workers' Compensation Board, violates a claimant's constitutional rights to due process or equal protection. We hold today that this reasonable regulation of the payment of attorneys' fees, enacted for the protection of the claimant, suffers no such constitutional infirmity. Plaintiff's claim for workers' compensation benefits arose out of an injury she sustained on April 11, 1979, during the course of her employment. Proceeding pro se initially, plaintiff received an award of benefits covering the period from the injury until the hearing. No further payments were to be made, however, until claimant submitted 309 a medical report justifying the receipt of further benefits. In January of 1980, plaintiff retained an attorney who requested the Workers' Compensation Board to direct the compensation carrier to commence payments retroactive to the date of the hearing. On March 17, 1980, the carrier was ordered to make the payments retroactive to some three months prior to the hearing date at an increased rate of benefits. A second hearing was held on June 3, 1980, at which plaintiff's attorney failed to appear. Following this hearing, the compensation carrier was ordered to pay plaintiff further benefits. The carrier has appealed that decision to the Workers' Compensation Board and has suspended payments to plaintiff pending the outcome of the appeal. Plaintiff sought to engage a new attorney to represent her on this appeal and contacted an Ithaca attorney for this purpose. This attorney agreed to represent plaintiff, and, having estimated the time that would be involved in preparing for and attending the appeal, informed plaintiff that he would require a retainer of $300, to be deposited in his trust account pending the outcome of the case. Plaintiff agreed to this fee amount and procedure. Thereafter, plaintiff's attorney filed a notice of substitution and appearance form with the Workers' Compensation Board. He advised the board, in an accompanying letter, that plaintiff had agreed to deposit the sum of $300 with him, to be held in trust and applied to any fee subsequently approved by the board. The board then informed the attorney that the fee arrangement was not in accordance with board procedure and advised him to return plaintiff's deposit and make application for his fee in the prescribed manner. Plaintiff then commenced the instant action, seeking a judgment declaring the fee restrictions unconstitutional because they effectively prevent her from retaining skilled legal counsel of her choice to pursue her compensation claim. Defendant's motion for summary judgment dismissing the complaint was granted by Special Term. The Appellate Division modified the judgment, to the extent only of adding a provision declaring that section 24 of the Workers' Compensation Law is constitutional. 310The challenged statute provides that no claim for legal services in connection with a claim arising under the Workers' Compensation Law shall be enforceable unless approved by the Workers' Compensation Board. If such a claim is approved, it becomes a lien upon the compensation awarded and upon any moneys ordered paid under an award into special funds, but is to be paid therefrom only in the manner fixed by the board. The statute also provides that receipt of fees except in an amount determined by the board is a misdemeanor (Workers' Compensation Law, § 24). The rules of the Workers' Compensation Board require that application for fee approval be made on a prescribed form, unless the fee requested is $300 or less, in which case oral application may be made (12 NYCRR 300.17 [c] [1]). In addition, the board is required, in passing on a fee request by an attorney whose client has received an award, to approve a fee "in an amount commensurate with the services rendered and having due regard for the financial status of the claimant" (12 NYCRR 300.17 [d]). Nothing contained in these rules operates to limit fee requests, as plaintiff has urged, to a maximum ceiling of $300. At the outset, we reject plaintiff's arguments insofar as they are predicated upon the due process and equal protection guarantees contained in the Constitution of this State (NY Const, art I, §§ 6, 11). Any notion that these constitutional guarantees place limitations upon the legislative authority to enact laws concerning workers' compensation is completely dispelled by another provision of the Constitution. Section 18 of article I, insofar as it is here relevant, provides that: "Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment, either by employers, or by employers and employees or otherwise * * of compensation for injuries to employees or for death of employees resulting from such injuries". The statute challenged herein plainly falls within this constitutional provision. It is well recognized that section 18 of article I itself lays to rest all State constitutional attacks on the workers' compensation laws falling within its scope (Koutrakos v Long Is. Coll. Hosp., 47 AD2d 500, 505, affd 39 N.Y.2d 1026; 311 Shanahan v Monarch Eng. Co., 219 N.Y. 469; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, affd 295 N.Y. 748). Accordingly, our analysis of plaintiff's contentions rests solely upon the provisions of the Federal Constitution. Plaintiff urges that section 24, in limiting her ability to choose an attorney on her own terms, violates her constitutional right of privacy by interfering in the "fundamentally private relationship" between attorney and client. In support of her assertion that the statute is an unwarranted governmental interference with her choice of counsel, plaintiff relies upon the affidavits of four attorneys practicing in the Ithaca area. These attorneys state that they will not ordinarily represent claimants in workers' compensation proceedings, because they are unable to negotiate their fee arrangements privately with the claimants and, in their experience, if fees are approved by the Workers' Compensation Board at all, they are economically unrewarding. Plaintiff thus argues that the fee limitations effectively operate to preclude her from obtaining skilled legal counsel to pursue her compensation claim and therefore violate her right of privacy. The "right of privacy" has its roots in the concept of personal liberty and restrictions upon State action embodied in the Fourteenth Amendment (Zablocki v Redhail, 434 US 374, 384; Roe v Wade, 410 US 113, 153; Paul v Davis, 424 US 693, 713). This guarantee recognizes certain "zones of privacy" existing under the Federal Constitution and protects those individual interests which can be said to be "fundamental" or "implicit in the concept of ordered liberty" (Roe v Wade, supra, at p 152). Although the precise contours of this right have yet to be defined, it is clear that it has application in two primary areas of personal autonomy: "the individual interest in avoiding disclosure of personal matters", and "the interest in independence in making certain kinds of important decisions" (Whalen v Roe, 429 US 589, 599-600). It is this latter interest which plaintiff argues is implicated by the statute's limitations on fee arrangements between attorney and client. 312The cases according constitutional protection to such individual decision-making interests indicate that this aspect of the right of privacy is limited to the most personal and intimate matters of individual choice of conduct. Thus, clearly falling within its scope are matters relating to the decision of whom one will marry (Loving v Virginia, 388 US 1, 12), the decision whether to bear or beget a child (Carey v Population Servs. Int., 431 US 678, 687; see Griswold v Connecticut, 381 US 479, 485-486), and a woman's decision whether to terminate her pregnancy (Roe v Wade, supra, at p 153). Moreover, the right has some extension to decisions involving the private possession of obscene materials in one's home (Stanley v Georgia, 394 US 557, 564), as well as decisions concerning private sexual morality (People v Onofre, 51 N.Y.2d 476, 488, cert den 451 US 987). An examination of the types of decisional conduct to which constitutional protection has been extended under the concept of the privacy guarantee makes readily apparent that plaintiff's interest in entering into a particular fee arrangement or indeed, choosing a particular attorney to represent her, is not the sort of personal decision encompassed within the "zone of privacy". Notwithstanding the importance of the attorney-client relationship, the choice of legal representation involves nothing more than an economic decision. Such a choice simply does not have such an intimate or sensitive character as to warrant protection under this constitutional doctrine.[] Plaintiff also contends that the effective limitation of her choice of counsel by virtue of the fee restrictions violates her right to equal protection. Defining the class of persons similarly situated to include all litigants before the Workers' 313 Compensation Board, plaintiff maintains that such a restriction, directed only to claimants and not to employers and compensation carriers appearing as parties to such proceedings, amounts to an unreasonable classification. Thus, while the latter can employ the most skilled legal counsel to represent them in workers' compensation proceedings, it is argued that the unwillingness of attorneys to undertake the representation of claimants because of the lack of economic reward leaves claimants without the same level of legal expertise. Although we agree with plaintiff that a classification exists between claimants, on the one hand, and insurers and employers on the other, we believe that a rational basis exists for this disparate treatment. Section 24 of the Workers' Compensation Law is part of a broad scheme of economic and social welfare legislation. The challenged classification, burdening no suspect group and affecting no interest deemed fundamental, need only pass the constitutional test of rationality. Thus, the statute will withstand judicial scrutiny if the resulting classification bears a reasonable relationship to some legitimate legislative objective (Vance v Bradley, 440 US 93, 96-97; Dandridge v Williams, 397 US 471, 485; People v Whidden, 51 N.Y.2d 457, 460; Alevy v Downstate Med. Center of State of N. Y., 39 N.Y.2d 326, 332). The broad scheme of compensation for work-related injuries or death contained in the Workers' Compensation Law has as its purpose the provision of a swift and sure source of benefits to injured employees or the dependents of deceased employees (Matter of Burns v Miller Constr., 55 N.Y.2d 501; Billy v Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 158; O'Rourke v Long, 41 N.Y.2d 219, 222). The compensation law was intended to obviate, among other things, the delay and expense to the claimant caused by the protracted litigation involved in pursuing a negligence claim (Shanahan v Monarch Eng. Co., 219 N.Y. 469, 477-478, supra). That such relief is a legitimate legislative objective hardly need be stated. Section 24, with its restrictions on fee arrangements between the claimant and counsel, is similarly designed for the protection of the injured employee or his dependents. The purpose of the restrictions being to protect the claimant from entering into an improvident fee 314 agreement which might substantially reduce the eventual monetary benefits awarded, the statute clearly promotes the over-all objective of ensuring adequate economic relief to the employee or his family. We believe that the Legislature could properly determine that employers and compensation carriers, not laboring under the same economic difficulties as the claimant, are not in need of similar protection. Accordingly, we conclude that the classification has a rational basis, inasmuch as the restriction on a claimant's choice of counsel is a reasonable method of furthering the legislative objectives of the Workers' Compensation Law. We note, finally, that to the extent plaintiff has demonstrated that at least some attorneys will not undertake claimants' compensation cases because of the fee restrictions, she has identified a problem that is the proper concern of the Legislature. If it is true, as plaintiff asserts, that the intent of the Legislature to protect claimants is not accomplished by the provisions of section 24, then the wisdom of the statute may be in some doubt, but such a deficiency may not properly be remedied by the courts (see Pharmaceutical Mfrs. Assn. v Whalen, 54 N.Y.2d 486). Accordingly, the order of the Appellate Division should be affirmed, without costs. Order affirmed. NOTES [] Equally without merit is plaintiff's contention that the statute in issue violates the contract clause of the Federal Constitution (US Const, art I, § 10: "No State shall * * * pass any * * * Law impairing the Obligation of Contracts"). This clause operates only to invalidate State legislation relieving the commitments of one party to a contract or otherwise retroactively altering rights and obligations under existing contracts (see United States Trust Co. v New Jersey, 431 US 1, 17-21; Allied Structural Steel Co. v Spannaus, 438 US 234, 244-246). Section 24 of the Workers' Compensation Law is not such State legislation. It merely regulates the terms upon which attorney and client may enter into a fee arrangement in a limited context.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2592650/	57 N.Y.2d 206 (1982) Riegert Apartments Corp., Appellant, v. Planning Board of the Town of Clarkstown et al., Respondents. Court of Appeals of the State of New York. Argued September 7, 1982. Decided October 14, 1982. Milton B. Shapiro and Herman M. Pogul for appellant. John A. Costa, Town Attorney (Harold Y. MacCartney, Jr., of counsel), for respondents. Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI taking no part. 208Chief Judge COOKE. Although the Town Law accords towns broad powers to regulate the development of both subdivisions and individual sites, the authority for approving subdivision plats is discrete from that for approving individual site plans. Thus, although a town may require that, before approving a plat, either land or money-in-lieu-of-land be delivered to the municipality for developing parks, no such conditions may be imposed on the approval of a site plan. Raymond and Nanette Riegert, petitioner's predecessors in title, owned a 7.40-acre tract in the Town of Clarkstown, Rockland County. In May, 1974, the Riegerts sought an amendment to the town's zoning ordinance so as to alter the entire tract's classification from single-family homes to multifamily garden apartments. In December, 1974, the town board made the requested amendment, but subject to certain conditions: (1) no more than 40 one-bedroom units were to be constructed on the premises; (2) a 20-foot road-widening strip was to be conveyed to either the county or the town; (3) a 20-foot buffer strip of trees and shrubbery was to be installed; and (4) the owners were to carry the cost of maintaining all required ponding areas, flood plains, or drainage ways. Later, the Riegerts sought a further modification to allow a maximum of 56 one-bedroom units on the property. This application was approved in November, 1976, subject to the Riegert's conveying for flood control purposes about four acres that lay in a 100-year flood plain. The Riegerts satisfied every condition imposed by the town. 209Petitioner subsequently purchased the remaining acreage from the Riegerts. In October, 1978, petitioner submitted to the Planning Board of the Town of Clarkstown a site plan showing the proposed construction. On December 5, 1978, the planning board approved the plan on the condition that petitioner deposit $16,800 with the town as "money-in-lieu-of-land" for the purchase and development of parkland. Petitioner contested the legality of this action at the public meeting where the board announced its decision, but eventually paid the entire sum under protest. Petitioner commenced this proceeding to recover the moneys paid. The kernel of its argument is that sections 276 and 277 of the Town Law concededly authorize planning board review of subdivision plats, including the imposition of land or money-in-lieu-of-land conditions for park development, but site plan approval is subject only to section 274-a of the Town Law, which does not authorize imposing such a condition. Special Term ruled in favor of respondents Town of Clarkstown and its planning board. The Appellate Division unanimously affirmed, without opinion, and this court granted petitioner leave to appeal. The order below should be reversed and judgment entered for petitioner. The question presented is one solely of statutory interpretation. It is noted that a town and other municipalities derive no power to regulate land use other than through legislative grant (see Matter of Golden v Planning Bd. of Town of Ramapo, 30 N.Y.2d 359, 369-370). The task, therefore, is to construe the pertinent statutes, as written, according to the ordinary meaning of their language, seeking to harmonize the whole and to avoid rendering any part surplusage (see Zaldin v Concord Hotel, 48 N.Y.2d 107, 113; Matter of Albano v Kirby, 36 N.Y.2d 526, 529-531; Matter of Smathers, 309 N.Y. 487, 494). Section 276 of the Town Law, originally enacted in 1932 (L 1932, ch 634, § 276), is entitled "Approval of plats; development of filed plats." Designed to empower local governments to plan and regulate land development, subdivision 1 of section 276, as amended, states that "the town board may by resolution, authorize and empower the planning board to approve plats showing lots, blocks, or sites, 210 with or without streets or highways, and to approve preliminary plats". The remainder of section 276 sets forth pertinent definitions and prescribes the procedural steps to be followed in approving plats. Section 277 of the Town Law was originally adopted in the same bill as section 276 (L 1934, ch 634, § 277). Entitled "Approval of plats; additional requisites," section 277 sets forth substantive matters to be considered by a planning board when approving "a plat showing lots, blocks or sites, with or without streets or highways". In particular, the section mentions that the existence of park facilities within the plat be weighed in granting or withholding approval (Town Law, § 277, subd 1). The statute specifically authorizes the board to require the inclusion of adequate parks, or, if a suitable park cannot be included within the plat, to require a payment to the town to be held in trust for the purchase of parkland elsewhere (id.). Section 274-a of the Town Law, first added in 1976 (L 1976, ch 272, § 2), authorizes planning boards to review and approve site plans, while expressly excluding from such review plats subject to approval under sections 276 and 277.[1] When it enacted section 274-a, the Legislature repealed (L 1976, ch 272, §§ 4-7) several laws that had granted such approval powers to a few municipalities on a piecemeal basis, including a grant to the Town of Clarkstown, respondent here (L 1974, ch 787). 211Initially, it is noted that the terms in section 274-a vary from those in sections 276 and 277. The former specifies "site plans" while the latter refers to "plats". This distinction comports with the general usage of these terms: "A site plan is not a subdivision plat. A site plan usually evidences the proposed development of a single lot, whether for one principal building and permitted accessory buildings, or for a group of buildings (such as a group residential development or an industrial park), intended to remain in one ownership. A subdivision plat contemplates division of one tract into a number of smaller lots with eventual separate ownership of each such lot. The authority which may be conferred upon planning boards with respect to subdivision plats, and the collateral powers of the board and consequences of its determination with respect thereto, are set forth specifically in the planning enabling acts. Site plans are not even mentioned in such acts. A site plan is a plan required to be submitted by the builder, showing the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions, such as roads, neighboring land uses, natural features, public facilities, ingress and egress roads, interior roads, and similar features" (2 Rathkopf, Zoning and Planning [4th ed], § 30.04[1], pp 30-13 30-14 [n omitted]). By their very language, the statutes can be seen to intend the continuation of this distinction. The laws are drafted to refer specifically to "site plans" and "plats" without any interchange between the two terms. Indeed, section 274-a (subd 1, par a) carefully excludes plats from its purview. Respondents' emphasis on the use of "sites" in sections 276 and 277 is a spurious attempt to bring site plans within the scope of those laws; "sites" is used there merely to describe "a plat showing lots, blocks, or sites" and does not refer to site plans per se. Whatever doubt may remain as to the Legislature's intentions is dispelled by the memorandum issued by Governor Malcolm Wilson when he signed the bill that originally empowered respondents to review site plans (L 1974, ch 787) and that eventually was repealed when section 274-a was enacted (L 1976, ch 272, § 4). In that message, Governor Wilson wrote, "Under 212 existing law, the governing bodies of local governments are authorized to delegate to municipal planning boards the power to approve or disapprove plats showing the division of land into lots, blocks or sites commonly known as subdivision plats. There is, however, no express statutory authority for a similar permissive delegation of approval power over site plans for developments that do not take the form of subdivisions." (NY Legis Ann, 1974, p 404.) Viewed in this light, section 277 cannot be said to authorize the imposition of land or money-in-lieu-of-land donations to build parks as a condition to approving site plans. Section 277 complements section 276; these two sections must be read together and are limited to the review of plats.[2] Respondents also urge the existence of an implicit authority to impose such conditions under section 274-a. Although section 274-a (subd 1, par a) does refer to consideration of the "impact of the proposed use on adjacent land uses and such other elements as may reasonably be related to the health, safety and general welfare of the community," it should not be read so broadly as respondents desire. Otherwise, a town would be able to exact a toll twice from the same development: once when the developer seeks approval of the plat; the second time when individual lot owners seek approval of the building plans for their homes. There would, of course, be no real justification for a planning board to demand from the individual lot owners land or money for parks when the developer's contribution has already been received. By expressly providing for public park dedication in section 277 plat approval and by omitting any reference to parks in section 274-a, the Legislature intended that the burden of major community concerns such as parks be placed on the developer, not the individual lot owner. 213Finally, respondents propose that their action is authorized by the local regulations adopted under the special law (L 1974, ch 787) preceding the enactment of section 274-a (L 1976, ch 272), which also repealed the earlier special law. Respondents argue that the regulations remain in force pursuant to the saving clause in the repeal, "provided, however, that such repeal shall not impair the continued validity, after the effective date hereof, of any action taken prior to such date pursuant to the authority provided by [L 1974, ch 787]" (L 1976, ch 272, § 4). This is not persuasive. The saving clause should be read as nothing more than a protection of both the town and the applicants who acted under the earlier law, particularly where appropriate conditions were placed on approval but which could not be fulfilled before the effective date of section 274-a. No reason is proffered why respondents here should have greater power to impose conditions on site plan approval than the other municipalities in the State. Such power would conflict with the legislative intent of providing a State-wide uniform scheme. Consequently, at least to the extent they conflict with the Town Law, respondents' site regulations should be deemed negated by the legislation enacting section 274-a (L 1976, ch 272, § 4). Accordingly, the order of the Appellate Division should be reversed, with costs, and the petition granted. Order reversed, etc. NOTES [1] The portion of section 274-a relevant here provides (Town Law, § 274-a, subd 1, par a): "Planning board approval of site plans. The town board may, as part of a zoning ordinance adopted pursuant to this article or by local law adopted pursuant to other enabling law, authorize the planning board to review and approve, approve with modifications or disapprove site plans, prepared to specifications set forth in the said zoning ordinance or local law and/or in regulations of the planning board, showing the arrangement, layout and design of the proposed use of the land shown on such plan. Such ordinance or local law shall specify the uses for which such approval shall be required and the elements to be included in such plans submitted for approval; such elements may include, where appropriate, those relating to parking, means of access, screening, signs, landscaping, architectural features, location and dimensions of buildings, impact of the proposed use on adjacent land uses and such other elements as may reasonably be related to the health, safety and general welfare of the community. When an authorization to approve site plans is granted to a planning board pursuant to this paragraph, the terms thereof may condition the issuance of a building permit upon such approval by the planning board. When so authorized, a planning board may adopt such rules and regulations as it deems necessary, consistent with the provisions of this article, to exercise the powers so granted. Plats showing lots, blocks or sites which are subject to review pursuant to authority adopted under section two hundred seventy-six of this chapter shall continue to be subject to such review and shall not be subject to review under this paragraph." [2] Respondents rely on Matter of Little Pond Hill v Mendel (44 AD2d 584) to support the proposition that section 277 encompasses site plans. Little Pond, in turn, cited Matter of Peckham Ind. v Ross (61 Misc 2d 616, affd 34 AD2d 826) for its authority. It appears, however, that the question of the applicability of section 277 to approving site plans was not raised in Peckham. It would seem that Little Pond was wrongly decided.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2613000/	35 Cal. App. 2d 517 (1939) W. G. PARMELY et al., Respondents, v. PEARLEY P. BOONE, Appellant. Civ. No. 11052. California Court of Appeals. First Appellate District, Division Two. November 20, 1939. Morgan J. Doyle and J. Joseph Sullivan for Appellant. Athearn, Chandler & Farmer and Edward G. Chandler for Respondents. Nourse, P. J. The four named plaintiffs sued in one complaint upon four separate causes of action. The nature of each cause of action was that of a common count for money had and received and each involved purported sales of securities in violation of the Corporate Securities Act. One judgment was entered against defendant Pearley P. Boone, individually, awarding specific amounts to each of the named plaintiffs. This defendant has appealed upon a typewritten record. The appellant has raised six points which we will consider in order. 519 [1] 1. That he was not served with written notice of time and place of trial. He was present at and participated in the trial and thus waived written notice. (Sheldon v. Landwehr, 159 Cal. 778, 782 [116 P. 44]; Estate of Wempe, 185 Cal. 557, 563 [197 P. 949]; 24 Cal.Jur. 725.) [2] 2. That the trial court was without jurisdiction to entertain the second, third and fourth causes of action because in each the demand was less than two thousand dollars. Jurisdiction of the first cause is conceded. Hence the question is whether the superior court, having jurisdiction of one cause of action, may assume jurisdiction of another otherwise joinable cause of action in which the claim is below the jurisdiction of the superior court. The question is squarely answered in the affirmative in Emery v. Pacific Employers Ins. Co., 8 Cal. 2d 663, 668 [67 PaCal.2d 1046]. The court there said: "The two joinable causes of action together constitute the 'case' within the meaning of the jurisdictional provisions, and if the total demand of one of said plaintiffs against the defendant is beyond the jurisdiction of the municipal court, the superior court has jurisdiction of said 'case', including both causes of action." [3] 3. That there is a misjoinder of parties plaintiff and of causes of action. Under section 378 of the Code of Civil Procedure it is permissible for several plaintiffs to join in an action when they have a common interest in the subject of the action and the questions of law or fact which would arise are common to all the parties. (De Mille v. County of Los Angeles, 25 Cal. App. 2d 506, 508 [77 PaCal.2d 905].) Akely v. Kinnicutt, 238 N.Y. 466 [144 N.E. 682], is directly in point, and nothing to the contrary has been called to our attention. [4] 4. That certain of the items for which recovery was given are barred by the statute of limitations. Though the action was one in the nature of a common count for money had and received, it was tried on the theory that the sales to plaintiffs were accomplished through defendant's fraud in his failure to secure the necessary permit from the commissioner of corporations. The trial court found that defendant's promise to repay the sums sued for was implied in law because of his failure to obtain the necessary permit, and that plaintiffs had no knowledge of such failure until within two years prior to the commencement of the action. This finding, 520 which is not here attacked, brings the case within the rule of MacDonald v. Reich & Lievre, Inc., 100 Cal. App. 736 [281 P. 106]. (See, also, Mary Pickford Co. v. Bayly Brothers, Inc., 12 Cal. 2d 501, 525 [86 PaCal.2d 102].) [5] 5. That the evidence does not support the judgment. The appeal is taken on a typewritten transcript, and no part of the evidence is printed. The parties stipulated that no permit was ever secured for the sale of the securities. That a permit was necessary is not disputed. But it is argued that the evidence does not prove that the transactions took place in California. This may be presumed, or at least inferred, from the admitted facts that the principal place of business of the trust was in San Francisco, that all the meetings of the trustees were held there, and that it was the place of residence of all the parties to the action. [6] 6. That the parties were in pari delicto. The appellant assumes an unusual condition here--that since he did not know that a permit was necessary, there was no intention on his part to violate the act, hence, the buyers must have known and must have so intended. The settled rule is that purchasers may assume that the other has complied with the law, and that they are not in pari delicto unless, as in Campbell v. Julian Merger Mines, 111 Cal. App. 649 [295 P. 1040], and similar cases, the purchasers are shown to have had full knowledge and to have connived with the seller to violate the act. Here the trial court found that none of the plaintiffs had such knowledge when the purchases were made. For the controlling rule see Randall v. California L. B. Syndicate, 217 Cal. 594, 597, 598 [20 PaCal.2d 331], and cases there cited. The judgment is affirmed. Sturtevant, J., and Spence, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2613015/	35 Cal. App. 2d 710 (1939) HATTIE J. BARCROFT, as Executrix, etc., Respondent, v. CLARA LIVACICH et al., Appellants. Civ. No. 2454. California Court of Appeals. Fourth Appellate District. December 5, 1939. Charleville & Weddell for Appellants. Albert J. Ford for Respondent. Griffin, J. This was an ordinary action in ejectment filed January 5, 1937. Respondent, at the trial, established proof of her representative capacity, the record title to the property in Floretta Fraser, deceased, and claimed that appellants wrongfully ousted her from possession of the premises and that they continued to withhold possession thereof unlawfully and without right. After the production of this evidence respondent rested her case. Appellants moved for a nonsuit, which motion was denied and they thereafter produced evidence in an endeavor to establish their claim of right of possession as alleged in their answer and sought by way of cross-complaint to establish and determine the provisions of a contract of purchase or option claimed to have been entered into between appellants and Floretta Fraser, which contract or option was alleged to have been lost or destroyed. [1] The ruling of the trial court denying the motion for nonsuit was quite proper. (Hicks v. Lovell, 64 Cal. 14 [27 P. 942, 49 Am. Rep. 679].) The salient facts necessary to a comprehensive understanding of the issues presented may be thus summarized: Appellant John Livacich testified generally that subsequent to 1919 he became interested in hotel property which belonged to Mrs. Fraser, the deceased, known as the Banning Hotel. In 1924, Mrs. Fraser deeded this hotel property to Mr. Livacich and his then partner, Anton Gilich. A note for $27,000, together with $11,000 cash was the consideration. Thereafter other notes were given by them to Mrs. Fraser over a period of years. In 1931 a trust deed note in the sum of 713 $40,000 was executed on the hotel property and apparently covered all of the outstanding notes. In May, 1924, at the request of Livacich, Mrs. Fraser purchased adjacent property consisting of several lots on which was located a large house known as the Bramkamp place. When an attempt was made to sell the Bramkamp property to Livacich, he interviewed Mrs. Fraser with whom he had other business dealings and proposed to her that she buy the Bramkamp place for $4,500 and that they later would buy it back from her and give her a commission of $300 upon the deal. Thereupon, Mrs. Fraser bought the property and Livacich and Gilich signed an agreement or option to buy back the place for $4,800. It reads as follows: "July 22nd, 1924." "This is to certify that Floretta Fraser Miller (name subsequently changed back to Fraser) agrees to let Livacich and Gillich have the rent of the place bought by her from Dr. Bramkamp for the rent of the rooms now occupied by her at the San Gorgonio Inn, and Livacich and Gillich agrees to same, for one year from the date they can get possession of said Bramkamp place. Mrs. Fraser Miller is not to be at any expense, on the Bramkamp place and the place is to be kept up house and grounds by Livacich and Gillich in good shape. Livacich and Gillich are to have an option to buy in one year, at three hundred dollars net advance over purchase price paid by Mrs. Miller and other expenses incurred by Mrs. Fraser Miller for the year, providing all interest has been paid on San Gorgonio Inn and 2000 cash can be paid on house and lot." Tabular Material Omitted In 1927 Livacich and Gilich dissolved their partnership. It does not appear if or how the 1924 agreement was disposed of or transferred by Gilich. Livacich testified that some time after taking possession, he went to Mrs. Fraser and advised her that he wanted to improve the Bramkamp place so that he could use it in connection with the hotel and therefore wished to enter into a contract of purchase with her; that Mrs. Fraser agreed and that the parties then executed a written contract whereby Livacich agreed to purchase the Bramkamp property from Mrs. Fraser for $4,800, and to pay any expenses which she had incurred in connection 714 therewith; that Mrs. Fraser agreed to sell the property to him at that price. Appellants claimed in their answer and this received some support in the testimony of John Livacich, that the lost contract of sale contained additional provisions other than those set out in exhibit 7, which were to the effect that the sums due under the agreement were to be paid as follows: "Thirty five ($35.00) Dollars on or before the last day of each calendar month after the execution of this contract of purchase; ... that when the defendants have paid to Floretta Fraser one-half (1/2) of the sum due under this contract of purchase, said Floretta Fraser shall execute and deliver to the defendants a grant deed conveying to said defendants title to said property; and at such time defendants shall execute and deliver to the said Floretta Fraser a promissory note bearing interest at the rate of five (5) per cent per annum for the balance of the money due under said contract ... and said promissory note and interest shall be payable at the rate of thirty-five ($35.00) dollars per month, each installment to be paid on or before the last day of each calendar month following the date of execution ... and to secure such promissory note defendants shall execute a deed of trust ... on said property;" that it was further agreed that the rental due from Mrs. Fraser to Livacich for rooms in the Banning Hotel which were occupied by her and which it was agreed would amount to $35 per month, together with all charges against Mrs. Fraser for meals furnished her by Livacich at the hotel as long as she lived there, were to be credited on that contract against the purchase price. Livacich testified that thereupon he entered into an extensive improvement campaign upon the premises and expended in the neighborhood of $7,000 therefor; that from time to time Livacich and Mrs. Fraser had an accounting relative to the contract in question and that in January, 1935, the last of these accountings took place, and it is claimed by appellants that it was then determined that Livacich owed Mrs. Fraser $3,208. In December, 1935, the hotel caught on fire. After the fire the office was claimed to have been ransacked and many papers destroyed. Shortly thereafter, Livacich was sentenced to prison on a manslaughter charge arising out of an automobile accident in which he had been involved. Upon his 715 return from prison he stated that he attempted to locate the contract in question but up to the time of trial he had been unable to do so. During his absence the appellant Clara Livacich had attempted to care for his affairs but she was unable to locate the contract in question. In May, 1930, Mrs. Fraser had her insurance agent rewrite her policy of insurance on the Bramkamp property and requested the attachment of a rider reciting that she was selling the property in question to John Livacich under a contract of sale and providing for payment to herself and Livacich as their interests might appear. The existence of the original of the lost contract or option under which the property was being purchased, was substantiated further by the testimony of other witnesses. All of the testimony concerning the contents of the lost contract and its terms was quite indefinite. Respondent, on cross-examination of appellant John Livacich, and after he had testified to the facts in relation to the terms of the claimed lost contract of sale, offered in evidence, over appellants' strenuous objections, exhibits 6, 7, 3, 8, and 9. Exhibit 7 reads as follows: "July 2nd, 1927." "This is to certify that Floretta Fraser agrees to let John Livacich have the rent of the place bought by her from Dr. Bramkamp, for the rent of the rooms now occupied by her at the San Gorgonio Inn, so long as she cares to occupy them. Mrs. Fraser is not to be to any expense on said Bramkamp place, except taxes, and Ins. John Livacich to have option to buy in six months after she leaves rooms should she decide to do so, by paying $35.00 rent for Bramkamp place per month, for said 6 mo. and 300.00 advance over purchase price, and other expenses incurred by Mrs. Fraser, a copy of which is here made to date, and 2000 cash providing all interest has been paid on San Gorgonio Inn. Balance on trust deed @ 8% quart. Mrs. Fraser to be repaid for taxes, & insurance, but no interest to be charged for same." On the reverse side of the exhibit, in the handwriting of Mrs. Fraser, is an itemized statement of taxes and insurance paid by her. Exhibit 6 is similar in wording and substance as exhibit 7, with few exceptions, and exhibits 3, 8 and 9 contain certain accounting statements in the admitted handwriting of Mrs. Fraser, which were found among her papers. 716 Exhibit 8 was a minute account of the purchase price and expenses advanced up to 1935 by Mrs. Fraser on the Bramkamp property, totaling $6,056.59, with a notation thereon that "John Livacich has option to buy". Exhibit 9 purportedly was a similar account in reference to the $40,000 trust deed transaction, showing interest unpaid thereon since 1931, in the approximate sum of $18,000, less deductions for meals as itemized in exhibit 3. On December 17, 1936, according to the pleadings, the deed of trust upon the hotel property was foreclosed for nonpayment of interest amounting to more than $10,000. The court found generally that the parties duly executed the option agreement (exhibit 5) dated July 22, 1924, and the agreement (exhibit 7) dated July 2, 1927, and that the endorsements thereon were in the handwriting of Mrs. Fraser and that they were the only contracts made between the parties respecting the Bramkamp property; that "John Livacich and Clara Livacich have been in possession of said property since July 2, 1927, pursuant to said contract of July 2, 1927, and not otherwise"; that Mrs. Fraser paid taxes and expenses on the property in the sum of $303.90 from May, 1924, to July 2, 1927, and the sum of $1252.68 for said purpose from July 2, "1937" (1927) until her death; that appellants made repairs to the property at a cost in excess of $4,000 with the knowledge of Mrs. Fraser and without objection by her, but that she did not "encourage said work". Appellants claim that the credit for room and meals furnished Mrs. Fraser should have been credited to the contract for the purchase of the Bramkamp property. Respondent claims and the court found that the charges for meals and other incidentals furnished her under their agreement should have been and were applied to the interest and indebtedness due under the $40,000 trust deed on the Banning Hotel property; that the appellants did not pay the sum of $2,000 mentioned in the agreement or any part thereof and did not pay the taxes or expenses on the property which were advanced by Mrs. Fraser nor the interest due on the indebtedness secured by the trust deed on the Banning Hotel property nor the $4,800 due on the purchase price of the Bramkamp property nor the $35 per month rent due for that property for six months after the death of 717 Mrs. Fraser occurred on April 17, 1936, as set forth in their agreement. It was further found that appellants offered to pay $35 rent in May, 1936, and $35 in December, 1936, but that those payments were not accepted and no other or further payments were offered; that accountings were had from time to time between the parties during the life of the contract, but that it was not true that it was ever determined that the balance of the purchase price was $3,280 as claimed by appellants; that the only right of appellants to possession of the property was pursuant to the agreement dated July 2, 1927 (exhibit 7); that respondent was not estopped, as pleaded by the appellants, from asserting her rights under the agreement, by virtue of her claimed acts and conduct in allowing appellants to improve the property in the manner above mentioned; that on December 17, 1931, appellants entered into possession of the premises without right, and unlawfully ousted respondent from possession, and continued to so withhold possession without lawful right. The court gave judgment for the possession of the premises and damages in the sum of $600 for unlawful withholding of the same. From this judgment appellants have perfected this appeal. Appellants contend that the judgment in question should be reversed upon the following grounds: (1) that it was prejudicial error to admit in evidence plaintiff's exhibits 3, 6, 7, 8 and 9, upon the ground that they were self-serving, private memoranda; (2) that the evidence established, without conflict, that the plaintiff was estopped to deny the existence of defendant's rights in the property in question; and (3) that the evidence was insufficient to sustain the findings of fact and that the findings did not sustain the judgment. [2] It must be borne in mind that in an action in ejectment, the matter in litigation is the alleged right to the possession of the demanded premises on the part of the plaintiff, and her ouster by defendants, and not the title to the land. (Porter v. Garrisino, 51 Cal. 559.) [3] It is the rule in this state that where the legal title to the property is in the plaintiff and that fact is admitted by the defendants, as is the case here, defendants cannot successfully defend against an action in ejectment unless they make out in their answer 718 a complete equitable title in themselves with the right of possession thereunder. (Wallace v. Maples, 79 Cal. 433 [21 P. 860]; Flint v. Conner, 53 Cal. App. 279 [200 P. 37]; Dorn v. Baker, 96 Cal. 206 [31 P. 37]; Meeker v. Dalton, 75 Cal. 154 [16 P. 764].) The decisions of this court are replete with the announcements of the above principles and we need not here pause for further citations. [4] Where a vendee in possession under a contract of purchase has failed to perform his part of the contract and is in default in respect thereto without excuse, he cannot maintain an equitable defense to an action in ejectment by the vendor who is the holder of the legal title. (Connolly v. Hingley, 82 Cal. 642 [23 P. 273]; Howard v. Hewitt, 139 Cal. 614 [73 P. 414]; Helm v. Wilson, 76 Cal. 476 [18 P. 604]; Flint v. Conner, supra.) [5] Appellants contend that under the circumstances of this case the admission of the exhibits above enumerated was prejudicial error, citing Ringland v. Hockensmith, 99 Cal. App. 66, 71 [277 P. 902]; Thompson v. Orena, 134 Cal. 26, 30 [66 P. 24]; sec. 1946, Code Civ. Proc.; Ensign v. Southern Pac. Co., 193 Cal. 311, 320 [223 P. 953]; Harper v. Goldschmidt, 156 Cal. 245, 250 [104 P. 451, 134 Am. St. Rep. 124, 28 L.R.A. (N. S.) 689]; Lynch v. Bekins Van & Storage Co., 31 Cal. App. 68, 71 [159 P. 822]; Rulofson v. Billings, 140 Cal. 452, 459 [74 P. 35]; Kerns v. Dean, 77 Cal. 555 [19 P. 817].) [6] Declarations of a person, since deceased, not against, but in support of his own interests, and made outside the presence of the party sought to be bound by them, are not admissible in favor of those who claim rights which the declarations would maintain. (Steinberger v. Young, 175 Cal. 81 [165 P. 432].) They have no greater force as evidence in an action brought subsequent to the death of the declarant than they would have in an action brought by him in his lifetime. (Fischer v. Bergson, 49 Cal. 294; Bedell v. Scoggins, 5 Cal. Unrep. 66 [40 P. 954].) [7] Although an administrator is not permitted to prove the mere declarations of the decedent in his own favor, he is entitled to prove his acts under a contract sued upon and any declarations made at the time and characterizing them as part of the res gestae. (Mattingly v. Pennie, 105 Cal. 514 [39 P. 200]; 10 Cal.Jur., sec. 331, p. 1100.) 719 [8] When a grantor has parted with title to property, his acts and declarations in disparagement thereof, made in the absence of the grantee, are admissible in evidence; but whenever in a particular action the issue itself is whether the grantor has parted with title, it is the settled rule of law in this state that his subsequent acts and declarations are admissible as bearing on the question of delivery. In Belser v. American Trust Co., 125 Cal. App. 344 [13 PaCal.2d 951], certain memoranda were found among decedent's personal effects and were held admissible as tending to show his interest in the property. It does not appear, however, from the authorities cited that the exhibits complained of in the instant case were admissible. [9] Respondent was fully justified in refusing payment of two months' rent on the premises. It has been repeatedly decided and is undoubtedly the law of this state that a vendor by accepting payments after the times specified in the agreement for sale of real property, waives any provision with reference to time being the essence of the contract as to those payments and cannot thereafter effectually declare a forfeiture of vendee's right to purchase and of payments already made without notice that in the future a strict performance will be required. (Watkins v. Warren, 122 Cal. App. 617 [10 PaCal.2d 500].) [10] Appellants contend that respondent was estopped to deny that they agreed to purchase the property in question from Mrs. Fraser because of the fact that the latter stood by and saw the former erect improvements on the property under the belief that they were purchasing the same, citing Burrow v. Carley, 210 Cal. 95, 104 [290 P. 577], and Farley v. Vaughn, 11 Cal. 227, 237. It is clear from the evidence before us that the trial court was justified in finding against appellants upon the plea of estoppel. From an examination of the agreement dated July 22, 1924, admittedly signed by John Livacich, which was properly received in evidence without objection, although poorly phrased, it could be properly termed an option to purchase the property upon the conditions therein set forth. It is apparent that appellant John Livacich did not fulfill the conditions of the option nor did he tender the $2,000 mentioned or pay the interest on the trust deed. He was therefore accordingly in default under that option. The trial court 720 has construed this instrument in connection with exhibit 7 as an option to purchase the property by appellants and has, by its findings, established the claim under which the only right of appellants to possession of the property could be predicated. It appears from the evidence that appellants are in default under their option to purchase under either instrument or under appellant's own version of the terms of the lost contract or option. No tender of the consideration or adequate offer to perform was made in accordance with the terms thereof. (Champion G. Min. Co. v. Champion Mines, 164 Cal. 205 [128 P. 315].) The contract or option was in contemplation of improvements. The fact that improvements were made is no ground for altering the contract or option. It seems to be the rule that to establish estoppel there must be some degree of turpitude in the conduct of a party before a court of equity will estop him from the assertion of his title; and accordingly the trial court was justified in finding that respondent was not estopped in this action by the fact that appellants in good faith constructed improvements on the lands claimed by them. (Holzer v. Read, 216 Cal. 119 [13 PaCal.2d 697]; Humboldt County v. Van Duzer, 48 Cal. App. 640 [192 P. 192]; Frazier v. Murphy, 133 Cal. 91 [65 P. 326].) It was held in Gervaise v. Brookins, 156 Cal. 103 [103 P. 329], that a vendee in possession of land, under a contract which entitles him to a conveyance of the fee thereof and to remain in possession only so long as he makes the payments of the purchase price as agreed, who has paid a substantial part of the price and made valuable improvements on the land, and is able, willing and ready, and has offered to pay the balance upon receipt of a good title, but who does not wish to rescind and refuses to make further payments except on condition that he receives a good title, is not entitled to remain in possession against the vendor who has no title and is unable to transfer it. The rule of law regarding sufficiency of evidence to establish the contents of a lost instrument is well stated in the case of Caine v. Briscoe, 78 Cal. App. 660 [248 P. 774], where the court comments on "placing sole reliance for the support of an important issue upon the frailties, or as truly may be said, the treachery of human memory, the burden of proving the fact necessarily carries with it more than the usual measure of 721 responsibility". Also in Deacon v. Bryans, 88 Cal. App. 322 [263 P. 371], it was held that the evidence must show without reasonable doubt the substantial parts of the instrument and that the testimony of the witness need not be accepted as true, merely because there is no direct evidence to contradict it, as evidence may, within itself, bear the earmarks of falsity. The testimony of appellant John Livacich was impeached in many ways. His statement of the contents of the claimed lost instrument was so vague and uncertain that any court would be justified in disregarding his entire testimony in relation thereto. (Bailey v. Moshier, 35 Cal. App. 345, 349 [169 P. 913].) No weaker kind of testimony can be produced than the unsupported testimony of a single person, as to a conversation between himself and a deceased person. (Mattingly v. Pennie, supra.) [11] Appellants were permitted to remain in possession of the property for more than nine years while Mrs. Fraser paid all taxes and insurance thereon. They failed to pay the purchase price of the property and interest on the $40,000 trust deed as agreed. The burden of proof of all claimed payments on the alleged lost contract or option was on appellants. (Griffith v. Lewin, 125 Cal. 618 [58 P. 205]; 20 Cal.Jur., p. 952, sec. 30.) One who appeals to a court of equity to defend him against title to land of which he is in possession must do equity by paying the price which he agreed to pay. The maxim "he who seeks equity must do equity" applies to him in full force. Appellants, under the circumstances of this case, were not entitled to hold possession and withhold the purchase price. (Empire Investment Co. v. Mort, 169 Cal. 732 [147 P. 960].) The fact of title being in respondent was admitted by appellants in their answer. Therefore they could only prevail against her by setting up an equitable defense. The equity presented must be of such a character that it may be ripened by a decree into a complete equitable title in themselves and a legal right to the possession of the premises or such a right as will estop her from the prosecution of the action. (Verbeck v. Clymer, 202 Cal. 557 [261 P. 1017].) It appears to us that there is sufficient evidence in the record without the use of the objectionable exhibits, to substantiate the findings of the trial court in reference to some 722 option to purchase. Conceding that these exhibits should not be considered in reference to the option to purchase, it is clear that the court has wholly disregarded appellants' testimony and in effect has found that his testimony did not establish a contract of purchase as represented by him, the terms of which had been fulfilled by him, and which would give him an equitable title with the right of possession of the property. [12] Appellants contend that under any of the circumstances involved in this action, before Livacich could be placed in default the respondent, before filing her action in ejectment, was required to tender a deed and demand performance under the contract alleged by Livacich or the agreement which the court found to exist, citing Boone v. Templeman, 158 Cal. 290, 297 [110 P. 947, 139 Am. St. Rep. 126], and Bank of America v. Ries, 128 Cal. App. 75, 77 [16 PaCal.2d 1018]. It appears that neither the heirs of Floretta Fraser, deceased, nor the administratrix of her estate knew, nor were they informed of the nature of the tenancy of appellants. It would therefore be a mechanical view of the law if it, previous to the filing of the action for ejectment, required the administratrix, under the circumstances here related, to demand performance of a claimed lost contract which she never knew existed. She likewise had no means of knowing the terms of it until the trial court found that one did exist and declared its terms after the filing of the answer and cross-complaint. There would be no duty on the part of the administratrix to tender a deed when she, as administratrix, had no legal authority so to do. (Sec. 850, Prob. Code; Mayer v. West, 96 Cal. App. 31 [273 P. 849].) The possession, therefore, became wrongful as against the respondent administratrix and no demand for possession was necessary on the part of the respondent before bringing the action of ejectment. (Joy v. McKay, 70 Cal. 445 [11 P. 763].) It appears further that a demand for payment of the amount due under the contract or option as found by the court would have been futile because of one fact, at least, that the trust deed had been foreclosed on the hotel property, through the fault of appellants, for nonpayment of interest, and therefore the payment of that amount as a condition precedent would be not only exorbitant compared to the value of the property here involved but would be a condition practically *723 impossible of performance at that time. Under such circumstances, a demand would have been unnecessary. (Bruschi v. Quail Min. etc. Co., 147 Cal. 120 [81 P. 404]; Briles v. Paulson, 170 Cal. 408 [149 P. 804].) Appellants having failed to meet the burden cast upon them to prove their right of possession, the trial court, notwithstanding the errors complained of, was fully justified in its ultimate finding in favor of respondent and in entering judgment thereon. Judgment affirmed. Barnard, P. J., and Marks, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/683623/	41 F.3d 1500 U.S.v.Gutierrez NO. 93-1639 United States Court of Appeals,Second Circuit. Sept 02, 1994 Appeal From: S.D.N.Y. 92-cr-666 1 AFFIRMED.	01-03-2023	04-17-2012
https://www.courtlistener.com/api/rest/v3/opinions/1978992/	211 B.R. 399 (1997) In re Pearl Russell MILLER, Doris Ann Miller, Debtors. Bankruptcy No. 96-41186-7. United States Bankruptcy Court, D. Kansas. August 5, 1997. Richard F. Hayse, Morris Laing Evans Brock & Kennedy, Chtd., Topeka, KS, for Richard F. Hayse. Tom R. Barnes, Stumbo Hanson & Hendricks, L.L.P., Topeka, KS, for debtors. Darcy D. Williamson, Topeka, KS, trustee. 400 MEMORANDUM OF DECISION JAMES A. PUSATERI, Chief Judge. This case is before the Court on the objection of creditor Lyons State Bank to the application for compensation filed by the debtors' attorney. Lyons State Bank (Lyons) appears by counsel Richard F. Hayse of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Topeka, Kansas. The debtors appear by counsel Tom R. Barnes II of Stumbo, Hanson & Hendricks, L.L.P., of Topeka, Kansas. The Court has reviewed the relevant pleadings, considered the arguments of counsel, and is now ready to rule. The facts are not disputed. This personal chapter 7 bankruptcy case was complicated by the debtors' ownership and operation of a service station and a farm, and one of the debtors' shared ownership with her stepmother of certain real estate. The debtors paid their attorney $680 on or before the day when they filed for bankruptcy and $125 since then. Their attorney has submitted an itemized bill asserting that he performed services worth $3,423.91 which benefitted the estate or were necessary to the administration of the case. He wants to apply to these fees the $805 the debtors have paid, and be allowed an administrative expense for the $2,618.91 balance. Lyons does not dispute the documentation or reasonableness of the time counsel spent performing the services, and has not questioned counsel's assertion the services benefitted the estate or were necessary to administer the case. Instead, it argues only that fees for a chapter 7 debtor's attorney are no longer allowable under 11 U.S.C.A. § 330(a)(1), following its amendment in 1994. DISCUSSION AND CONCLUSIONS Before 1994, section 330 of the Bankruptcy Code read in pertinent part: (a) After notice to any parties in interest and to the United States trustee and a hearing, and subject to sections 326, 328, and 329 of this title, the court may award to a trustee, to an examiner, to a professional person employed under section 327 or 1103 of this title, or to the debtor's attorney (1) reasonable compensation for actual, necessary services rendered by such trustee, examiner, professional person, or attorney, as the case may be, and by any paraprofessional persons employed by such trustee, professional person, or attorney, as the case may be, and on the nature, the extent, and the value of such services, the time spent on such services, and the cost of comparable services other than in a case under this title; and (2) reimbursement for actual, necessary expenses. (Underline added). In the Bankruptcy Reform Act of 1994, effective October 22 of that year, Congress rewrote § 330(a) so that it now contains six subsections. See Pub.L. No. 103-394, § 224(b) (Oct. 22, 1994), reprinted in 1994 U.S.C.C.A.N. (108 Stat.) 4106, 4130-31. The first new subsection follows much of the language of the old § 330(a), and reads: (a)(1) After notice to the parties in interest and the United States trustee and a hearing, and subject to sections 326, 328, and 329, the court may award to a trustee, an examiner, a professional person employed under section 327 or 1103- (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney and by any paraprofessional person employed by any such person; and (B) reimbursement for actual, necessary expenses. Fees allowed under this provision become administrative expenses of the bankruptcy estate under § 503(b)(2). The amendment of § 330(a) has generated disputes like the one now before the Court because it omitted the phrase "or to the debtor's attorney" which is underlined in the above quotation of the old statute. Creditors like Lyons argue Congress omitted the phrase in order to preclude the fees of debtors' attorneys from qualifying as administrative expenses. The Court would emphasize that Congress omitted the phrase from a newly-worded provision rather 401 than affirmatively deleting the words from the existing provision. Some courts have accepted Lyons's view. At least two of them have relied on one of the other new subsections Congress added to § 330(a), which provides: (4)(A) Except as provided in subparagraph (B), the court shall not allow compensation for- (i) unnecessary duplication of services; or (ii) services that were not- (I) reasonably likely to benefit the debtor's estate; or (II) necessary to the administration of the case. (B) In a chapter 12 or chapter 13 case in which the debtor is an individual, the court may allow reasonable compensation to the debtor's attorney for representing the interests of the debtor in connection with the bankruptcy case based on a consideration of the benefit and necessity of such services to the debtor and the other factors set forth in this section. In In re Kinnemore, 181 B.R. 520, 521 (Bankr.D.Idaho 1995), the court ruled the omission of "the debtor's attorney" from (a)(1) coupled with (a)(4)(B)'s provision for paying chapter 12 and 13 debtors' attorneys meant a chapter 7 debtor's attorney could no longer be paid from the bankruptcy estate. About the same time, another court reached a similar conclusion, and added that a retainer paid to the chapter 7 debtor's attorney prepetition could not be applied to postpetition fees and had to be turned over to the bankruptcy estate. In re Friedland, 182 B.R. 576, 577-80 (Bankr.D.Colo.1995). Without offering any additional analysis of the 1994 amendments, two Oregon bankruptcy judges have agreed that the omission of "the debtor's attorney" precludes allowing fees for a chapter 7 debtor's attorney as an administrative expense. In re Fassinger, 191 B.R. 864, 865 (Bankr.D.Or.1996) (Higdon, J); In re Century Cleaning Servs., Inc., 202 B.R. 149, 151 (Bankr.D. Or.1996) (Perris, J). The Century Cleaning court, noting Friedland had not explained why the attorney in that case did not have a lien, did rule that the debtor's attorneys had a valid lien under applicable state law on a prepetition retainer and could apply the retainer to their postpetition fees since the lien had not been avoided by the chapter 7 trustee. 202 B.R. at 151-53. This Court cannot agree with these courts' view of (a)(4)(B). The provision does not generally make administrative expenses of all the fees charged by a chapter 12 or 13 debtor's attorney but instead establishes an exception to the general rule set out in (a)(4)(A) that courts may not allow fees for services that involved unnecessary duplication or were not either reasonably likely to benefit the estate or necessary to administration of the case. That is, (a)(4)(A) limits the fees allowable as administrative expenses under (a)(1), but (a)(4)(B) makes fees for services provided for the debtor's sole benefit allowable for chapter 12 and 13 debtors' attorneys. Thus, if the omission of "the debtor's attorney" from (a)(1) means debtors' attorneys do not qualify for administrative expenses under that provision, that exclusion applies to services provided by a debtor's attorney in chapters 12 and 13 as well as chapters 7 and 11 that benefitted the estate but not the debtor or were necessary for administration of the case but not to represent the interests of the debtor. It certainly seems strange to think that Congress would have intentionally chosen to permit chapter 12 and 13 estates to pay for attorney services that benefitted the debtor but not those that benefitted the estate or were necessary to the administration of the case. Besides the anomaly created if (a)(1) precludes any bankruptcy estate from paying a debtor's attorney for services that benefit the estate or are needed for its administration while (a)(4)(B) clearly allows chapter 12 and 13 estates to pay for those that helped only the debtor, certain other questions prevent the Court from accepting the simplistic conclusion that Congress intended generally to preclude bankruptcy estates from paying fees for debtors' attorneys. First, the initial list in (a) of covered types of people does not contain the conjunction "or" before "a professional person" which one would expect to find if that phrase were intended to be the last one in the list. Second, the list of covered 402 types in (a)(1) includes "attorney" while the list in (a) does not. Under the old statute, the word "attorney" in the second list clearly referred back to "the debtor's attorney" in the first list, but in the new statute, the word introduces a new type of person in a grammatically awkward (if not incorrect) way, making the second list contain one more type than the first list does. Both these drafting errors indicate either "the debtor's attorney" was mistakenly omitted from the first list or else other changes made necessary by the phrase's deliberate omission were mistakenly not made. Third, § 329 allows an attorney to be paid prepetition by the debtor "for services rendered or to be rendered in contemplation of or in connection with" a bankruptcy case, subject to court review of the fees for reasonableness, yet as the court in Friedland recognized, such a retainer would be property of the estate and perhaps could not be applied to the attorney's postpetition fees if § 330(a) precludes allowing those fees as an administrative expense. But see Century Cleaning, 202 B.R. at 151-53. These problems lead the Court to conclude the amended § 330(a) is ambiguous, and cannot be analyzed as if Congress had simply deleted the phrase "or to the debtor's attorney" from the prior version of the statute. A leading bankruptcy treatise suggests that the omission of the phrase from the amended statute was inadvertent, and that construing the amendment to preclude administrative expense treatment of fees for debtors' attorneys except as provided in (a)(4)(B) would represent a fundamental change in the law which was not mentioned in the legislative history of the amendment. 3 Collier on Bankruptcy, ¶ 330.LH[5] at 330-76 to -77 (Lawrence P. King, et al., ed., 15th ed. rev. 1997). None of the four cases discussed above which ruled debtors' attorneys could no longer be paid under § 330(a) cited any legislative history that indicated Congress intended generally to exclude debtors' attorneys from the provision or even mentioned that the phrase "the debtor's attorney" had been omitted. In fact, only one of the cases referred to the legislative history at all, and that one declared, "There is no legislative history to guide the interpretation of these particular amendments to Section 330." Friedland, 182 B.R. at 578. In Dewsnup v. Timm, 502 U.S. 410, 419-20, 112 S. Ct. 773, 779, 116 L. Ed. 2d 903 (1992), the Supreme Court said: When Congress amends the bankruptcy laws, its does not write "on a clean slate." See Emil v. Hanley, 318 U.S. 515, 521 [63 S.Ct. at 690-91] (1943). Furthermore, this Court has been reluctant to accept arguments that would interpret the Code, however vague the particular language under consideration might be, to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history. See United Savings Assn. v. Timbers of Inwood Forest Associates, 484 U.S. 365, 380, 108 S. Ct. 626 [635], 98 L. Ed. 2d 740 (1988). See also Pennsylvania Dept. of Public Welfare v. Davenport, 495 U.S. 552, 563, 110 S. Ct. 2126 [2133], 109 L. Ed. 2d 588 (1990); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 245, 109 S. Ct. 1026 [1032], 103 L. Ed. 2d 290 (1989). Of course, where the language is unambiguous, silence in the legislative history cannot be controlling. But, given the ambiguity here, to attribute to Congress the intention to grant a debtor the broad new remedy against allowed claims to the extent that they become "unsecured" for purposes of § 506(a) without the new remedy's being mentioned somewhere in the Code itself or in the annals of Congress is not plausible, in our view, and is contrary to basic bankruptcy principles. Thus, in light of the ambiguities in the text, the absence from the legislative history of any mention of the omission of "the debtor's attorney" from the reworded § 330(a)(1) should be taken as an indication that Congress did not intend to change the prior practice of allowing fees to debtors' attorneys as well as other professionals in appropriate circumstances. The only circuit court to consider the revised § 330(a) to date stated it was inclined to agree with a slightly earlier revision of Collier which also asserted that the omission of "the debtor's attorney" was inadvertent, but declined to rest its holding on that conclusion, saying instead: 403 Where the benefits of services to the estate are the same, it makes no sense to treat performances of such benefits by debtors' attorneys differently than performances by other retained professionals. This accords with "the statute's aims that attorneys be reasonably compensated and that future attorneys not be deterred from taking bankruptcy cases due to a failure to pay adequate compensation." UNR Indus., [Inc] 986 F.2d [207,] 210 [(7th Cir. 1993)]. As reasoned in Collier, if the services of a debtor's attorney "are reasonably likely to benefit the debtor's estate, they should be compensable." 2 Collier ¶ 330.04 at 330-43 [(15th ed 1995)]. In re Ames Dept. Stores, Inc., 76 F.3d 66, 71-72 (2d Cir.1996). Since the 1994 amendments, one other court has allowed the fees of a chapter 11 debtor's attorney which were incurred after a trustee was appointed, distinguishing Friedland on the ground such an attorney is more like a chapter 12 or 13 debtor's attorney than a chapter 7 debtor's attorney. In re Pro-Snax Distributors, Inc., 204 B.R. 492, 495-97 (Bankr.N.D.Tex.1996). Together, these authorities and the anomaly and ambiguities in the text indicate amended § 330(a) should not be construed as Lyons has asked this Court to do. Instead, the omission of "the debtor's attorney" should be viewed as an inadvertent error not intended to preclude the fees of debtors' attorneys from qualifying for administrative expense treatment under the standards set forth in § 330(a)(4)(A). Consequently, the Court concludes Congress did not intend to change the prior law allowing debtors' attorneys to be compensated under § 330(a) but only to modify or clarify the standards under which their fees can be allowed.[1] The Court has reviewed the fees sought and generally agrees with the debtor's attorney that the services provided were reasonably likely to benefit the estate or were necessary to the administration of the case. However, the Court finds $446.50 has been charged for services concerning lien avoidance, exemptions, and stay relief, matters which benefitted only the debtors, and are not allowable under § 330(a). These fees are payable by the debtors, though, and since they have paid more than that amount, the Court will not reduce the amount allowed under § 330(a) below the balance still owed to the attorney. On the other hand, counsel has charged for faxes not shown to be necessary and photocopying not shown to be other than a part of ordinary office overhead. The $84.45 included for these expenses is not allowable under § 329 against the debtors or under § 330(a) against their estate. The $2,618.91 balance sought must therefore be reduced to $2,534.46, and that amount will be allowed under § 330(a) and will become an administrative expense of the estate under § 503(b)(2). The foregoing constitutes Findings of Fact and Conclusions of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by FRBP 9021 and FRCP 58. NOTES [1] Two bills are presently pending before the House of Representatives that would add "or the debtor's attorney" to § 330(a). See HR 120, 105th Cong. (1997), the "Bankruptcy Law Technical Corrections Act of 1997," and HR 764, 105th Cong. (1997), "A bill to make technical corrections to title 11." As indicated by the names of the bills, their sponsors view such an addition as a technical amendment, not a substantive change. While pending legislation is not a great indicator of the meaning or intent of a past enactment, these bills provide some additional support for this Court's interpretation of § 330(a).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2592656/	57 N.Y.2d 66 (1982) In the Matter of the Bronx County Grand Jury Investigation into the Attempted Murder of Clara Vanderbilt. Jonathan L. Rosner, Individually and as Attorney for Richard G. Rosen, et al., Appellants-Respondents; Pat Hickey, as Clerk of the Supreme Court of the State of New York, Bronx County, Respondent-Appellant. (And Another Proceeding.) Court of Appeals of the State of New York. Argued May 6, 1982. Decided July 1, 1982. Jonathan L. Rosner, appellant-respondent pro se, and for another, appellants-respondents. Mario Merola, District Attorney (Steven R. Kartagener and Alan D. Marrus of counsel), for respondent-appellant. Judges JONES, WACHTLER, FUCHSBERG and MEYER concur with Chief Judge COOKE; Judge JASEN concurs in part and dissents in part and votes to modify in a separate opinion; Judge GABRIELLI taking no part. 70Chief Judge COOKE. The marital privilege may protect from discovery a tape recording left to one spouse by the other, even though the tape apparently was prepared in contemplation of suicide. Having attached, the marital privilege also precludes examining the tape for deletions or erasures. In addition, a tape recording having left the maker's possession, but which is regained without disclosure of its contents and delivered to the maker's attorney in order to obtain legal advice, is protected by a combination of the Fifth Amendment privilege against self incrimination and the attorney-client privilege. BACKGROUND Late on December 31, 1981, Clara Vanderbilt told an acquaintance that her friend Dr. Richard Rosen had requested that she meet him at his office at Montefiore Hospital, where they both worked. A short time later, Vanderbilt was found outside Dr. Rosen's office, unconscious from a severe bludgeoning about the head. Extensive surgery succeeded in preventing her death. By January 3, 1982, Rosen knew he was a target of the assault investigation. On that day, he visited Vanderbilt at the hospital and learned that she had received a favorable prognosis. Rosen went to his office, made a tape recording at his desk, and then left the hospital. That evening, he attempted suicide at his house. Lifesaving emergency care was given to him at White Plains Hospital. 71After accompanying her husband to the hospital, Barbara Rosen returned to their home in the late evening of January 3. In the study, she found a cassette tape addressed to "Barbara" ("Tape No. 1"). Mrs. Rosen did not listen to the cassette, however. The next day, January 4, Mrs. Rosen spoke to Arthur Olick, a neighbor and close friend of the Rosens who is an attorney. At this time, Dr. Rosen was still hospitalized and unconscious. After the wife related all the recent events, Olick expressed the need to retain counsel for Dr. Rosen and advised Mrs. Rosen to act for her husband. Mrs. Rosen told Olick of the tape she had found in the study and that she wanted to throw it away because of her aversion to listening to it. Olick instructed her to give the tape to him instead, to answer truthfully any questions about its existence, and to refer all inquiries to him. Olick also suggested that Dr. Rosen's hospital office be examined for any other notes or tapes. Mrs. Rosen telephoned her husband's superior and requested that he look for such articles. A second cassette then was retrieved from Dr. Rosen's desk and delivered to Mrs. Rosen ("Tape No. 2"). Mrs. Rosen wrapped both cassettes and left them in Olick's mailbox on the afternoon of January 4. After the doctor regained consciousness, he hired Jonathon Rosner to represent him. Mrs. Rosen took the stillsealed tapes from Olick and delivered them to Rosner by handing them to Rosner's 15-year-old son. In the course of the police investigation, Mrs. Rosen voluntarily revealed the existence of Tape No. 1 and Rosner's possession of it. Rosner refused to comply either with a Grand Jury subpoena duces tecum seeking the tape or with an ex parte court order directing that the tape be surrendered under seal to the court for the purpose of protecting the tape's integrity. At a hearing on January 27, on an order to show cause and on a motion to quash the subpoena, Rosner admitted the existence and his possession of Tape No. 2. The court declined to rule whether the claimed privileges attorney-client, marital, and that against self incrimination protected the two tapes from discovery by subpoena. Instead, the court found Rosner to 72 be in contempt, but allowed him until the morning of January 29 to deliver the tapes to the court for safekeeping. On January 28, Rosner and an Assistant District Attorney stipulated before a single Appellate Division Justice that the tapes would be surrendered to Supreme Court as ordered, but under seal. This was done on January 29. On the same day, a subpoena duces tecum was also served on Rosner for Tape No. 2. On February 1, Rosner and Dr. Rosen commenced an article 78 proceeding to force the tapes' return. The Assistant District Attorney moved for the tapes' release to the Grand Jury. The Trial Judge declared that he would hear both applications on February 3 and, in the interim, he would listen to the tapes. On February 3, the Assistant District Attorney served papers opposing the motion to quash and also another Grand Jury subpoena duces tecum seeking "any and all tapes, documents or written communications made by Mr. Rosner [sic] that are relevant to this investigation." Following the hearing, the Trial Judge, without discussing the privilege claims, ruled that the subpoenas should be quashed because the tapes were irrelevant to the Grand Jury investigation into Vanderbilt's assault, a ground not raised by petitioners. On appeal, the Appellate Division unanimously reversed. It ruled that the contents of Tape No. 1 the tape to Mrs. Rosen were protected by the marital privilege. In response to a claim of possible tampering, however, the Appellate Division ordered that Tape No. 1 be scientifically tested to ascertain whether it had "been altered in any manner". As to Tape No. 2, the court conclusorily stated only that "no privilege whatsoever can attach" and ordered its full disclosure to the Grand Jury, as well as any scientific analysis the Grand Jury might deem appropriate. TAPE NO. 1 Petitioners Dr. Rosen and Rosner argue that Tape No. 1 is protected from discovery by virtue of the marital privilege, and that this protection extends beyond the tape's 73 contents so as to bar any scientific examination for tampering. The marital privilege provides that "[a] husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage" (CPLR 4502, subd [b]). Not protective of all communications, the privilege attaches only to those statements made in confidence and "that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship" (Poppe v Poppe, 3 N.Y.2d 312, 315; see, also, Prink v Rockefeller Center, 48 N.Y.2d 309, 314; Fisch, New York Evidence [2d ed], § 597, p 380). Whether a statement comes within the marital privilege is a preliminary question for the court, and involves a determination that must be made on an ad hoc basis (see Poppe v Poppe, supra, p 315; Fisch, New York Evidence, p 381; 4 Bender's, New York Evidence [1981 ed], § 245.03, subd [1], par [d], p 446.9). The initial inquiry then is whether Dr. Rosen was induced by the marital relation to prepare Tape No. 1. Communications that would have been made regardless of the marriage's existence are not protected (see Parkhurst v Berdell, 110 N.Y. 386, 393-394). Nor are communications made without reliance on the marital relation or that are aimed at destroying the marriage (see Poppe v Poppe, 3 N.Y.2d 312, 315, supra; People v McCormack, 278 App Div 191, 196-197, affd 303 N.Y. 782). Respondent argues that Tape No. 1 is not protected by the marital privilege because, as a suicide message, it was not intended to be received during the marriage and was made in contemplation of destroying it. This argument is unpersuasive. Whether the communication was meant to be received after death is irrelevant; the concern is whether the statement was made because of the marital relation (cf. New York Life Ins. Co. v Ross, 30 F.2d 80, 81 [letter to wife found with will held privileged]). To that extent, the communication is made "during marriage" for the purpose of the privilege. Nor is a suicide note the sort of communication excluded from the privilege's scope as aimed at destroying the marriage. That exception refers to 74 the nature of the statement itself (see, e.g., Poppe v Poppe, 3 N.Y.2d 312, supra [wife's admission of adulterous affairs destructive of marriage and thus not privileged]). A suicide note to one's spouse may be a last attempt to preserve the affection that gave rise to the marriage and to explain the reason for the drastic act. Nothing in the record suggests any reason for concluding that Dr. Rosen's tape to his wife was not induced by the marital relationship. Thus, the tape must be considered as satisfying the first condition of the privilege. The next issue in determining if the privilege should prevent disclosure is whether Dr. Rosen's statement to his wife, made via the cassette recording, was and remains "confidential". No question can be raised that Dr. Rosen made the tape and "delivered" it to his wife outside the presence of any third parties. Thus, at the time Mrs. Rosen discovered the tape, its message was unknown to anyone outside the marriage and so remained confidential for the purpose of the marital privilege. That Tape No. 1 passed through the hands of Olick and Rosner's son, third parties with no justifiable interest in becoming privy to the marital privilege, did not destroy that privilege.[1] The privilege falls only when the substance of a communication, and not the mere fact of its occurrence, is revealed to third parties (see People v Hayes, 140 N.Y. 484, 495-496; cf. Prink v Rockefeller Center, 48 N.Y.2d 309, 313, supra). Neither person through whose hands the tape passed listened to the tape, but instead learned only of its existence. Nor did Mrs. Rosen's disclosure to the police reveal anything more than that the tape had been made. Indeed, to date, only Dr. Rosen and the Justices of the lower courts know exactly what message is contained in Tape No. 1. The communication's confidentiality must be deemed intact. The Appellate Division expressly found the privilege applicable after listening to the tape. As such, there is no 75 basis for the order that the tape be scientifically examined. The request for such an order arose from the expressed concern that Tape No. 1 had been tampered with, particularly through deletions. Once it is determined that the contents of the tape were privileged, it is irrelevant whether there have been erasures or other deletions. What is not said and whether deletions have been made are as much a part of a communication's "substance" as are the statements actually made.[2] In summary, Tape No. 1 was made by Dr. Rosen for his wife as a communication made in confidence and induced by the marital relationship. It is, therefore, protected by the marital privilege both as to its contents and as to examination for deletions. TAPE NO. 2 Petitioners challenge the compelled production of Tape No. 2 by asserting a combination of the attorney-client privilege and the Fifth Amendment privilege against self incrimination.[3] In essence, petitioners claim that material protected in a client's hands should not lose that protection when possession is transferred to an attorney for the purpose of seeking legal advice. This court's analysis starts with the recognition that Rosner may not directly assert any Fifth Amendment claim of protection held by Dr. Rosen. The Fifth Amendment states that "[n]o person * * * shall be compelled in any criminal case to be a witness against himself" (US Const, 5th Amdt). Rosner, against whom the coercive power of the subpoena is directed, would not be incriminating himself by any production of the tape. There being no self incrimination involved, Rosner has no Fifth Amendment right; nor may he assert the right on behalf of his client, against whom no compulsion has been directed (see Fisher v United States, 425 US 391, 396-401). 76This does not end the inquiry, however. An attorney may rely on the attorney-client privilege to prevent discovery of materials that would not have been discoverable if in the client's hands (id., at p 404). This entails a two-pronged review. First, it must be determined whether the material sought was received by the attorney under circumstances giving rise to the attorney-client privilege (id., at pp 402-405). Second, if the attorney-client privilege attaches, attention is then directed to whether the material would be protected by some privilege had it remained in the client's possession (id., at p 405). The attorney-client privilege generally extends to any "confidential communication made between the attorney or his employee and the client in the course of professional employment" (CPLR 4503, subd [a]). The privilege is intended to foster openness between counsel and client so that legal problems can be thoroughly and accurately analyzed (see 8 Wigmore, Evidence [McNaughton rev, 1961], § 2291). Not all communications are covered, however. Only those disclosures "necessary to obtain informed legal advice" fall within the scope of the privilege (Fisher v United States, 425 US 391, 403, supra). Tape No. 2 was delivered to Rosner in contemplation of the pending Vanderbilt investigation. It was certainly necessary for Rosner to obtain it in order to render complete legal advice. But respondent urges that, in light of the number of people through whose hands Tape No. 2 pasqed, there was no confidential communication within the meaning of CPLR 4503 (subd [a]). While it is true that the attorney-client privilege does not attach unless there is a "confidential communication" between counsel and his or her client, this does not require that all aspects of the communication, including its topic, must be confidential for the privilege to attach. Rather, the pertinent "confidence" arises from the attorney-client relationship and the privacy of the conversation or communication to the attorney. By way of example, a husband may consult an attorney in a divorce proceeding; although the wife may very well be aware of the subject matter of the husband's conversation, she will be unable to discover the 77 details of his discussion with his attorney from his attorney. Moreover, a client's mere intent to disclose to third persons the substance of the discussion held with the attorney does not mitigate the privilege. There must be actual disclosure, otherwise the confidence arising from the attorney-client relationship has not been breached. In the present controversy, Dr. Rosen has lost any privilege he may have had as to the fact that he made Tape No. 2. As to the tape's contents, however, Dr. Rosen has lost nothing. Notwithstanding his earlier intent to direct the tape's message to others, such was never done. That the tape passed through the hands of his colleagues, his wife, his friend Olick, and his attorney's son does not operate to destroy the confidentiality of the tape's message because none of these persons ever heard his words.[4] When Rosner finally received the tape, he received it with its contents undisclosed. Whatever the tape's initial purpose and intended audience, it ultimately was uttered only to Rosner by his client who was seeking legal advice and outside the presence of any third party with no intention that it be passed to another (see Fisher v United States, 425 US 391, 402-405, supra; cf. Rosseau v Bleau, 131 N.Y. 177, 183-184).[5] Thus, to the extent that Dr. Rosen's "communication" with Rosner is defined in terms of the tape's message, it remains confidential made in the attorney-client relationship and protected by the privilege. Having concluded that the attorney-client privilege attaches, it must now be determined whether Tape No. 2 would be protected had it remained in Dr. Rosen's possession (see Fisher v United States, 425 US 391, 405, supra). That is, could Dr. Rosen have asserted rights under the Fifth Amendment to prevent the Grand Jury from obtaining the tape had the subpoena been directed to him personally? 78Under the holding in Fisher v United States (425 US 391, supra), a document is protected "if the act of producing it results in compelled testimonial self-incrimination" (Note, Constitutional Law Taxpayer's Fifth Amendment Privilege Against Self-Incrimination Fisher v United States, 18 BC Ind & Com LR 998, 1008 [emphasis added]). All three elements must be present for the Fifth Amendment's protection to be implicated.[6] The use of the subpoena power, of course, provides the requisite governmental coercion to make production of the tape compelled. And it must be assumed that the tape's content is self incriminatory. The question here is whether "testimonial evidence" is involved. Testimonial evidence is that which communicates the witness' ideas or thoughts, that exposes the witness' mental state or thought process (see United States v Beattie, 541 F.2d 329, 331; Comment, No Fifth Amendment Privilege for Accountant-Prepared Tax Records in Attorney's Possession, 31 Ark L Rev 152, 155). Not only is immediate oral testimony covered, but also books and records (see People v Copicotto, 50 N.Y.2d 222, 228-229; United States v Beattie, supra; 8 Wigmore, Evidence [McNaughton rev, 1961], §§ 2263, 2264; Richardson, Evidence [10th ed Prince], § 526, p 519; Fisch, New York Evidence [2d ed], § 691, p 390; Comment, 31 Ark L Rev 152, 155).[7] 79To assert successfully a claim of Fifth Amendment privilege with respect to the production of evidence, the evidence itself must be testimonial and the act of production also must include some testimonial quality (see Fisher v United States, 425 US 391, 409-411, supra; Note, 18 BC Ind & Com LR 998, 1009-1010). In the present controversy, both the evidence sought and its production, if made by Dr. Rosen, are testimonial in nature. A tape cassette is clearly testimonial in that it is an aural record of the accused's communication; only live testimony could be any more personal. Moreover, production of the tape by Dr. Rosen would be testimonial by virtue of his authentication, express or implied, of the tape (see 8 Wigmore, § 2264, p 380). By producing Tape No. 2 in response to a subpoena, Dr. Rosen would not only express his belief that this is the tape sought by the Grand Jury, but would be vouching for the circumstances of its preparation, its accuracy, and the conclusions drawn from it. Thus, there is a testimonial element to the production of Tape No. 2 (cf. Fisher v United States, 425 US 391, 412-413, supra; 8 Wigmore, § 2264, p 380). Although it is concluded that the Fifth Amendment protection is available, this conclusion is grounded on the assumption that Dr. Rosen gave the tape to Rosner. That is a factual question that appears not to have been determined below. For Dr. Rosen's Fifth Amendment rights to be protected by Rosner through the attorney-client privilege, the tape must have come back into Dr. Rosen's actual or constructive possession (see United States v Beattie, 541 F.2d 329, 331, supra). Thus, a question remains whether Mrs. Rosen was acting as her husband's agent when she took the tape from Olick and transferred it to Rosner.[8] If so, the tape should be protected. CONCLUSION Under all the circumstances, Tape No. 1, prepared by Dr. Rosen for his wife, is completely protected by the 80 marital privilege. Arising out of and made in reliance on the confidence of the marital relation, the tape can be neither heard nor examined for deletions. It is further held that, when the attorney-client privilege obtains, counsel cannot be compelled to deliver material that would be privileged in the client's hands. This does not mean that an attorney may serve as a repository for any incriminating evidence that might be held by the client, such as physical evidence of a crime (see Genson v United States, 534 F.2d 719, 727). But when, as here, the evidence sought is inherently testimonial and its delivery was for the purpose of seeking legal advice rather than merely concealing evidence, that evidence falls within the privilege.[9] As noted, Dr. Rosen can assert his Fifth Amendment privilege only if Tape No. 2 came back into his actual or constructive possession. Consequently, there must be a hearing to ascertain the capacity in which Mrs. Rosen was acting when she regained the tape from Olick and delivered it to Rosner. If Mrs. Rosen is found to have been acting as her husband's agent, then Dr. Rosen's rights remain intact and Tape No. 2 is privileged. Accordingly, the order of the Appellate Division should be modified, without costs, and the matter remitted to Supreme Court, Bronx County, for further proceedings in accordance with this opinion, and, as so modified, the order should be affirmed. JASEN, J. (concurring in part and dissenting in part). I concur in the majority's determination that Tape No. 1 is subject to the marital privilege and cannot be obtained by the Grand Jury either to evaluate its contents or condition. I cannot agree, however, that, on the record before us, it is proper to quash the Grand Jury's subpoena as to Tape No. 2. Therefore, I dissent from that portion of the majority's decision. 81The Appellate Division, after listening to Tape No. 1, found it to contain statements by Dr. Rosen which were "made in reliance on the marital relationship and would not have been made but for this relationship." (87 AD2d 528.) That court also found that the tape remained, despite being given to others for safekeeping or transfer, confidential. The record indicates that the tape was marked for Mrs. Rosen and was left in the Rosen home where she would find it. There is no allegation that anyone discovered or handled it before she did. Before she forwarded it to attorney Olick, she sealed it in a package. I would agree that the record clearly supports the determination that this was a confidential communication made in the marital relationship. It is, thus, proper to protect that tape in all respects. As to Tape No. 2, which was left by Dr. Rosen for his medical colleagues, I have no dispute with the majority's initial analysis that attorney Rosner cannot assert Dr. Rosen's Fifth Amendment rights. The law is clear that the Fifth Amendment is a personal right that cannot be asserted by third parties. (See, e.g., Couch v United States, 409 US 322; Fisher v United States, 425 US 391, 396-401.) Rosner, to whom the subpoena is directed, clearly has no Fifth Amendment claim of his own to raise since what he is being compelled to produce are not even arguably his private papers or self incriminating. Thus, except for the existence of the attorney-client privilege, Rosner could raise no Fifth Amendment claim. It is at this point that I differ with the majority's construction of the facts and the implications drawn therefrom. Rosner asserts that the attorney-client privilege attaches because the tapes were given to him by Mrs. Rosen at her husband's direction and for the purpose of obtaining legal advice. But Rosner does not claim that he had ever listened to either of the tapes in order to dispense legal advice. Given this testimony, I can conclude only that the client disclosed nothing more than the existence of the tape to his attorney. Since the tape has been held at different 82 times by at least five persons other than Dr. Rosen, its existence can hardly be deemed confidential. It is likewise improper to conclude, on the basis of this record, that the tape was given for legal advice. While attorney Rosner asserts that it was given to him for legal advice, he offers nothing in support of this assertion. It is difficult to envision what type of legal advice could be obtained by giving one's attorney a cassette tape which the attorney does not listen to. The purpose of the attorney-client privilege is to "foster openness between counsel and client so that legal problems can be thoroughly and accurately analyzed (see 8 Wigmore, Evidence [McNaughton rev, 1961], § 2291)." (Majority opn, at p 76.) In this case, it would appear quite obvious that the tapes were given to the attorney not to allow a thorough analysis of the contents of the tapes in order to give counsel to the client's legal problems but, rather, an attempt to secure the tape from any investigation, including that of the Grand Jury. Indeed, the existence of this second tape was not even known to the investigators or the Grand Jury until Rosner appeared in opposition to the Grand Jury's subpoena of Tape No. 1. This, of course, is not to say that any statements made by Dr. Rosen as to what was on the tape would not be privileged. Such communication, assuming it was done in confidence, would relate to Dr. Rosen's legal problems and be subject to the attorney-client privilege. But I cannot agree with invoking the attorney-client privilege when the attorney serves as nothing more than a repository for potentially incriminating evidence. It is not the purpose of the attorney-client privilege to thwart a criminal investigation and invoking it to preclude a Grand Jury from carrying out its constitutional responsibilities of investigating serious crimes is, in my opinion, improper. Even if Rosner did support his claim to have given legal advice about the existence of the tape, I would still be troubled by whether or not this would amount to a confidential communication to his attorney. Unlike the facts surrounding Tape No. 1, the facts surrounding the making and handling of Tape No. 2 give no assurance that it has remained confidential. The contents of the tape were intended 83 for Dr. Rosen's medical colleagues and left on his desk at the hospital. There are no facts indicating that at the time Dr. Rosen left it on his desk, he intended the contents of the tape to remain confidential or that he took any precautionary steps to insure that no one would listen to it. Indeed, it appears that by leaving it plainly visible on his desk, he intended his medical colleagues to listen to it after his suicide. Mrs. Rosen, however, intervened by telephoning her husband's superior at the hospital, who upon discovering the cassette, returned it to her. It was at that point that Mrs. Rosen wrapped the cassette and gave it to attorney Olick, who held it until Dr. Rosen retained Rosner. Olick then returned the tape to Mrs. Rosen, who forwarded it to Rosner by giving it to his teen-aged son. Given these multiple conveyances and the initial manner in which the tape was left, I cannot agree with the majority's conclusion (at p 77) that "[w]hen Rosner finally received the tape, he received it with its contents undisclosed." Although it is possible that no one, as Rosner asserts, even listened to the tape, it is equally possible that any number of people, including the medical colleagues for whom it was intended, did listen to the tape. The majority dismisses this problem by likening the cassette to a letter in a sealed envelope where those who convey it learn only of its existence while the contents remain private. I think a more appropriate analysis would be to a letter in an unsealed envelope. It is, of course, possible that no one among those passing the letter would look into the unsealed envelope and read its contents, but it is equally possible that any number of them would do so. Rosner had entered little into the record other than his own statement that his son told him he did not listen to the tape to support his contention that the tape remained confidential. Notably missing is any affidavit from the chief of surgery who initially recovered the tape from Dr. Rosen's desk at the hospital. Significantly, neither court below addressed this question. Even were I to subscribe to the majority's opinion that the attorney-client privilege has been properly asserted, I would be compelled to disagree with their conclusion that 84 Tape No. 2 is protected by Dr. Rosen's Fifth Amendment rights. The Fifth Amendment "protects a person only against being incriminated by his own compelled testimonial communications." (Fisher v United States, supra, at p 409.) Traditionally, this has been applied to protect a person's private papers which reflect "a private inner sanctum of individual feeling and thought." (Couch v United States, 409 US 322, 327, supra; Murphy v Waterfront Comm., 378 US 52, 55.) The theory being that private thoughts, although written down or otherwise recorded, remain privileged and the government may not obtain access to those thoughts merely because the person had recorded them. It was thus natural to extend the Fifth Amendment privilege against being compelled to testify to cover one's private papers. (See Fisher v United States, supra, at p 420 [BRENNAN, J., concurring].) But just as logically, the Supreme Court has declined to extend the privilege to cover nonprivate records or information. (Bellis v United States, 417 US 85; Andresen v Maryland, 427 US 463.) By applying the Fifth Amendment to this tape recording, the majority assumes that it is a private recording of Dr. Rosen's thoughts. Since it was concededly intended for his medical colleagues, I do not believe this would qualify as a private record. In this regard, it is analogous to business records to which others have access; those are not privileged precisely because they are not private in nature, whether or not anyone has availed himself of the opportunity to review those records. (Bellis v United States, supra, at pp 91-97.) Assuming the Fifth Amendment does apply, I believe that, on the record before us, it is not established that Tape No. 2 is either testimonial or incriminating. At best, this court is faced with divided factual findings by the courts below. But those courts' findings were addressed only as to whether or not the tape was relevant and material to the Grand Jury's investigation. It is unclear, on the basis of those factual findings, whether or not the tape is incriminating. I cannot, therefore, agree with the majority's statement that "it must be assumed that the tape's content is self incriminatory." (At p 78.) 85Nor can I agree with their statement that: "A tape cassette is clearly testimonial in that it is an aural record of the accused's communication". (At p 79.) This appears to assume that all cassette tapes are testimonial in nature. In light of the Supreme Court's repeated refusal to extend the definition of what is testimonial, I find such an assumption questionable. (See Fisher v United States, supra, at p 408, citing Schmerber v California, 384 US 757 [blood samples nontestimonial]; Gilbert v California, 388 US 263 [voice exemplars nontestimonial]; United States v Wade, 388 US 218 [handwriting exemplars nontestimonial]; Holt v United States, 218 US 245 [donning blouse worn by perpetrators nontestimonial]; Bellis v United States, supra [partnership records nontestimonial].) The pronouncement in Boyd v United States (116 US 616) that the Fifth Amendment privilege is extended to private papers must be, in view of these subsequent decisions, given a limited application. (Supreme Court, 1975 Term, Fifth Amendment Protection of Private Papers, 90 Harv L Rev 76.) Thus, I think it improper to assume without a hearing on this specific question that all tapes are, or that this tape is, testimonial. Just as the giving of a voice exemplar or the taking of a blood sample was found to not be sufficiently testimonial in nature to warrant Fifth Amendment protection, it may well be that when the contents of Tape No. 2 is reviewed, it would be found to be nontestimonial. A review to determine whether or not the tape is testimonial or incriminating can, of course, be conducted by the court, in camera. Unless it was shown at such a hearing that the tape is testimonial and incriminating, the question of whether or not its production was compelled need not be reached. If, at the hearing, it was determined that the tapes were either nontestimonial or nonincriminating, the act of producing them, even subject to a subpoena, would not involve testimonial self incrimination. "In the case of a documentary subpoena the only thing compelled is the act of producing the document and the compelled act is the same as the one performed when a chattel or document not authored by the producer is demanded." (Fisher v United States, supra, at p 410, n 11.) The only testimonial aspect would then be that *86 turning over the tape concedes its existence. Certainly, merely admitting the existence of a common cassette tape cannot be deemed self incriminating. Whether this would constitute compelling self incriminatory testimony when the tape was heard by the Grand Jury cannot be determined until the nature of the tape is ascertained. Because I believe that the assumptions made by the majority are improper and are not supported by the record before us, I would agree with the majority at the Appellate Division that respondent has not sustained his burden and the Grand Jury is entitled to Tape No. 2. It is a "well settled" rule of law "that every person owes a duty to give evidence before the Grand Jury when requested to do so." (Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 N.Y.2d 14, 20 [citations omitted].) That duty is, of course, subject to limitations such as those validly raised under the Fifth Amendment. But the person resisting the subpoena has the burden of establishing that the Grand Jury is not entitled to the evidence. Unless there is such a showing, the Grand Jury's subpoena is presumptively valid. Given the multiple questions as to whether or not either the attorney-client privilege or the Fifth Amendment privilege applies, I do not believe that Rosner has met his burden to entitle him to quash the Grand Jury's subpoena. I would, therefore, affirm the Appellate Division as to Tape No. 2. Order modified, without costs, and matter remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. NOTES [1] There is some question whether Olick was acting as Dr. Rosen's attorney or merely as a friend before Rosner was hired. If Olick did become Dr. Rosen's counsel, then issues of confidentiality stemming from the attorney-client relationship would arise (see discussion under "Tape No. 2" of this opinion). Under the analysis taken by this court, however, Olick's precise role is irrelevant and so it is assumed without deciding that Olick's status was that of friend, not counsel. [2] Indeed, the fact of deletions, if any, would not be discovered except for an improper review of the privileged contents. To order further examination on the basis of an unwarranted reading of the material is an unacceptable bootstrapping. [3] Petitioners assert this argument for Tape No. 1 as well. Inasmuch as that tape is wholly protected by the marital privilege, as discussed under "Tape No. 1", supra, it is not addressed in this portion of the opinion. The following discussion, however, is equally applicable to Tape No. 1. [4] It is noted that the People have never asserted nor do they claim that any of the third parties through whose hands the tape passed have actually listened to the tape. [5] The cassette tape recording should be likened to a letter in a sealed envelope. The fact of the letter's existence is known to all who handled it; but its contents remain private. Similarly, all those through whose hands the tape passed know of its existence, but Dr. Rosen's message, whatever it may be, remains private. [6] It should be noted that, in the context of Fifth Amendment rights, inquiry concerning the confidentiality of the communication as such has no place. The privilege accorded is to protect against compulsory incrimination through one's own testimony or personal records (see Andresen v Maryland, 427 US 463, 470-471). It is not intended to protect private information per se (id., at p 477). "Confidentiality" in a constitutional sense may be denominated "expectation of privacy". This, however, is a concept implicated in Fourth Amendment analysis and should not be raised in considering a claim of compelled self incrimination. As the Supreme Court noted in Andresen, the Fifth Amendment does not protect an individual's records from seizure under a search warrant, but it does protect against their production under a subpoena (id., at pp 473-474). Thus, whether there was a confidential disclosure is relevant only to an inquiry of the attorney-client relationship, not whether the Fifth Amendment protection attaches. [7] Clearly, a magnetic recording of one's spoken words constitutes the putting of thoughts into speech as much as would writing the words on paper. A tape recording simply is not the same type of physical evidence as is a blood sample or handwriting exemplar (cf. United States v Wade, 388 US 218; Schmerber v California, 384 US 757). The holding in Bellis v United States (417 US 85) is inapposite here as Dr. Rosen prepared the tape in a personal capacity, not as the representative of some legally cognizable, independent entity. [8] The attorney cannot be considered as the client's agent as this would bootstrap all such evidence into the attorney-client privilege. There is also a logical inconsistency in making one principal in the attorney-client relationship the agent of the other for the purposes of that relationship. [9] Of course, nothing stated here is intended to shift the burden of establishing the privilege from the party asserting the privilege (see Bloodgood v Lynch, 293 N.Y. 308, 314).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4561182/	United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 25, 2019 Decided August 21, 2020 No. 18-1124 INTERNATIONAL LONGSHORE & WAREHOUSE UNION, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT EAST BAY AUTOMOTIVE MACHINISTS LODGE NO. 1546, ET AL., INTERVENORS Consolidated with 18-1168 On Petition for Review and Cross-Application for Enforcement of Orders of the National Labor Relations Board Lindsay R. Nicholas argued the cause for petitioner. With her on the briefs were Eleanor Morton and Emily M. Maglio. Gregoire Sauter, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, John W. Kyle, Deputy 2 General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Usha Dheenan, Supervisory Attorney. David A. Rosenfeld was on the brief for intervenors East Bay Automotive Machinists Lodge No. 1546, et al. in support of respondent/cross-petitioner. Before: GARLAND and KATSAS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.* Opinion for the Court filed by Circuit Judge KATSAS. KATSAS, Circuit Judge: Under NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), a successor employer inherits the collective-bargaining obligations of its predecessor only if the previously recognized bargaining unit remains appropriate under the successor. In determining whether the unit remains appropriate, the National Labor Relations Board ignores workplace changes caused by unfair labor practices of the successor. Here, the NLRB extended that rule to ignore changes caused by unfair labor practices of the predecessor. We hold that the Board did not adequately explain its decision. I This case arises from a longstanding dispute about which of two competing unions represents a group of several dozen * The late Senior Circuit Judge Stephen F. Williams was a member of the panel at the time the case was argued and participated in its consideration before his death on August 7, 2020. Because he died before this opinion’s issuance, his vote was not counted. See Yovino v. Rizo, 139 S. Ct. 706, 710 (2019). Judges Garland and Katsas have acted as a quorum with respect to this opinion and judgment. See 28 U.S.C. § 46(d). 3 mechanics who maintain and repair shipping equipment in the Port of Oakland, California. The unions are the International Association of Machinists and Aerospace Workers, AFL- CIO/CLC (Machinists) and the International Longshore and Warehouse Union (ILWU). As the mechanics came to work for different companies, two related controversies developed. One, centered around a change in employers that occurred in 2005, has been finally resolved by this Court. Another, centered around a change in employers that occurred in 2013, is directly at issue here. A Before 2005, the mechanics at issue worked for the Pacific Marine Maintenance Company, a contractor providing maintenance and repair services to the shipping company A.P. Moller-Maersk. At that time, the Machinists represented the mechanics under a collective-bargaining agreement covering non-crane mechanics employed by Pacific Marine at the Ports of Oakland and Tacoma, Washington. In 2005, Maersk ended its contract with Pacific Marine and engaged the Pacific Crane Maintenance Company to provide maintenance and repair services for its Oakland and Tacoma shipping operations. As a result, Pacific Marine shut down and laid off the mechanics. Pacific Crane immediately rehired most of them, but it refused to recognize the Machinists as their bargaining representative. Instead, it recognized ILWU under a collective-bargaining agreement encompassing a much larger unit of some 15,000 employees performing various jobs for various employers at various West Coast ports. These 2005 changes spawned over a decade of litigation. The Machinists charged that Pacific Crane had committed unfair labor practices by refusing to bargain with it and by 4 recognizing ILWU as the mechanics’ bargaining representative. Likewise, the Machinists charged that ILWU had committed unfair labor practices by accepting the recognition and by applying its collective-bargaining agreement to the mechanics. The NLRB agreed with the Machinists on both points. PCMC/Pac. Crane Maint. Co., 359 N.L.R.B. 1206 (2013) (Pacific Crane I). The Board then vacated its decision on procedural grounds, but later reached the same conclusion. PCMC/Pac. Crane Maint. Co., 362 N.L.R.B. 988 (2015) (Pacific Crane II). After the Machinists settled their claims against Pacific Crane, we upheld the Board’s decision and enforced it against ILWU. Int’l Longshore & Warehouse Union v. NLRB, 890 F.3d 1100 (D.C. Cir. 2018) (Pacific Crane III). In doing so, we relied “heavily” on a stipulation that Pacific Marine and Pacific Crane, which were affiliated companies, should be treated as a single employer. Id. at 1110. B This case involves a third employer—Ports America Outer Harbor—which came into the picture as the Pacific Crane litigation unfolded. In 2010, Ports America acquired control of Oakland berths 20–24 from Maersk. As Maersk had done, Ports America used Pacific Crane to provide maintenance and repair services at those berths. Ports America then acquired berths 25–26 from the Transbay Container Terminal. Ports America expanded its service contract with Pacific Crane to cover these berths as well. In 2013, Ports America decided to bring its maintenance and repair operations in-house. When its contract with Pacific Crane expired, Ports America hired most of the mechanics who previously had been working for Pacific Crane. In doing so, Ports America refused to bargain with the Machinists and 5 instead recognized ILWU, which continued to apply its collective-bargaining agreement to the mechanics. The Machinists charged Ports America and ILWU with various unfair labor practices. They alleged that Ports America committed unfair labor practices by failing to bargain with them and by recognizing ILWU as the mechanics’ bargaining representative. Further, they alleged that ILWU committed unfair labor practices by accepting the recognition and by applying its collective-bargaining agreement to the mechanics. All these allegations rested on one central claim—that Ports America had succeeded to Pacific Crane’s duty to bargain with the Machinists. An administrative law judge agreed with the Machinists. She reasoned that from 2005 to 2013, Pacific Crane had a continuing obligation to recognize and bargain with the Machinists. Ports Am. Outer Harbor, LLC, 366 N.L.R.B. No. 76, at 10–12 (May 2, 2018) (Ports America) (reprinting ALJ recommendation). She then concluded that Ports America succeeded to that obligation under Burns, in part by refusing to consider any counterarguments “built on unremedied unfair labor practices” committed by Pacific Crane before 2013. Id. at 14. In 2018, the Board substantially affirmed the ALJ’s decision on similar reasoning. See id. at 3–4 & nn. 9–10. While the proceeding was still pending before the ALJ, Ports America filed for bankruptcy, so the Machinists added new claims against MTC Holdings, another terminal services company, which the Machinists alleged was a single employer with Ports America. The Machinists then reached a partial settlement covering all their claims against MTC Holdings and their non-Burns claims against Ports America. Under the settlement, Ports America and MTC Holdings agreed to pay the Machinists $3 million for distribution to the mechanics. In 6 August 2016, the ALJ approved the settlement and dismissed MTC Holdings from the case. ILWU objected to the settlement and sought reconsideration. In September 2016, the ALJ affirmed her August order. In November 2016, the Board denied ILWU’s appeal from the settlement approval. ILWU now seeks our review of the NLRB’s merits order and its order approving the partial settlement. The NLRB seeks enforcement of the merits order. The Machinists have intervened in support of the Board. Ports America, which has ceased operations, did not appear before this Court. II We first consider the Board’s ruling that ILWU committed unfair labor practices by accepting recognition as the mechanics’ bargaining representative in 2013 and by applying its collective-bargaining agreement to them. ILWU argues that the Board arbitrarily refused to consider its arguments that the past bargaining unit was no longer appropriate. We agree. Our review of NLRB decisions is deferential but not toothless. Among other things, we must consider whether the Board’s findings of fact are supported by substantial evidence, 29 U.S.C. § 160(f), and whether its reasoning is arbitrary and capricious, 5 U.S.C. § 706(2)(A). For the latter, the question is whether the agency “examined the relevant considerations and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” FERC v. Elec. Power Supply Ass’n, 136 S. Ct. 760, 782 (2016) (cleaned up). “[A]n agency’s unexplained departure from precedent is arbitrary and capricious.” ABM Onsite Servs.—West, Inc. v. NLRB, 849 F.3d 1137, 1142 (D.C. Cir. 2017). So too is an order resting on “clearly distinguishable precedent.” Exxel/Atmos, Inc. v. NLRB, 147 F.3d 972, 976 (D.C. Cir. 1998). 7 Section 7 of the National Labor Relations Act guarantees the right of employees “to bargain collectively through representatives of their own choosing.” 29 U.S.C. § 157. Section 8(a) prohibits employers from engaging in unfair labor practices, which include interfering with collective bargaining, id. § 158(a)(1); supporting a union, id. § 158(a)(2); and refusing to bargain with a union that enjoys majority support, id. § 158(a)(5). Section 8(b) prohibits unions from engaging in unfair labor practices, which include restraining collective bargaining by employees, id. § 158(b)(1)(A), and causing an employer to discriminate against an employee, id. § 158(b)(2). The unfair labor practices at issue follow from a premise that Ports America had a duty to bargain with the Machinists when it insourced the Oakland maintenance and repair work in 2013. If so, then its failure to bargain with the Machinists violated sections 8(a)(1) and (5), and its recognizing ILWU violated sections 8(a)(1) and (2). Likewise, ILWU violated section 8(b)(1)(A) by accepting the recognition, and section 8(b)(2) by applying its collective-bargaining agreement to the mechanics. ILWU does not dispute that these conclusions follow from the premise. In finding that Ports America had a duty to bargain with the Machinists, the Board reasoned in two steps. First, Pacific Crane had such a duty. We previously held that Pacific Crane had this duty as of 2005, Pacific Crane III, 890 F.3d at 1107– 13, and the Board held that it continued through 2013, Ports America, 366 N.L.R.B. No. 76, at 2–4. Second, Ports America succeeded to Pacific Crane’s bargaining obligation when it hired the mechanics. In reaching this conclusion, the Board summarized the test for successorship as follows: An employer is a successor employer obligated to recognize and bargain with the union representing the 8 predecessor’s employees when (1) the successor acquires, and continues in substantially unchanged form, the business of a unionized predecessor (the “substantial continuity” requirement); (2) the successor hires, as a majority of its workforce at the acquired facility, union-represented former employees of the predecessor (the “workforce majority” requirement); and (3) the unit remains appropriate for collective bargaining under the successor’s operations. Id. at 2; see Burns, 406 U.S. at 277–81. ILWU accepts this formulation of the governing legal test. Before the Board, ILWU sought to raise three arguments why the historic bargaining unit was no longer appropriate when Ports America hired the mechanics in 2013. First, the historic bargaining unit had accreted into ILWU’s larger, coast- wide bargaining unit—in other words, the historic unit had lost its separate identity and acquired an “overwhelming community of interest” with the ILWU unit, see Dean Transp., Inc. v. NLRB, 551 F.3d 1055, 1067 (D.C. Cir. 2009) (quotation marks omitted). Second, a majority of mechanics in the historic unit by then supported ILWU, not the Machinists. Third, Ports America had at least a good-faith doubt whether a majority of the unit still supported the Machinists.1 1 As of 2005, the recognized bargaining unit encompassed non- crane mechanics employed by Pacific Marine in Oakland and Tacoma. See Pacific Crane III, 890 F.3d at 1103–04 & n.2. In this case, the Board expanded the historic unit to include mechanics at Oakland berths 25 and 26, which Ports America took over in 2010, and contracted it to exclude mechanics in Tacoma, who are not employed by Ports America. See Ports America, 366 N.L.R.B. No. 9 The Board declined to consider ILWU’s arguments because they invoked changes that were “a direct result of the predecessor employers’ unlawful assistance to and recognition of the ILWU.” 366 N.L.R.B. No. 76, at 3 (emphasis added); see also id. at 3–4 nn. 9–10. In other words, if the historic bargaining unit had become inappropriate by the time Ports America took over, it was only because Pacific Crane had improperly recognized ILWU, and had failed to recognize the Machinists, during the eight prior years. To justify its ruling, the Board invoked our decision in Pacific Crane III. But that case does not address whether an incoming employer may contest successorship obligations by citing workplace changes caused by unfair labor practices of the outgoing employer. Pacific Crane III involved no successorship issue because the parties there had stipulated that the outgoing Pacific Mutual and the incoming Pacific Crane, which were affiliated companies, should be treated as a single employer. See 890 F.3d at 1110. It was thus undisputed that Pacific Crane, when it took over in 2005, succeeded to the bargaining obligations of Pacific Mutual. Pacific Crane separately argued that the historic Machinists unit had accreted into the larger ILWU unit because of changes that occurred after 2005. In response, the Board held that Pacific Crane could not seek to benefit from its own unfair labor practices in recognizing ILWU and failing to recognize the Machinists. 359 N.L.R.B. at 1211. Likewise, we explained that “the Board should ignore any impermissible changes made unilaterally by the employer,” because “to hold otherwise would allow the 76, at 3. ILWU contends that the historic unit was absorbed into its unit, but does not otherwise challenge the Board’s adjustments to the historic unit. 10 employer to benefit from its own unlawful conduct.” 890 F.3d at 1111 (cleaned up).2 We can imagine reasonable arguments either way on the question whether a successor employer should be barred from citing changes caused by the unfair labor practices of a predecessor. Perhaps current employee choices should be given effect, regardless of whether a former employer committed unfair labor practices. Or, perhaps the need to remedy past unfair labor practices is paramount. The Board simply did not engage these questions. Instead, it relied on inapposite precedent, as it virtually conceded at oral argument. Oral Arg. 22:50–56 (“there is no clear case on point”); id. 25:22–24 (“there are no cases governing”). That was arbitrary. See Exxel/Atmos, 147 F.3d at 976. Before this Court, the Board presses an alternative theory that Ports America could not have claimed any good-faith doubt that a majority of workers in the unit supported the Machinists. According to the Board, this is so because Ports America knew of Pacific Crane’s unremedied unfair labor practices. See Proxy Commc’ns, 290 N.L.R.B. 540, 542 (1988), enforced, 873 F.2d 552 (2d Cir. 1989); Bay Diner, 279 N.L.R.B. 538, 546 (1986); Silver Spur Casino, 270 N.L.R.B. 1067, 1074 (1984). But neither the ALJ nor the Board articulated this rationale below, and neither made findings on whether Ports America knew of Pacific Crane’s unfair labor 2 The Board in this case also cited Pacific Telephone & Telegraph Co., 80 N.L.R.B. 107 (1948), but it too has nothing to do with successorship. There, the Board held that a union could not seek a unit determination reflecting assistance that the employer had unlawfully provided to it. Id. at 111–12. The case involved no question of when bargaining obligations flow from a predecessor to a successor. 11 practices in sufficient time. ILWU suggests no, because Ports America had signed its contracts and made its hiring decisions before the Board decided Pacific Crane I. The Board suggests yes, because Pacific Crane I was decided before Ports America took over the maintenance and repair work. Because the Board did not address these issues below, much less make the findings necessary to resolve them, we cannot uphold its rejection of the good-faith defense on this ground. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). At oral argument, we asked the Board about another possible rationale for upholding its order: Even if Ports America could seek to benefit from the unfair labor practices of Pacific Crane, ILWU could not seek to benefit from its own past unfair labor practices. The Board wisely declined to press that rationale here. In the proceedings below, the Board pegged ILWU’s liability entirely to the proposition that Ports America was a Burns successor and had violated its bargaining obligations as such. See Ports America, 366 N.L.R.B. No. 76, at 2. Under Chenery, we thus cannot uphold the Board’s order on the theory that ILWU committed unfair labor practices even if Ports America did not. As this analysis should make clear, our ruling is narrow. We hold only that the Board did not engage in reasoned decisionmaking in the order under review. On remand, the Board remains free to consider the various open issues and arguments in this case, unencumbered by its invocation of inapposite precedent.3 3 The Board ordered Ports America to bargain with the Machinists if it resumed operations, and it ordered ILWU to reimburse fees and dues paid by the mechanics. Ports America, 366 N.L.R.B. No. 76, at 6. Because we have set aside the underlying 12 III ILWU also seeks review of the Board’s order refusing to set aside the partial settlement among the Machinists, Ports America, and MTC Holdings. The Machinists contend that we lack jurisdiction to review that order for two reasons. First, ILWU lacks Article III standing to challenge a settlement of claims made against other parties, which in no way impaired ILWU’s ability to defend the claims made against it. Second, the intervening distribution of the settlement funds mooted ILWU’s objections to the settlement. We must consider both jurisdictional objections before reaching the merits, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998), but we may do so in either order, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999). We begin—and end—with the question of mootness. ILWU does not respond to the Machinists’ contention that disbursement of the settlement funds mooted ILWU’s challenge. By this silence, ILWU has forfeited any objection to mootness. “Although a party cannot forfeit a claim that we lack jurisdiction, it can forfeit a claim that we possess jurisdiction.” Scenic Am., Inc. v. DOT, 836 F.3d 42, 53 n.4 (D.C. Cir. 2016). “[T]he ordinary rules of forfeiture apply” to a claim that we have jurisdiction, Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019), so ILWU’s “failing to respond” to an argument that we lack jurisdiction forfeited any counterargument that we have it, Perry Capital LLC v. Mnuchin, 864 F.3d 591, 618 (D.C. Cir. 2017); see, e.g., Reid v. Hurwitz, 920 F.3d 828, 833 n.4 (D.C. Cir. 2019). This is consistent with how ordinary forfeiture rules work in other liability determinations, we need not consider ILWU’s challenge to these two remedies. See Erie Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 19 (D.C. Cir. 2012). 13 contexts where one party has raised an argument and the other has “offered nothing in opposition.” Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997); see Clifton Power Corp. v. FERC, 88 F.3d 1258, 1267 (D.C. Cir. 1996). Because ILWU forfeited any argument that this case is not moot, we dismiss its petition to review the Board’s order accepting the partial settlement. IV We grant the petition for review of the Board’s final order, set aside that order, deny the Board’s cross-application for enforcement, and remand for further proceedings consistent with this opinion. We dismiss as moot the petition for review of the Board’s order refusing to set aside the partial settlement. So ordered.	01-03-2023	08-28-2020
https://www.courtlistener.com/api/rest/v3/opinions/2592647/	57 N.Y.2d 658 (1982) In the Matter of Nassau Educational Chapter of the Civil Service Employees Association, Inc., et al., Appellants, v. Great Neck Union Free School District, Respondent. Court of Appeals of the State of New York. Argued June 9, 1982. Decided July 2, 1982. Richard M. Gaba and Barry J. Peek for appellants. Jerome H. Ehrlich for respondent. Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI concurs in result only. 660MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. Although the Appellate Division's order recites that it is "on the law" rather than "on the law and the facts," CPLR 5612 (subd [a]) permits us (contrary to prior practice see Rugg v State of New York, 303 N.Y. 361) to look to "any order of the Appellate Division and to its opinion" to determine whether it resolved factual issues in reaching its conclusion (Second Preliminary Report, Advisory Committee on Practice and Procedure [NY Legis Doc, 1958, No. 13], p 362). The majority opinion below recites in relation to Special Term's holding that its "analysis of the facts leads us to the opposite conclusion." (85 AD2d, p 734.) Accordingly, the issue for our determination is which, between the view of the two courts below, the weight of the evidence supports. Considering the record against the factors referred to in Matter of Westchester County Civ. Serv. Employees Assn. v Cimino (58 AD2d 869, affd 44 N.Y.2d 985) and Matter of Conlin v Aiello (64 AD2d 921, affd 49 N.Y.2d 713), we conclude that the weight of the evidence supports the 661 conclusion reached by the Appellate Division majority. Neither the fact that the same duties are performed by the contractor's employees as were performed previously by the district's employees nor that the contract may be terminated on notice is determinative. Moreover, all of the Westchester criteria except supervision and control are unequivocally met and the good faith of the district is demonstrated by the savings in excess of $100,000 a year which, as the Trial Judge found, result from the district's use of Star personnel in place of its former guard employees. Although because of the monitoring and communications system that protected the district's buildings there was a necessary interrelationship between work of Star's guards and that of the district's employees, the latter neither supervised nor controlled the former. As concerns supervision, although district personnel were used as message conduits between Star officials and the Star guards assigned to the district, there was supervision by Star of its employees to the extent that the nature of the work required supervision. As to control, although district employees (the chief and the captain) continued to operate the monitoring devices which alerted them to problems in the several buildings, and could keep in touch with Star personnel by beeper or by telephone, they did no more than pass on to the Star employee in whose assigned area a disturbance occurred the relevant information. The action taken by the Star employee in response to that information was pursuant to the contract rather than either an order or a request by the district employee. No more determinative were the other factors relied on by the Trial Judge and the dissenters below. Star guards directed traffic and delivered mail because the contract called for them to do so and used district equipment because the district already owned it and would have had to pay Star more to supply such equipment for a year than it would have cost to purchase the equipment new. Star employees checked in and out with the district's employee so that he would know what posts were manned and that the district would have a check on the hours worked by Star employees to compare with Star's bills. Order affirmed, with costs, in a memorandum.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873263/	396 F. Supp. 288 (1975) J. L. WILLIAMS and B. J. Chafin v. KAISER ALUMINUM & CHEMICAL SALES, INC. Civ. A. No. CA 3-7399-E. United States District Court, N. D. Texas, Dallas Division. April 23, 1975. 289 Marvin Jones, Dallas, Tex., for plaintiffs. Patrick E. Higginbotham, Dallas, Tex., for defendant. MEMORANDUM OPINION MAHON, District Judge. In this suit, J. L. Chafin and B. J. Williams (hereinafter "plaintiffs" or "Chafin and Williams"), Texas residents, seek damages arising out of an alleged breach of a lease agreement between themselves and defendant, Kaiser Aluminum & Chemical Sales, Inc., a California Corporation (hereinafter "defendant" or "Kaiser"). Plaintiffs first brought suit in the state district court and this cause was duly removed to this Court on July 2, 1973. The Court finds itself properly vested with jurisdiction pursuant to 28 U.S.C. § 1332. The lease in question was executed for a primary term of five years on October 1, 1968 (hereinafter "lease") and covered certain commercial property located at 3420 Dalworth Street in the Great Southwest Industrial District (hereinafter sometimes "the property" or "the premises"). The property was properly used under the terms of the lease as part of Kaiser's manufacturing operation of mobile home parts. The alleged breach grew out of Kaiser's decision in 1970 to combine its Dallas and Great Southwest Industrial District facilities into one site. The proposed new facility would have had to have been large enough to house both operations. Bids were solicited from several contractors in the Dallas-Fort Worth area to construct the new building and plaintiffs were included among those invited to bid. The bid invitations made clear the fact that the package which Kaiser was seeking, included the assumption on a sublease basis, of the two older facilities which were to have been abandoned by Kaiser in favor of the new facility. Plaintiffs, Chafin and Williams, were aware of this aspect of the bidding as various correspondence between plaintiffs and defendant initiated by plaintiff show. For example, a letter from the plaintiffs to Kaiser states in pertinent part: ". . . Under this proposal, we would take over on a sublease basis, 290 simultaneously with your occupancy of the new facility, your present buildings as follows: 1. Building located at 2200 Carl Road, Irving, Texas, containing 33,600 square feet; covered by lease with 3 years remaining on primary term and containing two 5-year options; rental rate of $1,661 per month including taxes, insurance and maintenance. 2. Building located at 3420 Dalworth Street, Arlington, Texas, containing 40,000 square feet; covered by lease with 3 years remaining on primary term; rental rate of $2,167 per month including taxes and insurance . . .." This letter references the two old properties whose leases are to be assumed by the successful bidder. On their own property, plaintiffs in their letter refer only to the primary term. On the other property a primary term and two five-year options are mentioned. Another letter, dated June 1, 1971, has identical language.[1] Ultimately, Chafin and Williams were unsuccessful in their bids. The instant dispute ignited over the rights of the respective parties as to the renewal and assignment provisions of the lease agreement. The applicable lease provisions provide in pertinent part: "7. ASSIGNMENT AND SUBLETTING: Provided Tenant is not in default of any of the terms, conditions or covenants contained in this lease, Tenant may, without the consent of the Landlord, assign this lease or sublet the whole or any part of the demised premises. Any such assignment or subletting shall be subject to all the terms and conditions of this lease agreement, including the provisions of paragraph 1 hereof relating to the use of the demised premises. . . . As a condition precedent to such subletting or assignment, the Tenant agrees to: (1) give the Landlord immediate written notice of such assignment or subletting; and (2) furnish the Landlord with an executed copy of such assignment or sublease at the time such instrument is executed . . .." * * * * * * 22. RENEWAL OPTIONS: Provided Tenant is not in default of any term, condition or covenant contained in this lease and has not assigned or sublet the leased premises, Tenant shall have the option of renewing this lease for an additional Five (5) Years years on the same terms and conditions as provided herein, . . . Notice of the exercise of such option shall be given by Tenant to Landlord in writing not later than ninety (90) days prior to expiration of the primary term hereof." By its plain terms this language says that the lessee does not have the benefit of the renewal option (paragraph 22) if it had assigned or subleased the premises. The question presented by this case is whether or not the lessee could exercise his renewal option sometime before the end of primary term (but not less than 90 days prior to that ending) and then once the lease was effectively renewed to another five year term, exercise its right under the assignment clause (paragraph 7). The ability to do just this was crucial to Kaiser's plans. The successful bidder for defendant's new facility, Vantage Properties, Inc. (hereinafter "Vantage") was a competitor of Chafin and Williams not only in the construction field in the Dallas-Fort Worth area, but also in the commercial building leasing market. Before Vantage would take over either of Kaiser's old facilities, they understandably 291 insisted on having the benefit of the renewal term as well as the primary term of the leases. Testimony concerning the lease reflects an annual rent of 65 cents per square foot. Testimony revealed that in 1972 the annual market rate was somewhere between 90 cents and $1.10 per square foot. There is little doubt that whoever would occupy the property covered by the lease when Kaiser left, would be doing so at extremely favorable market rate. Kaiser, by letter, advised Chafin and Williams of their intention to exercise its renewal under paragraph 22 of the lease. Evidence shows that plaintiffs had been earlier told that their bid was unsuccessful and further advised that the winning bid was tendered by Vantage. Chafin and Williams' reply on August 27, 1971, acknowledged Kaiser's right to renew under the lease provided . . . "they were not in default and had not assigned . . ." This was and is plaintiffs' contention concerning the lease. There is testimony regarding the discussions held between plaintiffs and defendant during the fall, 1971. These discussions culminated in a letter of January 5, 1972, in which defendant offered to terminate the lease. Apparently, the fall, 1971, discussions centered around whether or not Kaiser could renew and then assign its rights under the lease to the winning bidder, Vantage Corporation.[2] Chafin and Williams' reply to Kaiser's letter is dated March 17, 1972, and is a counter offer agreeing to cancellation of the lease in consideration of six months rent. Answers to interrogatories and the testimony agree that the fall Kaiser/Chafin and Williams communication were telephonic and not in writing. Testimony is conflicting on the question of when Chafin and Williams first learned Kaiser was going to attempt to exercise its renewal option and then assign the lease to Vantage. I find, however, that Chafin and Williams were placed on notice of the probability of this occurring earlier than their actual notification by virtue of their participation in the bidding process.[3] Kaiser's version of the fall conversations was that upon being told that it (Kaiser) was renewing then assigning, Chafin and Williams said no, that Kaiser couldn't do that and anyway plaintiffs could find a tenant who would pay the full market rate. In other words, according to Kaiser, plaintiffs refused to accept Kaiser's replacement tenant and this led to the full break as reflected in the January and March letters. Chafin and Williams assert their position that they were merely holding firm in their interpretation of the lease, that is, that Kaiser was prohibited by the lease from renewing and effectively assigning. There is disputed testimony on whether or not Chafin and Williams would have accepted their competitor Vantage as a replacement tenant for the remainder of the primary term. In any event, it is clear that they would not have been bound to accept Vantage on any other terms and conditions other than those reflected in the lease agreement. Apex Co. v. Grant, 276 S.W. 445, 446-47 (Tex.Civ.App.Dallas 1925, no writ). It is also clear that Kaiser did have an absolute right to assign as to the primary term.[4] 292 Initially, the Court concludes that Kaiser could not exercise its renewal option and then effect a valid assignment of the lease benefits to its purported assignee for the entire primary term and the renewal term. In other words, any assignment would operate only as to the primary term and would not extend over for a renewal term. The Court agrees that there is a paucity of authority on this question and is persuaded that plaintiffs' interpretation of the lease is the correct one. To hold otherwise would mean a circumvention of the clear intent of the lease instrument when viewed in its entirety. Clearly, the lease gave lessee a right to assign. This right was to have been exercised by the giving of notice, not more than 90 days prior to the expiration of the lease. Also, however, the lessee must not have been in default or have assigned the lease.[5] The interplay of the renewal and assignment option are the gist of this controversy, that is, when is a renewal effective? When does one measure default or assignment; at the time of notice or at the expiration of the primary term? The only consistent interpretation of the lease leads the Court to conclude that the proper time to measure a breach, for the purposes of determining whether or not assignment has been effected is at the expiration of the primary term. It is not inconsistent for a lessor to give an unfettered right of assignment to an unknown tenant as to a primary term and yet be unwilling to commit himself to an unknown tenant for a much longer period. The Court views Kaiser's arguments that it should be allowed to renew and then assign as an attempt to do indirectly what the lease prohibits it from doing directly. The January through April 1972 correspondence between the parties evidences the process through which the breach developed. The breach culminated with Kaiser's wrongful vacating of the premises on or about May 1, 1972. I conclude that as a matter of law, the circumstances surrounding the invitation for bids by Kaiser, the bidding on the new project by Chafin and Williams, the awarding of the bid to Vantage by Kaiser and the subsequent correspondence between plaintiffs and defendant and the ultimate vacating of the premises by Kaiser amount to a breach of the lease agreement by Kaiser. Kaiser next vigorously urges that plaintiffs had a duty to mitigate their damages by reletting the premises. It would have been an easy matter, Kaiser says, for Chafin and Williams to have relet the premises at the contract price for the duration of the primary term because of the dramatic upward move of market price since the execution of the agreement. Contrary to this sweeping assertion it is apparent, that in Texas, there is no general obligation on the part of the landlord when confronted with an abandonment by a lessee, to mitigate damages by procuring a new or substitute tenant. Marathon Oil Co. v. Edwards, 96 S.W.2d 551 (Tex. Civ.App.Amarillo 1936, writ dism'd); Early v. Isaacson, 31 S.W.2d 515 (Tex. Civ.App.Amarillo 1930, writ ref'd). Rather, it is only where there has been a reentry of the vacated premises by the landlord will a duty to mitigate be imposed. 293 Evons v. Winkler, 388 S.W.2d 265, 269-70 (Tex.Civ.App.Corpus Christi 1965, writ ref'd n. r. e.); Stewart v. Kuskin and Rotberg, Inc., 106 S.W.2d 1074 (Tex.Civ.App.Texarkana 1937, no writ); See, Rohrt v. Kelley Manufacturing Co., 162 Tex. 534, 349 S.W.2d 95 (1961) (by implication); White v. Watkins, 385 S.W.2d 267, 270 (Tex.Civ.App.Waco 1964, no writ) (by implication). Furthermore, once it is established that a duty to mitigate is present, then the burden falls on the one who caused the breach to show that losses could have been avoided by reasonable effort. Polis v. Alford, 273 S.W.2d 79, 80 (Tex.Civ.App.San Antonio 1954, writ ref'd).[6] The first question thus becomes whether or not the landlord in this case has reentered and accepted a surrender.[7] The Court, when looking at the entire transactions between the parties both prior and subsequent to May 1, 1972, concludes that plaintiffs did effectuate a reentry of the premises and this reentry did give rise to a duty to mitigate damages. Chafin and Williams' actions immediately before this surrender by Kaiser are a starting point of any consideration of any duty imposed on Chafin and Williams. In a letter to Kaiser on March 17, 1972, Chafin and Williams present Kaiser with a statement of estimated costs to bring the premises to an unspecified standard of maintenance. The total estimate is $7,224.44. A significant item is the cost of painting the offices and warehouse which is $3,274.33. This correspondence also proposes terms upon which cancellation of the lease will be acceptable to plaintiffs. These terms are six months rent plus the itemized (estimate) cost of repairs. Looking at this letter and at a letter from plaintiffs dated September 13, 1972, the true intentions of Chafin and Williams can be seen. In the September letter, plaintiffs sent Kaiser an invoice of repairs. These repairs encompass various items including removal of a temporary lunchroom added by Kaiser for their employees and also painting of the premises in the amount of $3,028.46. A December 12, 1972, letter to Kaiser explains the allocation of painting costs as being necessary because defendant had not maintained the premises as "required by the lease" and indicates that all repairs invoiced were effected with the purpose of "restoring the premises to the condition in which they were at the commencement of the lease . . ." Kaiser asserts the restoration activity of plaintiffs, the removal of the lunchroom, and the demand that the premises be brought to their original condition as being inconsistent with plaintiffs' position of no reentry. The Court agrees and so finds that these actions by Chafin and Williams 294 were in conflict with their repeated assertions that they were not reentering. Another indication that plaintiffs did indeed effectuate a reentry is found in their extensive efforts to relet the premises, and the timing of such efforts.[8] First, there is the invoice for the printing for the lease sheets which advertise the subject property as being available. The invoice is dated April 1, 1972, thirty days prior to Kaiser's abandonment of the premises. The date of this invoice is consistent with the position that Chafin and Williams were anticipating Kaiser's leaving and were preparing in a businesslike manner for this event. The first lease flyer dated 5/72, shows that plaintiffs were making immediate efforts to relet the premises at some rate. This is the crux of the reentry question presented here. At what price were plaintiffs attempting to relet the property? The contract rate of some 65 cents per square foot, or the much greater market price of some 90 cents to $1.10? The lease flyers are silent as to any advertised price and plaintiffs assert that it was their practice not to mention price until they received prospects in response to their listings. Their argument is that they never mentioned the relatively low terms available for this property because no inquiry was ever made. This contention begs the question and supports Kaiser's position that plaintiffs reentered and were acting on their own behalf in seeking a rate higher than that called for in the lease. The Court finds that plaintiffs' efforts were directed at all times toward leasing the premises at the market rate and that they did in fact effectuate such a lease with Sealed Air Corporation to begin July 1, 1973. This effort of seeking the market rate is not in itself fatal to plaintiffs' contention of no reentry, In Re Garment Center Capitol 93 F.2d 667 (2nd Cir. 1938), but considered with the other circumstances present here, the Court concludes that Chafin and Williams' efforts in that direction do indicate that a reentry was effectuated as a matter of law and that plaintiffs' concern was not to relet for the account of Kaiser for the unexpired lease term but rather was for their sole benefit. Chafin and Williams offer a letter from their counsel to Kaiser dated December 12, 1972, as the first unequivocal statement of their position that they were holding defendants to the lease and were not accepting a surrender. This letter describes plaintiffs as having made "diligent efforts to lease" the property. Having failed to do so, they were now holding Kaiser in arrears for the accrued rent, other damages, and left open the total damages until the lease expiration date. This is the first clear action whereby plaintiffs attempt to show that no reentry was contemplated or effectuated. In view of Chafin and Williams' actions prior to May 1, 1972, and then subsequent to Kaiser's abandonment of the premises, the Court concludes that plaintiffs were attempting to hold Kaiser to the terms of the lease only after their efforts to relet at a more favorable rate were unsuccessful. This is too late. The actions of Chafin and Williams show that they were fully 295 prepared for defendant's action in abandoning the premises and were contemplating other motives, i. e., reletting the property at a higher price, rather than insisting upon their rights under the lease. Compare, Warncke v. Tarbutton, 449 S.W.2d 363 (Tex.Civ.App.San Antonio 1970, writ ref'd n. r. e.) (lessor merely placed padlock on the building, boarded it up for protection and placed "for rent" sign on building.) In the case sub judice, plaintiffs were actually seeking a new position by bringing the premises back to its original condition and by taking steps to relet the premises prior to its being vacated by lessee. The evidence in this case shows that the efforts of Chafin and Williams were directed toward securing a tenant at the more favorable market price rather than mitigating damages or insisting on their rights under the lease. The fact that this decision was a sound business judgment is apparent even though the property remained vacant for a period of fourteen months, because in July 1973, the premises were leased to a new tenant for a term of ten (10) years at an annual rent of approximately $1.06 per square foot.[9] This lease provides for the first three months to be rent free to the tenant. This was described by the plaintiffs as being "an incentive to consummate the lease." That it might be so is not doubted, but the Court concludes that in doing so Chafin and Williams demonstrated one more manner in which they considered the lease to be terminated as to Kaiser.[10] Considered against the relationship between the parties prior to the May 1 leaving date by Kaiser, I conclude that these actions constituted a reentry by Chafin and Williams. Blakeway v. General Electric Credit Corp., supra. This reentry in turn gives rise to a duty to use reasonable diligence to relet in order to mitigate damages. Stewart v. Kuskin & Rotberg, Inc., supra. The evidence is clear that in the late Spring and early Summer 1972 the market rental rate for property similar to the premises was much higher than the contract rate; that Vantage would have taken the property for the remainder of the contract period for some rate at or near the contract price and that plaintiffs were unwilling to allow their competitor Vantage have the premises for any rate.[11], [12] In this situation, Chafin and Williams upon their reentry were acting in a manner consistent with the lease being declared at an end. They cannot once having done this, turn and attempt to hold their 296 former lessee accountable. To allow plaintiffs to do so would permit them to take unfair advantage of a situation which they helped fashion. I find that the reentry did not however, occur until after their claims for restoration of the premises back to the original condition and accelerated taxes had matured. These claims are not obviated by the failure of plaintiffs to mitigate damages as they were required to do. Accordingly, it is ordered that judgment be entered against defendant Kaiser in the amount of the cost to bring the premises back to the original condition as shown in Plaintiffs' Exhibit 11 and the accelerated taxes shown therein. Plaintiffs' counsel will submit a proposed order for judgment consistent with this opinion and reflecting that defendant Kaiser will bear costs of these proceedings. It is so ordered. NOTES [1] The Court does not see any inconsistency in plaintiffs not referring to the renewal option contained in their own lease where they were lessors. The benefit of such an option would innure to them by their cancelling the lease. [2] See defendants' Exhibit No. 18 (letter from defendants' agent to Vantage dated November 19, 1971), wherein defendant apparently doubts that it could renew after having assigned. [3] See, text, supra. Bid proposals on this project from various concerns either reference to some extent the existence of options on one or both of the properties or they ignore them. The Court concludes that in the light of industry wide practices that plaintiffs were on inquiry notice of the possibility of some competitor assuming the lease for at least the primary term. [4] Kaiser certainly could have assigned its remaining seventeen month interest in the lease to whomever it chose. Chafin and Williams were obligated to accept Kaiser's sublessee under the lease. Considering conflicting testimony on whether plaintiffs actually refused to consider Vantage as a sublessee for seventeen months, the Court concludes that a reluctance on the part of Chafin and Williams to accept Vantage on any terms was demonstrated. [5] But see Paragraph 30 of the lease which states in pertinent part: ". . . Landlord . . . shall have the right to enter the demised premises during normal working hours for the following purposes: [listed] . . . If tenant shall not have served or extended this lease prior to the final one hundred twenty (120) day period of the lease term, the Landlord . . . shall have the right . . . [to place a `For Sale' sign on the premises] . . ." I find this provision however not to conflict with lessee's not assigning the lease after he has renewed. [6] The parties have oversimplified the question of mitigation of damages. See e.g., Employment Advisors, Inc. v. Sparks, 364 S.W.2d 478 (Tex.Civ.App.Waco) writ ref'd n. r.e. 368 S.W.2d 199 (1963). (apparently holding that there is a duty to mitigate without reentry); See generally Early v. Isaacson, 31 S.W.2d 515, 517 (Tex.Civ.App. Amarillo 1930, writ ref'd); annot. 21 A. L.R.3d 534, 555-57 (1968). [7] There is some imprecision on the question of what is a reentry. "The various courts have not explained exactly what constitutes a `re-entry' as here used. To a great extent, the definition of this term will depend upon, and be limited by, the question what constitutes a surrender of a tenancy, . . . It may generally be said that the mere acceptance of keys to the premises, or the exercise of only such dominion and control as necessary to keep the premises in repair, will ordinarily constitute neither an acceptance of an attempted surrender, nor a `re-entry' as such word is used in this annotation. The cases would seem to indicate, however, without explicitly so stating, that any greater exercise of dominion and control over the premises, and particularly the exercise of such control as is evidenced by attempts at reletting, would constitute a `re-entry'." Annot. 21 A.L.R. 3d 534, 556 n. 7. (citations omitted) The Court finds that in this case, Chafin and Williams went far beyond the minimal steps where courts have found no reentry. Warncke v. Tarbutton, 449 S.W.2d 363 (Tex. Civ.App.San Antonio 1969, writ ref'd n.r. e.). [8] This is not to say, however, that a lessor could not relet the premises upon abandonment by a tenant without creating a surrender. What is required is that he take proper precautions not to effect a surrender. C. R. Miller & Bro. v. Nigro, 230 S.W. 511, 512 (Tex.Civ.App.Amarillo 1921, no writ). See, Barret v. Heartfield, 140 S.W.2d 942, 944 (Tex.Civ.App.Beaumont 1940 writ ref'd) for statement that to effectuate a surrender there must be a meeting of the minds or mutual agreement to terminate. Of course, this does not preclude a surrender occurring as a matter of law. In the present case I find that both parties intended that a termination of their agreement occur. Blakeway v. General Electric Credit Corp., 429 S.W.2d 925 (Tex.Civ.App.Austin 1968, writ ref'd n.r.e.) (cases cited therein where lessor has taken possession and does acts inconsistent with continuation of landlord/tenant relationship). I find that except for their own declarations the actions of plaintiffs subsequent to the breach by Kaiser were inconsistent with any situation but a reentry. [9] Defendant's Exhibit No. 30, lease between plaintiffs and Sealed Air Corporation dated June 22, 1973. This lease provides for an annual rent of $42,399.96. This figure divided by the area of the premises gives approximately $1.06 per square foot. This lease also changes the language of the renewal option clause (Paragraph 22) to conform more clearly with plaintiffs' interpretation of it in the present lawsuit. [10] An original contention by plaintiffs in this lawsuit, was a claim for three months rent for July, August, and September 1973. This period of course was given away by Chafin and Williams to their new tenant. The claim for these rentals was abandoned at the trial. [11] This is in spite of some testimony that there were some vacancies in the area at this time. During this time period, Chafin and Williams leased a similar sized building for some 94 cents per square foot. Acknowledging location dissimilarities, the Court notes that where there is a great disparity in contract price and market like is presented here reasonable diligence will include efforts to lease the property at or near the contract price. Otherwise, there will be an insurmountable temptation for a lessor in such circumstances to never make an election but rather "shop" for market rates with the longest possible term with lessees bearing the risk. [12] There was no obligation however for Chafin and Williams to accept Vanatage on terms which varied the original lease. Apex Co. v. Grant, supra. For example, testimony from a Vantage representative shows that it would have definitely taken the property for five years at a rate up to 80-85 cents. Now, although plaintiffs were not obligated to take Vantage on these terms; the Court takes this evidence to show that there was a market for the property at the contract rate for the seventeen months remaining on the lease. See note 11, supra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615086/	668 P.2d 1089 (1983) In the Matter of John Tom ROSS and Peter Flangas, Attorneys at Law. No. 11114. Supreme Court of Nevada. September 12, 1983. 1090 John D. O'Brien, Presient, State Bar, Las Vegas, Kent Robison, Reno, for State Bar. Beckley, Singleton, DeLanoy & Jemison, Las Vegas, and Robert A. Grayson, Carson City, for John Tom Ross. David Goldwater, and Peter L. Flangas in pro. per., Las Vegas, for Peter L. Flangas. OPINION ON PETITION FOR REHEARING PER CURIAM: As set forth in our original opinion, a number of charges of professional misconduct were initiated before the Board of Bar Governors, accusing petitioners Ross and Flangas of conspiring in diverse ways with another attorney and with District Judge Richard Waters. See In re Ross, 99 Nev. 1, 656 P.2d 832 (1983). Following an extensive and costly, but unproductive investigation, a week-long hearing was held before the Board of Governors. The Board then ascertained and expressly found that there was neither evidence to substantiate any of several charges of conspiracy and related impropriety involving Judge Waters and the aforesaid attorneys, nor evidence of an alleged political plot against Judge Waters' successor. Accordingly, the Board of Governors acknowledged to us in its recommendations that these charges, which formed the basis for the Bar's inquiry in the first instance, lacked merit as to all three accused attorneys. Nonetheless, in its recommendations the Board of Governors requested us to impose disciplinary sanctions on Ross and Flangas, including assessment of the entire costs of the aforesaid investigation and hearing. In justification, the Board tendered factual findings that Ross and Flangas had in certain respects not been truthful, when responding to the probes instituted on the strength of the initial suspicions. In our decision, however, we determined that all charges against Ross and Flangas should be dismissed, because proceedings against them had been conducted in a manner derogating their constitutional rights to due 1091 process of law.[1]See Nev. Const., art. 1, § 8; U.S. Const., amend. XIV, § 1. The Bar prosecutor has filed a petition for rehearing. Upon review of the petition for rehearing, we find it does not direct our attention to any germane legal or factual matter, previously relied upon by the Bar prosecutor, which was overlooked in our original opinion. Under our established practice, a litigant may not raise new legal points for the first time on rehearing. Cannon v. Taylor, 88 Nev. 89, 493 P.2d 1313 (1972); In re Lorring, 75 Nev. 330, 334, 349 P.2d 156 (1960). Nor may a petition for rehearing be utilized as a vehicle to reargue matters considered and decided in the court's initial opinion. Gershenhorn v. Stutz, 72 Nev. 293, 312, 306 P.2d 121 (1957). Instead, in a concise and non-argumentative manner, such a petition should direct attention to some controlling matter which the court has overlooked or misapprehended. Id. We deem it essential to notice one particularly inappropriate argument, tendered by the petition for rehearing. For the first time, the bar prosecutor has contended that there was, indeed, substantial evidence of the alleged conspiracies between the deceased district judge, Ross, and Flangas. We must observe that this assertion, which received substantial attention in the press, is totally without merit. It is also highly unfair and insensitive to the surviving family of a well respected and now deceased judge. The argument is not only tendered for the first time on rehearing; in addition, as we have noted, it is contrary to explicit findings of the Bar Governors. Moreover, by this argument the Bar prosecutor seeks to contradict his own concession to this court on October 19, 1978, whereby the prosecutor acknowledged that the third attorney charged in regard to the alleged conspiracies should be dismissed from these proceedings because the prosecutor felt unable to question the correctness of the Bar Governors' factual findings. All other contentions are equally inappropriate and without merit. We adhere to our view that the proceedings against petitioners Flangas and Ross denied them due process of law, in derogation of both the Constitution of the United States and the Constitution of the State of Nevada. Accordingly, the request for rehearing must be denied. Bar counsel has asked us to clarify whether or not new proceedings against Flangas and Ross might be instituted, presumably premised on contentions as to their untruthfulness. Our response is that our dismissal in this matter was, and is, intended as a bar to further proceedings. We note that this ruling is predicated, in part, on the tortured and unfortunate history of this matter. Due to that history, it seems inevitable that in any further proceedings petitioners would raise various defenses which would not be amenable to satisfactory and final resolution within the court system of Nevada. Among the more serious of these are contentions consideration of which has been deferred by the Ninth Circuit Court of Appeals that the breaches of confidentiality mentioned in our original opinion, as well as other prejudicial practices, have tainted petitioners' prospects for fair treatment in our state courts.[2] *1092 Moreover, what this court has said in other disciplinary matters is applicable to the instant case. To the extent that petitioners' asserted lack of candor in defending themselves may have warranted punishment, retribution has already been exacted, albeit improperly and unlawfully. See In Re Reno, 57 Nev. 314, 330, 64 P.2d 1036, 1041 (1937); Flanders v. State Dep't of Commerce, 87 Nev. 303, 486 P.2d 499 (1971). Although these professional persons were entitled to confidential proceedings conducted with decorum, and consistently with a presumption of innocence, it is clear that they have been subjected to an extensive amount of improper, inflammatory, unfair and concerted public obloquy. Again, we emphasize that we in no way suggest that any of the Bar Governors intentionally played a culpable role in the aforesaid practices. Nonetheless, a price of substantial dimension has already been exacted from said petitioners who have been the subject of this extra-legal torment for almost a decade. Accordingly, the said proceedings in all respects should be, and hereby are, dismissed with prejudice.[3] NOTES [1] Unfortunately, bar counsel appears to have misperceived the thrust of our opinion. It is suggested that somehow our decision calls into question the integrity of the elected members of the Board of Governors or their commitment to "sworn duty." We therefore emphasize that our decision neither depreciates the Board of Governors nor questions the bona fides of their actions. As stated in our original opinion, "it should be stressed that we are dealing here not with a charge of actual bias, but with a challenge to a procedure as presenting a constitutionally unacceptable potential for bias, based upon the premise that `any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.'" In re Ross, supra, 99 Nev. at ___, 656 P.2d at 839-40. [2] See Flangas v. State Bar of Nevada, 655 F.2d 946 (1981). On application of petitioner Flangas, the United States District Court for the District of Nevada heretofore enjoined further proceedings before this court. The Ninth Circuit Court held, in effect, that this and other claims relating to petitioners' civil rights were prematurely raised in federal court, but that after exercise of state remedies petitioners might return to federal court if dissatisfied with their treatment in state tribunals. [3] Chief Justice Noel E. Manoukian is disqualified in this matter. Justice John C. Mowbray has voluntarily recused himself. Pursuant to order entered by the former Chief Justice, Senior Justice David Zenoff has been assigned to participate in the court's deliberation and determination of this matter. See Nev. Const., art. 6, § 19(1)(a) and 19(1)(c), and SCR 10.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1805497/	886 So. 2d 965 (2004) Darius Mark KIMBROUGH, Appellant, v. STATE of Florida, Appellee. Darius Mark Kimbrough, Petitioner, v. James V. Crosby, Jr., Respondent. Nos. SC02-1158, SC03-228. Supreme Court of Florida. June 24, 2004. Rehearing Denied as August 31, 2004. 968 Robert T. Strain, Assistant CCRC and Carol C. Rodriguez, Assistant CCRC, Capital Collateral Regional Counsel Middle Region, Tampa, FL, for Appellant/Petitioner. Charles J. Crist, Jr., Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee/Respondent. Rehearing Denied as to SC02-1158 August 31, 2004. PER CURIAM. Darius Mark Kimbrough appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus.[1] We affirm the circuit court's order denying Kimbrough's rule 3.850 motion, and we deny Kimbrough's petition for a writ of habeas corpus. FACTUAL AND PROCEDURAL BACKGROUND Kimbrough was convicted of first-degree murder on July 1, 1994, and was sentenced to death on December 9, 1994. His conviction and sentence were affirmed by this Court on direct appeal. The relevant facts as taken from the opinion on direct appeal are: Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one. The victim, Denise Collins, was found nude and semi-conscious in her bathroom by paramedics; she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter. The officers took semen evidence from the bedsheets, took blood evidence from 969 the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis. A resident of the apartment complex Lee told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment's balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex Stone identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder. The DNA evidence showed that the semen taken from the bedsheets was compatible with Kimbrough's, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough's. The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms. The defense's theory suggested that the victim's ex-boyfriend Gary Boodhoo had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded. In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel (HAC). To support the prior violent felony aggravator, the judge cited Kimbrough's prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. HAC was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room. The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for singing. The court found that the mitigation did not temper the aggravators. Kimbrough v. State, 700 So. 2d 634, 635-36 (Fla.1997). Kimbrough filed a rule 3.850 motion on July 30, 1998, and an amended motion on March 10, 2000, raising twenty claims.[2]970 The court held a Huff[3] hearing on September 22, 2000. At the hearing, Kimbrough dropped three of his claims,[4] and the court granted an evidentiary hearing on three other claims.[5] On April 26, 2002, after an evidentiary hearing, the court issued a detailed twenty-seven-page order denying Kimbrough 3.850 relief on all of his claims. This appeal followed. Kimbrough appeals the denial of relief on claim nineteen and the denial of an evidentiary hearing on claims two, four, six, seven, and eighteen. Kimbrough also petitions this Court for a writ of habeas corpus. I. AKE CLAIM Kimbrough alleges that his trial counsel was ineffective and deprived him of the expert mental health assistance required by Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985). He alleges that defense counsel was ineffective for failing to call mental health experts, for failing to provide mental health experts with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence. The State argues that the two experienced defense attorneys in this case provided extensive background evidence to the jury and hired two well-qualified experts to examine Kimbrough prior to the penalty phase. The State argues that trial counsel made a reasonable strategic decision not to present expert testimony during the penalty phase. Testimony from the evidentiary hearing on this claim is summarized below. Testimony of Defense Counsel Kimbrough was represented at trial by two attorneys, Patricia Cashman and Kelly Sims. Both Sims and Cashman are 971 very experienced in capital cases. Cashman testified that Dr. Eric Mings, a forensic criminal psychologist, was retained to conduct a psychological evaluation of Kimbrough and was originally listed as a defense witness. On February 11, 1994, prior to trial, Cashman filed a notice striking Mings from the witness list. Mings was removed from the list quickly so that the State could not depose him. Although she could not recall all of the reasons she had for striking Mings from the witness list, she stated that one of the reasons she struck Mings was because of the things Mings said about Kimbrough being a "psychopathic deviant" and the fact that she thought such testimony would hurt him in front of the jury. Cashman testified that the decision not to call Mings was a joint decision, made by her and Sims, and stated that before making such a decision she would have asked Mings whether he thought he could be helpful as a witness. At the hearing, Cashman reviewed a note she wrote while preparing for the Kimbrough trial. The note reflected that Kimbrough denied having any problems, had relatives in Tennessee, was raised by his stepfather, and had no history of abuse. The "worst thing that happened to him" was that his cousin was killed at the age of sixteen. Kimbrough won talent show trophies for singing and had an intelligence quotient (IQ) of seventy-six, which was in the fifth percentile on the Wechsler Adult Intelligence Scale test (WAIS). He had an MMPI (Minnesota Multiphasic Personality Inventory) which was valid, but defensive. The note also stated that there was a spike on "scale four, psychopathic deviant[6] endorsing items consistent with family discord, other scales normal." She did not recall what exactly Mings told her about the psychopathic deviate scale. Cashman had defended a number of cases prosecuted by Jeff Ashton, the prosecutor in this case, and was familiar with him and his trial tactics. She stated that Ashton liked to use a spike on scale four of the MMPI "[t]o make my client look really dangerous and make the jury scared of him and want to kill him." In addition to Mings, Cashman retained Dr. Robert Berland, a forensic psychologist, to conduct a pretrial evaluation of Kimbrough. Cashman apparently retained Berland in an attempt to find an expert who might be more favorable to Kimbrough for mental health mitigation purposes. Although Berland thought there were mental health issues which could have been presented at the penalty phase, he thought they would be difficult to present to the jury. Cashman chose not to put Berland on the stand because she thought he would testify that Kimbrough had "hidden craziness." She was concerned that the prosecution would portray Kimbrough as faking mental illness and noted that Berland's intelligence testing, which gave Kimbrough an IQ of ninety-four, placed him in the normal range of intelligence. Cashman was aware that the cutoff for mental retardation was seventy and that seventy-six reflected a low IQ. Cashman testified that she always ensured the mental health experts she retained had adequate background information on her clients. She recalled that Kimbrough's family members were not particularly cooperative in this case. Kelly Sims, Cashman's cocounsel, was certain that he had telephone conversations 972 with Mings prior to the time Cashman wrote the note that was found in Kimbrough's file. Sims stated that his practice at the time was not to write notes that could prove harmful to his client because he thought they could fall into the wrong hands. Although he said Cashman was better at taking notes than he was, "she was specifically never going to put anything down that may hurt her client." Sims explained any absence of notes from Cashman is evidence "that something bad happened because she is a prolific note-taker." He did not recall any specific reasons for striking Mings from the witness list but said, "[I] know we must have talked about it and I was in agreement with it." Sims further stated that if he had thought striking Mings was a mistake, he would have relisted him. Sims testified that he thought Berland was retained as a second opinion to try to develop some mental health issues. He did not recall whether retaining Berland was his idea or Cashman's. Sims testified that there was nothing in the public defender file that would tell him why Berland was not used but stated that the decision would have been made based on what Berland was going to testify to at trial. With regard to waiving potential mental health mitigation, Sims testified that while others may have had input on the decision, ultimately it was his choice and his decision. He did not remember discussing with Kimbrough the decision not to present mental health mitigation. Sims testified that he did not want any record discussion of the issue and said, "I just did not want to bury any hope for Mark Kimbrough later down the line. And I think that's what Ashton was trying to do. And that's not my job to help clean up the State's case." Sims stated: "I know that in my relationship with Mr. Kimbrough I had laid out everything that we did and talked about the pros and cons of it and thought I would make some coherent cohesive argument about why we had to do A, B, or C and spent hours talking about it." But, Sims thought he did not have a very good level of communication with Kimbrough. When asked about the theme of any mitigation defense, Sims stated: I recall that the theme was thread bare, that the main theme was that it didn't seem Mark had all that high of an IQ with respect to just dealing with figuring out problems in his life. It seemed like he had a lot of people that loved him and a lot of family that embraced him and that kind of can be contra to finding good mitigation going because people were kind of, I mean, his family wanted him and wanted to help him and I guess there was a little bit of, back when he was a teen, I can recall that some of the family members saying we wanted him to live with us and they said, no, we want him to live with us. I know he was a skilled singer. He had gifts to share in that field. But as far as being able to show physical abuse or sexual abuse and some kind of brain injury or organic brain dysfunction, I don't recall us having any of that. Sims thought that a low IQ was a potential mitigator but noted that there are plenty of inmates on death row who have been found to have IQs similar to Kimbrough's. Moreover, Sims stated that part of his argument during the guilt phase was that Kimbrough would have been really dumb to rape and murder a girl in his own apartment complex, to let another person see him with a ladder, and to then watch the next morning while all of the crime scene investigators and detectives were there. Sims worried that if they presented the low IQ evidence, it might have led the jury to think, "Well, he might be a 973 dope, so he would do something that would [make it] easy to catch him." Testimony of Prosecutor The State called Jeffrey Ashton, the prosecutor at Kimbrough's trial. Ashton was familiar with Cashman and Sims. Ashton testified that an elevation on scale four, psychopathic deviate, was the one he hoped for on an MMPI. He stated: "It is the one which, just by its name, is most appealing to a prosecutor. Because, when you can argue to a jury that this man has a high psychopathic deviant [sic] scale, just those words alone are a wonderful argument for a jury." The words alone have a negative connotation. Ashton further stated: [M]y experience generally is that when you ask for a definition of what does psychopathic mean, the definition you get is one of someone, you know, who lacks a well-developed conscience, you know, does not feel remorse, guilt, things of that general way. So it's something that it's hard to spin that as positive or sympathetic in my experience. Ashton stated that if he had known a scale four would come up, he would have used experts to characterize Kimbrough as dangerous. He would have gone into the characteristics of psychopathy, would have quoted some of the "less favorable descriptions of psychopaths," and would have equated psychopathy to antisocial personality disorder. He also stated he would have questioned expert witnesses about their knowledge of Kimbrough's prior criminal acts, both charged and uncharged, and would have asked about previous known acts of violence. As to a potential "remorse" mitigator, Ashton testified that "[e]xpressions of remorse, when you're in jail, after you've been caught and convicted, you know, are risk for argument of the insincerity of the supposed remorse." He further noted that the remorse argument opens the door to testimony as to the actions or conduct of the defendant that are inconsistent with remorse. Questions of character and the like generally open the door to questions about the full range of the defendant's possible misconduct. In this case, it might have opened the door for evidence that Kimbrough had previously been involved in a gang fight. Testimony of Defense Investigator The State called Barbara Pizarroz, the defense investigator. In the course of investigating Kimbrough's case, Pizarroz spoke with some twenty-two witnesses, obtained school and medical records, and spoke with Dr. Berland in an attempt to find some supporting data for brain damage. She met with Kimbrough's family members, friends, teachers, and coaches. Pizarroz traveled to Memphis as part of her investigation. She also met with Kimbrough on a number of occasions. She testified that for the most part he had a family who loved him. Pizarroz testified: For the most part, and I just don't want to get personal, but for the most part he has a family who just absolutely loves him. They spoke well of him, very caring. They were, you know, all totally devastated by this incident. And for the most part, you know, he had a family that absolutely loved him. But he was kind of shuffled from family member to family member, you know, when he was young. As far as his parents are concerned, that was a situation where Mark ... learned as a young boy that he was fathered by someone other than who he believed to be his father. And then he became involved with another gentleman who was with his mom for, I don't know, 974 six or eight years who took on a father figure. Prior to Kimbrough's trial, Pizarroz had worked on a number of cases with Berland, obtaining information that Berland needed to make his evaluation. In general, she was familiar with what information a mental health expert would need in a first-degree murder case. By the time she investigated the Kimbrough case, she had worked dozens and dozens of cases where the mental health aspect of a case was important. Pizarroz was also familiar with Mings and had supplied information to him for past evaluations. Testimony of Mental Health Experts Mings testified that a spike on scale four, psychopathic deviate, is not a formal DSM[7] diagnosis. He could not recall diagnosing Kimbrough with antisocial personality disorder, but it was possible that he discussed antisocial personality with Cashman as a possible diagnosis for Kimbrough. He stated that scale four of the MMPI measures traits which are found in persons with antisocial personality disorder but noted that such traits can also be found in normal people. Mings spent about eight hours with Kimbrough in testing and then another seven hours or so scoring the tests, reviewing background materials, and talking to attorneys. He requested an additional five hours for background material, and while he had no clear recollection, his impression was that he did not get much from Kimbrough and wanted to talk to other people to find out more details. Dr. Bill Mosman, a forensic psychologist and practicing attorney from the Miami, Florida, area, testified regarding potential statutory and nonstatutory mitigators which were not introduced at trial. Mosman reviewed various materials provided by Berland, reviewed the work of Dr. Sidney Merin, the State's mental health expert, reviewed the sentencing transcript, reviewed school records, and had conversations with Berland. Mosman did not personally examine Kimbrough prior to testifying and did not administer any tests to Kimbrough. He reviewed the defense investigator's file and recognized that Pizarroz "did voluminous amounts of work." From his review of the materials, Mosman thought that "from a statutory point of view, there were 5 statutory mitigators that were available and well reasonably could have been argued. From a hyper technical point of view there were three, but two of those are disjunctive." As to the potential statutory mitigators, Mosman stated: They are a felony was committed while under the influence of extreme mental disturbance, felony committed while under the influence of extreme emotional disturbance, and mental is different than emotionally, capacity to appreciate the criminality of his conduct was substantially impaired, capacity to conform his conduct to the requirements of law was substantially impaired. Age of the defendant at the time of the crime clearly, clearly, multiple severe impairments in that area, these are the statutory ones. Mosman testified that his review of the record and applicable case law revealed some thirty nonstatutory mitigators that could have been argued to the jury. Mosman stated: The 30 are clearly a potential, an ability to be rehabilitated. There is a lack of family life that's separate. And background. 975 Those are not the same ones. To collapse them is a complete misunderstanding of what the mental health process and the development of the child is all about. There was history of neglect, disadvantage or deprived childhood, clearly educational deficits, emotional impairments, and results of any emotional disturbance. Those are separate and separately found in forensic materials and training in cases, emotional disturbance, even if not extreme. There is extreme mental or emotional disturbance which is separate again, mental impairments, both cognitively and intellectually in the record. It's right in the data base. Medical problems or history of injuries that is in the records, utilization, drugs or alcohol, previous contributions to the community or society. That was, is, and existed in the records. Psychological difficulties. There is another one that's recognized and it's a tongue twister. It's called iatrogenises from the systems and it's spelled "iatrogenises." Forensically, that's described as systems aware of problems and fail to deal with it. And we'll get into what that means later. Remorse, positive confinement record, excuse me, and because I am testifying today and all of those record we would add another one, a good prison record. There is another one, behavior during trial. Those are disjunctive, not the same thing at all. Non anti-social personality, cannot be diagnosed, and that has to be a non-statutory mitigator in these types of situations. Can function in a structured environment. That's a separate one. Crime, itself, was out of character to the preincident situation Another one, he lost his cousin several years ago. Any impact that had on him. Failure to maintain relationship with family members that is in the records and it has been separately to be found mental health related non-statutory mitigators. Mild brain abnormality. I will say that again. Mild brain abnormality. M.V.D. mental, grew up without a father is separate from the background issue and lack of family life, educational difficulties, positive traits and I can't even read my handwriting here. Yes. I can. Mental and emotional handicaps, so those in a summary and while I understand some sound similar, they are actually different but the last one or two perhaps from a real technical mental health perspective, they are separate they enter play out on what was going on here so I think that if you count them up, that would be 30 non-statutory and 5 statutory from a mental health perspective. Mosman also testified that Kimbrough had an extreme emotional disturbance at the time of the crime due to various stressors which were acting on his life. Mosman stated that Kimbrough's capacity to conform his conduct to the requirements of the law was substantially impaired. This impairment was based upon the lack of "stability" or "consistency" in Kimbrough's upbringing. During his upbringing, Kimbrough learned that if he had emotional needs he had to take care of them himself. In support of the statutory age mitigator, Mosman explained that "[a]ge has to do with mental age, developmental age, social age, intellectual age, moral age." Kimbrough rated a ten percentile rating "from all the years of academic functioning." His school records also reflected annual testing where "76 out of 100 of his same age peers were educationally much more sophisticated and skilled than he." 976 Mosman calculated that based on an IQ of seventy-six, Kimbrough had the intellectual efficiency of a thirteen-year-old child. Kimbrough's emotional age, his ability to relate and engage in mature interpersonal relationships, was also low. On cross-examination, Mosman acknowledged that this was not the first time he had testified in a capital case that a defendant's mental age does not match his chronological age. He had previously testified that a thirty-eight-year-old man had the mental or developmental age of a fourteen-year-old. Mosman was not aware that this Court upheld the trial court's rejection of this proposed mitigator because his opinion was contradicted by the other twenty-five witnesses called by the defense during the penalty phase. He agreed that none of the various IQ test scores in this case placed Kimbrough in even the mild mental retardation range. Mosman noted that Pizarroz found notes from a long-term girlfriend of Kimbrough's who said that he was well-mannered and stated that Kimbrough was able to maintain relationships with "cousins, aunts, uncles, people that he met." Relying on this evidence, Mosman testified that a jury could conclude that the Collins rape and murder, followed by one other rape[8] was out of character for Kimbrough. Mosman referred to a Federal Bureau of Investigation manual describing the various types of rapes and concluded that Kimbrough's second rape fit the "expressions of relationship fantasies" category. On cross-examination, however, Mosman agreed that his testimony concerning relationship "fantasy rape" was made without having talked to Kimbrough about what he was thinking at the time he committed the rape. Mosman stated that mild brain abnormality might be found in the frontal lobe and "could have been argued." He thought the Weschler and MMPI tests could be used to argue brain damage or abnormality even though a PET scan rendered a normal reading. Although Mosman did not administer any tests to Kimbrough, he thought referrals could have been made to obtain additional testing. Mosman noted that Kimbrough exhibited no evidence of a conduct disorder prior to the age of fifteen, was not aggressive, was not a disciplinary problem in school, and behaved well with his family. Accordingly, Mosman said that antisocial personality disorder could not be diagnosed in this case. On cross-examination, Mosman said that he has been called to testify in thirty to thirty-five homicide and capital postconviction cases in Florida since 1990. In each of these cases, Mosman was called by the defense. When asked about the underlying data to support his opinion that the statutory mental mitigators applied at the time of the crime, Mosman asserted that he relied upon Kimbrough's traditional level of functioning. However, Mosman agreed that he did not talk to Kimbrough's mother, his other relatives, his friends, or his girlfriend to see if Kimbrough was somehow disordered in his thoughts at the time of the Collins murder. Mosman said that he did not do so because "[t]hey would have, in all probability, no information on that issue at all." In rebuttal, the State called Dr. Sidney Merin, a psychologist specializing in clinical psychology and neuropsychology. Merin conducted a court-ordered neurological and psychological examination of Kimbrough. He also reviewed background materials relating to Kimbrough and the 977 criminal proceedings against him. Merin interviewed and tested Kimbrough for just over six hours. He administered an IQ test and testified that Kimbrough had a full scale IQ of eighty-one, which is in the low average range. Merin thought that Kimbrough had a learning disability and that his "fund of information" was low. Merin also administered other tests which placed Kimbrough in the lower end of the average range. Merin stated: "I would conclude that he's probably in the low average range overall." Merin testified that tests performed on Kimbrough revealed a statistically significant elevation in the psychopathic deviate scale. As to the significance of this result, Merin stated: What you're more likely to say is this represents a significant degree of real rebelliousness in the personality, a significant degree of superficiality, an inclination not to become deeply, emotionally involved with others, although on the surface they can appear very nice. They make a good first impression. And after you talk with them a while, you begin to see what they're saying doesn't fit together, doesn't seem to it's not that it doesn't make sense, but it seems to be selfserving. Also found with people who have conflict with authority, who are manipulative, who are confidence people, who can act impulsively, who can defy the rules, who can be insensitive to the feelings of others, have a lot of difficulty with empathy. These are people who sometimes have a history of being under-achievers. Or, again, they may be impulsive, may have a tendency to blame their family for whatever occurs to them or blame other people for whatever occurs to them, although projection on this scale is not necessarily a prominent feature. Merin testified that based on the results of all the tests he administered, he did not find that Kimbrough suffered from a serious emotional or mental disorder. However, he did find an Axis II, or behavioral disorder, and a general personality disorder with borderline and antisocial features. Merin also diagnosed a learning disability, which was due to Kimbrough's personality characteristics and not due to brain damage. As far as brain functioning, Merin said that he did not see any problems. Merin testified that he would not have found any statutory mitigating circumstances in this case. As a single nonstatutory mitigator, Merin might have found a borderline personality disorder which had its underpinnings possibly in Kimbrough's unstable early childhood. He noted, "that's a rather mild non-statutory." Merin did not find any evidence that Kimbrough suffered from an extreme mental or emotional disturbance at the time of the crimes and did not find any evidence that Kimbrough's capacity to appreciate the criminality of his conduct at the time of the crime was substantially impaired. Merin did not find evidence to support a conclusion that Kimbrough's developmental or emotional age was less than his chronological age. Merin also did not agree that Kimbrough qualifies for a borderline intellectual functioning diagnosis, stating: Well, first of all, I don't agree with your definition of borderline because I don't agree with it because he's got many areas where he's perfectly average. So I would not in any way I would not in any way suggest that he has a borderline, whatever it was, diagnosis that you're referring to. And you asked which ones? Well, let's just take a look at it. I referred to them earlier. We can take a look at it again. Average vocabulary, average verbal abstraction 978 scores, average visual reasoning, average nonverbal comprehension skills and several of those are just a smidgin below average. So I would not in any way suggest that he's got that borderline intellectual deficit. If you're just gonna use a number which doesn't really mean anything, any psychologist will tell you those IQ numbers don't mean anything, because next week it could change. What you look for are levels and the way it's distributed. Trial Court's Findings In its order denying Kimbrough's 3.850 motion, the court devoted eight pages to the resolution of Kimbrough's Ake claim and set forth its factual findings. The court agreed that Cashman misunderstood the significance of the psychopathic deviate scale but noted that Sims, who understood the scale, concurred with striking Mings. The court held that the decision not to call Mings and Berland was a reasonable trial tactic. The court found that Kimbrough failed to establish that additional materials or preparation would have enabled Mings, Berland, or any other doctor to conduct a more thorough mental health evaluation or to provide mitigation testimony sufficient to outweigh any of the potential risks associated with their testimony. As to the potential mitigation found by Mosman, the court noted that he did not conduct any independent testing and that there were no witnesses at the evidentiary hearing who could have presented direct evidence regarding these potential mitigators. The court further concluded that many of the mitigators cited by Mosman would have been given little or no weight. A. APPLICABLE LAW 1. Standard of Review Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the test espoused in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail, the defendant must first show that counsel's performance was deficient, which requires a showing "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. 2052. Second, the defendant must show that the deficient performance prejudiced the defense, which requires a showing "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Absent both showings, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. In reviewing counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. 2052. In determining whether counsel's performance amounted to ineffective assistance, an appellate court must conduct an independent review of the trial court's legal conclusions while giving deference to the trial court's factual findings. Stephens v. State, 748 So. 2d 1028, 1033 (Fla.1999). 2. Ineffective Assistance of Counsel The United States Supreme Court held in Ake that where an indigent defendant demonstrates to the trial judge that his sanity at the time of the offense will be a significant factor at trial, the State must "assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S. Ct. 1087. 979 In Ragsdale v. State, 798 So. 2d 713 (Fla.2001), this Court noted that "[a]n attorney has a strict duty to conduct a reasonable investigation of a defendant's background for possible mitigating evidence." 798 So.2d at 716 (quoting State v. Riechmann, 777 So. 2d 342, 350 (Fla.2000)). The record in Ragsdale established that "counsel essentially rendered no assistance to Ragsdale during the penalty phase of trial." Ragsdale, 798 So.2d at 716. The Court stated that "[t]he record at the 3.850 evidentiary hearing conclusively establishes that counsel failed to investigate and present at the penalty phase an abundance of potential mitigating evidence." Id. At the evidentiary hearing, Ragsdale presented the live testimony of three siblings and the deposition testimony of two other siblings who testified as to Ragsdale's extensive history of abuse during his childhood. Id. The court stated: Dr. Berland [the defense psychologist] concluded that Ragsdale was psychotic at the time of the offense, and thus the statutory mitigating circumstances of extreme mental or emotional disturbance and inability to conform to the requirements of law applied in the instant case. Dr. Berland also identified a list of nonstatutory mitigating factors including organic brain damage, physical and emotional child abuse, history of alcohol and drug abuse, marginal intelligence, depression, and a developmental learning disability. Id. at 718. Although the State's expert witness did not agree that Ragsdale was psychotic and had suffered organic brain damage, he offered no opinion as to the applicability of the statutory mental mitigators. The State's witness admitted that Ragsdale had a severe learning disability, that Ragsdale's IQ score was in the borderline retarded range, that Ragsdale's brain was impaired, and that Ragsdale had a personality disorder with paranoid features. Id. On this basis, the Court held that "the conclusion is inescapable that there was available evidence from experts which would have supported substantial mitigation but which was not presented during the penalty phase." Id. The Court distinguished Ragsdale from Cherry v. State, 781 So. 2d 1040 (Fla.2000), and Asay v. State, 769 So. 2d 974, 988 (Fla.2000). In Cherry, the Court denied an ineffective assistance of counsel claim because Cherry was uncooperative and precluded his counsel from investigating and presenting evidence in mitigation. In Asay, the Court affirmed the rejection of an ineffectiveness claim where the attorney was informed of the defendant's abusive background and, after contacting potential witnesses, made a strategic decision to forego the presentation of nonstatutory mitigation to avoid "open [ing] the door to damaging cross-examination regarding [defendant's] violent past." Asay, 769 So.2d at 988. The Court held that "defendant's attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence." Id. at 986; see also Jones v. State, 732 So. 2d 313, 320 n. 5 (Fla.1999) (affirming trial court's finding that counsel had made reasonable tactical decision to forego further investigation of mental health mitigation evidence after receiving initial unfavorable diagnosis); Correll v. Dugger, 558 So. 2d 422, 426 (Fla.1990) (a mental health examination is not inadequate simply because a defendant is later able to find experts to testify favorably based on similar evidence). B. APPLICATION OF LAW Kimbrough asserted that defense counsel was ineffective for failing to call Mings and Berland, for failing to provide Mings 980 and Berland with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence. Although this Court conducts an independent review on questions of law, it must give deference to the trial court's factual findings. 1. Failure to call Dr. Mings or Dr. Berland The court found that there was insufficient testimony presented at the evidentiary hearing to establish either deficient performance or prejudice on the part of defense counsel for failing to call Mings or Berland at trial. The court found that Cashman's repeated references to the "psychopathic deviant" scale suggest that she did not fully appreciate the significance of the MMPI results and may have thought the evidence was more harmful than it actually was. However, the court noted that Cashman's cocounsel, Kelly Sims, understood the meaning of the scale and stated that he also would not have presented the evidence. Cashman stated that there were mental health issues which could have been presented as mitigation but asserted that Berland would have found them difficult to present, and Cashman was concerned that the State would portray Kimbrough as someone who was faking mental illness. Sims was also concerned that Mings would testify that Kimbrough had no morals and would do whatever he wanted to do. He agreed that the defense could not risk opening the door to the introduction of a lot of bad information just to get in a small amount of helpful information. Testimony at the evidentiary hearing corroborated Cashman's concern that Ashton would have used the MMPI results to portray Kimbrough in a bad light. The court concluded that counsel's decision not to call Dr. Mings or Dr. Berland as witnesses was a reasonable trial tactic. We agree with the trial court. Cashman and Sims weighed the mitigation evidence Mings and Berland could have presented against the potential risks of having them testify. The strategic decision Cashman and Sims made not to have Mings and Berland testify at trial was a reasonable trial tactic and did not constitute deficient performance. See Griffin v. State, 866 So. 2d 1, 9 (Fla.2003) (citing Ferguson v. State, 593 So. 2d 508 (Fla.1992), and State v. Bolender, 503 So. 2d 1247, 1250 (Fla.1987) (holding that "[s]trategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected")). 2. Failure to Provide Doctors With Sufficient Background Material Kimbrough alleged that Mings and Berland were not provided sufficient background material to conduct a thorough mental health evaluation. The court held that the supporting facts required for an ineffective assistance of counsel claim in this respect are glaringly absent. No witnesses at trial could recall exactly what records were provided to, or withheld from, the defense experts.[9] Kimbrough did not establish that additional materials or preparation would have enabled Mings or Berland to conduct a more thorough 981 mental health evaluation. The court held that Kimbrough failed to meet his burden of proof. We agree with the trial court's denial of relief on this claim. To establish deficient performance, Kimbrough must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S. Ct. 2052. Kimbrough failed to meet his burden of proof in this case. 3. Other Mitigation Evidence Dr. Mosman asserted at the evidentiary hearing that there were numerous statutory and nonstatutory mitigators which should have been presented at trial. The court noted that Mosman did not conduct any independent testing of Kimbrough and that there was no evidence presented to support the existence of the proposed mitigators or to establish the weight they would have carried if presented to the jury during the penalty phase. The court also concluded that many of the mitigators cited by Mosman would have been given little or no weight. On this basis, the court held that Kimbrough failed to meet his burden of proof. In support of his argument, Kimbrough cites Ragsdale. In Ragsdale, this Court held that counsel was ineffective when counsel presented no mitigation at the penalty phase, and the existence of an abundance of mitigators was undeniably shown at the evidentiary hearing. In this case, the mitigators presented by Mosman were based on speculation and conjecture and were rebutted by the State's expert witness. Additionally, the mitigators would have been given little or no weight by the court. The facts of this case are more similar to those in Asay where the Court affirmed the rejection of an ineffectiveness claim where defense counsel made a strategic decision to forego the presentation of nonstatutory mitigation to avoid opening the door to damaging cross-examination regarding the defendant's violent past. Asay, 769 So.2d at 988. The Court held that the "defendant's attorney was not deficient where after receiving an initial unfavorable report from the examining psychologist the attorney decided to discontinue his investigation for mental mitigation evidence." Ragsdale, 798 So.2d at 719. It is clear from the evidentiary hearing testimony in this case that mental health mitigation was investigated and counsel made a strategic decision not to present the mitigation. Counsel's actions in this case were not deficient, and Kimbrough's claims are without merit. II. SUMMARY DENIAL OF CLAIMS Kimbrough argues that the trial court erred when it denied an evidentiary hearing on five of the claims in his rule 3.850 motion. The State argues that the court properly denied the claims without a hearing. A. APPLICABLE LAW 1. Standard of Review This Court has repeatedly stated the standard of review for summary denial of a rule 3.850 claim: To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations to the extent they are not refuted by the record. Peede v. State, 748 So. 2d 253, 257 (Fla.1999) (citation omitted). A movant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he or she alleges specific "facts which are not conclusively rebutted by the record and 982 which demonstrate a deficiency in performance that prejudiced the defendant." Gaskin v. State, 737 So. 2d 509, 516 (Fla.1999) (quoting Roberts v. State, 568 So. 2d 1255, 1259 (Fla.1990)). B. APPLICATION OF LAW 1. Claim Two Kimbrough alleged he was denied the effective assistance of counsel when counsel failed to adequately challenge the credentials of Charles Badger, a Florida Department of Law Enforcement (FDLE) employee and expert witness for the State. At trial, the defense declined to voir dire Badger stating, "We're familiar with Mr. Badger." Kimbrough argues that without an evidentiary hearing he was unable to inquire as to counsel's reasons for not conducting voir dire as to Badger's credentials. The State argued that Kimbrough failed to show how the decision not to voir dire the witness actually prejudiced Kimbrough because he did not allege that Badger was actually unqualified or that any specific damaging facts could have been revealed through further questioning. The trial court stated that Kimbrough's allegations were conclusory and that Kimbrough failed to demonstrate what questions counsel should have asked or how those questions would have impeached Badger's credibility. The court held that Kimbrough failed to demonstrate either deficient performance or prejudice. The record in this case shows that Badger held a bachelor's degree, had been trained as a forensic serologist, and had been qualified to testify in Florida courts "twelve or thirteen times." There is no basis in the record for alleging that counsel's decision not to voir dire Badger constituted deficient performance. Kimbrough has failed to allege specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant. See Gaskin v. State, 737 So. 2d 509, 516 (Fla.1999). Summary denial of this claim was proper. 2. Claim Four Kimbrough alleged that his right to a jury composed of a cross-section of the community was violated by counsel's ineffectiveness during voir dire when counsel failed to rehabilitate Mattie Barnwell, one of the few African-Americans on the venire panel. Barnwell stated that she would do away with the death penalty and, although she understood it was part of the law in Florida, she would not be able to go along with the law and swear to follow it. Additionally, Kimbrough alleged that counsel failed to correct the state attorney's inaccurate statement that the juror would have to "take an oath swearing before God to follow the law of Florida," when in fact jurors may either swear or affirm. Kimbrough asserts that without an evidentiary hearing he was unable to inquire as to counsel's reasons for not conducting voir dire as to this juror in an effort to rehabilitate her. The court noted that the standard for determining whether a prospective juror may be excused for cause because of his or her views on the death penalty is whether those views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985). The court also noted that Kimbrough did not offer in his 3.850 motion any specific questions that could have been asked to rehabilitate the juror, and it was unlikely any attempt to do so would have been successful. Based on the statements made by Barnwell, it is clear that any attempt at rehabilitation would have failed. Counsel's performance was not deficient and summary 983 denial was proper. See Gaskin v. State, 737 So. 2d 509, 516 (Fla.1999); see also Reaves v. State, 826 So. 2d 932 (Fla.2002)(affirming summary denial of ineffective assistance claims where no challenge for cause would have been successful for named jurors and where claims that followup questions would have revealed a basis for cause challenges constituted mere conjecture). 3. Claims Six and Eighteen Kimbrough alleged that counsel was ineffective (1) when, during voir dire, counsel failed to discover a juror's connection with the FDLE; and (2) when defense counsel failed to move for a mistrial after the State disclosed that the juror, Eddie Julian, had a connection with an FDLE employee. Julian's fiance worked in the FDLE crime lab, and Julian had taken courses in DNA. The State argued that these factors do not establish a reasonable probability that the outcome of the trial would have been different if these facts had been brought out on voir dire. At trial, defense counsel filed a motion for new trial and a motion to voir dire Julian. After a detailed hearing conducted August 8, 1994, at which Julian was thoroughly examined, the court denied the motion for new trial. As the postconviction court stated, "The underlying substance of this claim is clearly Mr. Julian's potential bias, an issue which could have been raised on direct appeal because it was thoroughly addressed at the conclusion of the trial." On this basis, the court rejected the claim as procedurally barred, finding that it could have been raised on direct appeal. To the extent Kimbrough seeks review of the substantive issue underlying his ineffective assistance of counsel claim, we agree. See Maharaj v. State, 684 So. 2d 726 (Fla.1996) (holding that postconviction relief claims which either were raised or could have been raised on direct appeal were properly denied without an evidentiary hearing); see also Sireci v. State, 469 So. 2d 119, 120 (Fla.1985) ("Claims previously raised on direct appeal will not be heard on a motion for post-conviction relief simply because those claims are raised under the guise of ineffective assistance of counsel."). As to Kimbrough's claim that counsel was ineffective, Kimbrough has failed to establish prejudice. Thus, summary denial was proper. See Gaskin v. State, 737 So. 2d 509, 516 (Fla.1999). 4. Claim Seven Kimbrough alleged that counsel was ineffective when counsel failed to move for a mistrial after the State made three improper closing arguments which implied that Kimbrough should have presented certain evidence but failed to do so. At trial, defense counsel objected to each of the three arguments, and the court sustained each objection. The court admonished the prosecutor after the second comment and objection, stating: "You have a tendency to make it like they've got a responsibility here. They don't and that's mistrial material. Don't do it." The court gave two curative instructions during closing argument to inform the jury that the defense was not required to put on evidence. After the jury was excused to deliberate, the court asked Kimbrough if he wanted to request a mistrial. Kimbrough stated that he had spoken with his counsel and agreed that it would not be a good idea to request a mistrial. Kimbrough asserts that without an evidentiary hearing he was unable to inquire as to counsel's reasons for not requesting a mistrial. In Spencer v. State, 645 So. 2d 377, 383 (Fla.1994), this Court stated: In order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute 984 to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise. The court in this case found that the curative instructions were sufficient to correct any misconception in the minds of the jurors, and further found that the comments were simply not prejudicial enough to warrant a mistrial. The court held that counsel's obligations were fulfilled by raising timely objections, and if a new trial had been granted, there is no reasonable probability that the outcome would have been different. Defense counsel timely objected in this case, and the court gave two curative instructions. Counsel then discussed with Kimbrough whether or not he wanted to request a mistrial, and Kimbrough stated that he did not want to request a mistrial. Kimbrough has failed to allege specific "facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant." Gaskin v. State, 737 So. 2d 509, 516 (Fla.1999). Summary denial was proper. III. HABEAS CORPUS CLAIMS Kimbrough raises two claims in his petition for habeas corpus. He first argues that Florida's death sentencing statutes as applied are unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). This Court has previously declined to hold that Florida's death penalty scheme is unconstitutional on the basis of Apprendi or Ring. See Bottoson v. Moore, 833 So. 2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S. Ct. 662, 154 L. Ed. 2d 564 (2002); King v. Moore, 831 So. 2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S. Ct. 657, 154 L. Ed. 2d 556 (2002). Additionally, one of the aggravators in this case was a prior conviction for "burglary of a dwelling with a battery therein" and sexual battery. The prior violent felony aggravator alone clearly satisfies the mandates of the United States and Florida Constitutions. See Doorbal v. State, 837 So. 2d 940 (Fla.), cert. denied, 539 U.S. 962, 123 S. Ct. 2647, 156 L. Ed. 2d 663 (2003). This claim is without merit. Kimbrough next argues that his Eighth Amendment right against cruel and unusual punishment will be violated as he may be incompetent at the time of execution. Kimbrough notes that although a claim of incompetency to be executed cannot be asserted until a death warrant has been issued, federal law requires that, in order to preserve a competency to be executed claim, the claim must be raised in the initial petition for habeas corpus. Under Florida Rules of Criminal Procedure 3.811 and 3.812, the issue of competency for execution cannot be raised until the Governor has issued a death warrant. See, e.g., Cole v. State, 841 So. 2d 409, 430 (Fla.2003); Brown v. Moore, 800 So. 2d 223, 224 (Fla.2001). Kimbrough asserts that he raises this claim to preserve his ability to pursue a similar claim in the federal system. Kimbrough's concession that this issue is not yet ripe is accurate. Accordingly, this claim is without merit. CONCLUSION For the reasons stated above, we affirm the lower court's denial of Kimbrough's rule 3.850 motion and deny Kimbrough's petition for a writ of habeas corpus. It is so ordered. 985 WELLS, PARIENTE, LEWIS, QUINCE, CANTERO and BELL, JJ., concur. ANSTEAD, C.J., concurs specially with an opinion. CANTERO, J., concurs specially with an opinion, in which WELLS and BELL, JJ., concur. ANSTEAD, C.J., specially concurring. I concur in the majority opinion in all respects except for its discussion of the decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). CANTERO, J., specially concurring. I concur in the majority opinion. Moreover, regarding Kimbrough's claim that Florida's capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), I also would hold, for the reasons stated in my specially concurring opinion in Windom v. State, 886 So. 2d 915, 935-52, 2004 WL 1057640 (Fla. May 6, 2004), that Ring does not apply retroactively. WELLS and BELL, JJ., concur. NOTES [1] We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. [2] In this amended motion, Kimbrough alleged that: (1) he was denied the right to fully investigate and prepare his postconviction pleadings because the court required that the motion be filed before the results of DNA testing were concluded; (2) counsel was ineffective for failing to adequately challenge the credentials of state expert witness Charles Badger; (3) counsel was ineffective for failing to request an inquiry as to the general scientific acceptance of the DNA technique employed at trial; (4) Kimbrough's right to a jury composed of a cross-section of the community was violated by counsel's failure to rehabilitate venireperson Mattie Barnwell; (5) counsel was ineffective for failing to voir dire juror Louisa Devose regarding her connection to the crime scene; (6) counsel was ineffective for failing to discover during voir dire juror Eddie Julian's connection with the Florida Department of Law Enforcement; (7) counsel was ineffective for failing to move for a mistrial after the State's improper closing argument; (8) Florida's capital sentencing statute is unconstitutional on its face and as applied; (9) Kimbrough was denied his right to a fair and impartial jury by prejudicial pretrial publicity, by the lack of a change of venue, by a failure to sequester the jury, and by events in the courtroom during trial; (10) counsel was ineffective for allowing excessive security measures or shackling at trial to deprive Kimbrough of a fair trial; (11) execution by lethal injection constitutes cruel and unusual punishment; (12) execution by electrocution is cruel or unusual punishment; (13) Kimbrough's trial was fraught with procedural and substantive errors which denied him a fair trial; (14) the jury received inadequate guidance concerning the aggravating circumstances to be considered; (15) the penalty phase jury instructions were incorrect under Florida law, the sentence of death is unconstitutional, and counsel was ineffective for failing to object; (16) Kimbrough's sentence rests upon an unconstitutionally automatic aggravating circumstance; (17) counsel was ineffective for failing to object when the State overbroadly and vaguely argued aggravating circumstances; (18) counsel was ineffective for failing to move for a mistrial after the State disclosed that one of the jurors had a connection with a Florida Department of Law Enforcement employee; (19) Kimbrough was denied his right to adequate mental health assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985); and (20) counsel was ineffective for failing to adequately present available alibi witnesses. [3] Huff v. State, 622 So. 2d 982 (Fla.1993). [4] Claims one, three, and twenty. [5] Claims five, ten, and nineteen. [6] Although the note referred to "psychopathic deviant," the note apparently referred to a spike on the "psychopathic deviate scale," one of the scales in the MMPI. There was some evidence that Cashman confused the name of the scale with an actual diagnosis that Kimbrough was a psychopathic deviant. [7] American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (4th ed.2000). [8] Between the time of the Collins murder and the time he was charged with the murder, Kimbrough committed another rape. He pled guilty to the rape charge. [9] The court noted that Kimbrough, through the actions and inactions of collateral counsel, contributed to his inability to meet his burden of proof. The court stated: Instead of immediately attempting to obtain statements and records from trial counsel and examining doctors only 5 years after the trial, when recollections would have been fresher and records less likely to be missing, CCRC [Capital Collateral Regional Counsel] engaged in one delay tactic after another. Although CCRC's dilatory conduct made its job more difficult, CCRC has exhausted every conceivable avenue of relief on Defendant's behalf.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615090/	668 P.2d 1206 (1983) 295 Or. 553 NORTHWESTERN PACIFIC INDEMNITY COMPANY, an Oregon Corporation, Petitioner On Review, v. JUNCTION CITY WATER CONTROL DISTRICT, Respondent On Review. No. TC 16-79-09299, CA A22583; SC29362. Supreme Court of Oregon, In Banc.[] Argued and Submitted June 6, 1983. Decided September 7, 1983. 1207 Daniel M. Holland, Jaqua, Wheatley, Gallagher & Holland, P.C., Eugene, argued the cause and filed briefs for petitioner on review. Randall Bryson, Bryson & Bryson, Eugene, argued the cause for respondent on review. With him on the briefs was Calkins & Calkins, Eugene. Kay Kiner James, Asst. Atty. Gen., argued the cause for amicus curiae State of Oregon. On the brief were Dave Frohnmayer, Atty. Gen., Stanton F. Long, Deputy Atty. Gen., William F. Gary, Sol. Gen., and Christine L. Dickey, Asst. Atty. Gen. LENT, Justice. The issue, as presented by the parties, is whether an indemnity clause was incorporated by reference into a form contract between the state and a municipal government entity where the text of the incorporating provision identified for incorporation the "appropriate" provisions contained in another document. Defendant applied for and was granted a permit from the then Oregon State Highway Commission to construct an irrigation canal across state owned land adjacent to a highway. The application for the permit, which is a form authored and issued by the state,[1] contained on the back in the same size type as the rest of the form the following: "The appropriate General Provisions contained in `Oregon State Highway Commission, General Provisions for Pole Line, Buried Cable, Pipe Line, Non-commercial Signs, and Miscellaneous Operations and/or Facility Permits, December, 1966' * * * shall apply to this permit, and by this reference are made a part hereof. It shall be the obligation of the applicant to obtain said General Provisions from the Commission and to determine which of the various provisions are applicable before the commencement of work under said permit." (Emphasis supplied) The "General Provisions," in the form of a booklet, were available upon request from the Highway Commission. They contained the following: "A. The Applicant shall indemnify and hold harmless the State, Commission, * * * against any and all damages, claims, demands, actions, causes of action, costs and expenses of whatsoever nature which may result from any injury to or the death of any persons or from the loss of, or damages to, property of any kind or nature, * * * when such injury, death, loss or damage arises out of the construction, installation, maintenance, repair, removal, relocation, operation or use of the pole line, buried cable, pipe line, sign or 1208 miscellaneous facility covered by the permit * ."[2] An employee of the firm hired by the Water District to engineer the canal obtained the permit application. He was also mainly responsible for supplying the technical information concerning the project that was required by the application. The application was then delivered to the Water District's general manager, who signed it on the Water District's behalf. The engineering firm employee who procured the permit application testified that although he knew of the "General Provisions" booklet, he was familiar with only those provisions dealing with technical engineering matters. The Water District's general manager testified that he did not know of the booklet at all. The state accepted the application. The parties have treated the resulting permit as a contract. Defendant completed construction of the canal, and a few months later a tree, located on state property close by the defendant's canal, fell across the highway, injuring two people and killing a third. Those injured, or their representatives, sought redress against a number of parties, including the state and this defendant. Plaintiff was the state's insurer and tendered the state's defense to defendant. Defendant refused to defend the state's interests. Plaintiff and defendant were independently successful in defending their respective interests; however, the plaintiff, subrogated to the rights of the state, sought indemnity from the defendant for its defense costs[3] pursuant to the indemnity provision here in dispute. The defendant argued that the indemnity clause was not incorporated into its contract with the state and also that those who were responsible for procuring and executing the permit were not its agents. Defendant further contended that it was not responsible for any imputed knowledge of contractual terms gained by those who actually procured the permit.[4] At trial, the issue of whether the indemnity clause was part of the agreement was given to the jury, which returned a verdict in favor of the defendant. The trial court denied the plaintiff's motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial. The plaintiff appealed, assigning as error, among others, the giving of the incorporation question to the jury. The Court of Appeals affirmed, 61 Or. App. 341, 656 P.2d 955 (1983), holding as follows on the issue of incorporation: " * * we cannot say that there was a clear incorporation by reference here. The permit does not incorporate the General Provisions in their entirety; if it had done so, there would be no question whether the indemnity provision was part of the agreement. Instead, it incorporates only the `appropriate' provisions and leaves to the applicant to obtain the General 1209 Provisions `and to determine which of the various provisions are applicable * .' There is no specific reference in the printed form to an indemnity provision. "Assuming that there was a valid incorporation in the agreement of some of the General Provisions, the turbid language used by the state in the printed form is ambiguous and, to the extent that its meaning depends on extrinsic evidence, the question was for the trier of fact. Meskimen v. Larry Angell Salvage Company, 286 Or. 87, 92-93, 592 P.2d 1014 (1979). If extrinsic evidence is not necessary to resolve the ambiguity, the question is one of law for the court, in which case we would resolve the ambiguity against the party who prepared the agreement." We allowed review in order to determine the incorporation issue because it appeared that there are some 14,000 similar permits which may be affected. We hold that plaintiff's motion for a directed verdict should have been allowed and, accordingly, we reverse.[5] The Court of Appeals' analysis of the incorporation issue stops with an examination of the incorporating reference and thus fails to consider the issue in the context of an integrated contract. Having determined that the incorporation clause is ambiguous, the Court of Appeals then seems to conclude that it either fails to incorporate the booklet at all or that it does so with such imprecision that it is impossible to determine which specific provisions have been included in the contract. It is a fundamental rule of contract interpretation that the agreement must be construed as a whole. Sproul v. Gilbert, 226 Or. 392, 359 P.2d 543 (1961). See also Portland Web Pressman's Union v. Oregonian Pub. Co., 188 F. Supp. 859, affd 286 F.2d 4, cert. den. 366 U.S. 912, 81 S. Ct. 1086, 6 L. Ed. 2d 237 (1960). The Court of Appeals should not have concluded that the criterion for incorporation was ambiguous until it examined the material to be incorporated in the light of that standard unless the incorporating reference was so unclear as to make it unreasonably difficult to ascertain what was to be considered under the standard. In this case, however, the incorporating reference was not so unclear. Where a written instrument refers in specific terms to another writing, the other writing is a part of the contract. Cerino v. Oregon Physicians' Service, 202 Or. 474, 276 P.2d 397 (1954). Since this incorporating reference refers to a document in specific terms, those provisions are a part of the contract to the extent that they can be determined to be "appropriate." We reject the suggestion in the defendant's brief and in the opinion below that the determination of which of the "General Provisions" is to be included in the contract is left to the applicant. To construe the criterion for incorporation in terms of the subjective interests of either party would be bound to make the application of such a term so unreasonable that no prudent person would enter into such a contract. See Kabil Developments Corp. v. Mignot, 279 Or. 151, 157, 566 P.2d 505 (1977). See also Elte, Inc. v. S.S. Mullen, Inc., 469 F.2d 1127 (1972). Instead, we affirm in this context our approval of the standard of limited usage, or the objective theory of interpretation. 4 Williston on Contracts §§ 605, 607 (3rd Ed), Restatement Contracts § 230. This is a standard to which we have had recourse in the past in similar situations. Springer v. Powder 1210 Power Tool Corp., 220 Or. 102, 348 P.2d 1112 (1960); Harty v. Bye, 258 Or. 398, 483 P.2d 458 (1971). In Rushlight Co. v. City of Portland, 189 Or. 194, 219 P.2d 732 (1950), and in Springer this court approved the interpretation of this theory set out in Restatement (Second) Contracts § 230 as follows: "The standards of interpretation of an integration, except where it produces an ambiguous result, or is excluded by a rule of law establishing a definite meaning, is the meaning that would be attached to the integration by a reasonably intelligent person acquainted with all operative usages and knowing all the circumstances prior to and contemporaneous with the making of the integration, other than oral statements by the parties of what they intended it to mean." When applied in this context this statement of the theory results in the rule that when a contract term (such as "appropriate" in the instant case) serves as a standard of inclusion for other terms of an integration, and is susceptible without reference to these other terms to varying interpretations, parts of the contract which are affected shall not thereby automatically fail or be subject to dispute because of ambiguity in the criterion term. The standard shall be applied to the affected portions according to the most reasonable interpretation under the totality of the circumstances. It is only when the standard as applied to a disputed provision is subject to more than one equally reasonable interpretation that it is considered ambiguous and either gives rise to a jury question or is construed against its author. May v. Chicago Insurance Co., 260 Or. 285, 490 P.2d 150 (1971); Young v. Crown Zellerbach Corp., 244 Or. 251, 417 P.2d 394 (1966). When we examine the indemnity clause under the appropriateness criterion as thus construed, it is readily apparent that the indemnity clause is part of the contract. The indemnity clause refers to the one subject to its content as "the Applicant." There can be no question at all in this case to whom this term refers. Moreover, the clause describes the duty to indemnify as covering the cost of claims against the state arising out of construction in any of its aspects authorized by the permit. The defendant cannot argue that it was not authorized by the permit to engage in activities that the provision meant to govern or that it did not engage in such activities;[6] therefore, the indemnity clause is "appropriate" to this permit. Reversed. NOTES [] Justice Lent was Chief Justice when this case was argued; Justice Peterson was Chief Justice when this decision was rendered. [1] ORS 180.060(5) as it existed between 1961 and 1966 authorized the Attorney General to prepare legal forms and contracts for the state upon request by the department concerned. [2] This provision in a slightly altered form has been codified since 1981 under the regulations of the Highway Division of the Department of Transportation as OAR 734-55-025(1). [3] We note that it is well settled that an indemnitor defendant has "an obligation to defend the indemnitee or to pay the costs of defense if the claim was covered under the indemnity agreement * *." St. Paul Fire and Marine v. Crosetti Bros., 256 Or. 576, 580, 475 P.2d 69, 71 (1970); St. Paul Fire v. U.S. Nat. Bank, 251 Or. 377, 446 P.2d 103 (1968). The underlying issue here is similar to the main issue in Crosetti Bros., that is whether the defendant has such an obligation. Unlike Crosetti Bros., however, the obligation here depends not on the scope of the indemnity clause but on whether such a clause was part of the contract. [4] Parenthetical to our main holding in this case, we point out that the outcome here is not affected by any issue of notice, constructive or actual. In the absence of extraordinary circumstances, such as fraud or contracts of adhesion in a consumer context, failure to read an instrument is not a defense to enforcement. Shell Oil Co. v. Boyer, 234 Or. 270, 381 P.2d 494 (1963); Knappenberger v. Cascade Ins. Co., 259 Or. 392, 487 P.2d 80 (1971). Furthermore, defendant argued below and has attempted to raise here that those who were responsible for procuring and executing the permit application were not its agents. We point out that by acting upon the permit defendant ratified its contents. Larkin v. Appleton, 274 Or. 671, 548 P.2d 499 (1976). [5] We point out that although we determine the issue raised by the parties, treating the permit as a contract may not be the most legally satisfactory or complete basis upon which to dispose of this case. The parties did not raise the possible significance of considering the permit as a license issued by the state and governed by what may or may not have been valid administrative regulations. In particular, the parties did not argue or brief the issue of whether the "General Provisions" were in force as valid administrative regulations or what effect the determination of that issue should have upon this case. See Maddox v. Clac. Co. Sch. Dist. No. 25, 293 Or. 27, 643 P.2d 1253 (1982). We say nothing here about how such an approach would affect the outcome and note that our holding governs only the narrow issue before us. [6] Defendant has attempted indirectly to raise here an issue with regard to whether the costs sought by the plaintiff actually arose out of construction activities covered by the permit. The plaintiff may not raise such an issue here as an argument against incorporating the indemnity clause into the contract. As such, it is immaterial, and defendant has lost the opportunity to have the issue considered directly as a defense against enforcement because the issue involves questions of fact which should have been raised at trial on pleadings and evidence. Waller v. Rocky Mtn. Fire & Casualty, 272 Or. 69, 535 P.2d 530 (1970).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1901643/	819 So. 2d 542 (2001) Bobby Leonard GRAY, Appellant, v. STATE of Mississippi, Appellee. No. 2000-CP-00749-COA. Court of Appeals of Mississippi. December 4, 2001. Rehearing Denied March 5, 2002. Certiorari Denied June 13, 2002. 543 Bobby Leonard Gray, Pro Se. Office of the Attorney General, by Charles W. Maris, Jr., Attorney for Appellee. Before SOUTHWICK, P.J., IRVING, and MYERS, JJ. SOUTHWICK, P.J., for the Court: ¶ 1. Bobby Leonard Gray was convicted after a jury trial of one count of sale of cocaine. Gray later filed motions for post-conviction relief. On this appeal, he alleges that this second motion should not be barred as being successive since it raises a matter of fundamental right. We agree. We also find that since the court never considered the motion beyond the preliminary procedural point, we do not have the benefit of the court's judgment on the issues raised. We reverse. STATEMENT OF FACTS ¶ 2. After a two-day trial in July 1998, Bobby Leonard Gray was convicted of sale of cocaine. During jury deliberations, Gray, who was free on bond, fled the jurisdiction after requesting that he be allowed to use the restroom. One week later, Gray was sentenced as an habitual offender to a term of sixty years. Gray was not apprehended by authorities until August 29, 1998, well past the deadline for filing a timely direct appeal. As a result, no direct appeal was filed in this case. 544 ¶ 3. Gray filed his first motion for post-conviction relief on January 28, 1999. The circuit court denied the motion without an evidentiary hearing on May 10, 1999. Gray filed a notice of appeal but subsequently requested that it be dismissed. ¶ 4. Gray filed a second motion for post-conviction relief on April 13, 2000, alleging that the circuit court had no authority to try him because there had been a "manufactured and forged indictment." Gray argues that no grand jury had been impaneled or convened on January 6, 1998, the day upon which his indictment was returned and filed. On April 20, 2000, the circuit court denied Gray's motion without a hearing, finding it to be successive and thus barred. Gray appeals. DISCUSSION ¶ 5. A prisoner may file a motion for post-conviction relief if, among other things, a claim is made that the "conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi." Miss.Code Ann. § 99-39-5(1)(a) (Rev. 2000). Most motions for post-conviction relief filed after an original motion for post-conviction relief has been denied are barred for being successive. Miss.Code Ann. § 99-39-23(6) (Rev.2000). However,"[e]rrors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration...." Luckett v. State, 582 So. 2d 428, 430 (Miss.1991). The constitutional issue here concerns the indictment. ¶ 6. The Mississippi Constitution states that "[n]o person shall, for any indictable offense, be proceeded against criminally by information...." MISS. CONST. art. III, § 27. There are several exceptions within this constitutional provision, none of which apply here. Gray argues that the indictment was fraudulent, as no grand jury was meeting at the time that this indictment was handed down. Therefore, Gray argues that his conviction and sentence are illegal as he was prosecuted without having been indicted as required by the Mississippi Constitution. State v. Berryhill, 703 So. 2d 250, 258 (Miss.1997). ¶ 7. Gray raised his fundamental state constitutional right not to be tried for a felony without being indicted. Therefore, that claim overcomes the successive motion bar. There is still the question of whether enough was presented to justify something beyond summary dismissal. 1. Gray's Evidence of a Manufactured Indictment ¶ 8. The indictment against Gray was signed by the grand jury foreman on January 6, 1998. Gray argues that a variety of evidence reveals that no grand jury met on that day. ¶ 9.(a) A copy of an official record was submitted. It is the allegedly non-existent grand jury's final report, two-pages in length, signed by the grand jury foreman and dated January 7, 1998. It summarizes that the grand jury had been in session for three days, had examined 31 witnesses, returned 178 true bills of indictments, and was ready to be discharged. We take judicial notice that January 7, 1998 was a Wednesday. Thus the grand jury foreman's report suggests that the grand jury likely was meeting on January 6, the date of Gray's allegedly fraudulent indictment. Gray alleged that he would call three witnesses to prove that no grand jury was discharged on January 7, 1998. Instead, these witnesses would testify that a grand jury was impaneled on the seventh or eighth of January and was in session on January 14, 1998. No affidavits from such witnesses were presented. 545 ¶ 10.(b) Several affidavits were filed from people who state that they were called for "jury duty" on January 5 and January 6, that they were not chosen for a grand jury on either day, and then were dismissed. These witnesses assert that based on these events, they know that no grand jury was impaneled that week nor serving on January 6. ¶ 11.(c) No affidavit from the grand jury foreman was included. Gray did attach an affidavit of Emma Gray who stated that she spoke with the grand jury foreman, that he denied having served on a grand jury in 1998, that he denied signing Gray's indictment, and that he knew nothing of it. That is inconsequential hearsay. ¶ 12.(d) An affidavit from Brandy Edwards was attached that claimed she was working as a confidential informant with the appropriate drug task force, and that she had not purchased narcotics from Gray on the date alleged in his indictment, which was April 16, 1997. She also stated that she was not called to testify before a grand jury about Gray in January 1998. A report of investigation from Bureau of Narcotics Agent Jason Waller is in the record. It states that a confidential informant purchased the drugs from Gray on that date. Brandy Edwards's affidavit further states that she falsely identified Gray at trial as the person from whom she had purchased the drugs. ¶ 13.(e) Several affidavits were filed from people who allege that they were called for grand jury service on January 12 or 13, that each was dismissed without being chosen as a grand juror, and that this indicates that no grand jury met the first week of January 1998 that could have handed down his indictment. ¶ 14.(f) Gray stated that he would call his trial attorney to testify "that the indictment was returned and filed on January 8, 1998," and therefore not on January 6. No affidavit from his trial attorney was included with his motion. What he is relying upon is an invoice from his attorney showing that on January 8, 1998, his attorney billed two hours in regards to Gray's indictment. In addition there is an itemized expense statement containing the same date that the attorney submitted to the circuit court. These only indicate that his attorney performed some service on Gray's behalf regarding the indictment on that date, which likely was a review, research, and investigate function. There is no reason to believe that his attorney was asserting that he appeared on that date before the grand jury, which was two days after the date on the indictment itself. ¶ 15.(g) In his own affidavit, Gray stated that he was arraigned on January 14, 1998, and that the judge could not find an indictment but did find the grand jury capias upon which he was arrested. Gray stated that his trial counsel was appointed the same day. ¶ 16. There are other allegations about the alleged insufficiency of the records to prove that a grand jury was functioning on January 6, 1998. None meaningfully add to the story presented by what we have already described. ¶ 17. Gray stated that the District Attorney's office manufactured the indictment. Gray alleges that the final report of the grand jury was forged "because without a doubt the grand jury was still returning indictments after January 7, 1998." Gray stated that he spoke with most of the thirty-one witnesses who were listed as having appeared before the grand jury on or about January 6, 1998, and that none appeared before the grand jury except Agent Jason Waller. Gray finally stated that he spoke with the grand jury foreman who told him that he did not serve as a grand jury foreman, had not served on a 546 grand jury for at least two years, and that he did not sign any indictments. 2. Effect of Gray's Evidence ¶ 18. The evidence presented by Gray in most respects circles the issue of whether a grand jury actually met. Statements from citizens who were called for jury service and then did not serve on a grand jury are scant evidence of whether others might have been serving. Gray attempts to make these affidavits more useful by also having the affiants swear that they know no one else was selected either. We find, however, that the personal knowledge of people summonsed for jury duty about what else is occurring in the courthouse is too limited to make the affidavits competent evidence on whether a grand jury was meeting at all. ¶ 19. What Gray did not submit is as important as what he provided. There is no affidavit from the grand jury foreman who Gray claims did not serve on a grand jury in January of 1998. No affidavit from his attorney was provided whose actions on January 8 somehow disprove that Gray was indicted on January 6. ¶ 20. Among the more relevant documents submitted by Gray is a letter from the Circuit Clerk of Wayne County. Gray had submitted a request for a variety of documents. The clerk explained that she discovered no order impaneling or dismissing a grand jury for the January 1998 term. The absence of these documents could mean a number of things, including some problems with the state of the records in the county. All orders of courts are to be kept on the minutes. Miss.Code Ann. § 9-1-33 (Rev.2000). The absence of any discovered order could theoretically mean that no grand jury began or ended in the January 1998 term. Whether one had to be impaneled in order to be meeting in January 1998 is a different matter, to which we now turn. ¶ 21. Unless otherwise ordered by the circuit court, a grand jury may be impaneled only twice during a calendar year. Miss.Code Ann. § 13-5-39 (Supp. 2000). Once a grand jury is impaneled, it continues to serve during each successive term of court until a subsequent grand jury is impaneled. Id. There would not need to be an order impaneling a grand jury each new term if one is continuing to serve. Instead, the grand jury is just convened. A grand jury may return an indictment during any term of court but need not do so for each term. Id. The circuit judge appoints a member of the grand jury to serve as foreman. Miss. Code Ann. § 13-5-45 (1972). ¶ 22. We turn to statute to determine whether a grand jury would have been meeting in Wayne County in January 1998. An order establishing the terms of court for each multi-county circuit court district is to be entered annually. Miss. Code Ann. § 9-7-3 (Supp.2000). We do not have in the record a copy of that order, but the Secretary of State publishes annually a "Judiciary Directory & Court Calendar" wherein the terms of court for each of the circuit court districts are listed. We take judicial notice of that record. M.R.E. 201(b). That document indicates that there was a term of court for Wayne County beginning the first Monday in January. The Directory also indicates that January and June are the normal terms for a Wayne County grand jury. ¶ 23. Since a grand jury may usually be impaneled no more than twice during the year, this reference in the Judiciary Directory suggests that a grand jury meeting in Wayne County in a January likely was impaneled that month. The final report of January 7, 1998, indicates that the grand jury only met for three days, which likely 547 but not necessarily were the three consecutive days that ended on Wednesday, January 7. This does not appear to be a grand jury that began in a previous term of court and was reconvened by the circuit court for the January 1998 term. ¶ 24. The only direct evidence of any doubt of the grand jury's meeting was the circuit clerk's inability to provide an order impaneling a grand jury for that term. What cannot be found may be important, but balancing that is the "strong presumption that the official acts of officers are valid." Raper v. State, 317 So. 2d 709, 712 (Miss.1975). Consequently, "it is the responsibility of any person challenging the validity of an official, or official act, to show the invalidity by clear proof." Harris v. Harrison County Bd. of Supervisors, 366 So. 2d 651, 656 (Miss.1979). ¶ 25. The indictment was dated January 6, 1998, was signed by the grand jury foreman, the district attorney, and one witness. The affidavit attached to the indictment was signed by the grand jury foreman, attested to by the circuit clerk, and file stamped by the circuit clerk. There is a strong presumption that these official acts by these public officers are valid and were executed properly. ¶ 26. We find the issue of whether Gray was entitled to have the State respond at the trial level, and then for the court to determine that the whole matter could be decided short of a hearing, was prematurely resolved by the court. Since the trial judge ruled that this was a successive motion, he never reached the question of whether it plainly appeared on the face of the motion and attached exhibits, together with the prior proceedings in the case, that no relief was justified. Miss.Code Ann. § 99-39-11(2) (Rev.2000). ¶ 27. We admit that most of what Gray provided was indirect and incompetent evidence from individuals temporarily brought into the judicial process by their jury summons. Most of their statements about what was and was not occurring is not based on personal knowledge. However, Gray also showed that no order impaneling a grand jury could be found and no explanation of the significance of that omission appears in the record. Perhaps the trial court is aware of the significance and would find it minimal. Nonetheless, we reverse and remand so that the court can move beyond the successive motion bar. What needs to be addressed is whether the motion presents enough to justify a response from the State and further proceedings under the post-conviction relief statutes. We are not ordering a hearing, but only indicating that on this record we cannot determine the significance of the affidavits and documentary evidence. ¶ 28. This ruling does not suggest that we expect that further trial level review will uncover a practice of issuing indictments without using grand juries. All we are holding is that since we cannot affirm based on the successive motion procedural bar utilized by the trial court, and since this appellate court cannot on this record summarily resolve the matters asserted by the movant and supported by documentation, we are remanding for further proceedings. ¶ 29. We also note that the affidavit from Brandy Edwards claims that she testified at Gray's trial as the confidential informant who had purchased the drugs from Gray, but that in that testimony she perjured herself. Though Gray's motion is directed towards an alleged failure to abide by the constitutional requirement of an indictment by a grand jury, this allegation also raises issues of newly discovered evidence. A prisoner usually files a pro se motion, and Gray did here. 548 Potentially meritorious claims obvious from the motion should "not be lost because inartfully drafted." Ivy v. Merchant, 666 So. 2d 445, 449 (Miss.1995). There are precedents that if an affidavit from the sole eyewitness to the crime recants her trial testimony, that this at least entitles the prisoner to an evidentiary hearing. Tobias v. State, 505 So. 2d 1014, 1015 (Miss.1987). Edwards may well not have been such an indispensable witness, but we can not determine that from this record. This issue should also be addressed on remand. ¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY IS REVERSED AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY. McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS and CHANDLER, JJ., CONCUR. BRANTLEY, J., NOT PARTICIPATING.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615045/	847 P.2d 751 (1992) 115 N.M.App. 106 STATE of New Mexico, Plaintiff-Appellee, v. James BALDONADO, Jr., and Dolores Rodrigues, Defendants-Appellants. Nos. 13534, 13529. Court of Appeals of New Mexico. December 30, 1992. Certiorari Denied February 8, 1993. 752 Tom Udall, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee. Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendants-appellants. OPINION PICKARD, Judge. These consolidated cases raise the question of whether there is a seizure, as a matter of law, whenever the police pull up behind a stopped car and turn on their flashing lights. We hold that there is not, but because the trial court may not have appreciated the principles governing the law of stops and seizures in its denial of defendants' motions to suppress, we remand these cases for redetermination in light of our clarification of the applicable law. The facts are that the officer noticed a car, with its headlights on and engine off, parked on the side of a street in front of a vacant lot in a business district at about one in the morning. One of the defendants was leaning into the back seat of the car. The officer thought the car had broken down or that something suspicious was occurring, so he pulled up behind the car and turned on his emergency lights. The evidence was disputed concerning whether defendants were free to leave. The officer repeatedly testified that they were free to leave at all times. On the other hand, he also testified that they were not free to leave for a few minutes after he turned on his lights, and he was impeached with prior testimony in which he said that persons stopped are not free to leave when his lights are engaged. The officer approached defendants' car and looked inside. He saw two open containers of alcohol and a stereo receiver. He was told that the car had run out of gas. He suspected that one defendant was intoxicated. He obtained permission to search the car and check the serial number on the stereo. He asked defendants to pour out the remaining alcohol before defendants left to get gas. A short time later, the officer learned that the stereo had been stolen in a recent burglary. The officer then found defendants and arrested them. 753 Although we have written the above paragraph in sentences indicating a time sequence, the testimony was not at all clear that the time sequence was as set out above. Neither party questioned the officer about exactly what he said and did as he approached the vehicle. Defendants did not testify. Both the applicable law and the standard of review to be utilized in this case have recently been set forth in State v. Lopez, 109 N.M. 169, 783 P.2d 479 (Ct. App.), cert. quashed, 109 N.M. 131, 782 P.2d 384 (1989). The law is that a person is seized within the meaning of the fourth amendment (and thus the police must justify the seizure by probable cause or reasonable suspicion) when, in view of all the circumstances, the person is accosted and restrained such that a reasonable person would have believed he or she was not free to leave. Id. at 170, 783 P.2d at 480. The standard of review is that if different inferences can be drawn from the facts, the question of whether a person is accosted and restrained in such a way is a factual question subject to the substantial evidence standard. Id. This standard is significantly different from the "independent judgment" standard set forth in People v. Bailey, 176 Cal. App. 3d 402, 222 Cal. Rptr. 235 (Ct.App. 1985), relied on in the dissent. Defendants argue that the Lopez standard of review essentially abrogates the de novo review that they contend is required whenever there is not a direct conflict in the testimony. The state argues the evidence in this case as though no question of law whatsoever is involved. We disagree with both parties' extreme positions and take this opportunity to clarify Lopez's dual standard of review. Lopez's statement of the standard of review is not, as defendants contend, an "irrational" and "artificial" thwarting of the appellate court's proper role. Rather, it is a simple recognition that trial courts are in a better position than appellate courts to find the facts, and that such fact-finding frequently involves determining which inferences to draw. For example, in this case, the testimony of the officer involved was internally contradictory as to whether defendants were free to leave. As an initial factual question, it was for the trial court to determine whether, in the officer's mind, defendants were free to leave or not. Of course, what is in the officer's mind is not determinative. The issue under Lopez is how a reasonable person in defendants' circumstances would have felt. Nonetheless, people have non-verbal ways of communicating what is on their minds, and a trial court could find, based on what is on an officer's mind together with surrounding circumstances, that if the officer believes that the defendants are not free to leave it may be more likely that the defendants would feel that they are not free to leave. The contrary would also be true: if the trial court finds that the officer believed that the defendants were free to leave, it may be more likely that they would feel they are free to leave. The above discussion shows that factual conflicts are to be determined by the trial court. It further shows that even when the facts do not appear to be in dispute, it is possible that different inferences may be drawn from the facts. When such is the case, it is for the trial court to decide the facts, including the drawing of inferences. See State v. McGhee, 103 N.M. 100, 103, 703 P.2d 877, 880 (1985). Defendants' complaint that this could result in two disparate decisions on the same facts is essentially a complaint about the nature of appellate review. Yet, it is well established that it is inherent in the nature of review that different trial courts may reach different conclusions, and that does not compel a reversal. State v. Anderson, 107 N.M. 165, 168, 754 P.2d 542, 545 (Ct.App. 1988). Defendants' complaint that different conclusions should not be allowed on the same facts in constitutional cases ignores the fact that there are rarely cases with identical facts. Nonetheless, it appears to us that the trial court in this case may have misapplied the law in applying it to the facts as found. Actually, we do not know exactly what facts the trial court found. Defendants' 754 suppression motion was denied in an order without stating reasons. Additionally, we do not even know exactly on what theory the trial court denied the motion to suppress. The state had argued that (1) there was not a stop; (2) if there was, it was supported by reasonable suspicion; and (3) even if not, defendants freely consented to the search under permissible circumstances. In cases such as this, in which we do not know the trial court's rationale, particularly when the evidence supporting the trial court's decision is as thin as it is here, it is appropriate to remand to the trial court for a redetermination in accordance with the law that we are clarifying today. See, e.g., State v. Tindle, 104 N.M. 195, 200, 718 P.2d 705, 710 (Ct.App. 1986). We shall explain why we believe the evidence supporting the trial court's decision is thin after we discuss the applicable law. Both parties cite cases involving the use of flashing lights by police officers. To the extent that defendants' cases involve moving vehicles that stopped in response to the flashing lights, we believe those cases are distinguishable and of little assistance. To the extent that the state's cases involve pedestrians unaware that the flashing lights were intended to be signalling them, they too are distinguishable and of little assistance. Two cases, however, deserve more discussion. They are State v. Walp, 65 Or. App. 781, 672 P.2d 374 (1983), and State v. Stroud, 30 Wash. App. 392, 634 P.2d 316 (1981), review denied, 96 Wash.2d 1025 (1982). Both involved factual circumstances similar to those here in that the officers pulled up behind stopped vehicles and activated their emergency lights. Walp was a defendant's appeal in which the trial court's ruling that there was no seizure was reversed. Stroud was a state's appeal in which the trial court's ruling that there was a seizure was affirmed. While the procedural posture of Walp better supports defendants' position here, we are not impressed with Walp's reasoning or result and do not adopt it in New Mexico. While the procedural posture of Stroud does not support defendants' position as much, we are more impressed with its reasoning and commend it to the trial court on remand here. Walp involved a woman in a stopped car. An officer thought the woman was having mechanical difficulty and turned on his lights to investigate. Walp was based in part on a statute making it a crime to drive after police lights are activated. However, to the extent that it holds that, as a matter of law, a stop that must be supported by at least reasonable suspicion occurs whenever lights are activated, regardless of the officer's motive and actions and regardless of facts supporting a belief that the stopped driver is free to leave, we disagree with it. We can conceive of many situations in which people in stopped cars approached by officers flashing their lights would be free to leave because the officers would be simply communicating with them to ascertain that they are not in trouble. Under such circumstances, depending on the facts, the officers may well activate their emergency lights for reasons of highway safety or so as not to unduly alarm the stopped motorists. We are loathe to create a situation in which officers would be discouraged from acting to help stranded motorists, from acting in the interest of the safety of the travelling public, or from acting in the interest of their own safety. On the other hand, we find it hard to conceive of a situation where officers activate their emergency lights to investigate a suspicious situation and approach the situation with many accusatory questions in which a reasonable stopped motorist would feel free to leave. We view Stroud as an example of such a case. The Stroud court relied on a statute similar to New Mexico's resisting arrest statute. The court concluded that the defendants there were seized because they arguably could have been charged under the statute had they left. The appellate court agreed with the trial court that this was a show of authority sufficient to convey to a reasonable person that departure was not a realistic alternative. While we have a similar statute in New Mexico, NMSA 1978, Section 30-22-1(C) (Repl.Pamp. 1984), we do not believe 755 that it would apply to a driver already stopped when the officer approached. This statute proscribes refusing to bring the vehicle to a stop. It does not apply to stopped vehicles. (Of course, if the stopped driver knows that the officer is trying to effectuate an arrest, then NMSA 1978, Section 30-22-1(B) (Repl.Pamp. 1984) would apply if the driver tried to leave.) As indicated above, the trial court has a difficult and sensitive task on remand. It should focus on the question set forth in Lopez: whether, due to physical restraint or a show of authority, a reasonable person in defendants' situation would feel free to leave under all of the circumstances of the case. The trial court should consider the officer's subjective intent only to the extent that it would bear on the beliefs of reasonable people in defendants' shoes. The trial court should consider the statute, § 30-22-1(C), to the same extent. The trial court should consider the sequence of the officer's actions and determine how that would bear on the beliefs of reasonable people being confronted in the same manner. By way of example, we believe that a trial court should ordinarily find a stop that must be justified by reasonable suspicion whenever officers pull up behind a stopped car, activate their lights, and approach the car in an accusatory manner, asking for license and registration and an account of the occupants' activities. On the other hand, a trial court should ordinarily find no stop whenever officers pull up behind a stopped car, activate their lights, and approach the car in a deferential manner asking first whether the occupants need help. Finally, we leave to the trial court's discretion the choice of whether or not to take any additional testimony. While there are many questions on which the evidence could have been more clear, the trial court may wish to find on these questions against the party with the burden of proof instead of taking new evidence. In this case, on the issue of whether there was a stop that rises to the level of a seizure, it appears that defendants bear the burden of proof. See 4 Wayne R. LaFave, Search and Seizure § 11.2(b) & n. 45.3 (2d ed. 1987 & pkt. part 1992) (citing Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986) (en banc)). This is consistent with New Mexico law to the effect that defendants have the burden to raise an issue as to their illegal search and seizure claims. See State v. Gardner, 95 N.M. 171, 175, 619 P.2d 847, 851 (Ct.App. 1980), cert. denied, October 6, 1980. Once they have done so, the burden shifts to the state to justify the warrantless search. See State v. Mann, 103 N.M. 660, 663, 712 P.2d 6, 9 (Ct.App. 1985), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986). The state contends that even if a stop amounting to a seizure is found, it was supported by ample reasonable suspicion and defendants consented to the search of the car in any event. We disagree. The degree of suspicion in this case was no more reasonable than that we held to be insufficient in State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App. 1977). For the consent to be valid, it must be attenuated from seizure. State v. Bedolla, 111 N.M. 448, 456, 806 P.2d 588, 596 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991). The facts of this case show no attenuation. See id. We reverse and remand this case for the trial court to redetermine the issues on the motion to suppress in accordance with the views expressed herein. IT IS SO ORDERED. ALARID, C.J., concurs. APODACA, J., dissents. APODACA, Judge, dissenting. I respectfully dissent from the majority's opinion and would hold as a matter of law that, when the police officer activated his emergency lights, a reasonable person would not have believed he or she was free to leave. Consequently, I would hold that, as a matter of law, defendants were seized within the meaning of the Fourth Amendment at the moment the officer activated his emergency lights. The majority, on the other hand, has apparently opted not to 756 determine whether, as a matter of law, the officer's initial encounter with defendants was lawful or unlawful, and appears to hold that the officer's activation of his emergency lights is simply one factor to be considered in determining whether a reasonable person would feel free to leave. Although I would hold that defendants were seized, I nonetheless readily concede that the officer's initial stop was reasonable within the Fourth Amendment. Our inquiry should not end there, however. In my view, both parties' briefs concentrate an inordinate amount of discussion on the legality of the initial stop. The majority, too, seems to suggest that the only relevant inquiry is the validity of the initial stop. Instead, the focus in this appeal should be on the validity of the continued detention, and not on the validity of the initial stop. The parties, however, do not address the issue of whether (and at what point) the initially lawful stop or detention might have become unreasonable and thus in violation of the Fourth Amendment. If the initially lawful stop became unreasonable, defendants' consent to search the car would have been tainted by the illegal detention and the evidence seized should have been suppressed. Consequently, the focus should be on whether the officer had reasonable suspicion to continue to detain defendants once he had learned that defendants were parked alongside the road because they had run out of gasoline. Based on the facts presented in this appeal, I would hold that no reasonable suspicion arose to justify the continued detention. It follows that defendants' motions to suppress should have been granted. It is true that not all police-citizen encounters are seizures. State v. Montoya, 94 N.M. 542, 543, 612 P.2d 1353, 1354 (Ct. App. 1980) (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). "`Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'" Id. (quoting Terry, 392 U.S. at 19 n. 16, 88 S. Ct. at 1879 n. 16) (emphasis added). "Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards." United States v. Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980). In United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989), the Sixth Circuit Court of Appeals noted: What constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary with the police conduct at issue and the setting in which the conduct occurred. This test, while flexible enough to be applied to a wide range of police conduct, requires consistent application to every police encounter regardless of the particular individual's response to the policemen's actions. This "reasonable person" standard further ensures that the scope of the fourth amendment protection does not vary with the state of mind of the particular individual involved. The subjective intent of the officers is relevant to an assessment of the fourth amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted. [Citations omitted.] In similar fact situations, other jurisdictions have concluded that a police officer's use of his or her car's emergency lights is a sufficient show of authority that a reasonable person would not feel free to leave and is therefore seized at the moment the officer turns on the lights. People v. Bailey, 176 Cal. App. 3d 402, 222 Cal. Rptr. 235 (1985); State v. Walp, 65 Or. App. 781, 672 P.2d 374 (1983); State v. Stroud, 30 Wash. App. 392, 634 P.2d 316 (1981), review denied, 96 Wash.2d 1025 (1982). I agree with the rationale of these persuasive authorities, which, in my view, cannot be distinguished. In Bailey, the defendant was parked in a parking lot of a closed department store. The area was often the location of illegal drug use. A police officer wanted to check what the defendant was doing. He pulled the police car behind the defendant's car and activated his emergency lights. The officer approached the automobile and smelled marijuana. He asked for permission to search, which the defendant granted. Marijuana was subsequently found. 757 Bailey, 222 Cal. Rptr. at 236. The California Court of Appeal posed the issue as "the validity of a consent to search given in the presence of an officer who has directed a red light toward appellant's vehicle." Id. The court stated: A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he drove off, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual * * . The circumstances thus show an exercise of official authority such that [the defendant], under the standard of a reasonable person, would have believed he was not free to leave. He was seized, under the detention category of contact, without the necessary basis therefor, and his consent was therefore involuntary. Id. at 237. The court additionally concluded that "[t]he show of authority began when the red light went on." Id. Additionally, the courts in Walp and Stroud considered statutes very similar to our statute, NMSA 1978, Section 30-22-1 (Repl.Pamp. 1984). That statute states: Resisting, evading or obstructing an officer consists of: * * * * * C. willfully refusing to bring a vehicle to a stop when given a visual or audible signal to stop, whether by hand, voice, emergency light, flashing light, siren or other signal, by a uniformed officer in an appropriately marked police vehicle[.] * * * * * * Whoever commits resisting, evading or obstructing an officer is guilty of a misdemeanor. In Walp, as police officers followed the defendant's vehicle in their car, the defendant voluntarily pulled over to the side of the road and stopped. The officers activated their emergency lights and stopped behind her. They had no suspicion of illegal activity. Walp, 672 P.2d at 374-75. The applicable statute in Oregon made it an offense to continue to drive once a police officer activated his emergency lights. Id. at 375 n. 1. The Oregon Court of Appeals concluded that "[a] reasonable person would not feel free to drive away once the officer turned on the emergency lights. Use of the overhead lights was a sufficient show of authority." Id. at 375. The court thus held that the motion to suppress should have been granted. The facts of Stroud are even more similar to the facts in this appeal. The defendant there was a passenger in a vehicle parked late at night in an industrial area. Although the car was legally parked and the officers saw no illegal activity, they nonetheless turned on their flashing lights, put their headlights on bright, and pulled up behind the parked vehicle. Stroud, 634 P.2d at 317. The trial court suppressed the evidence subsequently seized and the reviewing court affirmed. The court noted that, under Washington law, "[h]ad the operator of the vehicle attempted to drive off after being so signaled, he could arguably have been charged with a misdemeanor." Id. at 318. As a result, the court reasoned, the passenger was equally restrained. Additionally, "[u]nder the totality of the circumstances, the officers' attempt to summon the occupants of the parked car with both their emergency lights and high beam headlights constituted a show of authority sufficient to convey to any reasonable person that voluntary departure from the scene was not a realistic alternative." Id. at 319. Having determined that the seizure occurred when the officers pulled in behind defendant's vehicle, the Stroud court then considered whether the seizure was reasonable and concluded that, because the stop was predicated only on the facts that the car was parked in a high-crime area and that this was unusual, though not unlawful, the stop was unreasonable and the evidence was properly suppressed. Id. at 320. I agree with most of the reasoning and the results in Bailey, Walp, and Stroud. The majority attempts to distinguish Walp and Stroud and to minimize the effect of 758 Section 30-22-1(C) by concluding that the statute does not apply to a vehicle that is already stopped when the officer pulls up behind it with the emergency lights flashing. However, motorists in New Mexico know that they are required by law to stop when signalled by a police officer's emergency lights. It would be reasonable for a parked motorist to conclude in such a situation that, if he or she attempted to drive off after an officer had signalled with his or her emergency lights, the officer would follow and definitely signal for the motorist to pull over. It is illogical to conclude that Fourth Amendment protections would apply if the motorist attempted to leave the scene, but would not if he or she opted to remain parked. However, I disagree with defendants and with the conclusions of those cases holding that the initial stop is deemed illegal because not based on reasonable suspicion. The overriding goal of the Fourth Amendment is to assure that an individual's reasonable expectation of privacy and security is not subject to arbitrary invasions solely at the discretion of police officers. Delaware v. Prouse, 440 U.S. 648, 654-55, 99 S. Ct. 1391, 1396-97, 59 L. Ed. 2d 660 (1979); see also United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S. Ct. 2574, 2580-81, 45 L. Ed. 2d 607 (1975). Generally, the Fourth Amendment requires that a seizure be based on specific objective facts indicating that society's legitimate interests require the seizure of the specific individual or that the seizure must be carried out pursuant to a plan embodying explicit neutral limitations on the conduct of individual officers. See Prouse, 440 U.S. at 663, 99 S. Ct. at 1401. However, the touchstone of Fourth Amendment law is reasonableness. See City of Las Cruces v. Betancourt, 105 N.M. 655, 657, 735 P.2d 1161, 1163 (Ct. App.) ("The essence of the fourth amendment prohibition against unreasonable searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasion by governmental officials by imposing a standard of reasonableness upon the exercise of those officials' discretion."), cert. denied, 105 N.M. 618, 735 P.2d 535 (1987). The reasonableness of government officials' actions are determined by balancing the gravity of the governmental or public interest, the degree to which the concern is advanced, and the degree of interference with personal liberty. Id. at 658, 735 P.2d at 1164. Thus, officers may briefly detain individuals in the absence of reasonable suspicion in certain circumstances. See, e.g., id. at 660, 735 P.2d at 1166 (upholding validity of sobriety roadblocks pursuant to neutral criteria); see also Brignoni-Ponce, 422 U.S. at 881, 95 S. Ct. at 2580 (Fourth Amendment allows properly limited "search" or "seizure" on facts that do not constitute probable cause to arrest or to search in certain circumstances). Although an initial brief stop may be reasonable, an officer's subsequent action may make the continued detention unreasonable and therefore unlawful. State v. Estrada, 111 N.M. 798, 802, 810 P.2d 817, 821 (Ct.App. 1991) (holding that once original purpose of a lawful checkpoint stop has been satisfied, further detention of a vehicle or person must be based on at least reasonable suspicion); United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989) ("[E]ven if the initial stop and investigation are valid, the officer's action may at some point become unreasonable and comprise an unlawful detention."); United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988) (detention for routine traffic stop limited to time necessary to check license and vehicle registration, run computer check, and issue citation, unless officer in that time develops reasonable suspicion of a serious crime). I agree that it is not unreasonable for an officer to approach a stranded motorist and inquire whether the motorist needs assistance. However, in the absence of reasonable suspicion, it is not reasonable to detain individuals for longer than is needed to make the inquiry and to offer any necessary assistance. The state nevertheless argues that, even if the stop was illegal, defendants' voluntary consent validated the search of the car. However, the state fails to recognize that, even if the initial stop was reasonable and therefore valid, the subsequent search 759 was not necessarily valid unless the continued detention was also valid. See Estrada, 111 N.M. at 801, 810 P.2d at 820; cf. State v. Bolton, 111 N.M. 28, 42, 801 P.2d 98, 112 (Ct.App.) (holding that additional facts obtained during initial detention provided at least reasonable suspicion to support continued detention of defendants at roadblock to check licenses and registration), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990). This Court has stated: Consent will validate a warrantless search and seizure. The voluntariness of a consent to search is a question of fact for the trial court. On appeal, we determine whether the evidence, viewed in the light most favorable to the trial court's finding, substantially supports that finding. The determination of voluntariness involves a three-tiered analysis: (1) there must be clear and positive testimony that the consent was specific and unequivocal; (2) the consent must be given without duress and coercion; and (3) the first two factors are to be viewed in light of the presumption that disfavors the waiver of constitutional rights. In warrantless search situations, the state has the heavy burden of proving by clear and convincing evidence the absence of duress, coercion, or other factors that would vitiate the voluntary nature of the consent. State v. Lara, 110 N.M. 507, 514-15, 797 P.2d 296, 303-04 (Ct.App.) (citations omitted), cert. denied, 110 N.M. 330, 795 P.2d 1022 (1990). In this appeal, the state had the burden of producing facts sufficient to show that the continued detention and search were valid. See State v. Vasquez, 112 N.M. 363, 366, 815 P.2d 659, 662 (Ct. App.), cert. denied, 112 N.M. 388, 815 P.2d 1178 (1991). The majority would remand for, I assume, further fact-finding on the issue of whether defendants were seized and, if so, whether the seizure tainted the consent to search the car. However, since I would hold that defendants were seized at the time the officer activated his emergency lights, I conclude that remand for such a purpose is unnecessary. Also, because the parties agree on the relevant facts, I believe this Court can determine as a matter of law that the continued detention of defendants was unlawful because it was not based on reasonable suspicion. See Estrada, 111 N.M. at 801, 810 P.2d at 820 (reviewing parties' stipulated facts to determine if reasonable suspicion justified continued detention once purpose of checkpoint accomplished). As the majority acknowledges, no evidence indicated that the officer had reasonable suspicion of criminal activity to support additional detention and investigation. I would therefore reverse the trial court's denial of the motions to suppress. Additionally, I am not clear on what the majority means by its statement that, "on the issue of whether there was a stop that rises to the level of a seizure, it appears that the defendants have the burden of proof." If the majority is stating that defendants have the burden of producing sufficient evidence to raise the issue of an illegal search and seizure, see State v. Gardner, 95 N.M. 171, 175, 619 P.2d 847, 851 (Ct.App. 1980), then I agree. However, if the majority means that defendants have the burden of proving that there was a seizure, see Russell v. State, 717 S.W.2d 7, 9-10 (Tex. Crim. App. 1986) (en banc), I am not certain that that is the law in New Mexico. Cf. State v. Mann, 103 N.M. 660, 663, 712 P.2d 6, 9 (Ct.App. 1985) (stating that a defendant is required to put in issue facts alleging that officers conducted a warrantless search and seizure before burden shifts to state to produce evidence the search and seizure fell within an exception to Fourth Amendment requirements), cert. denied, 103 N.M. 740, 713 P.2d 556 (1986). Nonetheless, whether that is or is not the law in New Mexico, I believe that, under the facts of this appeal, defendants met their burden by placing in issue facts demonstrating that the officer used his emergency lights. The issue is then the legal significance of the officer's use of the emergency lights. I recognize that my proposed holding might require a reconsideration or clarification of this Court's holding in State v. Lopez, 109 N.M. 169, 783 P.2d 479 (Ct. App.), cert. quashed, 109 N.M. 131, 782 P.2d 384 (1989), on which the majority relies. *760 In Lopez, this Court recognized that, under Mendenhall, "as a matter of law, a person is seized when the facts show accosting and restraint such that a reasonable person would believe he is not free to leave." Id. at 170, 783 P.2d at 480. Lopez then concluded that "the question of whether defendant was seized, thereby invoking fourth amendment protections, is a legal question. However, whether defendant was accosted and restrained such that a reasonable person in the same circumstances would believe he was not free to leave is a factual question." Id. The majority interprets this language as meaning that, if different inferences can be drawn from the facts, the district court's ruling concerning whether a reasonable person would have felt free to leave is reviewed under a substantial evidence standard. Additionally, the majority notes that the trial court is in a better position to determine the facts and that this fact-finding function includes drawing inferences from the facts. I question this interpretation of Lopez. First of all, it appears to me that the two questions, as described in Lopez, are actually the same question in that, if the answer to the question "would a reasonable person have not felt free to leave under these facts" is "yes," then the legal conclusion is that the person has been seized. Second, I question the majority's categorization of the legal conclusion of whether, under the facts as found by the trial court, a reasonable person would have felt free to leave as a factual "inference" drawn by the trial court to which this Court should defer. The issue is not whether a particular person felt free to leave in certain circumstances; I readily agree that deference should be accorded the trial court's finding on such an issue. I further agree that deference should be accorded to the trial court's determination on what the circumstances were. However, under Mendenhall, the issue is whether a reasonable person in the circumstances as found by the trial court would have felt free to leave. The "reasonable person" standard is intended to ensure that the scope of Fourth Amendment protection does not vary with the state of mind of the individual involved. Rose, 889 F.2d at 1493. The legal effect of the facts is freely reviewable by this Court, and labeling them an "inference" should not make the trial court's legal conclusion any less reviewable. See Edens v. New Mexico Health & Social Servs. Dep't, 89 N.M. 60, 62, 547 P.2d 65, 67 (1976) (whether a determination is a finding of fact or conclusion of law is a question of law and therefore freely reviewable). To do otherwise, in my opinion, would make the scope of Fourth Amendment protection variable. The majority apparently considers the officer's use of the emergency lights as simply one factor that the trial court should consider in determining whether defendants were seized. I disagree. I, for one, cannot conceive of any possible factual scenario in which any motorist, no matter the reason why he or she was stopped or parked alongside any roadway and regardless of how relieved a stranded motorist may feel upon seeing the officer, would feel free to leave after a law enforcement officer has stopped with the emergency equipment activated. It simply does not make sense that the motorist would believe he or she was at liberty to move on without explanation. I also do not believe that the holding I propose would dissuade officers from stopping to help stranded motorists or to place themselves in danger by not signalling that they were law enforcement officers. Instead, such a holding would clearly set the constitutionally permissible limits on an officer's ability to intrude on an individual's privacy in such situations when reasonable suspicion of criminal activity is lacking. Additionally, I recognize that emergency lights are used for many purposes. However, the fact that the emergency lights may be used for purposes other than demonstrating police authority does not mitigate the fact that they do indeed demonstrate police authority. This Court should recognize this premise and issue rulings based on that premise, so that the courts, government officials, and the public will have clear guidelines to follow.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601599/	228 P.3d 271 (2010) In re the Parental Responsibilities of M.G.C.G., Child, Thomas J. Cabello, Jr., Petitioner-Appellee, and Jennifer Gomez, n/k/a Jennifer Garcia, Respondent-Appellant. No. 08CA1118. Colorado Court of Appeals, Div. II. February 18, 2010. Robert B. Warren, Colorado Springs, Colorado, for Petitioner-Appellee. Anne Whalen Gill, L.L.C., Anne Whalen Gill, Castle Rock, Colorado, for Respondent-Appellant. Opinion by Judge CASEBOLT. Jennifer Gomez, now known as Jennifer Garcia (mother), appeals the trial court's order denying her motion to modify child support. We reverse and remand for further proceedings. I. As part of a proceeding for allocation of parental responsibilities, Thomas J. Cabello, Jr. (father) agreed to pay mother $869 in monthly child support for their minor child. By agreement of the parties, this amount was later reduced to $533 per month. In 2003, mother determined to relocate with the child to Hawaii with her husband. Father objected and filed an emergency motion to prohibit the relocation, arguing that the move would effectively terminate his relationship with the child. However, immediately before the hearing on father's motion and without consulting their attorneys, the parties reached an agreement providing that father would withdraw his motion and allow mother to move, and mother would accept child support payments of $500 per month. The court adopted this agreement as an order of the court without making any findings. Approximately four years later, mother filed a motion requesting modification of child support, asserting that father had received substantial increases in income that warranted an increase in child support. Father objected, arguing that the current order for child support, reached by agreement in 2003, was entered in exchange for approving mother's request to relocate to Hawaii, and therefore precluded modification. At the hearing on mother's motion to modify, the court determined that, in order to rule on mother's motion, it had to compare 272 what the child support figure would have been in 2003 under the child support guidelines (absent the agreement) to what it would be presently. The court stated that "[h]ad the child support been calculated ... in October, 2003," the child support due from father at that time would have been "in the $625.00-$640.00 per month range." Relying on the parties' arguments that the child support guidelines would, as of the hearing date, require father to make an approximate monthly payment of $650, the court concluded that there was no evidence of a ten percent change from "what [child support] would have been on October 29th, 2003 to today." (Emphasis added.) Therefore, the trial court denied the motion to modify, and this appeal followed. II. Mother contends that the court erred in denying her motion to modify child support. We agree that the court applied an incorrect legal standard and thus must reconsider its ruling. Modification of the terms of an existing order of support may occur only upon a showing of changed circumstances that are substantial and continuing. § 14-10-122(1)(a), C.R.S.2009. A change is not substantial and continuing if application of the guidelines to the parties' present situation results in "less than a ten percent change in the amount of [child] support due per month." § 14-10-122(1)(b), C.R.S.2009. These two provisions indicate that the ten percent calculation applies to the amount of child support currently in effect, not to a hypothetical amount that would have been in effect, absent an agreement to the contrary. See In re Marriage of Aldrich, 945 P.2d 1370, 1375 (Colo.1997) ("A change is not `substantial and continuing' if application of the guidelines ... results in a change of less than ten percent in the amount of child support currently in effect." (emphasis supplied)); In re Marriage of Lishnevsky, 981 P.2d 609, 611 (Colo.App.1999) (same). Here, the only order currently in effect at the time of mother's motion and the hearing was the amount stipulated in the parties' 2003 agreement, approved as an order of the court, which required father to pay $500 each month. The trial court should have considered this order when determining mother's motion to modify, see Aldrich, 945 P.2d at 1375; Lishnevsky, 981 P.2d at 611, not the hypothetical child support guideline amount that was neither contemplated nor entered in 2003. Father asserts that this conclusion ignores the bargain the parties struck in 2003, and that, under our holding, mother could have returned to court a few months after the move to Hawaii and could have asserted that she was owed increased support based on the child support guidelines and father's income, yet she could still hold father to his agreement allowing the move. However, the stipulation and the court order that resulted from it say nothing about future modifications and do not state how long the monetary terms would govern. Moreover, "[a]ny agreement the parties make with respect to child support is not binding on the court, and the parties cannot preclude or limit by agreement subsequent court modification of terms concerning child support." Combs v. Tibbitts, 148 P.3d 430, 434 (Colo. App.2006); see In re Marriage of Miller, 790 P.2d 890, 892-93 (Colo.App.1990) ("the parties may not preclude or limit the court's authority concerning child support"); In re Marriage of Rosenthal, 903 P.2d 1174, 1177 (Colo.App.1995) (a prior support order based on the stipulation of the parties is not binding in subsequent proceedings). In addition, had mother chosen to return to court immediately following the move to Hawaii, the court certainly would have had the discretion under section 14-10-115(8)(e), C.R.S.2009, to deviate from the guidelines because, in light of the parties' previous agreements, the application of the guidelines might have been inequitable, unjust, or inappropriate. And, on remand, the trial court here may likewise consider whether deviation from the guidelines is warranted for similar reasons, see Rosenthal, 903 P.2d at 1177 ("a court is free to consider the terms of the previous order as a factor in determining whether rigid adherence to the guidelines is appropriate or whether deviation is warranted"), even though there is a rebuttable presumption 273 that "a modification of child support must be granted whenever application of the child support guidelines would result in more than a ten percent change in the amount due." Aldrich, 945 P.2d at 1375 (quoting In re Marriage of Pugliese, 761 P.2d 277, 278 (Colo.App.1988)). In addition, when the 2003 stipulation was incorporated into a court order, the "bargain" between the parties ceased to be enforceable as a "contract" term. See Rosenthal, 903 P.2d at 1176. In any event, father had the "benefit" of the $500 child support "bargain" for almost four years after the stipulation before mother filed the modification motion. Accordingly, we reverse the trial court's order denying mother's motion to modify child support and remand with directions for it to consider mother's motion based on the order currently in effect as well as the parties' present circumstances. See Lishnevsky, 981 P.2d at 611; see also In re Marriage of Laughlin, 932 P.2d 858, 863 (Colo.App.1997) (the trial court is bound by the facts and circumstances of the parents and children as they exist at the time of the hearing). In light of this determination, we need not consider mother's argument that the court misapplied the law of the case doctrine. We do not view this appeal as frivolous or groundless and, therefore, deny father's request for fees. See C.A.R. 38(d). The order is reversed and the case is remanded for further proceedings consistent with this opinion. Judge GABRIEL and Judge BOORAS concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3344061/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION On November 13, 1995, the plaintiff brought the instant action to foreclose a mortgage encumbering the defendants', Brian and Delores Sinotte ("Sinottes"), real property located at 82 Old Colony Drive in Waterbury, Connecticut. CT Page 6986 The plaintiff claims that it is the holder of the mortgage note and deed in issue and that it has accelerated the debt evidenced by same, for nonpayment. On January 30, 1998, the Sinottes filed an answer and five special defenses. Subsequently, on March 11, 1998, the plaintiff filed a motion to strike the special defenses together with a memorandum of law. The Sinottes have neither objected to the motion nor filed a memorandum of law in opposition as required by Practice Book § 155, now Practice Book (1998 Rev.) § 10-41, and for this reason the motion may be granted. However, the court opts to review the various allegations in order to determine whether or not any of them are legally sufficient. "The motion [to strike] is the proper vehicle to challenge or attack the sufficiency of a special defense. Mingachos v. CBSInc., 196 Conn. 91, 109, 491 A.2d 368 (1985)." Benoit v.Connecticut Trails Council of Girl Scouts, Inc., Superior Court, judicial district of Waterbury, Docket No. 083152 (November 22, 1989, Kulawiz, J.) (1 Conn. L. Rptr. 47, 48). "`The allegations of the special defense attacked by a [motion to strike] must be tested by the facts provable under them.' Connecticut StudentLoan Foundation v. Vellano, 1 Conn. Super. Ct. 346 (May 22, 1986, Schaller, J.) quoting McNish v. American Brass Co., 139 Conn. 44, 48-49 [89 A.2d 566] (1952). The allegations of the special defenses must be construed most favorably to the party asserting the defense."First National Bank of Boston v. Murphy, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 094820 (March 13, 1990, Landau, J.) (1 Conn. L. Rptr. 357, 358). First Special Defense The Sinottes argue in their first special defense that "[t]he Plaintiff breached its implied covenant of good faith and fair dealing with the Defendants by failing to provide a proper accounting related to the debt in dispute and by failing to provide notices of rate changes in accordance with the terms of the note." Answer of The Defendants Brian And Dolores Sinotte, p. 1-2. As this court stated in GMAC Mortgage Corporation v.Ferrante, Superior Court, judicial district of Fairfield, Docket No. 343559 (October 3, 1997), "[a]lthough a breach of the implied covenant of good faith and fair dealing has been recognized as a valid special defense to a foreclosure action under the guise of CT Page 6987 equitable principles . . . a defendant must plead sufficient facts to justify its application," and the Sinottes have failed to do so. "The . . . special defense [to the foreclosure] states: `The plaintiff's . . . did not accurately compute the sums due.' . . . In an unusual case the court can refuse the equitable remedy of foreclosure . . . where enforcement of the terms of the mortgage would be unconscionable. . . . Clearly, the . . . special defense, as pleaded, [does] not allege that the rate charged was usurious, but merely concluded that the defendants have been overcharged. The defense pleaded amounts to no more than a claim of periodic error in calculating the interest on the note, which may affect the amount of the debt, but it does not allege facts sufficient to prevent foreclosure of the mortgage under recognized defenses." (Citations omitted; internal quotation marks omitted.) GMAC Mortgage Corporation v. Ferrante, supra, Superior Court, Docket No. 343559. "A foreclosure action is an equitable proceeding. Courts have therefore recognized various equitable defenses such as mistake, accident, fraud, equitable estoppel, CUTPA, laches, breach of the implied covenant of good faith and fair dealing . . . However, only those equitable defenses which attack the making, enforcement, or validity of a note or mortgage should be recognized in a foreclosure action." (Citations omitted; internal quotation marks omitted.) Shawmut Bank v. Wolfley, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. 130109 (January 24, 1994, Dean, J.). Accordingly, the Sinottes' first special defense does not allege sufficient facts regarding the internal contract rate to state a claim of usury and thus a violation of the implied covenant of good faith and fair dealing. Furthermore this special defense does not attack the making, enforcement, or validity of the note or mortgage in regards to the allegations of an improper accounting. Therefore, the Sinottes' first special defense is stricken. Second Special Defense The Sinottes argue in their second special defense that "[t]he plaintiff has engaged in unfair trade practices in violation of Conn. Gen. Stat. § 42-110a et seq.1 by utilizing an unknown `internal contract rate' to calculate the interest CT Page 6988 due, and by failing to provide Defendants with notice of how the rate was to be calculated, and by failing to provide notices of rate changes." Defendants' Answer, p. 2. An analogous special defense was stricken in Bank of NewHaven v. Liner, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 034516 (April 2, 1993, Curran, J.), aff'd, 41 Conn. App. 908, 675 A.2d 10, cert. denied,237 Conn. 929, 677 A.2d 947 (1996) ("In their . . . special defense, the defendants allege that the plaintiff [bank] failed to give proper disclosure of how the `prime rate' was to be calculated, including what the maximum interest rate would be. . . . The defendants' . . . special defense is not a valid defense to a foreclosure action because the Bank does not have a duty to explain how the prime rate' is calculated. . . . The general rule is that when a person of mature years . . . signs or accepts a written contract . . . its contents will be imputed to him . . ."). "Where a party realizes he has only limited information upon the subject of a contract, but treats that knowledge as sufficient in making the contract, he is deemed to have assumed the risk of a mistake." Pacelli Bros. Transportation, Inc. v.Pacelli, 189 Conn. 401, 408, 456 A.2d 325 (1983). "A foreclosure action is an equitable proceeding, and many courts, therefore, have recognized allegations of violation of CUTPA . . . as valid defenses to a foreclosure action. However, these defenses are limited to only those which attack the making, enforcement or validity of a note or mortgage." First Federal Sand L v. Chappel, Superior Court, judicial district of Tolland at Rockville, Docket No. 661212 (January 3, 1997, Rittenband, J.). "[T]he violation of CUTPA is based upon . . . allegations [which] do not attack the making, validity, or enforcement of the note or mortgage and do not state a valid claim for violation of CUTPA. The allegations do not satisfy all the requirements of the cigarette rule that determines whether CUTPA has been violated.Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591,657 A.2d 212 (1995). Accordingly, the motion to strike the . . . special defense is granted." First Federal S and L v. Chappell, supra, Superior Court, Docket No. 661212. "In determining whether a practice violates CUTPA, we use the [cigarette rule] criteria: (1) Whether the practice, without CT Page 6989 necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [or] (3) whether it causes substantial injury to consumers, competitors, or other businessmen." (Internal quotation marks omitted.) Daddona v.Liberty Mobile Home Sales, Inc., 209 Conn. 243, 254,550 A.2d 1061 (1988). Furthermore, "[a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Citations omitted.) Jacobs v.Healey Ford-Subaru, 231 Conn. 707, 725-26, 652 A.2d 496 (1995). Similarly, the Sinottes fail to allege sufficient facts in their second special defense to show a violation of CUTPA based upon actions concerning the making, validity, or enforcement of the note or mortgage note as being immoral, unethical, unscrupulous, or offensive to public policy. Therefore, Empire Mortgage's motion to strike the Sinottes' second special defense is granted. Third Special Defense The Sinottes argue in their third special defense that "[t]he Plaintiffs are not entitled to equitable relief because they have unclean hands in that they failed to provide the Defendants with the method which they used to calculate the rate of interest on the debt, failed to provide a proper accounting, and have violated the Connecticut Unfair Trade Practices Act." Answer, p. 2. Empire Mortgage moves to strike this third special defense on the grounds that "(1) the Special Defense fails to attack the making, validity or enforcement of the Note or Mortgage, (2) the Defendants allege no facts as opposed to legal conclusions and (3) the Defendants have failed to state a proper claim under CUTPA." Plaintiff's Motion To Strike, p. 3. CT Page 6990 "The defendants' generalized claim of inequity does not constitute a legally sufficient defense to a foreclosure action.Petterson v. Weinstock, 106 Conn. 436, 138 A. 433 (1927)."Branford v. Monaco, 48 Conn. App. 216, 222, ___ A.2d ___ (1998). "[T]he doctrine of unclean hands has generally been disallowed as a special defense in a foreclosure action.Mechanics and Farmers Savings Bank v. Delco Development Company,Inc., 43 Conn. Super. Ct. 408, 656 A.2d 1075, aff'd, 232 Conn. 594,656 A.2d 1034 (1995); Milford Bank v. Barbieri, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 43315 (August 30, 1994, Curran, J.) . . ." Berkeley Federal Bank Trust v. Rotko, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 318648 (January 25, 1996, West, J.). Similarly, the Sinottes fail to state sufficient facts to maintain a general claim of inequity. Furthermore, the Sinottes' claim of a CUTPA violation is legally insufficient as it is based on the existence of an "internal contract rate" which does not violate CUTPA as discussed in this memorandum's analysis concerning the second special defense. Accordingly, Empire Mortgage's motion to strike the Sinottes' third special defense is granted on the ground that it fails to allege sufficient facts to preclude Empire Mortgage from the equitable remedy of foreclosure or establish a CUTPA violation. Fourth Special Defense The Sinottes argue in their fourth special defense that "[t]he interest rate applied by the Plaintiffs is unconscionable because there is no way to determine how the interest is calculated according to the terms of the note because the term `internal contract rate' described a rate used by previous holders of the note, and the Defendants have not provided the Plaintiffs with their method of calculating interest since they acquired the note." Defendants' Answer, p. 2. Empire Mortgage moves to strike the fourth special defense on the grounds that "(1) [t]he Defendants allege no facts, as opposed to legal conclusions . . . and (2) the Defendants fail to state a proper claim of unconscionability." Plaintiff's Motion To Strike, p. 4. "We first consider our standard of review of a claim of CT Page 6991 unconscionability. The question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. . . . As applied to real estate mortgages, the doctrine of unconscionability draws heavily on its counterpart in the Uniform Commercial Code which, although formally limited to transactions involving personal property, furnishes a useful guide . . . As Official Comment 1 to § 2-302 of the Uniform Commercial Code suggests [t]he basic test is whether, in light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract." (Citations omitted; internal quotation marks omitted.)Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 87-89,612 A.2d 1130 (1992). See also Iamartino v. Avallone,2 Conn. App. 119, 123, 477 A.2d 124 (1984). "Unconscionability generally requires a demonstration of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." (Citations omitted; internal quotation marks omitted.) Decorator Telephone, Inc. v. DeMato, Superior Court, judicial district of New Haven, Docket No. 366355 (September 18, 1997, Silbert, J.). The Sinottes fourth special defense asserts that they were not provided with notice of the rate of interest that they were assuming which was held by the prior holders of the note at issue. However, based upon the foregoing legal principles, it is clear that the Sinottes fail to plead sufficient facts to make a legally sufficient claim of unconscionability. Therefore, Empire Mortgage's motion to strike the fourth special defense is granted. Fifth Special Defense The Sinottes argue in their fifth special defense that "[t]he Plaintiff is not entitled to enforce this note and thus lacks standing to sue on the debt because it has not alleged facts to establish that it is the holder, or that it has the rights of a holder. The Plaintiffs have merely alleged that it is now the holder and owner of the note." Answer, p. 2-3. Empire Mortgage moves to strike the fifth special defense on the grounds that: "(1) the alleged special defense pleads no CT Page 6992 facts . . . and (2) under Conn. Gen. Stat. Sec. 42a-3-301 . . . a person who is neither a `holder' nor a `holder in due course' may enforce an instrument." Plaintiff's Motion To Strike, p. 4-5. "This case is controlled by the version of the U.C.C. in effect at the time of the execution of the note . . . See Catinav. Catina, 26 Conn. App. 359, 601 A.2d 543 (1992)." MortgageBuyers of America v. Wolfman, Superior Court, judicial district of New London, Docket No. 519778 (January 28, 1994, Hurley, J.). "As provided by General Statutes (Rev. to 1989) § 42a-3-301 [t]he holder of an instrument whether or not he is the owner may enforce payment . . ." (Internal quotation marks omitted.) Id. "Proof of a note and failure to make payment thereon establishes a prima facia case for recovery on the note." (Citations omitted; internal quotation marks omitted.) Id. "Having produced a copy of the note and asserted its ownership of the note, the plaintiff has made a sufficient showing that entitles it to recover on the note, unless the defendants alleges and proves valid defenses. Connecticut Bank Trust Co. v. Dadi, 182 Conn. 530, 531, 438 A.2d 733 (1980)."Centerbank v. GRI Investment Co., Superior Court, judicial district of Waterbury, Docket No. 117702 (May 12, 1994, Sylvester, J.). "Special defenses require the pleading of facts which are consistent with the plaintiff's statement of facts, but show that the plaintiff nevertheless has no cause of action. . . . In a foreclosure action, defenses are generally limited to payment, discharge, release, satisfaction or invalidity of a lien." (Citations omitted.) Shawmut Bank v. Wolfley, supra, Superior Court, Docket No. 130109. Similarly, the fifth special defense fails to allege any facts which would put the plaintiff's status to enforce the note at issue.2 Accordingly, the plaintiff's motion to strike the fifth special defense is granted. Therefore, based on the foregoing, Empire Mortgage's motion to strike the five special defenses of the Sinottes is granted. WEST, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/249609/	272 F.2d 957 Application of Willard E. CROTTY. Patent Appeal No. 6463. United States Court of Customs and Patent Appeals. December 7, 1959. Pyle & Fisher, Cleveland, Ohio (Ray S. Pyle, Cleveland, Ohio, of counsel), for appellant. Clarence W. Moore, Washington, D. C. (S. Wm. Cochran, Washington, D. C., of counsel), for Commissioner of Patents. Before WORLEY, Chief Judge, and RICH, MARTIN, SMITH and JOHNSON, retired, Judges. WORLEY, Chief Judge. 1 This appeal is from the decision of the Board of Appeals of the United States Patent Office affirming the rejection by the Primary Examiner of the single claim of appellant's application for a patent on a design for a life jacket. The claim reads: 2 The ornamental design for a Life Jacket as shown and described. The references relied on are: 3 Gibson 1,670,887 May 22, 1928; Denton 1,931,406 October 17, 1933; Straits 2,307,810 January 12, 1943. 4 Appellant's application discloses a life jacket comprising two identical buoyant pillows of substantially rectangular shape, designed to fit across the chest and back, respectively, of the wearer. They are joined at their ends by relatively wide flat bands of slightly less width than the pillows and adapted to fit under the arms of the wearer. Shoulder straps are secured to the tops of the pillows at points adjacent their ends. 5 The Denton patent, the principal reference, shows a life jacket in which the front and back are composed of two matching buoyant pillows which are juxtaposed and strapped together to provide a substantially unitary pillow of generally rectangular shape, but with an arcuate depression which, in the front pillow, will lie below the chin, and in the back pillow, below the back of the head when the jacket is in place. The pillows are connected by shoulder straps in substantially the same manner as in appellant's jacket, but are connected by relatively narrow straps which pass under the arms of the wearer. 6 The Straits and Gibson patents were cited to show use of rectangular pillows in life preserving devices. It was the position of the Patent Office that no invention would be involved in substituting rectangular pillows as shown by Gibson and Straits for the two-piece pillows of Denton and using wide bands under the arms in place of Denton's narrow bands. 7 It is, of course, well settled that it is the appearance of a design as a whole which is primarily determinative of the issue of patentability. In re Russell, 239 F.2d 387, 44 CCPA 716, and cases there cited. Viewed as a whole, we think appellant's jacket differs in appearance from that of Denton. Such similarities as there are result merely from the fact they are designed to perform the same function. 8 It is almost always possible to select from the prior art elements which, if assembled in the proper manner, will approximate the design shown in an application, but the fact that such a selection can be made does not necessarily preclude the presence of patentable invention. 9 Here the attempt to create an anticipating design by the examiner and the board not only requires replacing the two-part cushions of Denton by single cushions of substantially different appearance and proportions, but also requires a widening of the straps to an extent which we doubt is fairly suggested by the references. It goes without saying, of course, that not every change in proportions of parts is a patentable matter — the question is whether the changes result in a new, original, ornamental and unobvious appearance of the design as a whole. Here, a comparison of the overall appearance of applicant's design with the references creates a substantial doubt in our minds that the references are adequate to support the rejection. We feel justified in resolving that doubt in favor of the applicant. Thus, it becomes necessary to reverse the decision of the board. 10 Reversed. 11 JOHNSON, Judge, Retired, did not participate in decision.	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/4927/	United States Court of Appeals, Fifth Circuit. No. 91–2568. Gary M. BECKER, Plaintiff–Appellant, v. PAINEWEBBER, INC., Defendant–Appellee. June 10, 1992. Appeal from the United States District Court for the Southern District of Texas. Before SNEED, REAVLEY, and BARKSDALE, Circuit Judges. SNEED, Circuit Judge: Appellant Gary Becker appeals from the trial court's decision entering a directed verdict in favor of the appellee, PaineWebber, on a claim of negligent misrepresentation. We affirm. I. FACTS AND PROCEEDINGS BELOW In 1987, Gary Becker, who formerly worked in the crude oil trading business at Mosley Securities, began discussions with various securities firms about creating a crude oil trading unit. In August of that year, he went to New York to meet with PaineWebber representatives. According to the trial testimony of one of these representatives, Becker described the proposed oil trading venture as being relatively low-risk and requiring little capital. After additional meetings, PaineWebber told Becker that his proposal would be submitted to its expense management committee (the "EMC") for approval in September and that no one else needed to approve the plan. PaineWebber informed Becker in late September that the plan had been approved by the EMC, which anticipated start-up costs of $500,000, including Becker's compensation, rent, and Senior Circuit Judge of the Ninth Circuit, sitting by designation. communication expenses. In October, Becker accepted employment with PaineWebber, halted negotiations with other firms, and moved to New York. According to an employment agreement between the parties, Becker would receive an income for one year but none of the profits. PaineWebber maintains that some months after the EMC approved the plan, it discovered that, because of the large amounts which would be traded, a parent company guarantee and a separate subsidiary would be needed for Becker's proposed oil trading business. This made board approval a requirement.1 PaineWebber told Becker to compute the amount of the parent company guarantee he believed he needed, and his prediction was $750 million. Becker claims that he was assured repeatedly that board approval was a formality, "a rubber stamp," and that his proposed oil trading unit was a "done deal." He maintains that he was told to advise his clients that the unit was delayed temporarily. After reviewing Becker's proposal, PaineWebber's Chairman of the Board returned it for revisions. Becker's amended proposal called for a $100 million guarantee. Richard Falk, a PaineWebber executive, testified that the drastic reduction from $750 million made him skeptical of Becker's knowledge of the oil trading business. Becker claims that although PaineWebber's Chief Financial Officer informed Falk in a memo that the proposal had been withdrawn, this news was not relayed to him. Becker maintains he was assured that the project was on schedule and soon would be ready for trading. He alleges that he did not learn of the proposal's defeat until September 1988. One year after his starting date, Becker was terminated. He received a $120,000 salary and an $173,000 bonus, which was later raised to $230,000. Becker claims that PaineWebber caused him to lose credibility in the oil trading business and that this loss of credibility prevents him from finding employment in the industry. PaineWebber maintains that Becker was terminated because he 1 At PaineWebber, the board of directors must approve any major company decision; the EMC makes decisions involving lesser risk or capital. conducted an unauthorized oil trade. Becker brought an action in a Texas state district court for negligent misrepresentation under the Restatement (Second) of Torts § 552, as adopted in Texas, alleging damages in excess of $11 million. PaineWebber removed the action to federal court on the basis of complete diversity of citizenship.2 Thirteen months after removing the case, PaineWebber sought leave to file an amended answer in the district court and provided two affirmative defenses: (1) New York law applied; (2) the employment-at-will rule barred Becker's claim. The district court denied PaineWebber's motion but granted leave to amend the Joint Pretrial Order. PaineWebber then added the above-mentioned defenses as well as these two: (1) the statute of frauds barred Becker's claim; and (2) Becker was not entitled to damages under the Restatement (Second) of Torts § 552. A jury trial began on April 1, 1991. At the conclusion of the evidence, PaineWebber moved for a directed verdict, which was granted by the district court on April 4th. The court entered its Final Order on April 11, 1991. This appeal followed. II. JURISDICTION AND STANDARDS OF REVIEW This court has jurisdiction under 28 U.S.C. § 1291 (1988). A district court's award of a directed verdict is reviewed de novo. Lloyd v. John Deere Co., 922 F.2d 1192, 1194 (5th Cir.1991). In ruling on a motion for directed verdict, a court must examine the entire record in the light most favorable to the nonmovant and draw all inferences in that party's favor. Treadaway v. Societe Anonyme Louis–Dreyfus, 894 F.2d 161, 164 (5th Cir.1990). The standard of review on appeal is the same standard used by the trial court. Springborn v. American Commercial Barge Lines, Inc., 767 F.2d 89, 94 (5th Cir.1985). A directed verdict is appropriate 2 Becker remained a Texas citizen while employed by PaineWebber. only when the facts and inferences point so strongly in the movant's favor that no reasonable jury could reach a contrary conclusion. See Fed.R.Civ.P. 50(a); Brady v. Southern R.R., 320 U.S. 476, 479–80, 64 S. Ct. 232, 234–35, 88 L. Ed. 239 (1943). III. DISCUSSION A. Choice of Law We first must decide whether to apply the substantive law of Texas or New York. Although both the Texas and New York law of negligent misrepresentation are based on the Restatement (Second) of Torts § 552, PaineWebber maintains that Texas's version is more favorable to Becker's case. PaineWebber argues that under Texas choice of law principles, New York substantive law should apply to this dispute. While we perceive no material difference to warrant PaineWebber's contention that Texas law is more favorable to Becker, we agree that an application of New York substantive law is appropriate and apply it on that basis. Under Erie, a federal court sitting in diversity must apply the choice-of-law rules of the jurisdiction in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941). Texas uses the "most significant relationship" test to determine the applicable law in contract and tort cases. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984). Under that test, we have held that the law of the place of employment governs. See Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th Cir.1991); Randall v. Arabian Am. Oil Co., 778 F.2d 1146 (5th Cir.1985). Becker received his job offer in New York and moved there immediately. All discussions regarding his proposed oil trading unit occurred in New York, with the exception of some telephone conversations when Becker was still in Texas. During his one-year employment term, Becker remained in New York and maintained an apartment. Therefore, under the "significant relationship" test, we find that New York substantive law applies to this dispute. B. Negligent Misrepresentation New York recognizes a cause of action for negligent misrepresentation as set forth in section 552 of the Restatement (Second) of Torts.3 See Mallis v. Bankers Trust Co., 615 F.2d 68, 81–82 (2d Cir.1980), cert. denied, 449 U.S. 1123, 101 S. Ct. 938, 67 L. Ed. 2d 109 (1981); Ultramares Corp. v. Touche, Nevin, & Co., 255 N.Y. 170, 174 N.E. 441 (1931); International Products Co. v. Erie R.R., 244 N.Y. 331, 155 N.E. 662 (1927), cert. denied, 275 U.S. 527, 48 S. Ct. 20, 72 L. Ed. 408 (1927); Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922). The elements of negligent misrepresentation are: (1) a careless statement containing false information made by someone, such as an employer, with a special relationship with the recipient; (2) the recipient's justifiable reliance on the information; (3) injury proximately caused by the recipient's reliance on the information. Mallis, 615 F.2d at 82. Becker provided evidence to present a jury question on the first element because he showed that he had a special relationship with PaineWebber, his employer, and that PaineWebber constantly reassured him that his oil trading proposal would be approved when, in fact, PaineWebber knew that approval was becoming increasingly unlikely. These reassurances could have had their origin in carelessness, a deliberate intent to mislead Becker, or in an effort to prevent discouragement on the part of Becker. Whatever the true source, a reasonable jury could have found the presence of a negligent misrepresentation. It would have been error to direct a verdict on the sole ground that no 3 This section provides in pertinent part: (1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement (Second) of Torts § 552 (1977). negligent representation was made. Before turning to the appropriate ground on which the directed verdict rested, it is proper to point out that Becker never sought to establish that PaineWebber promised to create an oil trading unit to be operated by him. Had he done so he would have sought a recovery measured by the benefit of his bargain, i.e. the monetary equivalent to him of the promised trading unit. Instead he seeks only such damages as would be necessary to compensate him "for the pecuniary loss to him of which the misrepresentation is a legal cause."4 It is here that Becker failed to establish his case sufficiently to entitle him to get to the jury. His failure was that he established neither his losses in reliance nor any link between the amounts he sought to recover and the alleged negligent representation. We reach this conclusion for the following reasons. First, Becker's claims are in no way based upon any losses incurred in the year in which he was associated with PaineWebber. He was compensated generously for that year.5 4 Restatement (Second) of Torts; section 552B. That section provides: (1) The damages recoverable for a negligent misrepresentation are those necessary to compensate the plaintiff for the pecuniary loss to him of which the misrepresentation is a legal cause, including (a) the difference between the value of what he has received in the transaction and its purchase price or other value given for it; and (b) pecuniary loss suffered otherwise as a consequence of the plaintiff's reliance upon the misrepresentation. (2) The damages recoverable for a negligent misrepresentation do not include the benefit of the plaintiff's contract with the defendant. Restatement (Second) of Torts § 552B (1977). 5 He was paid a total of $350,000. Second, Becker does claim to have lost $1.4 million annually by reason of not becoming an oil trader. This figure suggests a contractual recovery more than losses in reliance recovery. To the thousands of law students who were introduced to contract law by studying the case of Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929), Becker will appear to be using $1.4 million as the measure of damages that will give him the "perfect hand" the doctor in that case promised to provide. That, as the professor repeated over and over, was the contractual measure of damages. Quite properly, subsection (2) of section 552B of the Restatement (Second) of Torts expressly prohibits a recovery of the "benefit of the plaintiff's contract with the defendant." That is, Becker's reliance on "negligent misrepresentation" limits his recovery when expressed in terms of Hawkins v. McGee, supra, to the difference between the hand before the doctor operated and the hand he was left with after the doctor had bungled the operation. This distinction Becker does not seem to have understood. Third, even assuming that the above characterization falsely represents Becker's intent in pleading $1.4 million and that it is a sum that Becker puts forward as true losses in reliance and not the benefit of his supposed bargain, the amount is not supported by his evidence. His annual earnings during the four years preceding his employment was only $300,000.6 Moreover, during the three months of trading for PaineWebber losses in t he amount of $526,000 were incurred.7 It is unreasonable to believe that in the light of these figures Becker would have earned $1.4 million annually even if PaineWebber had proceeded with its plans. Fourth, Becker failed to show that he could have earned the $1.4 million or any lesser figure by becoming an oil trader for another firm had not PaineWebber failed to carry out its original plans. 6 In his past three jobs he received annual salaries averaging about $70,000. Even according to Becker's estimates, his income averaged almost $300,000 annually during the four years prior to his employment at PaineWebber. 7 He lost $55,000 in April, $10,000 in June, and $451,000 in July. It is true that a "lost opportunity" can be a basis for damages in a negligent misrepresentation action. See Nassau Trust Co. v. Montrose Concrete Prod. Corp., 56 N.Y.2d 175, 451 N.Y.S.2d 663, 436 N.E.2d 1265, 1269 (1982). Once more Becker only asserts that he could have earned $1.4 million; he offers no substantial proof. The figure is no more persuasive in this setting than it was when considered as proof of what Becker would have earned as an oil trader at PaineWebber. These conclusions make it unnecessary to reach PaineWebber's employment at will argument or the statute of frauds issue. The district court did not err in directing a verdict against Becker. AFFIRMED.	01-03-2023	04-25-2010
https://www.courtlistener.com/api/rest/v3/opinions/2613012/	35 Cal. App. 2d 508 (1939) PETER E. PRUSSING, Administrator, etc., Respondent, v. ANITA PRUSSING, Appellant. Civ. No. 2413. California Court of Appeals. Fourth Appellate District. November 17, 1939. McFadden & Holden and J. P. Guerin for Appellant. Arthur E. Koepsel and Sharpless Walker for Respondent. Marks, J. This is an appeal from a judgment against defendant in the sum of $4,500 damages to the estate of Nicholas F. Prussing, deceased, by reason of defendant acquiring title in her own name to property encumbered by a mortgage securing a promissory note dated September 17, 1926, due in three years, in the sum of $6,750, made by Edward M. West and owned by deceased at the time of his death, and by permitting the statute of limitations to run against the obligation without filing a foreclosure action. [1] The appeal is on the judgment roll. Thus we are required to assume that all findings of fact are supported by sufficient material evidence. It will be necessary for us to detail the facts disclosed by the record with considerable particularity in order to give a proper understanding of the problems before us. The complaint contains two causes of action. As judgment went in favor of defendant on the first cause of action and as plaintiff has not appealed from that portion of the judgment, no further attention will be given to that phase of the case. The second cause of action is for damages for fraud in obtaining title to real property for the purpose of defrauding the estate out of its value and for negligence in permitting the statute of limitations to run. The execution of the promissory note and mortgage and their assignment to deceased are alleged as is the death of Nicholas F. Prussing on January 15, 1932, and the appointment of defendant, his widow, as executrix on February 5, 1932. It is also alleged that she returned an inventory and appraisement of the property of the estate including therein the note and mortgage already mentioned; that she was removed as such executrix on March 20, 1936; that on 511 May 8, 1936, she recorded a deed conveying to herself individually the property described in the mortgage; that she negligently permitted the statute of limitations to run against the note and mortgage on September 17, 1933, without instituting any action to foreclose the mortgage and collect the note; that this was done and title to the mortgaged property was taken by her for the purpose of defrauding the estate out of its value so that she might personally benefit therefrom. The first amended answer denied the material allegations of the complaint except those formal allegations first mentioned. Defendant denied that the statute of limitations had been allowed to run against the note and mortgage and plead a written extension agreement dated September 18, 1929, signed by N. F. Prussing and M. R. Cobb, whereby the time for payment of the note was extended for three years to September 17, 1932. This agreement recited that M. R. Cobb "has assumed" the note and that it was made "for and in consideration of the sum of $1.00 paid by each party hereto to the other". The first amended answer denied any fraud on the part of defendant and alleged that the deed was made to her by mistake and inadvertence. It was also alleged that both before and after the filing of the complaint in this action defendant had offered to restore the property. There is no allegation of a tender of a deed conveying title to the mortgaged property nor is there an offer to convey the property to the estate. Taking the pleading as a whole it is rather clear that no one would have any great difficulty in concluding that defendant attempted to allege that title to the property was conveyed to her individually by mistake; that she held the legal title to it in trust for the estate; and that she was willing to correct the mistake by conveying the record title to the estate. A trial was had and findings of fact and conclusions of law and a judgment, interlocutory in its nature, were signed on July 30, 1937. The trial court found in favor of plaintiff on the major issues. It was particularly found that the extension agreement was a valid and binding contract and extended the time for the payment of the note to September 17, 1932; 512 that "for said reason the statute of limitation has not run against said note and mortgage and the same are not barred by limitation". The trial judge drew the following conclusions of law from the facts found: that defendant acquired title to the property wrongfully and in violation of her trust and was liable for any damages caused by her breach of trust; that the amount of such damages could not be ascertained until after a foreclosure of the mortgage and a sale of the property and "after it is shown to the court that a deficiency, if any, could and should have been collected from Edward M. West"; that judgment be entered decreeing that plaintiff has been damaged by the acts of defendant; that the amount of such damages, if any, be determined at a subsequent hearing after foreclosure of the mortgage, sale of the mortgaged property, and the determination of the question of the ability of Edward M. West to respond to a deficiency judgment; that the judgment to be immediately entered be final and binding upon the parties "except as to the amount of damages, if any" and that when the amount of damages be ascertained a full and final judgment will be entered "in accordance therewith". The judgment closely followed the conclusions of law. It contained the following: "That plaintiff shall proceed with the foreclosure of the mortgage herein referred to upon the above described real property. That said property be sold. That the plaintiff file a certified copy of said judgment and report of sale with the Clerk of the Court. That after the sale of said property and after it is shown to the Court that a deficiency, if any, could and should have been collected from Edward M. West, the plaintiff shall move to have a citation issued against the defendant to show cause why judgment should not be entered against her for such damages, if any, as may be shown. * * " "That a present judgment shall be final and binding upon the parties hereto, except as to the amount of damages to be ascertained as aforesaid. When said amount is ascertained, the Court will make a full and final judgment thereon in accordance therewith." 513 A second findings of fact and conclusions of law and "final judgment" dated September 23 and September 30, 1938, respectively, appear in the record. The second findings contain the following: "In the former proceedings, findings and judgment, the Court purposely refrained from making a definite finding and judgment as to the amount of damages which plaintiff was entitled to for the reason that at said time there was a reasonable probability that the damages as shown in the trial of the action would be increased by foreclosure proceedings then contemplated on the note and mortgage involved in the action. It was the intention of this court to direct the plaintiff to proceed with said foreclosure proceedings and if a deficiency was shown to have been collectible from Edward M. West, the amount of said deficiency, if any, would be added to the damages already shown to have accrued." "The Court at the conclusion of the former hearing reserved the right to make further and definite findings and judgment as to the actual amount of damages sustained by plaintiff by reason of the unlawful acts of the defendant." The findings of fact and judgment of July 30, 1937, are copied into and made a part of the second findings. It is then found that defendant acquired title to the mortgaged property on October 31, 1932, and that the value of the property was then $4,500; that pursuant to the mandate of the former judgment, plaintiff instituted an action in the Superior Court of Los Angeles County to foreclose the mortgage. A judgment rendered in that action is then copied into the findings. The action in Los Angeles County to foreclose the mortgage was entitled Peter E. Prussing, as administrator, etc., v. Edward M. West, M. R. Cobb, Anita Prussing, and certain fictitious defendants. That judgment recites that defendant M. R. Cobb appeared and demurred to the complaint and moved for judgment on the pleadings. It recites that the trial court was of the opinion that the extension agreement to which we have already referred was "void for want of consideration" and that therefore the cause of action was barred by the statute of limitations. It was adjudged that the demurrer be sustained without leave to amend; that Cobb have judgment on the pleadings; that 514 plaintiff "is hereby denied any and all relief against the defendant M. R. Cobb." In the instant action the trial court further found that no deficiency judgment was collectible against "Edward M. West or his estate". A "final judgment" was entered against defendant for $4,500 and costs. We wish to state that the mere recital of the foregoing facts and the procedure followed in the trial court should not be construed as an approval of that procedure which involved entering an interlocutory judgment in an action at law. A determination of the question thus presented is not necessary for a decision of this case. It is clear from the record that the trial judge considered defendant liable for the loss to the estate of her husband caused by her taking title to the mortgaged property in her own name and in not securing a deficiency judgment against Edward M. West before the statute of limitations had run in his favor; that the amount of damages could not be fixed before foreclosure of the mortgage and a sale of the mortgaged property; that no damages could or would be assessed before the completion of the sale. The question of the value of a deficiency judgment against West was settled by the finding that no such judgment could have been collected from him or from his estate. [2] The matter of the foreclosure of the mortgage and sale of the property is far from settled by the record because all that was settled by the judgment in the Superior Court of Los Angeles County is that the action to foreclose the mortgage was barred by the statute of limitations in so far as that action affected M. R. Cobb. That action against Edward M. West, the maker of the note, and Anita Prussing, the present holder of the record title to the property is undetermined and is still pending as far as the record shows. There is nothing in the record to indicate that the mortgage may not be foreclosed and the property yet sold in that action. It does not appear that either of those two defendants have plead the statute of limitations as a bar to the foreclosure action. [3] The maker of a note and mortgage and the present holder of the record title to the mortgaged property, through mesne conveyances from the mortgagor, are proper parties to a foreclosure proceeding. (18 Cal.Jur., p. 337, sec. 608.) 515 A judgment against them (there being no intervening junior lienholder) is sufficient to vest title in the purchaser at foreclosure sale. Title may be passed by a sale in foreclosure proceedings under a decree against the present record owner of the property who took title subject to the mortgage. [4] "Since ... the statute of limitations is a personal privilege to be asserted or waived at the option of the one entitled to assert it, the statute must be affirmatively pleaded, either by demurrer or by answer, or its benefits are waived." (16 Cal.Jur., p. 603, sec. 199.) As neither Edward M. West nor Anita Prussing have pleaded the bar of the statute, the action may be prosecuted against them at least until such plea be interposed. The judgment in favor of M. R. Cobb is only a final judgment in so far as it affects the right of the plaintiff to prosecute the foreclosure action against him. It is not an adjudication of plaintiff's right to proceed with the action against the other defendants. (14 Cal.Jur., p. 951, sec. 52.) The action as to them is still pending and undecided. It is clear that the cause of action stated in the complaint is one for damages resulting from (1) negligently permitting "the statute of limitations to run against the right of action to foreclose said mortgage and collect said note" and (2) defendant's fraudulently acquiring property belonging to the estate of deceased while she was acting as executrix. We may assume negligence on the part of defendant in failing to bring the action to foreclose the mortgage, and still there is nothing to indicate that the estate thus far has suffered any loss by reason of such assumed negligence. A judgment against the maker of the note would have been of no value to the estate because the trial court particularly found that nothing could have been collected from West or his estate. There is nothing to indicate that the mortgage cannot be foreclosed against West and Mrs. Prussing as successfully now as it could have been before the statute had run. Neither West nor defendant has interposed the plea of the bar of the statute in the foreclosure action and until they do so the trial court cannot assume that such a defense might be interposed and the foreclosure defeated. Until it is shown by some competent evidence that the mortgage 516 cannot be foreclosed no loss to the estate by reason of the bar of the statute has been established. [5] On the record before us there is nothing to indicate that defendant acquired or holds any property belonging to her deceased husband's estate. He held a mortgage on the Los Angeles County property. That mortgage became an asset of his estate. A mortgage is a mere lien on real property and is not a grant of an estate in real property. (Alder v. Sargent, 109 Cal. 42 [41 P. 799].) It is merely security for a debt or obligation. (Johnson v. Razy, 181 Cal. 342 [184 P. 657]; 17 Cal.Jur., p. 714 et seq.) Deceased did not own the mortgaged property. He merely had a lien upon it. It is clear from the record that defendant did not acquire any interest in the mortgage or the debt secured by it. She acquired the record title to the property. The mortgage was duly recorded, so she took that title subject to the mortgage (18 Cal.Jur., p. 25, sec. 352), and subject to the liabilities and obligations of the mortgagor, except his liability to respond to a deficiency judgment. As she acquired no property belonging to the estate it was not damaged by her act in taking the record title to the mortgaged property subject to the mortgage. [6] It may be that loss to the estate might occur if the defense of the bar of the statute of limitations should be successfully interposed in the pending foreclosure proceedings. It also may be true that if defendant was negligent in permitting that statute to run she might be responsible for the damages resulting from that negligence, if any, on her part, if the bar of the statute is interposed and sustained. There must be proof of such loss before any money judgment can be rendered against her to compensate for injury, if any, to the estate. As far as the record shows the lien of the mortgage is just as valid and just as much subject to foreclosure now as it was before the record title to the mortgaged property was placed in the name of defendant. Damages cannot be recovered without some proof of loss or injury resulting from the wrongful act or neglect, if any, of a defendant. Here there is neither a finding of any fact nor any inference to be drawn from any finding of fact that the estate of Nicholas F. Prussing has yet suffered any loss, damage or injury from any act or neglect, if any, of defendant. It follows that the 517 findings fail to support the judgment awarding plaintiff damages against defendant. The judgment is reversed. Barnard, P. J., and Griffin, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895413/	NO. 07-06-0051-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JULY 10, 2007 ______________________________ DAVID GUTIERREZ, APPELLANT V. DUANE TILLMAN, APPELLEE _________________________________ FROM THE 154 TH DISTRICT COURT OF LAMB COUNTY; NO. 16636; HONORABLE FELIX KLEIN, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Appellant David Gutierrez filed a conversion action against appellee Duane Tillman, and now appeals a take-nothing judgment rendered for Tillman after a bench trial. We will affirm the judgment. Planning to demolish a rural school building, in October 2004 the Sudan Independent School District auctioned some items located at the site. Gutierrez attended the auction and, among other items, bought the building’s brick. He paid $50.00 for the brick, estimating the building contained some 205,000 bricks. The school district also contracted with Dwayne West, who did business as SDS Contractors, to demolish the building and bury the materials leaving the site level. West testified he was instructed to wait until after the first of the year to begin the demolition, to allow purchasers of items to remove them from the building. Gutierrez depended on the demolition contractor to knock down the walls of the building and make the brick available to him. He collected the bricks by hand and loaded them on a trailer, hauling about 1500 bricks per load. West began demolition in March 2005, but in late April 2005, he sold the SCS Contractors business and equipment to Tillman. (footnote: 1) Based on his discussion with West about the length of time it would take to complete the demolition, Gutierrez expected to have access to the brick until the end of July 2005. But Tillman believed the school district wanted the site cleared promptly, and after he assumed responsibility for the work he proceeded to complete the demolition of the building and burial of the rubble. Gutierrez was able to haul a total of some 22,000 to 23,000 bricks from the site before the debris was buried. Contending Tillman wrongfully exercised control over his property by cutting short his access to the brick, Gutierrez brought suit against him for conversion. After receiving exhibits, and hearing testimony from Gutierrez, Tillman, West and a damages witness for Gutierrez, the trial court rendered a take-nothing judgment, and later made findings of fact and conclusions of law at the request of Gutierrez. By its single conclusion of law, the trial court couched its denial of recovery to Gutierrez in terms of waiver, stating, “Because [Gutierrez] waived any right to possession or ownership of the brick by his failure to remove the brick prior to 1/1/2005 he cannot sustain a cause of action for conversion.” On appeal, Gutierrez attacks the conclusion. He contends it was not supported by pleadings asserting waiver, and ignored the agreement of the parties. He also argues his exercise of possession of the brick was subject to the condition precedent that the building be demolished. We review the correctness of the trial court’s conclusion of law as a legal question, affording no deference to the trial court. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002); see State v. Heal , 917 S.W.2d 6, 9 (Tex. 1996) (questions of law reviewed without deference to lower court’s conclusions). If we find the court’s conclusion of law is erroneous, but the court rendered the proper judgment, the erroneous conclusion does not require reversal of the judgment. BMC Software , 83 S.W.3d at 794. Conversion is the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner’s rights. Waisath v. Lack’s Stores, Inc. , 474 S.W.2d 444, 446 (Tex. 1971); Smith v. Maximum Racing, Inc. , 136 S.W.3d 337, 341 (Tex.App.–Austin 2004, no pet.). His conversion claim thus required Gutierrez to establish that Tillman without authorization exercised dominion over the brick to the exclusion of, or inconsistent with, Gutierrez’s rights in the brick. Id . The court’s findings of fact included the unchallenged findings that Gutierrez removed the items he purchased at the auction, except for the brick, before the end of 2004; that he did not attempt to remove the brick from the building prior to January 1, 2005, but relied on the demolition contractor to demolish the building; and that he was allowed access to the brick before it was buried. Gutierrez does not contend the demolition contractors had any obligation to separate the brick from the other building debris. Completion of the demolition contract inevitably involved burial of any brick remaining among the debris. The evidence supports a conclusion that, after January 1, 2005, Gutierrez’s rights in the brick were subject to the actions of the demolition contractor. When asked about his agreement with the school district concerning his possession of the brick, Gutierrez testified the district said, “I would have to make arrangements with the person doing the demolition.” Although, as noted, Gutierrez testified to his understanding he would have until the end of July to haul off the brick, West testified he told Gutierrez “he could get the bricks as long as I was working there. When I got through we would be through.” (footnote: 2) West also testified, with regard to Gutierrez’s right to the brick, he told Tillman that “[Gutierrez] could get them as long as [Tillman] was working out there.” Tillman denied having any agreement with Gutierrez to allow him access to the brick for any particular period of time. We agree with Tillman that no affirmative defense of waiver is necessary to sustain the trial court’s failure to find him liable to Gutierrez for conversion. We conclude that Gutierrez simply failed to establish that Tillman’s burial of the debris, including the remaining brick, when he finished demolishing the school building was inconsistent with Gutierrez’s rights because, after January 1, 2005, those rights were subordinate to the contractor’s decision concerning the pace of demolition. Accordingly, the absence of pleadings alleging waiver does not call for reversal. Gutierrez next contends the trial court disregarded evidence of his agreement with the demolition contractors. In a variation on that contention, he argues the demolition was a condition precedent to his exercise of possession of the bricks. Both contentions must fail. Gutierrez is correct that evidence showed he could not take possession of the brick before the walls of the building were knocked down. And, as he argues, it is undisputed the demolition was not to begin until after January 1, 2005. But no evidence shows Tillman, or West, agreed to adjust the pace of the demolition, after January 1, 2005, to Gutierrez’s schedule or the speed with which he could remove the brick. And, as noted, even Gutierrez acknowledged that his possession required “arrangements with the person doing the demolition.” Finding no reversible error in the trial court’s judgment, we overrule Gutierrez’s sole issue and affirm the judgment. James T. Campbell Justice FOOTNOTES 1: The sale is evidenced by a bill of sale transferring the equipment used by West. The agreement does not address Tillman’s assumption of West’s contracts. 2: When asked his understanding of “how long you had to do the [demolition] job,” West responded, “I wasn’t on a time schedule on the job. They [the school district] wanted it as soon as possible.” Tillman also testified to his understanding that the district wanted the demolition completed as soon as possible.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/1478426/	143 F.2d 667 (1944) FOX v. ALCOA S. S. CO. et al. No. 10998. Circuit Court of Appeals, Fifth Circuit. July 7, 1944. Rehearing Denied August 9, 1944. Raymond H. Kierr, of New Orleans, La., for appellant. Herbert W. Christenberry, U. S. Atty. of New Orleans, La., L. V. Cooley, Jr., Asst. U. S. Atty., of Slidell, La., Gerald H. Bucey, Regional Counsel, War Shipping Administration, for United States of America. Geo. H. Terriberry, Andrew R. Martinez, and Benj. W. Yancey, all of New Orleans, La., for Alcoa S. S. Co. Before SIBLEY, HUTCHESON, and LEE, Circuit Judges. PER CURIAM. Appellant, a seaman on a ship of Panamanian registry, but operated for the United States by the War Shipping Administration, brought a libel in personam for maintenance and cure against the United States, the War Shipping Administration and Alcoa Steamship Company. The United States and the War Shipping Administration moved to dismiss because no claim in writing had been filed with and disallowed by the War Shipping Administration as by law required. On the hearing of the motion it was conceded that there was no good claim against the Alcoa Steamship Company. Though it was contended that a certain letter might constitute a claim in writing, the motion was sustained. On this appeal it is argued that the Regulation of the War Shipping Administration, Sect. 304.26, 8 Fed. Reg. 5414, which declares that if a claim is filed and the claimant is not notified within sixty days of the determination of it, the claim shall be presumed administratively disallowed and the claimant shall be entitled to enforce his claim by court action, fixes an unreasonably long waiting period before suit can be filed on a claim for maintenance and cure, and is void, and may be disregarded by bringing a suit without making claim or waiting. The United States could not have been sued at all except for the provisions of the Act of March 24, 1943, 50 U.S. C.A.Appendix, § 1291(a). Suit can be maintained only upon the terms it fixes. The Act states: "Any claim referred to in clause (2) or (3) hereof shall, if administratively disallowed in whole or in part, be enforced pursuant to the provisions of the Suits in Admiralty Act, notwithstanding the vessel on which the seaman is employed is not a merchant vessel within the meaning of such Act. * * * When used in this subsection the term `administratively disallowed' means a denial of a written claim in accordance with rules or regulations prescribed by the Administrator, War Shipping Administration." The privilege of suing is given only after administrative disallowance of a written claim. This accords with the general policy of the United *668 States; for example, claims for war risk insurance, tax refunds, and generally all claims auditable in the General Accounting Office. The letter produced, as in effect a claim, was written to attorneys for Alcoa Steamship Company, and their reply was that they were not presently in position to discuss the matter. The letter never went to the War Shipping Administration. No claim in writing can be said to have been presented against the United States and disallowed as required by the Act. We do not really reach the question of the reasonableness of the regulation, which is said to provide in its effect a delay of sixty days before suit, though such is not its purport. The statute itself requires as a condition of suit against the United States that a claim in writing be filed for consideration by the War Shipping Administration, and this has not been done. What delay in considering it shall be taken as a disallowance is a proper matter for regulation by the Administrator, and sixty days does not seem on its face unreasonable. The dismissal was proper, but since it was not on the merits, but for prematurity, it is of course without prejudice to the merits. Judgment affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2612999/	14 Cal. 2d 666 (1939) LUSANNAH C. SHEA et al., Appellants, v. J. B. LEONIS, Sr., et al., Respondents. L. A. No. 17079. Supreme Court of California. In Bank. November 30, 1939. Chapman & Chapman and Decoto & St. Sure for Appellants. Gibson, Dunn & Crutcher, S. M. Haskins, Frederic H. Sturdy, Ira C. Powers, Young & Kelly, Edward R. Young and Frank R. Johnston for Respondents. THE COURT. A rehearing was ordered herein in order to give further consideration to the contentions of the defendants. A reexamination of the questions raised on the appeal has confirmed the conclusions reached in the former opinion. We therefore adopt as the opinion of this court on rehearing the opinion prepared by the late Justice Seawell and previously filed, as follows: "This is an action to recover accrued rent in the sum of $16,833.33, with interest, and also taxes and assessments in the amount of $5,435, which the lessee agreed by the lease to pay. Plaintiffs appeal from the judgment entered for defendants upon counts one, two, four and five of the complaint after the sustaining of defendants' general and special demurrers to said counts." "Defendant J. B. Leonis, Inc., assignee of a ninety-nine year lease, transferred said lease to defendant Boyle Avenue 668 Investment Company. The rent herein sued for accrued subsequent to this transfer. The court below held good count three of the complaint, which states a cause of action against Boyle Avenue Investment Company as last assignee of the lease. The court also held good count six as against J. B. Leonis, Inc. Said count alleged that by the terms of the lease an assignment thereof did not operate to release the assignor from liability on the lease if at the time of the assignment it was in default as to any terms of the lease. It averred that J. B. Leonis, Inc., was in default upon the covenants of the lease on December 21, 1931, when it assigned said lease to Boyle Avenue Investment Company." "It appears from the counts involved on this appeal that defendants J. B. Leonis, Sr., and J. B. Leonis, Jr., own all stock of J. B. Leonis, Inc., which is described as a 'financially responsible company'. The stock of Boyle Avenue Investment Company stands in the names of J. B. Leonis, Jr., and Adelina F. Leonis, his wife. The theory of plaintiffs is that defendant Boyle Avenue Investment Company is but the alter ego of its stockholders, and that it was organized for the sole purpose of taking an assignment of the lease and is without other assets, with the result, plaintiffs contend, that the separate corporate identity of said company should be disregarded and its stockholders held for the rent herein sued for." "It is alleged in count 1 that the stock of Boyle Avenue Investment Company, in the names of J. B. Leonis, Jr., and Adelina F. Leonis, is held for J. B. Leonis, Sr., and J. B. Leonis, Jr., against whom judgment is prayed for in this count. In count 2 it is alleged that the stock is held for J. B. Leonis, Inc.; in count 4, that J. B. Leonis, Jr., and Adelina F. Leonis are themselves the beneficial owners; and in count 5, that it is held for J. B. Leonis, Sr., J. B. Leonis, Jr., and J. B. Leonis, Inc. Each count prays for judgment against the parties, respectively, for whom the stock of Boyle Avenue Investment Company is alleged to be held." [1] "We entertain no doubt that if Boyle Avenue Investment Company was organized as above outlined its separate corporate existence should be disregarded and its liability as last assignee of the lease held to be the liability of the persons who are the beneficial owners of all its corporate stock. Defendants point to cases which hold that if the lessor 669 does not restrict assignment to solvent transferees, an assignment may lawfully be made to an insolvent. (Johnson v. Sherman, 15 Cal. 287 [76 Am. Dec. 481]; Lindley v. Sale, 140 Cal. App. 662, 668 [36 PaCal.2d 130].) These cases are not controlling in the circumstances set out in the complaint. The stockholders of the corporation assignee, Boyle Avenue Investment Company, while enjoying the benefits of the lease, cannot equitably claim that they may escape its burdens through the device of taking the assignment of lease in the name of a corporation which is without other assets and has been organized by them for the purpose of taking such an assignment." [2] "Corporate separate existence will be disregarded where to recognize it would be to sanction a fraud or promote injustice. (Minifie v. Rowley, 187 Cal. 481 [202 P. 673]; Erkenbrecher v. Grant, 187 Cal. 7 [200 P. 641].) For example, a debtor may not evade payment of his debts by forming a corporation which does not assume the debt and thereafter transferring all his assets to it. (Higgins v. California Petroleum & Asphalt Co., 122 Cal. 373 [55 P. 155]; Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348 [181 P. 780]; Grotheer v. Meyer Rosenberg, Inc., 11 Cal. App. 2d 268 [53 PaCal.2d 996]; Sunset Farms, Inc., v. Superior Court, 9 Cal. App. 2d 389 [50 PaCal.2d 106].) The equitable principle underlying these decisions is equally applicable where, as in the instant case, the device adopted is not a transfer of assets, but an attempt to avoid liability for benefits enjoyed by means of taking the obligation in the name of a specially organized corporation which has no other assets." [3] "As to the count which avers that the stock of the newly organized Boyle Avenue Investment Company is held for J. B. Leonis, Inc., the corporation assignor, and that the new company was organized for the purpose of terminating liability of the assignor, it may be said in addition that the assignment is, in effect, as plaintiffs allege, no assignment at all and that the new corporation is but the old one under another name. An assignee cannot escape liability by an assignment which is merely colorable. (1 Tiffany, Real Property [2d ed.] 184; 16 Rawle C. L. 866.)" [4] "An action against defendants for rent accruing under the lease within four years of action brought is upon the written contract of lease (Stanford Hotel Co. v. M. *670 Schwind Co., 180 Cal. 348 [181 P. 780]), and hence would not be barred by the statute of limitations." "We conclude that the several counts state a cause of action against the parties which they, respectively, seek to hold, with the exception that count five states no cause of action against Adelina F. Leonis, but only as to defendants J. B. Leonis, Sr., and J. B. Leonis, Jr., and J. B. Leonis, Inc. Count four, based on the theory that J. B. Leonis, Jr. and Adelina F. Leonis are beneficial owners of the stock of Boyle Avenue Investment Company, properly includes Adelina F. Leonis as a party against whom recovery is sought, but it is not averred in count five that she has any beneficial interest in said stock, with the result that in said count five liability against her on the theory of disregard of the corporate identity is not made out." "The defendants also filed special demurrers urging uncertainty and ambiguity in several particulars. We are of the view that the complaint is not subject to special demurrer in any of the particulars relied on." The judgment for defendants entered upon demurrer is reversed except as to the judgment for Adelina F. Leonis on the fifth count of the complaint, which is affirmed, appellants to recover costs.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873291/	182 So. 2d 642 (1966) James T. BOOKER and Letha M. Booker, Appellants, v. Udelio LIMA and Mary Lima, Appellees. No. 65-445. District Court of Appeal of Florida. Third District. February 1, 1966. Rehearing Denied March 1, 1966. *643 Pruitt & Pruitt and L.L. Robinson, Miami, for appellants. Kneale, Roberts, Kneale & Starkweather, Miami, for appellees. Before CARROLL, BARKDULL and SWANN, JJ. PER CURIAM. By this appeal, the defendants in the trial court seek review of an adverse final judgment rendered upon a jury verdict in a negligence action. From the record on appeal, it appears that the plaintiff was a passenger in an automobile that collided with one owned by the appellant, Letha M. Booker, and driven by James T. Booker. The accident occurred when the two vehicles collided in the parking lot of a shopping center. The only point preserved for review on appeal is the sufficiency of the evidence to support the verdict. At this stage of the proceedings, all reasonable inferences are resolved in favor of the validity of the verdict. See: F.W. Woolworth Company v. Stevens, Fla.App. 1963, 154 So. 2d 201; LeJeune Road Hospital, Incorporated v. Watson, Fla.App. 1965, 171 So. 2d 202; Busbee v. Quarrier, Fla.App. 1965, 172 So. 2d 17. And, if there is any evidence to support same, it should be affirmed. See: Kowalczyk v. Brudder, Fla.App. 1961, 134 So. 2d 532; Prince Michael Corp. v. Zucker, Fla.App. 1962, 147 So. 2d 332; Miami Shores Village v. Lingler, Fla.App. 1963, 157 So. 2d 716. We have examined the record in light of these principles and find sufficient, competent evidence to support the jury's finding and, therefore, we affirm the final judgment here under review. At the time of oral argument, counsel for the appellant attempted to raise the question as to the vicarious liability of Letha M. Booker, in view of the fact that the accident in question did not happen on the public streets. We do not reach this question because same was not raised in the pleadings in accordance with § 51.12, Fla. Stat., F.S.A., was not assigned as error, nor urged by any point in the brief. Therefore, for the reasons stated above the final judgment here under review is hereby affirmed. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3344063/	In this action, judgment was entered on January 3, 1947, decreeing a divorce to the plaintiff and awarding her the custody of the adopted child with an allowance of $15 per week for the support of the child. The basis of the present motion is not that there has been any change in the circumstances of the parties since the judgment. As a matter of fact, the weekly earnings of the defendant have increased to the extent that they are now $75 per week. It is rather that the defendant was lulled into not appearing or making any contest at the former hearing by the fact that he and his former wife had entered into a written agreement whereby she had agreed not to ask for alimony or "support." The interpretation of this agreement is open to question as to what the parties thereto intended by the word "support," whether it meant support of the wife or support of the child *Page 263 or such claim as the wife might in the future have for necessities which she might furnish for the child. Whatever is the proper interpretation of the contract, however makes little difference. When parents enter into such an agreement they should understand that they have no right to stipulate away the rights of their children. Such an agreement is always subject to the approval of the court and it is the court's duty to protect children and order such an allowance for support as may seem proper, irrespective of the agreement. That is, such an agreement has no binding effect. It is, at most, an aid to the court in making its determination of the amount of the allowance. In this case no fraud was perpetrated on the court in relation to this matter of the allowance for the support of the child. The evidence is that, at the hearing of the divorce case, the court was fully apprised of the terms of the agreement. The defendant had actual notice that the case was going to be heard on January 3 and had ample opportunity to attend the hearing. He knew or should have known that the question whether an allowance would be made for the support of the child was an open question which the court alone could decide. Simply because he elected, in view of all the circumstances, to absent himself from the hearing lays no basis for a claim that the order was procured through fraud. Aside from the foregoing, upon all of the circumstances as they exist at the present time, the allowance of $15 per week is a proper allowance for the support of the child. The motion for modification is denied.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1424441/	143 Ga. App. 440 (1977) 238 S.E.2d 770 LEXINGTON DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC. 54272. Court of Appeals of Georgia. Submitted September 14, 1977. Decided October 7, 1977. Richard Feldman, for appellant. Cunningham & Clarke, Brian W. Wertheim, Raymond A. Cunningham, for appellee. QUILLIAN, Presiding Judge. On March 29, 1974, Lexington Developers entered into a contract with O'Neal Construction Company, wherein O'Neal was, inter alia, to perform construction work on Colony Square in Albany, Georgia. Before construction was completed, a fire occurred. In June, 1976, O'Neal brought an action against Lexington in Fulton County. Lexington failed to answer and default judgment was taken. Lexington's motion to open default was denied. On December 8, 1976, on the issue of damages, the jury verdict for O'Neal in the amount of $130,000 was made the judgment of the court. Lexington appealed. This court reversed, holding there was defective service as shown on the face of the pleadings. After motion for rehearing was denied, O'Neal petitioned for certiorari. The Supreme Court has not ruled upon that petition. Meanwhile, on December 3, 1976, five days before verdict and judgment in O'Neal's action against Lexington, Lexington brought this action against O'Neal in the State Court of DeKalb County, based upon the same contract, alleging O'Neal materially breached the contract. O'Neal answered and asserted as one of its defenses, res judicata, based on the former judgment obtained in its action 441 against the plaintiff. Lexington contended the former judgment was not final as it was on appeal. O'Neal's motion for summary judgment was granted. Lexington appeals. Held: Our Code provides that "[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties ... as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code § 110-501. This is the codification of res judicata in Georgia. See 50 CJS 11, Judgments, § 592. The issue presented by the facts in the instant case is whether the affirmative defense of res judicata can be asserted in a case when there is a case pending between the same parties on the same contract, in another court of competent jurisdiction. It is the general rule that a judgment sought to be used as a basis for the application of the doctrine of res judicata must be a final judgment. 46 AmJur2d 626, Judgments, § 457; Annot. 9 ALR2d 984. In Georgia a judgment is suspended when an appeal is entered within the time allowed. Code § 110-303. And the judgment is not final as long as there is a right to appellate review. Chlupacek v. Chlupacek, 226 Ga. 520 (3) (175 SE2d 834). As the first trial in the instant case is not final it cannot act as res judicata because res judicata is a bar to subsequent action between the same parties seeking similar relief. Salter v. Heys, 207 Ga. 591, 593 (63 SE2d 376); Walker v. Hamilton, 210 Ga. 155 (2) (78 SE2d 511). In addition to the foregoing, this court having reversed the trial court because of lack of proper service, the first court was without jurisdiction. Swanson v. Holloway, 128 Ga. App. 453 (197 SE2d 150). Thus, just as the judgment of the first trial court was conclusive until "reversed or set aside" (Code § 110-501), the judgment of this court on appeal is now controlling until "reversed or set aside." The broad rule may be stated as "a review proceeding may be pleaded in abatement of the second action..." (1 AmJur2d 52, Abatement, § 15; 1 CJS 61, Abatement and Revival, § 36), for "[t]he cause is pending just as long as it is litigated..." Twilley v. Twilley, 195 Ga. 297, 299 (24 SE2d 46). 442 Whether we consider the first judgment as not being final because it is presently pending on appeal, or whether we consider the judgment of the trial court as reversed because of its present status following the decision of this court, the result is the same. The defense of res judicata cannot be sustained in bar of the second suit. Judgment reversed. Shulman and Banke, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/70273/	IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 15, 2009 No. 09-50176 Conference Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JACOBO HEIDE-KEHLER, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:08-CR-2847-1 Before KING, JOLLY, and SOUTHWICK, Circuit Judges. PER CURIAM:* The district court sentenced Jacobo Heide-Kehler to serve 46 months in prison and a three-year term of supervised release following Heide-Kehler’s conviction of one count of attempted illegal reentry into the United States. In this appeal, Heide-Kehler challenges his sentence, which was within the applicable guidelines range, as being too severe. He argues that the pertinent Guideline, U.S.S.G. § 2L1.2, improperly double counted his prior conviction and * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4. No. 09-50176 that the district court did not properly weigh the sentencing factors given in 18 U.S.C. § 3553(a). Following United States v. Booker, 543 U.S. 220 (2005), we review sentences for reasonableness in light of the sentencing factors in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38 (2007), we engage in a bifurcated review of the sentence imposed by the district court. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we consider whether the district court committed a “significant procedural error.” Id. at 752-53. If there is no such error, we then review the substantive reasonableness of the sentence imposed for an abuse of discretion. Id. at 751-53. We have previously rejected the argument that a sentence imposed in accordance with § 2L1.2 is greater than necessary to meet § 3553(a)’s goals as a result of the alleged double counting inherent in that Guideline. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.), cert. denied, 130 S. Ct. 378 (2009). Heide-Kehler’s double counting argument is thus unavailing. Heide-Kehler’s arguments concerning the district court’s balancing of the § 3553(a) factors amount to a disagreement with the district court’s weighing of these factors and the appropriateness of his within-guidelines sentence. He has not shown that his sentence was either procedurally or substantively unreasonable, nor has he rebutted the presumption of reasonableness that attaches to his within-guidelines sentence. See United States v. Armstrong, 550 F.3d 382, 405 (5th Cir. 2008), cert. denied, 130 S. Ct. 54 (2009); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The judgment of the district court is AFFIRMED. 2	01-03-2023	04-26-2010
https://www.courtlistener.com/api/rest/v3/opinions/1873302/	752 N.W.2d 452 (2008) KOSMAN v. WIGNALL. No. 07-1140. Court of Appeals of Iowa. May 14, 2008. Decision without published opinion. Affirmed and Remanded with Instructions.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615039/	847 P.2d 1068 (1993) STATE of Alaska, Petitioner, v. Gregory ANGAIAK, Respondent. No. A-4222. Court of Appeals of Alaska. March 5, 1993. 1069 Cynthia L. Herren, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for petitioner. Scott Jay Sidell, Law Office of Chris Provost, Bethel, for respondent. Before BRYNER, C.J., and COATS and MANNHEIMER, JJ. OPINION MANNHEIMER, Judge. The State of Alaska petitioned us to review an order of the superior court dismissing a felony prosecution against Gregory Angaiak for violation of Alaska's speedy trial rule, Criminal Rule 45. We granted the State's petition and ordered formal briefing. We now reverse the superior court's decision. On May 25, 1991, the Bethel District Attorney filed an information charging Gregory Angaiak with two counts of first-degree sexual abuse of a minor, AS 11.41.434(a)(1). Five days later, on May 30, 1991, Angaiak was arrested on these charges. On June 20, Angaiak waived preliminary hearing; he remained free on bail pending the action of the grand jury. At this June 20 hearing, the court, the district attorney's office, and Angaiak's attorney, Cathleen Connolly, agreed that Rule 45 had begun to run on May 31, 1991 (the day following Angaiak's arrest) and would expire on September 27, 1991. For reasons that are not explained in the record, Angaiak was not indicted on these sexual abuse charges until September 12, 1991. When Angaiak's indictment was announced in the superior court the next day (September 13), the district attorney told the court that Angaiak had violated the conditions of his release by contacting the victim. Based on the district attorney's representations, Superior Court Judge Dale O. Curda issued a warrant for Angaiak's arrest.[1] Then, unprompted, Judge Curda announced that Rule 45 would be tolled "from today until ... he's picked up on the warrant." Neither Angaiak nor his attorney was present at this proceeding. The officer who signed the return of the arrest warrant certified that he arrested Angaiak in Toksook Bay on September 17, 1991. Angaiak was returned to Bethel and arraigned there on the newly issued indictment on September 21, 1991. A representative of the District Attorney's Office was present at Angaiak's arraignment, but Angaiak's attorney was not. At this arraignment, Judge Curda attempted to calculate how much time should be added to the Rule 45 calculation because of Angaiak's arrest. The judge incorrectly stated that the warrant had been issued on September 12 (see footnote 1 above), and then a state trooper incorrectly informed the judge that Angaiak had been arrested the previous day, September 20. As a consequence, Judge Curda decided that 8 days should be added to the original Rule 45 expiration date of September 27, so that the rule would expire on Saturday, October 5, allowing the trial to begin as late as 1070 Monday, October 7, 1991.[2] The court did not set Angaiak's trial at this time, but instead scheduled a calendar call hearing for September 24, 1991. The calendar call hearing in Angaiak's case was held, as scheduled, on September 24. Because notice of this hearing did not reach Angaiak's attorney, Ms. Connolly, until shortly before the hearing was to be held, Connolly's colleague, Myron Angstman, appeared at the hearing on behalf of Angaiak. At this calendar call, Judge Curda recited the procedural history of the case, telling Mr. Angstman that Rule 45 originally was to have expired on September 27, 1991, but that the court had added 8 days because of the arrest warrant. Judge Curda said that he intended to set Angaiak's trial for October 7, 1991, in front of Judge James A. Hanson. The hearing ended with the following conversation between the court, the district attorney, and Angaiak's attorney: THE COURT: [R]ight now [the defendant's trial is] scheduled [for October] 7th ... in front of [Judge Hanson]. MR. WALLACE [the prosecutor]: Well, Your Honor, I guess [it] would be the State's request ... to have it set sooner, if there's a problem with Rule 45. THE COURT: Uh-huh. Mr. Angstman? MR. ANGSTMAN: I don't know if Ms. Connolly has received the grand jury tape yet or not. I assume that she's in the process of obtaining it. I certainly can't tell the court today that there won't be motions or that we will be ready for trial on [the] 7th [of] October. I would suggest that the court set another calendar call early next week, and we can advise the court at that time if we are going to be prepared for trial on the 7th ... or if there are motions that require other action to be taken. THE COURT: Okay. I'm just checking here to see Judge Hanson is having a calendar call at 3:30 p.m. on October 3rd, so I'll go ahead and schedule an omnibus hearing/calendar call for that time. By then we'll know whether there have been any motions filed, and also [indiscernible] the trial setting. ..... That will be the next court date, then, October 3rd at 3:30 p.m. for omnibus hearing/calendar call. Anything further, Mr. Wallace? And it will be [set for] trial October 7th at 8:30 a.m.. MR. WALLACE: No, Your Honor, not at this time. THE COURT: All right. Mr. Angstman? MR. ANGSTMAN: No. THE COURT: We'll go off record. At the omnibus hearing/calendar call on October 3, Angaiak filed a motion to dismiss the charges for violation of his right to speedy trial under Rule 45. On November 5, in a written order, Judge James A. Hanson granted Angaiak's motion. Judge Hanson found first that, notwithstanding Judge Curda's earlier ruling, the issuance of the arrest warrant on September 13 had had no effect on the running of Rule 45. Second, Judge Hanson found that Myron Angstman's request for another calendar call could not be construed as a knowing waiver of Rule 45. Judge Hanson wrote, "[I]t cannot be said that substitute counsel Mr. Angstman should have known that the expiration date under Rule 45 was September 27, 1991, and not October 7, 1991 as he was informed at [the calendar call of September 24, 1991]." Following Judge Hanson's dismissal of the case, the State sought reconsideration of Judge Hanson's order. The State argued that Angstman's request for an omnibus hearing and renewed calendar call had been a request for a continuance under Rule 45(d)(2) that tolled Rule 45 for 9 days from the day of the request (September 24) until the omnibus hearing/calendar 1071 call was held on October 3. Judge Hanson denied the State's motion for reconsideration without pertinent comment. On appeal, the State has abandoned the argument that time should have been added to the Rule 45 calculation on account of the September 13 warrant. Instead, the State raises two other arguments. The State first argues that Angstman's failure to object to the announced trial date of October 7 constituted a waiver of Angaiak's Rule 45 rights. The State's second argument is that the 9 days between September 24 and October 3 must be excluded under Rule 45(d)(2) because they constituted a continuance granted at the request of the defense. We reject the State's first argument. Before Angstman's acquiescence in the October 7 trial date can be viewed as a waiver of Rule 45, it must be shown that Angstman knew enough about Angaiak's case (in particular, the events that started and arguably tolled the running of Rule 45) to be aware, or to have calculated, that the announced trial date violated Rule 45. Andrew v. State, 694 P.2d 168, 171 (Alaska App. 1985), aff'd as modified, 718 P.2d 471 (Alaska 1986); DeMille v. State, 581 P.2d 675, 677 (Alaska 1978); Buffington v. State, 745 P.2d 78, 79-80 (Alaska App. 1987). Judge Hanson found the opposite: he concluded that Angstman, who attended the September 24 calendar call as a lastminute stand-in for Connolly, did not know enough about Angaiak's case to understand the problem with the October 7 trial date. The State argues that Judge Hanson's finding is clearly erroneous. The State points out that, even though Angstman was stand-in counsel at the September 24 hearing, Judge Curda detailed the procedural history of Angaiak's case at that hearing and specifically told Angstman that the original Rule 45 expiration date had been September 27, 1991, that 8 days had been added because the court had issued a warrant for Angaiak's arrest after he violated the conditions of his release, that Rule 45 now ended on Saturday, October 5, 1991 (allowing trial to commence on Monday, October 7), and that the court intended to set Angaiak's trial for that date October 7 unless someone objected. From this, the State concludes that Angstman "had available to him all the information needed to alert him that a trial date after September 27th would violate Criminal Rule 45". We disagree. While the State now implicitly concedes that Judge Curda was mistaken when he added 8 days to the Rule 45 calculation, Judge Curda's error would not necessarily have been clear to Angstman. Angstman, appearing in the case for the first time, heard Judge Curda announce that the Rule 45 calculation had already been extended in a previous ruling. While it is perhaps conceivable that Angstman knew enough about the case to perceive the error in Judge Curda's ruling, we consider that unlikely, at least on the current record.[3] The State has not convinced us that Judge Hanson's finding is clearly erroneous.[4] The State's second argument for reversing the superior court's decision is that Angstman's request for a renewed calendar 1072 call/omnibus hearing tolled the running of Rule 45 from the date of his request (September 24) until the date the requested hearing was held (October 3), a total of 9 days.[5] The State characterizes these 9 days as a "period of delay resulting from an adjournment or continuance granted at the timely request ... of the defendant and his counsel." Criminal Rule 45(d)(2). The State relies on Miller v. State, 577 P.2d 1077 (Alaska 1978) (per curiam), and Henson v. State, 576 P.2d 1352, 1355-56 (Alaska 1978). However, as Angaiak correctly notes, these two cases deal with defense requests to reset the defendant's trial from a scheduled date to a later date.[6] Neither Miller nor Henson addresses the situation presented in Angaiak's case: a defense request, not to reschedule the trial, but simply to hold another pre-trial hearing before the scheduled trial date arrives. A case much closer on its facts is Deacon v. State, 575 P.2d 1225 (Alaska 1978). In Deacon, a trial setting hearing was held on January 14, 1976. At that time, trial was set for January 26. However, at this hearing, "counsel for Deacon requested an omnibus hearing to discuss various motions he intended to make". Deacon's attorney expressly waived Rule 45 from January 14 until whenever the omnibus hearing concluded. Id. at 1227. The omnibus hearing was held and concluded two days later, on January 16. Id. The supreme court held that these two days were to be excluded from the Rule 45 calculation. Id. at 1229-1230.[7] The similarity of Deacon to Angaiak's case is fairly evident. On September 24, 1991, Judge Curda held a trial-setting conference in Angaiak's case; trial was set for October 7. Angaiak's attorney told the court that, given the short time-frame, the defense might not be ready for trial by October 7. Angaiak's attorney also told the court that the defense might have motions to file against the indictment. For these reasons, Angaiak's attorney asked the court to set another hearing that would function both as a calendar call and an omnibus hearing. Without objection, the court set the renewed hearing for October 3. Angaiak's case differs from Deacon in one particular: Angaiak's attorney did not explicitly waive Rule 45 when he asked the court to set the omnibus hearing/calendar call. However, we do not believe this distinction is significant. Under Rule 45(d)(2), the defense request for a continuance is the event that, of itself, tolls the running of the speedy trial clock. There is no requirement that the defense attorney explicitly waive Rule 45 when he or she requests the continuance. Angaiak responds that the October 3 hearing had no effect on the trial date. Angaiak points out that, when his attorney requested the second calendar call/omnibus hearing, the superior court had already set trial for October 7. He argues that the 9 days between September 24 and October 3 should not be excluded from the Rule 45 calculation because the request for the additional hearing on October 3 had no bearing on the setting of the trial date. *1073 We find that State v. Clouatre, 516 P.2d 1189 (Alaska 1973), forecloses Angaiak's argument. In Clouatre, the defendant's case had been dismissed on Rule 45 grounds, and the government had filed a petition for review. The government noted that Clouatre had filed a pre-trial suppression motion; relying on Rule 45(d)(1), the government argued that the time necessary to adjudicate this suppression motion should have been excluded from the Rule 45 calculation. Clouatre replied that the time should not be excluded because the superior court's decision of his motion had not demonstrably affected the trial date. The supreme court rejected Clouatre's position and instead interpreted Rule 45(d) to mean that any event listed in subsections (1) through (6) would toll the running of the rule, regardless of whether that event actually delayed the defendant's trial. Clouatre, 516 P.2d at 1191. Applying Clouatre to Angaiak's case, we hold that the 9 days between September 24 and October 3, 1991 must be excluded when calculating the time limit for bringing Angaiak to trial under Rule 45. Adding 9 days to the original expiration date of September 27, 1991 extends the Rule 45 deadline to October 6, 1991. That day was a Sunday, so, under Criminal Rule 40(a), Angaiak's trial could have commenced on Monday, October 7, 1991. Thus, Rule 45 had not yet expired when Angaiak filed his motion to dismiss on October 3. The superior court should have granted the State's motion for reconsideration. Although we are reinstating the prosecution against Angaiak, we wish to stress, both to the State and to the superior court, the dangers inherent in the procedures used in this case. First, there is absolutely no explanation of why the State failed to seek Angaiak's indictment until 105 days after his arrest. Second, on the day that this indictment was returned and the court issued a warrant for Angaiak's arrest, the superior court ruled that the deadline for bringing Angaiak to trial would be extended by however long it might take to arrest Angaiak. This ruling was both ex parte (that is, made at a hearing at which only the State was represented) and sua sponte (that is, not in response to any request by the prosecuting attorney) fertile conditions for the creation of judicial error. Had it not been for the fortuity that Angaiak was arrested within a few days, leading to the calendar call of September 24, Rule 45 would likely have barred prosecution of the charges against Angaiak. We strongly encourage trial judges to make Rule 45 rulings only when both the government and the defense have had an opportunity to litigate (or concede) the issue. The decision of the superior court is REVERSED and this case is REMANDED for renewed proceedings on the indictment. NOTES [1] When the judge issued the warrant, he dated it "September 12, 1991". However, this date is incorrect; the warrant was issued pursuant to the request of the district attorney when the indictment was announced in court on September 13. [2] Actually, even if the time attributable to the arrest warrant were excludable from the Rule 45 calculation (an argument the State has abandoned on appeal), only 4 days (September 13-17) would be added to the calculation. Thus, even with the benefit of Judge Curda's ruling, the time for bringing Angaiak to trial would have expired on Tuesday, October 1, 1991, not Saturday, October 5. [3] We note that the State never sought to question Angstman about his knowledge of the case as of September 24, 1991. [4] The facts suggest another potential waiver argument: Even if Angstman did not know enough about the case to understand that Judge Curda's 8-day extension of Rule 45 had been error, Angstman did at least know (after he had heard Judge Curda's summary of the procedural history of the case) that the judge's ruling had created a Rule 45 issue, and that if Angaiak prevailed on this issue, the time for bringing Angaiak to trial would expire on September 27. Thus, it could be argued that Angstman, when he requested an opportunity to file pre-trial motions and agreed to a motion hearing date beyond September 27, sought this continuance with the knowledge that the delay would allow his colleague, Ms. Connolly, more time to consider and perhaps raise a potentially dispositive issue. If so, then Angstman's knowledge of the case was sufficient for his request (for an omnibus hearing to be held later than September 27) to constitute a waiver of Rule 45 for at least until the day after the requested omnibus hearing. This argument was not raised in the trial court or on appeal; we note but do not resolve it. [5] Implicit in the State's argument is the assertion that Rule 45 was tolled again on October 3 when Angaiak filed his motion to dismiss the charges. This does not appear to be disputed. [6] The same is true of the three other Alaska cases that directly construe Criminal Rule 45(d)(2): Stobaugh v. State, 614 P.2d 767, 769-770 (Alaska 1980); O'Dell v. Anchorage, 573 P.2d 1381, 1384 (Alaska 1978); and McKenzie v. Anchorage, 631 P.2d 514, 516 n. 3 (Alaska App. 1981). [7] See also Dunbar v. State, 543 P.2d 409 (Alaska 1975), another case in which the Alaska Supreme Court seemingly indicated that a continuance of a pre-trial hearing would toll the running of Rule 45. The defendant in Dunbar had filed suppression motions, and a pre-trial hearing had been calendared for December 18, 1973 to litigate those motions. The assistant district attorney assigned to the case was ill on the scheduled day, so prosecution and defense agreed to delay the hearing until January 3, 1974. 543 P.2d at 411. On appeal, Dunbar conceded that this 15-day period of time was excluded from the Rule 45 calculation. However, the supreme court viewed the matter as covered, not by Rule 45(d)(2), but by Rule 45(d)(1), which excludes periods of time "resulting from other proceedings concerning the defendant, including ... motions to suppress[.]" 543 P.2d at 412 n. 3.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2601602/	228 P.3d 731 (2010) 234 Or. App. 713 STATE of Oregon, Plaintiff-Respondent, v. Ryan Eric HAYS, Defendant-Appellant. 06117943C; A135729. Court of Appeals of Oregon. Argued and Submitted September 17, 2009. Decided April 14, 2010. John Henry Hingson III, Oregon City, argued the cause and filed the brief for appellant. Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. On 732 the brief were John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Jamie K. Contreras, Assistant Attorney General. Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and SERCOMBE, Judge.[] SERCOMBE, J. Defendant appeals a judgment of conviction for misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010(4). Defendant contends that the trial court erred in failing to suppress evidence of a chemical breath test of intoxication, arguing that his consent to take that test was unlawfully obtained. We affirm the judgment because the evidence of the breath test is admissible even if defendant's consent resulted from unlawful police actions. We review the denial of a motion to suppress for errors of law and are bound by the trial court's factual findings that are supported by sufficient evidence in the record. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). Thus, we take the salient facts in this case primarily from the trial court's findings.[1] Early one morning, defendant crashed a truck and horse trailer by driving through a "T" intersection and into a field in rural Malheur County. Deputy Romans arrived at the accident scene at approximately 6:20 a.m., joining emergency medical personnel who were present. Defendant was sitting in the driver's seat of the truck, bleeding from facial cuts sustained in the accident. Romans observed that defendant smelled of alcohol and had watery, bloodshot eyes. He asked defendant to step out of the vehicle to perform field sobriety tests. Defendant was unsteady on his feet and leaned against the vehicle to keep his balance. There was a full beer can on the floor of the vehicle. Romans administered the horizontal gaze nystagmus (HGN) test, and defendant's eye reactions suggested that he was under the influence of alcohol. Due to defendant's injuries, Romans did not administer any other field sobriety tests but, given the circumstances, concluded that probable cause existed to arrest defendant for the crime of DUII. Romans arrested defendant on that charge after defendant was taken to the hospital for treatment of his wounds. At the hospital, Romans read defendant the information on implied consent rights and responsibilities required to be given by ORS 813.130,[2] and then asked defendant if he would take the breath test. Defendant declined to do so. Romans inquired if defendant would consent to blood and urine tests, and again defendant refused. After Romans stated that he was going to obtain a search warrant for blood and urine samples, defendant consented to a breath test. Defendant asked to speak with Schmeer, a retired Oregon State trooper and family friend. After speaking with Schmeer in private, defendant again consented to the breath test. After defendant's facial cuts were stitched, Romans took him to the sheriff's office at the county jail. Romans informed defendant that he could speak with an attorney and gave him a telephone directory and access to a telephone. Defendant declared that he did not want to talk to an attorney and wanted to take the breath test. After a 15-minute observation period, Romans administered the test at approximately 9:04 a.m. Defendant registered a blood alcohol content of .09 percent, above the level sufficient to support a conviction for DUII under ORS 813.010(1)(a). 733 Before trial, defendant moved to suppress the result of the breath test. Defendant alleged that Romans failed to comply with the implied consent statutes by continuing to seek a breath test consent after an initial refusal contrary to ORS 813.100(2),[3] by requesting a urine test without drug recognition qualifications or reasonable suspicion of driving under the influence of controlled substances as required by ORS 813.131,[4] and by failing to inform defendant that he had the opportunity to be retested at his own expense.[5] Defendant also claimed that his consent was coerced and insufficient to excuse the need to obtain a search warrant for the breath test under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The coercion purportedly resulted from the threat to involuntarily take blood and urine samples from defendant as well as the provision of the statutorily required explanation of the negative consequences of a refusal to consent. The state responded that any violation of the implied consent statutes does not require suppression of the breath test results under ORS 136.432;[6] that defendant's consent was voluntary and excused the need for a warrant; and that a warrant was alternatively not needed because of the exigent circumstances of the immediate dissipation of alcohol from defendant's bloodstream. Defendant asserted that the presence of alcohol in the blood does not automatically constitute exigent circumstances. An evidentiary hearing was held on the motion to suppress. No evidence was introduced regarding the amount of time needed to obtain a search warrant under the circumstances or the potential reduction of defendant's blood alcohol content during that period. Following the hearing, the trial court excluded the results of the HGN test because the test was not conducted properly and suppressed statements made by defendant after his arrest because of the failure to provide Miranda warnings. The court concluded that probable cause existed to arrest defendant for DUII without that evidence and that the results of the breath test were admissible notwithstanding any violation of the implied consent statutes. The court further determined that defendant consented to the test and that the consent was not coerced. Because the court found that defendant consented to the test, it determined that "there is no need for a search warrant and thus no need [to determine the existence of] exigent circumstances." On appeal, defendant does not dispute that he was arrested with probable cause that he unlawfully drove under the influence of alcohol. But defendant reiterates that illegal threats to obtain a warrant for his urine, together with Romans's other violations of the implied consent statutes, rendered defendant's consent to the breath test involuntary. We conclude that the test results were admissible under ORS 136.432, notwithstanding the implied consent statutes, and that defendant's consent to the test was not needed in order to conduct the test without a warrant, because the requirement of a warrant was excused in light of exigent circumstances. Defendant contends that Romans's alleged violations of the implied consent statutes require suppression of the breath test 734 results for two reasons. First, defendant argues that the statutory violations by themselves require suppression of the results of the test. That argument, however, is foreclosed by State v. Silbernagel, 229 Or.App. 688, 215 P.3d 876 (2009). In Silbernagel, the defendant asserted that the arresting police officer threatened a forcible extraction of blood, in contravention of ORS 813.140, in order to obtain a breath test consent. The court held that, under ORS 136.432, a violation of ORS 813.140 is not grounds for suppression of breath test results: "We need not consider whether the arresting officer in this case violated the implied consent laws, because, even assuming that he did, we agree with the state that ORS 136.432 precludes suppression of the evidence. That statute prevents a court from excluding relevant and otherwise admissible evidence on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by the state or federal constitution, a rule of evidence governing privileges or the admission of hearsay, or the rights of the press. `In other words, unless the legislature has created an express exclusionary remedy for a statutory violation, a court may not exclude relevant and otherwise admissible evidence in a criminal proceeding simply because it was obtained in violation of a statute.' State v. Bloom, 216 Or.App. 245, 249, 172 P.3d 663 (2007), rev. den., 344 Or. 280, 180 P.3d 702 (2008)." Silbernagel, 229 Or.App. at 690-91, 215 P.3d 876. There are no statutes requiring exclusion of the results of the breath test because of the violations of ORS 813.100, ORS 813.130, or ORS 813.131, as asserted by defendant, or that make compliance with those statutes a foundational requirement for admissibility of the test results. The statutes alleged to have been violated do not "specify any consequence for failure to comply with [their] requirements" or "bear on the validity, reliability, relevance, or authenticity" of a breath test. State v. Warner, 181 Or.App. 622, 634, 47 P.3d 497, rev. den., 335 Or. 42, 57 P.3d 581 (2002). Defendant's first argument for exclusion of the test results because of particular violations of the implied consent statutes fails.[7] Defendant's second argument is that the alleged violations of the implied consent statutes made his consent involuntary and ineffective to excuse the need for a search warrant under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution.[8] The obtaining and testing of defendant's breath sample was a search and seizure under those constitutional provisions. Warrantless searches and seizures are per se unreasonable unless the state proves an exception to the warrant requirement. State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988). The state argued in the suppression proceedings that the search and seizure was reasonable because defendant gave consent and alternatively because the search and seizure fell within the exigent circumstances exception to the warrant requirement. In State v. Nagel, 320 Or. 24, 33, 880 P.2d 451 (1994) (quoting State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991)), the Supreme Court held that "an exigent circumstance `is a situation that requires the police to act swiftly to prevent * * * the destruction of evidence.'" The parties largely direct their arguments on appeal to the issue of whether the trial court was correct in concluding that defendant's consent was not coerced. We affirm on alternative groundsthat exigent circumstances excused the need to obtain a search 735 warrant. We will affirm a trial court on alternative grounds if "(1) * * the facts of record [are] sufficient to support the alternative basis for affirmance; (2) * * * the trial court's ruling [is] consistent with the view of the evidence under the alternative basis for affirmance; and (3) * * * the record materially [is] the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below." Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001). Here, the justification for the search and seizure because of exigent circumstances was raised by the state in the suppression proceedings and the record of probable cause to arrest defendant for DUII was established below and is sufficient to justify the exigency under State v. Machuca, 347 Or. 644, 227 P.3d 729 (2010). In Machuca, a warrantless blood draw after the defendant's arrest for DUII was justified under Article I, section 9, because of exigent circumstances. There, the defendant argued that the state was required to prove that it could not have obtained a search warrant without losing the blood alcohol content evidence in order to prove exigent circumstances. He relied on State v. Moylett, 313 Or. 540, 550-51, 836 P.2d 1329 (1992): "The exigency created by the dissipating evidence of blood alcohol, however, did not make the blood sample seizures per se reasonable under Article I, section 9. The state was still required to prove, in order to justify the warrantless extraction of defendant's blood, that it could not have obtained a search warrant `without sacrificing the evidence' and that the blood sample that it obtained had been extracted `promptly.' State v. Milligan, [304 Or. 659, 666, 748 P.2d 130 (1988)]." The Supreme Court overruled Moylett in Machuca and held that no specific proof of the time necessary to obtain a search warrant or the dissipating evidence of blood alcohol content was necessary in order to establish exigent circumstances and excuse the need for a search warrant under Article I, section 9: "After examining the cases set out above, we conclude that the exigent circumstances analysis set out in Moylett, which required the state to prove `that it could not have obtained a search warrant without sacrificing the evidence,' unnecessarily deviated from this court's established case law. Until Moylett, the court's focus had been on the exigency created by blood alcohol dissipation. Moylett, however, shifted that focus away from the blood alcohol exigency itself and onto the speed with which a warrant presumably could have issued in a particular case. In our view, that shift was unsupported by the cases that preceded it, and we disavow it now. "Milligan was not, and is not now, to the contrary. We agree with the observation in Milligan that a `[w]arrantless seizure and search under such circumstances therefore is constitutionally justified, unless a warrant can be obtained without sacrificing the evidence.' 304 Or. at 665-66 [748 P.2d 130]. Milligan, however, illustrates that when probable cause to arrest for a crime involving the blood alcohol content of the suspect is combined with the undisputed evanescent nature of alcohol in the blood, those facts are a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence." Machuca, 347 Or. at 656, 227 P.3d 729. The same result obtains here. Probable cause to arrest defendant for DUII, combined with the undisputed evanescent nature of alcohol in the blood, excused the need for a search warrant under Article I, section 9. That same exigency excused the need for a warrant under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 771, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The trial court did not err in refusing to suppress the results of the chemical blood test. Affirmed. NOTES [] Brewer, C.J., vice Edmonds, P.J. [1] Those facts are also consistent with the record created in companion administrative proceedings for the suspension of defendant's driver's license for failing a chemical breath test. Hays v. DMV, 228 Or.App. 689, 209 P.3d 405, modified on recons., 230 Or.App. 559, 216 P.3d 902 (2009). The court in Hays reversed the suspension of defendant's driver's license because the breath test was obtained in violation of statutory requirements. [2] ORS 813.100(1) requires that a person arrested for DUII "be informed of the consequences and rights as described under ORS 813.130" before administration of a chemical test of that person's breath. ORS 813.130, in turn, sets out various disclosures including that, if a person refuses or fails the test, "evidence of the refusal or failure may also be offered against the person" and "the person's driving privileges will be suspended." [3] ORS 813.100(2) provides that "[n]o chemical test of the person's breath or blood shall be given * * if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130." [4] ORS 813.131(2) requires a police officer to be trained and certified in recognition of drug impaired driving and to have reasonable suspicion of driving under the influence of a controlled substance before requesting a urine sample test. [5] One of the disclosures that ORS 813.130(2) requires to be given to a DUII arrestee before a breath test is that, after the test, "the person will have a reasonable opportunity, upon request, for an additional chemical test for blood alcohol content to be performed at the person's own expense by a qualified individual of the person's choosing." [6] ORS 136.432 provides that a "court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by" the state or federal constitution, the "rules of evidence governing privileges and the admission of hearsay," or the "rights of the press." [7] In concluding that the purported violations of the implied consent statutes would not preclude admission of the breath test results, we do not imply that the statutes were violated in this case. See State v. Kirsch, 215 Or.App. 67, 168 P.3d 318 (2007) (ORS 813.100(2) does not preclude the giving of a breath test in circumstances in which a driver who initially refuses to take a breath test is later invited to reconsider and agrees to take the test.). [8] Article I, section 9, provides that "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * ." Similarly, the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * *."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4516794/	[Cite as In re Adoption of F.L.S., 2020-Ohio-936.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY : IN THE MATTER OF THE : Case No. 19CA9 ADOPTION OF: : F.L.S. : DECISION AND JUDGMENT ENTRY : _________________________________________________________________ APPEARANCES: William J. Holt, Lancaster, Ohio, for Appellant.1 Kyle C. Henderson, Logan, Ohio, for Appellees. CIVIL CASE FROM COMMON PLEAS COURT, PROBATE DIVISION DATE JOURNALIZED: 3-8-20 ABELE, J. {¶ 1} Vanessa Lutz, respondent below and appellant herein, appeals the Hocking County Common Pleas Court, Probate Division, judgment that determined, pursuant to R.C. 3107.07(A), that her consent to her child’s adoption is not required. {¶ 2} Appellant raises one assignment of error for review: ASSIGNMENT OF ERROR: “THE TRIAL COURT GRANTING APPELLEES PETITION FOR ADOPTION ON THE BASIS OF ITS FINDING THAT VANESSA LUTZ, MOTHER-APPELLANT, WAS NOT REQUIRED TO CONSENT FOR THE ADOPTION OF HER DAUGHTER, F.L.S., WAS AGAINST THE 1 Appellant appeared pro se during the trial court proceedings. 2 HOCKING, 19CA9 MANIFEST WEIGHT OF THE EVIDENCE.” {¶ 3} On July 20, 2017, Fairfield County Children Services placed F.L.S., born May 16, 2017, in the home of Justin and Tiara Schmelzer, petitioners below and appellees herein. On May 30, 2018, the Fairfield County Juvenile Court awarded legal custody of the child to the appellees. As part of this order, the juvenile court granted appellant, the biological mother of F.L.S., a minimum of two hours per week visitation at the appellees’ discretion. {¶ 4} On June 13, 2019, appellees filed a petition to adopt F.L.S. and alleged that appellant’s consent is not required because, for a period of at least one year immediately preceding the filing of the adoption petition, appellant failed, without justifiable cause, to: (1) have more than de minimis contact with the child, and (2) provide for the child’s maintenance and support as required by law or judicial decree. On July 3, 2019, appellant objected to the adoption petition. {¶ 5} On August 26, 2019, the Hocking County Probate Court (trial court) held a hearing to consider whether appellant’s consent is necessary for the adoption to proceed. The court heard testimony from appellant and the appellees. Appellant, F.L.S.’s biological mother, testified that she lost custody at birth because the child tested positive for methamphetamine. Appellant stated that she asked for visits with F.L.S. through her Child Protective Services caseworker, but claimed that the caseworker told her that the appellees refused to allow any visits with the child. Appellant also testified that, at one point, appellees had temporary custody of another of appellant’s children (H., born after F.L.S.) after that child also tested positive for methamphetamines at birth. However, H. is now with appellant. Appellant further acknowledged that she currently has four children, at one time all removed from her custody, and that during the hearing she was pregnant with her fifth child. Appellant explained that she had been sober for 183 days and in step four of the Fairfield County 3 HOCKING, 19CA9 Family Court Excel Program. Appellant conceded, however, that from June 13, 2018 through June 13, 2019, the year preceding the filing of the adoption petition, she failed to (1) visit F.L.S., (2) file a motion to modify the visitation order, and (3) provide support or maintenance for F.L.S. {¶ 6} Appellee Tiara Schmelzer testified that she and her husband, Justin, obtained legal custody of F.L.S. on May 30, 2018. Appellees had F.L.S. for two days before they took her to the hospital for withdrawal symptoms. Tiara also stated that the biological parents did not provide financial support or necessities such as food, diapers or any other items, or attend court hearings for the child since December 2017. Tiara explained that she and Justin also took custody of F.L.S.’s younger sibling (H.), also born with methamphetamines in her system. Before the couple moved, Tiara testified that they lived about one minute from appellant and that she did not contact them. {¶ 7} Appellee Justin Schmelzer testified that he builds mobile oil rigs for a living. He stated that he and Tiara already consider F.L.S. to be their daughter, and that F.L.S. gets along well with their seven-year old son. Justin explained that they also have an extra furnished room at their home for H. “just in case things don’t work out in Vanessa’s life.” Additionally, although the adoption assessor did not testify at the hearing, she recommended that the adoption be approved. {¶ 8} After hearing the evidence, the trial court determined that, pursuant to R.C. 3107.07, the biological parents’ consent is not required because of (1) the failure, without justifiable cause, to provide more than de minimis contact with the minor for a period of at least one year immediately preceding the filing of the adoption petition, and (2) the failure, without justifiable cause, to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding the filing of the adoption petition. The court also determined that the adoption is in the child’s best interest, granted the petition and changed the child’s name from 4 HOCKING, 19CA9 F.L.M. to F.L.S. Additionally, the court terminated the biological parents’ child support obligation, but did not extinguish any arrearage that may be due and owing. This appeal followed. {¶ 9} In general, the written consent of a minor child’s natural parent is required prior to an adoption. However, R.C. 3107.07 provides exceptions to this requirement. Consent to adoption is not required if: (A) A parent of a minor, when it is alleged in the adoption petition and the court, after proper service of notice and hearing, finds by clear and convincing evidence that the parent has failed without justifiable cause to provide more than de minimis contact with the minor or to provide for the maintenance and support of the minor as required by law or judicial decree for a period of at least one year immediately preceding * * * the filing of the adoption petition * * . {¶ 10} In the case sub judice, appellee’s adoption petition alleged that appellant’s consent is not required because, for a period of at least one year immediately preceding the petition’s filing, appellant failed, without justifiable cause, to (1) have more than de minimis contact with the child, and (2) provide maintenance and support for the child. It is important to understand that R.C. 3107.07(A) is written in the disjunctive. Consequently, a failure without justifiable cause to either have more than de minimis contact or provide maintenance and support for a one-year time period is sufficient to obviate the need for a parent’s consent. See In re Adoption of A.H., 9th Dist. Lorain No. 12CA010312, 2013-Ohio-1600, ¶ 9, citing In re Adoption of McDermitt, 63 Ohio St. 2d 301, 304, 408 N.E.2d 680 (1980); accord In re X.A.F., 4th Dist. Athens No. 17CA18, 2018-Ohio-215. {¶ 11} The Supreme Court of Ohio has repeatedly emphasized that in construing R.C. 3107.07: Our analysis must begin with the recognition that the right of a natural parent to the care and custody of his [or her] children is one of the most precious and fundamental in law. Adoption terminates those fundamental rights. For this reason, we have held that “ * * [a]ny exception to the requirement of parental consent [to adoption] must be strictly construed so as to protect the right of natural parents to raise and nurture their children.” 5 HOCKING, 19CA9 (Internal citations omitted.) In re Adoption of Masa, 23 Ohio St. 3d 163, 164, 492 N.E.2d 140 (1986). The court also set forth a two-step analysis to employ when applying R.C. 3107.07(A). In re Adoption of M.B., 131 Ohio St. 3d 186, 2012-Ohio-236, 963 N.E.2d 142, ¶ 23. The first step involves deciding the factual question of whether a parent willfully had failed to have more than de minimis contact with the minor child. Id. at ¶ 21. “A trial court has discretion to make these determinations, and in connection with the first step of the analysis, an appellate court applies an abuse-of-discretion standard when reviewing a probate court decision * * .” Id. at ¶ 25. In the second step, if a court finds a failure to have more than de minimis contact, the court must then determine whether justifiable cause exists for that failure. Id. at ¶ 23. A court’s justifiable cause decision will not be disturbed on appeal unless that determination is against the manifest weight of the evidence. Id. at ¶ 24, citing In re Adoption of Masa, supra, at paragraph two of the syllabus. In general, a trial court’s judgment should not be overturned as being against the manifest weight of the evidence if some competent and credible evidence supports that judgment. Yannitell v. Oaks, 4th Dist. Washington No. 07CA63, 2008-Ohio- 6371, citing C.E. Morris v. Foley Construction Co., 54 Ohio St. 2d 279, 376 N.E.2d 578 (1978). Furthermore, factual findings must be given great deference on review because the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations to weigh the credibility of the proffered testimony. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 461 N.E.2d 1273 (1984). {¶ 12} Because a parent and child relationship constitutes a constitutionally protected liberty interest, In re Adoption of Zschach, 75 Ohio St. 3d 648, 665 N.E.2d 1070 (1996), the termination of a parent’s right is the family law equivalent of the death penalty. Thus, R.C. 3107.07(A) must be construed strictly in favor of the non-consenting parent. In re Hayes, 79 Ohio St. 3d 46, 679 N.E.2d 6 HOCKING, 19CA9 680 (1997). Moreover, “[b]ecause cases such as these may involve the termination of fundamental parental rights, the party petitioning for adoption has the burden of proving, by clear and convincing evidence, that the parent failed to [have more than de minimis contact] with the child during the requisite one-year period and that there was no justifiable cause for the failure of [contact].” In re Adoption of Holcomb, 18 Ohio St. 3d 361, 368, 481 N.E.2d 613 (1985). Clear and convincing evidence “is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus (1954). {¶ 13} In her sole assignment of error, appellant asserts that the trial court’s judgment is against the manifest weight of the evidence. As we indicated above, the party that seeks to adopt a child without parental consent must prove, by clear and convincing evidence, that (1) the natural parent failed to support or communicate with the child for the requisite one-year time period, and (2) that the failure was without justifiable cause. In re Adoption of Bovett, 33 Ohio St. 3d 102, 515 N.E.2d 919, (1987), at paragraph one of the syllabus. Moreover, the court “will not disturb a finding that parental consent is unnecessary for an adoption unless it is against the manifest weight of the evidence.” Id., at paragraph four of the syllabus. {¶ 14} Under R.C. 3107.07, if appellant had “justifiable cause” for not having the requisite contact, then her consent to the adoption is required. “Justifiable cause” is a term of imprecise meaning. In re Adoption of Holcomb, supra, 18 Ohio St.3d at 367. In fact, the Ohio Supreme Court has declined to adopt any precise or inflexible definition for “justifiable cause.” Id. 7 HOCKING, 19CA9 {¶ 15} In the case sub judice, appellant attempts to justify her lack of contact with F.L.S. with her assertion that she asked her Child Protective Services caseworker to contact petitioners regarding visitation, but they refused. However, at the hearing the trial court had the benefit of observing each witness. Credibility determinations must be left to the trial court’s sound discretion, and “a trial court is free to believe all, part, or none of the testimony of any witness who appears before it.” In re Adoption of K.C., 3rd Dist. Logan No. 8-14-03, 2014-Ohio-3985, ¶ 26, citing In re Adoption of M.C., 4th Dist. Jackson No. 11CA5, 11CA6, 2011-Ohio-6527, ¶ 19, quoting Rogers v. Hill, 124 Ohio App. 3d 468, 470, 706 N.E.2d 438 (1998). Moreover, in addition to the questionable evidence concerning appellant’s attempt to contact her child through her caseworker, such an attempt, if believed, is not sufficient to constitute justifiable cause for her failure to have de minimis contact with the child. Appellant conceded that she did not file any court motions or communicate directly with the appellees, despite having contact with them for court hearings and visitations concerning appellant’s other child, who was also in the appellees’ care, and despite living near the appellees for a period of time. {¶ 16} This court recently considered a case in which the biological mother’s family may have attempted to contact the father’s relatives. We held: Although it appears that here the appellant’s family may have made two attempts to contact father’s relatives through Facebook, the trial court points out that no record exists of letters, cards, or other types of attempted contact. Moreover, appellant had the father’s parents’ address, as well as the ability to contact the father through the court. Appellant also points to her Meigs County visitation action, but the evidence actually reveals that appellant failed to appear in court to pursue her request for court ordered visitation. Moreover, it is undisputed that the September 2016 support order provided appellant with the address for father and X.A.F. In re X.A.F., 4th Dist. Athens No. 17CA18, 2018-Ohio-215, ¶ 18. Thus, in X.A.F. we concluded that the biological mother failed, without justifiable cause, to have more than de minimis contact with her child. 8 HOCKING, 19CA9 {¶ 17} In a similar case from the Twelfth Appellate District, In re S.A.N., 12th Dist. Warren No. CA2019-03-025, 2019-Ohio-3055, a child’s paternal grandmother obtained legal custody of the child and the court granted mother telephone contact. Mother, however, only made telephone calls in the first few months that followed the legal custody determination. The court held: We find the trial court did not err in determining that no justifiable cause existed for Mother's failure to communicate with S.A.N. Nothing in the record indicates that Grandmother significantly interfered or significantly discouraged Mother from communication with the child. Although Mother argues on appeal that she lost her phone and did not have Grandmother's phone number, Mother's testimony on this issue is vague and unclear. However, even assuming Mother lost her phone or did not have Grandmother's phone number, nothing in the record indicates any attempt by Grandmother to conceal this information. Instead, the record indicates Mother did not make attempts to obtain the information. In addition, although Grandmother moved, nothing indicates she concealed or tried to hide this information from Mother. Moreover, the record shows no credible effort on the part of Mother to obtain Grandmother's address. The record shows S.A.N.'s father knew where Grandmother and the child were living. Mother's vague assertion that she called “the court” at some point in time to get Grandmother's contact information does not evidence a meaningful effort to contact the child. Nothing indicates Grandmother interfered with, or discouraged, communication between S.A.N. and Mother. Instead, as the trial court found, “Mother's own actions led to [the] lack of contact.” In re S.A.N., supra, at ¶ 19-20. {¶ 18} Similarly, in the case sub judice we agree with the trial court’s conclusion that appellant’s own actions led to the lack of contact. Appellant knew the child’s location, knew how to contact the appellees, knew that the appellees had custody of another one of appellant’s children during a period of time, and, for a portion of the requisite time period, lived withing walking distance of the child. Furthermore, we agree with the trial court that the evidence reveals that the appellees engaged in no significant interference or significant discouragement of communication. See Holcomb, supra, 18 Ohio St. 3d 361 at paragraph three of the syllabus. Appellant’s vague contention that she once tried to contact the child via her caseworker does not constitute a meaningful attempt to have contact 9 HOCKING, 19CA9 with the child. While it is certainly encouraging that appellant has taken steps to address her long- time drug use, and we applaud her efforts to reclaim her life and parent her other children, we nevertheless agree with the trial court that no justifiable cause exists for appellant’s failure to communicate with F.L.S. for the one-year period preceding the adoption petition’s filing. {¶ 19} Therefore, after our review of the evidence adduced at the hearing, we conclude that ample competent, credible evidence supports the trial court’s determination that the appellees proved, by clear and convincing evidence, that appellant failed, without justifiable cause, to have more than de minimis contact with F.L.S. for at least one year immediately preceding the filing of the adoption petition. {¶ 20} Moreover, as we emphasize above, because R.C. 3107.07 is written in the disjunctive, a failure without justifiable cause for either more than de minimis contact or providing maintenance and support for one year immediately preceding the filing of the adoption petition will obviate the need for appellant’s consent. For that reason, we need not address the maintenance and support issue, but we nevertheless offer some observations on this topic. {¶ 21} In Ohio, both common law and statutory law mandate that a parent provide sufficient support for his or her child. Haskins v. Bronzetti, 64 Ohio St. 3d 202, 204-205, 594 N.E.2d 582 (1992). “Ohio has long recognized that a biological parent’s duty to support his or her child is a ‘principle of natural law’ that is ‘fundamental in our society.’” In re Adoption of K.L.M., 10th Dist. Franklin No. 15AP-118, 2015-Ohio-3154, ¶ 10, citing In re Adoption of B.M.S., 10th Dist. Franklin No. 07AP-236, 2007-Ohio-5966. {¶ 22} Appellant readily acknowledges that during the relevant one-year period she did not pay child support, and no dispute exists that appellant also did not provide other financial support or 10 HOCKING, 19CA9 support in the way of food, clothing or other items. Appellant argues, however, that her unemployment (from age 19 to 37) justifies her failure to pay support. Further, appellant contends that petitioners introduced no evidence whether justifiable cause exists for appellant’s failure to provide support. {¶ 23} The Supreme Court of Ohio recently addressed the issue of whether a parent is susceptible to the severance of his or her parental rights for failing to provide maintenance and support when a court has issued a decree to relieve the parent of any obligation to pay child support. In re Adoption of B.I., 157 Ohio St. 3d 29, 2019-Ohio-2450, 131 N.E.3d 28. In that case, the child’s father was incarcerated during the one-year look back period and mother requested the court terminate the father’s child-support obligation and reduce his arrearage to zero. The Supreme Court of Ohio held that, pursuant to R.C. 3107.07(A), a parent’s nonsupport of his or her minor child pursuant to a zero- support order of a court of competent jurisdiction does not extinguish the requirement of that parent’s consent to the adoption of the child. {¶ 24} In the case at bar, although we do not have the support order before us, appellant acknowledged that her custody order established a support obligation. Appellant acknowledged, however, that she failed to comply with that order. Moreover, appellant testified that she is currently employed, and was so for approximately two months prior to the hearing. Appellant stated that she “went to Child Support and I got the paperwork that I need to fill out to turn in all my financial information,” but acknowledged that she paid no support, nor provided any other support for her child since her birth. {¶ 25} As this court has held, “[a]doption cases are all fact specific and turn on the particular facts and circumstances in each case.” In the Matter of the Adoption of Way, 4th Dist. Washington 11 HOCKING, 19CA9 No. 01CA23, 2002 WL 59629, 2002-Ohio-117, 6. In In re Way, we considered a parent with a disability, lack of a job, meager monthly SSI benefits, and who had been relieved of her court ordered support obligation, and we concluded that this sufficiently established that appellant justifiably failed to support her child. Id. at *5. By contrast, the case at bar does not include any such disability, nor has appellant been relieved of her support obligation. {¶ 26} In In re B.B.S., 70 N.E.3d 1, 2016-Ohio-3515, (4th Dist.), the juvenile court found the mother “totally incapable of providing care or support for the child,” and thus, did not establish a support order, but instead referred the petitioners to the child support enforcement agency should they desire to pursue support, which the petitioners did not do. Id. at ¶ 21. We concluded that mother’s failure to support her child during the one-year period was justified. Id. at ¶27. {¶ 27} In the case sub judice (1) we find no order to relieve appellant of her duty to pay child support, and (2) appellant did fail to provide support, at least during the short time that she has been employed. Thus, appellant arguably failed to pay support, at least for this abbreviated time period. We recognize, however, that under these facts this small window makes it difficult to determine that appellant failed to provide support for her child. Thus, because we have already concluded that appellant failed, without justifiable cause, to have more than de minimis contact with F.L.S. during the relevant time period, we believe it unnecessary to reach a final resolution for the support issue. {¶ 28} Accordingly, based on the foregoing reasons, we overrule appellant’s assignment of error and affirm the trial court’s judgment. JUDGMENT AFFIRMED. 12 HOCKING, 19CA9 13 HOCKING, 19CA9 JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Probate Division, to carry these judgments into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Hess, J.: Concur in Judgment & Opinion For the Court BY: Peter B. Abele, Judge 14 HOCKING, 19CA9 NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.	01-03-2023	03-16-2020
https://www.courtlistener.com/api/rest/v3/opinions/1041514/	11-2359-cv Anani v. CVS 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: June 27, 2012 Decided: September 20, 2013) 5 Docket No. 11-2359-cv 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 SALAH ANANI, 8 Plaintiff-Appellant, 9 v. 10 CVS RX SERVICES, INC., 11 Defendant-Appellee. 12 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 13 B e f o r e: WINTER, STRAUB, and CHIN, Circuit Judges. 14 Appeal from a grant of summary judgment in the United 15 States District Court for the Eastern District of New York 16 (Arthur D. Spatt, Judge) holding a pharmacist exempt from the 17 FLSA time-and-a-half overtime pay requirement. We affirm. 18 SETH R. LESSER (Fran Rudich, on the 19 brief), Klafter, Olsen & Lesser LLP, 20 Rye Brook, New York, for Plaintiff- 21 Appellant. 22 23 JAMES J. SWARTZ, JR. (Felice B. 24 Ekelman, Jackson Lewis LLP, New York, 25 New York, on the brief), Ashe Rafuse & 26 Hill LLP, Atlanta, Georgia, for 27 Defendant-Appellee. 28 29 30 1 1 WINTER, Circuit Judge: 2 Salah Anani appeals from Judge Spatt’s grant of summary 3 judgment dismissing Anani’s complaint against CVS RX Services, 4 Inc. (“CVS”). The district court held that appellant was exempt 5 from the Federal Fair Labor Standards Act’s (“FLSA”) time-and-a- 6 half overtime requirement because of an exemption for highly-paid 7 employees. We affirm. 8 BACKGROUND 9 Appellant was employed by CVS as a pharmacist from 2003 10 until his resignation in July, 2009. Appellant has stipulated to 11 a two-year statute of limitations, limiting his claim to the 12 period from December 18, 2007 to July 20, 2009. See Anani v. CVS 13 RX Servs., Inc., 788 F. Supp. 2d 55, 58 (E.D.N.Y. 2011). 14 During the relevant period, appellant’s base salary was based on 15 a forty-four hour work week (paid bi-weekly). That base weekly 16 salary exceeded $1250 at all pertinent times. As explained 17 infra, his base salary was guaranteed, and CVS classified him as 18 a salaried employee exempt from the time-and-a-half overtime 19 requirement of the FLSA. See 29 U.S.C. § 207(a)(1). 20 Appellant also received additional compensation because he 21 invariably, or almost so, worked hours in addition to the base 22 forty-four hours each week. Appellant’s additional hours worked 23 usually ranged from 16 to 36 hours per week, increasing his total 24 compensation in each relevant year to over $100,000. Appellant 2 1 worked these extra shifts voluntarily.1 Compensation for the 2 extra work -- in excess of forty-four hours -- was paid according 3 to an hourly “Compensation Rate” determined by dividing 4 appellant’s weekly guaranteed salary by forty-four, multiplying 5 the number of hours worked over forty-four by the resultant 6 amount and then adding “Premium Pay” of six dollars per hour.2 7 DISCUSSION 8 There are no material facts in dispute, and our review of a 9 grant of summary judgement is, of course, de novo. Lawrence v. 10 Cohn, 325 F.3d 141, 147 (2d Cir. 2003). 11 FLSA Section 207(a)(1) provides that employees who work more 12 than forty hours in a given week must receive time-and-a-half 13 compensation for excess hours except as “otherwise provided.” 29 14 U.S.C. § 207(a)(1). FLSA Section 213(a)(1) provides an exemption 15 from this requirement for “any employee employed in a bona fide 16 executive, administrative, or professional capacity.” 29 U.S.C. 17 § 213(a)(1). To qualify for this exemption an employee’s work 18 must satisfy both a duties requirement and a salary requirement. 19 29 C.F.R. §§ 541.2, 541.300. Appellant concedes that the duties 20 requirement, quoted above and amplified by regulations found in 21 Subparts B-F of 29 C.F.R. Part 541, is met. 1 In his pre-trial deposition, appellant could recall only one instance where he was told that he might be in trouble if he did not agree to work a particular extra shift. See Anani Dep. 89-114. 2 Appellant also received certain bonus payments not relevant to this appeal. 3 1 The disposition of this appeal, therefore, turns on the 2 salary requirement as defined in Subpart G of Title 29, Subtitle 3 B, of C.F.R. §§ 541.600 through 541.606. C.F.R. § 541.600 4 provides that to qualify for the exemption, an employee “must be 5 compensated on a salary basis at a rate of not less than $455 per 6 week.” 29 C.F.R. § 541.600(a). The term “salary basis” is in 7 turn defined in C.F.R. § 541.602, which provides, 8 An employee will be considered to be paid on 9 a “salary basis” within the meaning of these 10 regulations if the employee regularly 11 receives each pay period on a weekly, or less 12 frequent basis, a predetermined amount 13 constituting all or part of the employee's 14 compensation, which amount is not subject to 15 reduction because of variations in the 16 quality or quantity of the work performed. 17 Subject to the exceptions provided in 18 paragraph (b) of this section, an exempt 19 employee must receive the full salary for any 20 week in which the employee performs any work 21 without regard to the number of days or hours 22 worked. Exempt employees need not be paid 23 for any workweek in which they perform no 24 work. An employee is not paid on a salary 25 basis if deductions from the employee’s 26 predetermined compensation are made for 27 absences occasioned by the employer or by the 28 operating requirements of the business. 29 30 29 C.F.R. § 541.602(a). It is undisputed that, at all pertinent 31 times, appellant’s base salary substantially exceeded $455 per 32 week and there were no impermissible deductions. There is also 33 no dispute that appellant’s base weekly salary was guaranteed, 34 i.e. to be paid regardless of the number of hours appellant 35 actually worked in a given forty-four-hour shift. The 36 requirements of C.F.R. §§ 541.600 and 541.602 are thus satisfied 37 with regard to the minimum guaranteed weekly amount being paid 38 “on a salary basis.” 4 1 Two further regulations relating to the salary requirement 2 need to be addressed: C.F.R. §§ 541.601 and 541.604. First, 3 C.F.R. § 541.601(a), entitled “Highly compensated employees,” 4 provides that “[a]n employee with total annual compensation of at 5 least $100,000 is deemed exempt . . . if the employee customarily 6 and regularly performs one or more of the exempt duties or 7 responsibilities of an executive, administrative or professional 8 employee identified in [the Subparts defining the duties 9 requirement].” 10 Subsection 601(b) adds refinements, inter alia: (i) under 11 (b)(1), to be exempt, the employee’s “[t]otal annual 12 compensation” must include $455 weekly “on a salary or fee 13 basis,” i.e. guaranteed; (ii) under (b)(2), if an employee’s 14 total compensation falls short of an expected total of $100,000 15 at the end of the particular twelve-month period, the employer 16 may, during the next month, make up the difference through an 17 unearned cash payment; (iii) under (b)(4), the employer has 18 discretion to choose the dates of the relevant twelve-month 19 period; and (iv) under (c) a relaxed standard is applied to 20 determine whether an employee who fulfills the other requirements 21 of being a “highly compensated employee” also meets the duties 22 requirement. 23 Subsection (b) thus renders C.F.R. § 541.601 something of a 24 safe harbor for employers. It gives employers a high degree of 25 certainty regarding the exemption by allowing them discretion to 26 designate the relevant twelve-month period and to make up a 5 1 deficiency (salary less than $100,000) found at the end of that 2 period by a payment made within 30 days after the period ends. 3 Because, as noted, appellant concedes that he received an “annual 4 base salary” in excess of $455 per week throughout the relevant 5 period, earned over $100,000 annually, and no improper deductions 6 were made, appellant falls within the C.F.R. § 601 exemption. 7 However, appellant argues that the C.F.R. § 601 exemption is 8 not applicable because of C.F.R. § 541.604, which governs 9 circumstances where an “exempt employee’s earnings [are] computed 10 on an hourly, daily or a shift basis” and there is a “[m]inimum 11 guarantee plus extras.” Regarding the “extras,” C.F.R. § 12 541.604(a) states that “[a]n employer may provide [such] an 13 exempt employee with additional compensation without losing the 14 exemption or violating the salary basis requirement, if the 15 employment arrangement also includes a guarantee of at least the 16 minimum weekly-required amount paid on a salary basis.” This 17 provision allows additional compensation to be computed and paid 18 in a straight-time hourly amount. Id. (“Such additional 19 compensation may be paid on any basis (e.g., flat sum, bonus 20 payment, straight-time hourly amount, time-and-one-half or any 21 other basis). . . .”). 22 23 Appellant argues that the provisions of C.F.R. § 541.604(b) 24 prevent the exemption from applying to him. That Section states: 25 An exempt employee’s earnings may be computed 26 on an hourly, a daily or a shift basis, 27 without losing the exemption or violating the 28 salary basis requirement, if the employment 6 1 arrangement also includes [the specified 2 guarantee] . . . and a reasonable 3 relationship exists between the guaranteed 4 amount and the amount actually earned. The 5 reasonable relationship test will be met if 6 the weekly guarantee is roughly equivalent to 7 the employee’s usual earnings at the assigned 8 hourly, daily or shift rate for the 9 employee’s normal scheduled workweek. 10 11 29 C.F.R. § 541.604(b). 12 Appellant’s argument is based on Subsection 604(b)’s 13 condition that “a reasonable relationship exist[] between the 14 guaranteed amount and the amount actually earned” and “the weekly 15 guarantee is roughly equivalent to the employee’s usual 16 earnings.” Id. Focusing exclusively on that language, he argues 17 that his total earnings so substantially exceeded his guaranteed 18 salary -- slightly less than 2 to 1 –- that the relationship 19 between the guaranteed salary and his total earnings was 20 unreasonable. 21 We perceive no cogent reason why the requirements of C.F.R. 22 § 541.604 must be met by an employee meeting the requirements of 23 C.F.R. § 541.601. Indeed, C.F.R. § 541.601 is rendered 24 essentially meaningless if a “highly compensated employee” must 25 also qualify for the exemption under C.F.R. § 541.604 or, to 26 state the converse, would lose the “highly compensated employee” 27 exemption by failing to qualify under C.F.R. § 541.604. To be 28 sure, C.F.R. § 541.604 deals with employees who earn the 29 “[m]inimum [g]uarantee plus extras,” but every employee with a 30 guaranteed weekly amount exceeding $455 who earns over $100,000, 31 and is therefore purportedly exempted by C.F.R. § 541.601, also 7 1 fits the description of having a “minimum guarantee plus extras.” 2 Appellant’s interpretation thus renders C.F.R. § 541.601 3 superfluous. The reading that gives full meaning to both C.F.R. 4 § 541.601 and C.F.R. § 541.604 is that each deals with different 5 groups of employees who receive a “minimum guarantee plus 6 extras.” The first exemption deals with those employees who earn 7 over $100,000 annually while the second exemption deals with 8 employees whose guarantee with extras totals less than $100,000 9 annually.3 10 3 In any future case with facts similar to the present one but for the employee’s failure to earn over $100,000 (thus rendering C.F.R. § 541.604 applicable), it would be helpful to have the following issues briefed. First, C.F.R. § 541.604(a) states that it applies where the “employee’s earnings are computed on an hourly, daily or shift basis” with a guarantee, while C.F.R. § 541.604(b) requires that a requisite reasonable relationship exist between the guarantee and the employee’s “usual earnings at the assigned hourly, daily or shift rate” for the “normal scheduled workweek.” An open question is whether this provision requires that the reasonable relationship be between the guaranteed “hourly, daily, or shift” amount reduced to an hourly, daily, or shift rate of pay and the hourly, daily, or shift rate by which pay for extra work is calculated, rather than between the total of guaranteed earnings and total earnings. Relevant to this issue are the Section’s two examples: The first example is a worker who is guaranteed $500 per week for any week in which some work is performed and who usually works four or five shifts at $150 per shift. 29 C.F.R. § 541.604(b). Such a worker is exempt from the overtime requirement because the rates of pay are reasonably related. The second example is a store manager who is guaranteed $650 per week and receives in addition a percentage of sales revenue or store profits. Id. Such an employee is not exempt because the additional compensation is not computed on an hourly, daily or shift basis. Id. Second, the parties should consider briefing the effect, if any, of the words “normal scheduled workweek” in a case where the amount of hours worked varies each week according to the employee’s voluntary decision to work extra hours. 8 1 Appellant’s sole argument regarding C.F.R. § 541.601 is that 2 it is intended only to provide a relaxed standard as to 3 determining the duties requirements for employees who earn over 4 $100,000. However, that reading is unsustainable. First, the 5 regulation is found in the “Salary Requirements” Subpart rather 6 than in the “duties requirements” Subparts, and there is direct 7 evidence that this placement was not the result of administrative 8 inadvertence. The “Introductory statement” in C.F.R. § 541.0, 9 quoted in the margin,4 explicitly states that the “exemption[s]” 10 defined in Part 541 are “from the Act’s minimum wage and overtime 4 That provision states in relevant part: Introductory statement (a) Section 13(a)(1) of the Fair Labor Standards Act, as amended, provides an exemption from the Act’s minimum wage and overttime requirements for any employee employed in a bona fide executive, administrative, or professional capacity . . . . (b) The requirements for these exemptions are contained in this part as follows: executive employees, subpart B; administrative employees, subpart C; professional employees, subpart D; computer employees, subpart E; outside sales employees, subpart F. Subpart G contains regulations regarding salary requirements applicable to most of the exemptions, including salary levels and the salary basis test. Subpart G also contains a provision for exempting certain highly compensated employees. Subpart H contains definitions and other miscellaneous provisions applicable to all or several of the exemptions. 29 C.F.R. § 541.0. 9 1 requirements” and that Subpart G’s definition of salary 2 requirements includes an “exempt[ion] [for] certain highly 3 compensated employees.” Second, to guild the lily, the language 4 of C.F.R. § 541.601(a) plainly states that it is providing an 5 overall exemption from the time-and-a-half requirement to 6 employees who meet the relaxed duties requirement based on an 7 annual salary of over $100,000. Therefore, the very structure 8 and express language of C.F.R. § 541.601 indicate that its 9 purpose was to relax the duties requirement in order to exempt 10 employees from the time-and-a-half requirement because they earn 11 over $100,000 annually. 12 CONCLUSION 13 For the reasons stated above, the exemption from the time- 14 and-a-half requirement applies to appellant, and the judgment of 15 the district court is affirmed. 10	01-03-2023	09-20-2013
https://www.courtlistener.com/api/rest/v3/opinions/1041643/	Review declined further review of the referee's determination, and appellant filed a petition for judicial review in the district court, which was denied. This appeal followed. On appeal, appellant argues that the referee erred in finding that her termination was for misconduct that disqualified her from receiving unemployment benefits and that the district court did not have all of the relevant documents and surveillance videos before it when it denied judicial review. In reviewing an administrative decision in an unemployment benefits matter, this court, like the district court, determines whether the board acted arbitrarily or capriciously. NRS 233B.135(3)(f); McCracken v. Fancy, 98 Nev. 30, 31, 639 P.2d 552, 553 (1982). The administrative decision will not be disturbed if it is supported by substantial evidence. Leeson v. Basic Refractories, 101 Nev. 384, 385-86, 705 P.2d 137, 138 (1985). "Substantial evidence is that which a reasonable mind could find adequate to support a conclusion." Kolnik v. Nev. Emp't Sec. Dep't, 112 Nev. 11, 16, 908 P.2d 726, 729 (1996). Under NRS 612.385, if a person was discharged from work for "misconduct," he or she is ineligible for unemployment benefits. A willful violation of duties or disregard for an employer's interests may constitute such misconduct. Garman v. State, Emp't Sec. Dep't, 102 Nev. 563, 565, 729 P.2d 1335, 1336 (1986) (defining misconduct "as a deliberate violation or a disregard of reasonable standards, carelessness or negligence showing substantial disregard of duties" (internal quotation omitted)); see also Emp't Sec. Dep't of Nev. v. Verrati, 104 Nev. 302, 304, 756 P.2d 1196, 1197- 98 (1988). Having reviewed appellant's arguments and the record on appeal, we conclude that substantial evidence supports the appeals SUPREME COURT OF NEVADA 2 (0) I947A referee's finding that appellant was discharged for reasons constituting misconduct that disqualified her from unemployment benefits under NRS 612.385. The record reveals that appellant admits she made a dealer error that caused a $600 loss to the casino and demonstrates that appellant had made multiple dealer errors before the March 2011 incident that had resulted in progressive levels of discipline, including a written warning and a three-day suspension. The appeals referee considered appellant's testimony and testimony from another witness and determined that appellant's errors amounted to misconduct. See Lellis v. Archie, 89 Nev. 550, 554, 516 P.2d 469, 471 (1973) (recognizing that this court will not substitute its judgment for that of the referee on issues of credibility or the weight of the evidence). Further, while appellant asserts that the district court did not have certain necessary materials before it on judicial review, because judicial review, whether by the district court or this court, is limited to the record before the administrative agency, NRS 233B.135(1)(b), and these materials were never presented in the course of the administrative review of her unemployment benefits claim, appellant's reliance on the fact that these materials were not presented to the district court is unavailing. For the reasons set forth above, we conclude that substantial evidence in the record supports the appeals referee's ruling that appellant's conduct constituted misconduct under NRS 612.385, and thereby, disqualified her from receiving unemployment benefits. See Kolnik, 112 Nev. at 16, 908 P.2d at 729 (noting that whether an employee's negligence constituted willful misconduct is a question of law); but see Garman, 102 Nev. at 565, 729 P.2d at 1336 (recognizing that when misconduct becomes a mixed question of law and fact, the agency's SUPREME COURT OF NEVADA 3 (0) 1947A determination must be given deference similar to that given to findings of fact when supported by substantial evidence). Accordingly, the Board's decision to affirm the appeals referee's ruling was not arbitrary or capricious, and thus, we affirm the district court's denial of appellant's petition for judicial review. It is so ORDERED. Gibbons J Douglas Saitta cc: Hon. Timothy C. Williams, District Judge Zaga Kulasinovic State of Nevada/DETR Eighth District Court Clerk SUPREME COURT OF NEVADA 4 (0) 1947A .'	01-03-2023	09-21-2013
https://www.courtlistener.com/api/rest/v3/opinions/1784456/	587 So. 2d 1072 (1991) John Forrest PARKER v. STATE. CR 89-838. Court of Criminal Appeals of Alabama. September 20, 1991. 1076 H. Thomas Heflin, Jr., Tuscumbia, and Gene M. Hamby, Sheffield, for appellant. James H. Evans, Atty. Gen., and J. Thomas Leverette and Sandra J. Stewart, Asst. Attys. Gen., for appellee. BOWEN, Judge. John Forrest Parker, the appellant, was indicted for capital murder for pecuniary gain in violation of Ala.Code 1975, 13A-5-40(a)(7). The jury found him "guilty of the offense of capital murder" and, by a vote of ten to two, recommended that he be sentenced to life imprisonment without parole. The trial judge overrode the jury's recommendation and sentenced Parker to death by electrocution. This appeal is from that conviction and sentence. I. The appellant argues that the prosecutor used his peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and Ex parte Branch, 526 So. 2d 609 (Ala.1987). During the voir dire of the venire, the prosecutor challenged a venire member for cause and the following occurred: "MR. HEFLIN [defense counsel]: For the record I would object that under Witherspoon [v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968)], and also under my client's right to the 6th, 8th and 14th Amendments and also underÔÇöthat historically that on race that so many black people have been executed that excluding blacks that had that feeling [against the death penalty] would be depriving my client of the right to a jury of his peers. "MR. ALVERSON [district attorney]: Judge, if he's trying to raise a Batson issue there, I don't think it applies in this case. "THE COURT: Let the record show that the defendant is white and the victim is 1077 white or the alleged victim is white in this case. I'm going to overrule the objection and the challenge for cause is granted and Mr. Hogan is stricken." R. 732-33. On another occasion when the prosecutor challenged a venire member for cause, defense counsel made the following objection: "To the 6th, 8th and 14th Amendments of the United States Constitution we would object to him and the historical nature of race and the imposition of the death penalty that excluding someone of the black race based on their beliefs on the death penalty prohibits my client from getting a fair trial from an impartial jury." R. 760. The jury was struck after extensive voir dire, and defense counsel made no Batson objection. At no time during the trial did defense counsel make any objection to the prosecutor's use of his peremptory strikes. Neither the prosecutor's use of his challenges for cause nor his peremptory strikes were made a ground of the motion for new trial. On appeal, the appellant argues that the prosecutor used peremptory strikes to remove eight of the nine black members of the venire. This argument is not supported by the record on appeal. In Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986), the United States Supreme Court rejected the claim that "death qualified" juries under Wainwright v. Witt, 469 U.S. 412, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985), violate a defendant's right to have guilt or innocence determined by an impartial jury selected from a fair cross-section of the community. The exclusion of a cognizable group by the exercise of peremptory challenges is not a violation of the Sixth Amendment. Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990). However, under both federal and state constitutional law, a white defendant has standing to challenge the prosecutor's allegedly racially motivated use of peremptory challenges. Powers v. Ohio, ___ U.S. ___, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); Ex parte Bankhead, 585 So. 2d 112 (Ala.1991); Ex parte Bird and Warner, [Ms. 89-1061 and 89-1062, June 14, 1991], 1991 WL 114762 (Ala.1991).[] In Bankhead, supra, the prosecutor used eight of his ten peremptory strikes to remove blacks from the venire. Even though two blacks served on the jury and despite the fact that no Batson objection was raised at trial, the Alabama Supreme Court noticed the matter under the "plain error doctrine" and remanded that case with directions that "[i]f the prosecution cannot provide racially neutral reasons for the use of peremptory challenges against black venire members, then Bankhead must receive a new trial." Bankhead, 585 So.2d at 117. Under Bankhead, this Court has no alternative but to remand this case for an evidentiary hearing. See Ex parte Owen, 586 So. 2d 963 (Ala.1991); Pierce v. State, 586 So. 2d 1005 (Ala.Cr.App.1991); Walker v. State, 586 So. 2d 49 (Ala.Cr.App.1991). Therefore, this cause is remanded to the trial court with directions that an evidentiary hearing be held at which the prosecution shall be required to give racially neutral reasons for the use of peremptory challenges against black venire members. If the prosecution cannot provide a racially neutral reason for every black venire member it struck, the trial judge must grant the appellant a new trial. In determining whether the reasons given by the prosecution are racially neutral, we direct the trial court's attention to Ex parte Bird and Warner, 1991 WL 114762. A transcript of the hearing and written findings by the trial judge shall be filed in this Court no later than 90 days after the date of this opinion. The appellant also argues that the prosecutor used 22 of his peremptory strikes to improperly remove women from the venire. There was no objection made in the circuit court at any time to the alleged gender bias of the prosecution. While I adhere to my position that gender discrimination is prohibited under state law, that argument has been explicitly rejected by the other members 1078 of this Court, see Daniels v. State, 581 So. 2d 536, 539 (Ala.Cr.App.1990), cert. denied, 581 So. 2d 541 (Ala.1991), and Dysart v. State, 581 So. 2d 541, 542-43 (Ala. Cr.App.1990), cert. denied, 581 So. 2d 545 (Ala.1991), and apparently by a majority of the members of the Alabama Supreme Court, see Ex parte Dysart, 581 So. 2d 545 (Ala.1991). II. The trial judge did not abuse her discretion in denying the appellant the unlimited right to question each venire memberse parately and individually. "In Brown v. State, [571 So. 2d 345, 349 (Ala.Cr.App.), cert. quashed, 571 So. 2d 353 (Ala.1990), remanded, ___ U.S. ___, 111 S. Ct. 2791, 115 L. Ed. 2d 966 (1991), on return to remand, 586 So. 2d 991 (Ala.Cr.App.1991) ], this Court thoroughly examined this issue and recognized that the general rule is that `the decision whether to voir dire prospective jurors individually or collectively is within the sound discretion of the trial court.' However, this Court held that where the defendant demonstrates that the nature of the pretrial publicity raises a significant possibility of prejudice, and a veniremember acknowledges some exposure to that publicity, due process may require individual examination of each veniremember who has been exposed to the pretrial publicity about the extent of their knowledge of the case and may require an independent determination by the trial judge with regard to each veniremember as to whether the member's knowledge had destroyed his or her ability to be fair and impartial." Kuenzel v. State, 577 So. 2d 474, 484 (Ala. Cr.App.1990), affirmed, 577 So. 2d 531 (Ala. 1991). In Brown, this Court held that the trial judge abused his discretion by not permitting individual voir dire under the circumstances of that particular case. This Court adheres to the principle that even in a death case, "[a]s a general rule, the decision whether to voir dire prospective jurors individually or collectively is within the sound discretion of the trial court." Brown, 571 So.2d at 349. See also Henderson v. State, 583 So. 2d 276 (Ala.Cr. App.1990); Kuenzel v. State, 577 So.2d at 484. Furthermore, in Mu'Min v. Virginia, 500 U.S. ___, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991), the United States Supreme Court held that a defendant has no Sixth or Fourteenth Amendment right under the Constitution of the United States to question the prospective jurors about the specific contents of news reports to which they had been exposed. Following the guidelines this Court set forth in Brown, we find that under the circumstances of this case, the trial judge did not abuse her discretion in either refusing to permit unlimited individual voir dire of each member of the jury venire or in refusing to permit defense counsel to question the venire members about the specific content of the media reports to which they had been exposed. First, we find that the pretrial publicity in this case, although quite substantial, was not as extensive or as prejudicial as that present in Brown. The murder in this case occurred on March 18, 1988. Three people were involved in the commission of that murderÔÇöBilly Gray Williams, Kenneth Eugene Smith, and the appellant. These three individuals were allegedly hired by the victim's husband, Charles Sennett, a minister of the Church of Christ, to kill his wife, Elizabeth Dorlene Sennett. Mr. Sennett committed suicide on March 25, 1988, seven days after the murder. In March and April 1988, there was extensive media coverage of the crime. The coverage continued to a lesser degree in May, June, and August. Williams was tried in January 1989 and was sentenced in February 1989. The media also covered the removal of Smith's trial to Jefferson County in March 1989. The appellant's trial began on May 30, 1989. Although the crime in this case was horrible, it was not as sensational or lurid as that in Brown, which involved the brutal stabbing deaths of a mother and her ten-year-old daughter. At the time of the crime, Brown was on parole from a conviction 1079 of assault of his landlord. That assault had occurred while Brown was on parole from a conviction for having murdered his aunt, his grandmother, and his great-grandmother when he was 14 years old. See Brown, 571 So.2d at 350-51. Second, in this case, the trial judge did allow individual and extensive voir dire of those venire members who indicated that they had formed an opinion about the case or who had a knowledge of the case from some source other than the media. However, the trial judge did not allow defense counsel to individually question each member of the venire who merely indicated that they had been exposed to some media report of the crime. "THE COURT: ... I'm not going to grant the request with respect to individual voir dire of everyone who stood up and said they read something about it in the paper. I am going to grant the request with respect to people who after being asked that stood up and said that they had formed some conclusion about this and I have already granted that on the record. And if the Defendant wants to follow up with any more general questions and any more possible individual voir dire may arise from that I certainly will go ahead and consider [a] request at that time, but I do not think you have laid the proper predicate for individual voir dire of those people." R. 663-64. During the third day of jury selection, defense counsel renewed his motion for individual voir dire of every venire member who indicated that they had read or heard any media report of the crime. The trial judge responded: "THE COURT: Let me just say this; I'm going to overrule the motion at this time. If you do not ask it tomorrow I'm going to ask a general question one more time, if there's anybody who has thought about it because it is obvious that people think about this overnight and then think about something the next morning and I think the question should be asked and if you don't do it or you don't do it I'm going to do it; if there is anybody who has thought about it overnight who thinks they may have a fixed opinion based onÔÇöor have an opinion or preconceived notion about this. I'm going to ask it or you can ask based on anythingÔÇöfor that matter, based on anything that they have read or based on anything that they have heard in court the last four days. You know, there may be some that think differently just because they've been in court for four days and heard what the questions are that you have asked them and I think it's an appropriate question to be asked. I just looked and most of the people who stood up and said they had read something about it in the media have already all been individually voir dired." R. 885-86. Finally, we note that the voir dire in this case was quite extensive and thorough, and that the attorneys themselves were permitted to ask their own questions. The voir dire in this case in no way compares with the almost cursory voir dire in Brown. Our review convinces this Court that the trial judge did not abuse her discretion in denying defense counsel unlimited individual voir dire and in denying defense counsel's request to examine each venire member about the specific contents of any media report they had read or heard. "[O]ur own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire." 1080 Mu'Min, 500 U.S. at ___, 111 S.Ct. at 1906. III. We also find that the trial judge did not abuse her discretion in denying the appellant's motions for change of venue. The appellant filed his motion for a change of venue on May 16, 1988. During the hearing on that motion, it was stipulated that all the evidence, exhibits, testimony, and arguments given in the change of venue hearing in the case of the appellant's alleged accomplice, Billy Gray Williams, would be admitted into evidence in the appellant's case. The trial court denied this motion on August 10, 1988. Following the trial and conviction of Williams on February 24, 1989, the trial judge set a hearing on the issue of venue, although there was no motion for change of venue pending at that time. The appellant filed an amended motion for change of venue on March 7, 1989. That motion was heard on March 9, 1989, after a different trial judge had granted a motion for a change of venue in the trial of Kenneth Eugene Smith, another alleged accomplice of the appellant. It was stipulated that all the exhibits involved in the Smith case would be admitted into evidence in the appellant's case. The appellant's amended motion for a change of venue was denied on March 21, 1989. On this appeal, the attorney general admits that there was extensive media coverage of this crime. "The exhibits submitted in support of John Parker's Motions for Change of Venue reveal intensive, detailed and widespread coverage of the death of Elizabeth Dorlene Sennett, the suicide of Charles Sennett, the arrest and the alleged confessions of Billy Gray williams, Kenneth Eugene Smith and John Forrest Parker, and the trial of Billy Gray Williams (R. 2203-2421). These news stories were circulated and broadcast throughout Colbert County, Alabama, by newspapers, radio and television (R. 64-84). These stories covered the details of the alleged crime, and detailed John Parker's alleged involvement in the death of Elizabeth Dorlene Sennett, which implicated John Parker as having confessed to taking Elizabeth Dorlene Sennett's life and implied his guilt during the coverage of the Billy Gray Williams trial." Appellee's brief at 114-15. As best this Court can determine, the record indicates that ultimately 65 members of the 93-member venire indicated that they had some prior knowledge of the crime. Of that 65, 24 members indicated that their knowledge was from a source other than the news media, primarily conversations with other people. Of those 24, only two members were struck for cause due to their fixed opinions. The appellant's accomplice Williams was tried approximately three months before the appellant. In Williams v. State, 565 So. 2d 1233, 1237-38 (Ala.Cr.App.1990), this Court found that there was no error in the denial of the motion for change of venue in that case. The trial judge in Williams also presided over this case. "Absent a showing of abuse of discretion, a trial court's ruling on a motion for change of venue will not be overturned.... In order to grant a motion for change of venue, the defendant must prove that there existed actual prejudice against the defendant or that the community was saturated with prejudicial publicity.... Newspaper articles or widespread publicity, without more, are insufficient to grant a motion for change of venue.... As the Supreme Court explained in Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961): "`To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court....' "The standard of fairness does not require jurors to be totally ignorant of the 1081 facts and issues involved.... Thus, `[t]he proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination.'" Ex parte Grayson, 479 So. 2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985). "An accused is entitled under 15-2-20 to a change of venue if he can demonstrate that he cannot receive a fair trial in the county where he is to be tried. It is well established in Alabama, however, that the existence of pretrial publicity, even if extensive, does not in and of itself constitute a ground for changing venue and thereby divesting the trial court of jurisdiction of an offense.... [J]urors do not have to be totally ignorant of the facts and issues involved in a particular case in order to reach an unbiased verdict.... To satisfy her burden of proof in the present case, [the defendant] had to establish that prejudicial pretrial publicity has so saturated Lamar County as to have a probable prejudicial impact on the prospective jurors there, thus rendering the trial setting inherently suspect. This required a showing that a feeling of deep and bitter prejudice exists in Lamar County as a result of the publicity.... "Whether to change venue is discretionary with the trial judge.... In determining whether there has been an abuse of that discretion, an appellate court reviews the trial judge's order de novo, without any presumption in favor of that order.... "... In Primm v. State, 473 So. 2d 1149, 1155 (Ala.Crim.App.1985), the court, quoting Anderson v. State, 362 So. 2d 1296, 1299-1300 (Ala.Crim.App.1978), correctly stated: `"Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for a change of venue. Gray v. State, 56 Ala.App. 131, 319 So. 2d 750 (1975)."' In Mathis v. State, [280 Ala. 16, 189 So. 2d 564 (1966), cert. denied, 386 U.S. 935, 87 S. Ct. 963, 17 L. Ed. 2d 807 (1967) ], the following is stated: "`"In Godau v. State, 179 Ala. 27, 60 So. 908, 910 [1913], it was said: "`"So long as we have newspapers we may expect to have through them the report of crimes, and it is not to be unexpected that, when a homicide is committed ... the newspapers of the community, answering the public interest, will furnish the defendant with at least some material upon which to base an application similar to the one under discussion.' "`"Also in McClain v. State, 182 Ala. 67, 62 So. 241, 243 [1913], it was said: "`"`We are not prepared to concede... that the sensational language of a newspaper reporter or special correspondent used in "writing up" such cases ... may be safely taken as a reflection of general public sentiment; nor that it may be lightly assumed that such statements as those ... shown are capable of permanently molding and fixing the opinions of the more intelligent classes of the people to the extinction of their sense of fair play, and the suppression of their sober second thought.' "`"The mere belief of the defendant or of his witnesses that he cannot receive an impartial trial is not sufficient to entitle him to a change of venue...."' 280 Ala. at 18, 189 So.2d at 566 (quoting Campbell v. State, 257 Ala. 322, 324-25, 58 So. 2d 623 (1952)." Ex parte Fowler, 574 So. 2d 745, 747-48 (Ala.1990). Applying the principles of Grayson and Fowler to this particular case, we find that the trial judge did not abuse her discretion in denying the appellant's motions for change of venue. We note that at the hearing on the motion for new trial, the trial judge made 1082 reference to J. Colquitt, Judicial Use of Social Science Evidence at Trial, 30 Ariz. L.Rev. 51 (1988): "Change of venue motion practice supplies one example of evidentiary or procedural rules which preclude, or at least divert attention from, the use of social science evidence. If prejudicial pretrial publicity sufficiently saturates and inflames a community, the court can presume prejudice and order a change of the trial site. Absent such widespread community prejudice, the defendant must prove atual juror prejudice. Usually actual prejudice must be shown during the voir dire of the jury. The voir dire may refute apparrent prejudice. Thus, trial judges may be reluctant to hold hearings on the motions prior to actual arrival of the venire. In fact, in State v. Herring [21 Ohio App. 3d 18, 486 N.E.2d 119 (1984)], the trial court's order changing venue was vacated, and the matter was remanded for a `good faith effort' to seat a jury. Once the trial judge considers the voir dire proceedings, the value of public opinion surveys may shrink in significance or be destroyed altogether. Since voir dire is the court-preferred test for prejudice, and since change of venue is within the discretion of the court, the trial judge may focus less attention on social science evidence, such as public opinion polls, and simply await the outcome of the voir dire proceeding. Moreover, in some jurisdictions, the trial judge must await the results of voir dire." 30 Ariz.L.Rev. at 56-57 (footnotes omitted). IV. The trial judge did not commit error in denying the appellant's challenge for cause to venire members Almon Whitehead, Ovie Crosswhite, and Elma Watkins. Defense counsel was allowed to voir dire each of these venire members individually outside the presence and hearing of the other members. Whitehead was a reserve state trooper who had received some information connected with the case from a friend who was a nurse at the emergency room when the victim's body was brought in and from a friend who was with the Alabama Bureau of Investigation and who took part in the investigation of the murder. Defense counsel was permitted to explore the content of what Whitehead knew and what he had been told. On examination, Whitehead made it clear that what he had been told would not influence his judgment and that his judgment would be based on the evidence presented at trial. The appellant argues that his "assurances are simply not credible." Appellant's brief at 51. Watkins was a retired Sheffield police officer who expressed his opinion that capital punishment should be imposed for any kind of murder. However, he testified that he could base his decision on the evidence and "go with what the Judge said the law was." Crosswhite expressed his personal views favoring capital punishment but indicated that he could set those views aside and "follow the law" as instructed by the trial judge. "[A] proper challenge for cause exists only when a prospective juror's opinion or bias is so fixed that he or she could not ignore it and try the case fairly and impartially according to the law and the evidence." Ex parte Rutledge, 523 So. 2d 1118, 1120 (Ala.1988). "[A] trial court's ruling on a challenge for cause based on bias is entitled to great weight and will not be disturbed on appeal unless there is a clear showing of an abuse of discretion by the trial court." Rutledge, 523 So.2d at 1120. Here, there is no showing that any of these three veniremembers had such a fixed opinion that it would bias the verdict or influence the decision. Siebert v. State, 562 So. 2d 586, 595-96 (Ala.Cr.App.1989), affirmed, 562 So. 2d 600 (Ala.), cert. denied, ___ U.S. ___, 111 S. Ct. 398, 112 L. Ed. 2d 408 (1990). "In challenging a juror for cause, the test to be applied is that of probable prejudice.... While probable prejudice for any reason will serve to disqualify a prospective juror, qualification of a juror is a matter within the discretion of the trial court.... This Court must look to 1083 the questions propounded to, and the answers given by, the prospective juror to see if this discretion was properly exercised.... A reversal is not appropriate absent abuse of this discretion.... "Ultimately, the test to be applied is whether the juror can set aside her opinions and try the case fairly and impartially, according to the law and the evidence.... This determination, again, is to be based on the juror's answers and demeanor and is within the sound discretion of the trial judge. Thus, a prospective juror should not be disqualified for prejudices or biases if it appears from his or her answers and demeanor that the influence of those prejudices and biases can be eliminated and a verdict rendered according to the evidence." Knop v. McCain, 561 So. 2d 229, 232 (Ala. 1989). See also Wood v. Woodham, 561 So. 2d 224, 227 (Ala.1989). "Thus, even though a prospective juror admits to a potential bias, if further voir dire examination reveals that the juror in question can and will base his decision on the evidence alone, then a trial judge's refusal to grant a motion to strike for cause is not error." Perryman v. State, 558 So. 2d 972, 977 (Ala.Cr. App.1989). We recognize that there are occasions where a juror's claim of freedom from prejudice and impartiality cannot be accepted and should not be believed. See Patton v. Yount, 467 U.S. 1025, 1031, 104 S. Ct. 2885, 2889, 81 L. Ed. 2d 847 (1984). "[T]he simple extraction of an affirmative response from a potential juror does not necessarily absolve that juror of probable prejudice." Woodham, 561 So.2d at 228. However, we do not consider this to be such an occasion. Our review of the questioning of these three venire members by the trial judge, defense counsel, and the prosecutor convinces this court that each challenge for cause of these three venire members was properly denied. "The qualification of a juror is a matter within the discretion of the trial court. Clark v. State, 443 So. 2d 1287, 1288 (Ala.Cr.App.1983). The trial judge is in the best position to hear a prospective juror and to observe his or her demeanor. A trial judge's rulings on a juror's qualification are entitled to great weight on appeal and will not be disturbed unless clearly shown to be an abuse of discretion." Ex parte Dinkins, 567 So. 2d 1313, 1314 (Ala.1990). V. The trial judge properly refused to instruct the jury on murder as a lesser included offense of capital murder for hire because there was no rational basis for such an instruction. See Ala.Code 1975, 13A-5-41. The trial judge instructed the jury on the charged offense of capital murder for hire and on the lesser included offenses of conspiracy to commit murder, assault in the first and second degree, and manslaughter. At trial, the appellant did not object to the trial judge's oral charge. The State's evidence shows that the appellant participated in the murder of Mrs. Sennett and that he received financial compensation for his actions. The appellant's defense was that he did participate in an assault on Mrs. Sennett but that he left her alive and that she was stabbed to death by Mr. Sennett after the assault had occurred. In his closing argument, defense counsel argued that there was "no question" that the appellant was guilty of assault and conspiracy to commit assault, but that the appellant was not guilty of murder. Here, neither the evidence presented by the prosecution nor that presented by the defense provides a rational basis for a verdict of murder. Following the principles collected in Holladay v. State, 549 So. 2d 122, 128-29 (Ala.Cr.App.1988), affirmed, 549 So. 2d 135 (Ala.), cert. denied, 493 U.S. 1012, 110 S. Ct. 575, 107 L. Ed. 2d 569 (1989), we find that the trial judge properly refused to instruct the jury on intentional murder as a lesser included offense of the crime charged. See also Schad v. Arizona, ___ U.S. ___, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991). 1084 Under any view of the evidence, there is no basis for an instruction on reckless murder as defined by Ala.Code 1975, 13A-6-2(a)(2), because the appellant's actions were directed solely at the victim and therefore did not "manifest[ ] extreme indifference to human life." Northington v. State, 413 So. 2d 1169 (Ala.Cr.App.1981), cert. quashed, 413 So. 2d 1172 (Ala.1982). VI. The appellant contends that the trial judge structured her oral charge to the jury so as to preclude the jury from considering the offense of manslaughter. In essence, the trial judge charged the jury that if they did not believe the appellant was guilty of capital murder, they "must next consider" whether he was guilty of conspiracy to commit murder, and then whether he was guilty of assault in the first degree, and then whether he was guilty of assault in the second degree, and then, "[i]f after consideration of the evidence or lack of evidence you are not satisfied that the defendant is guilty of the offense of capital murder, or conspiracy to commit murder, or assault in the 1st degree, or assault in the 2nd degree you must next consider the evidence as to the lesser included offense of manslaughter." There was no objection to the trial judge's charge on this matter. This is not a case of plain error. "When a greater and a lesser included offense are charged, the proper course is for the trial judge to instruct the jury to consider first the greater offense and then consider the lesser offense only if a reasonable doubt exists concerning the accused's guilt of the greater offense." Bragg v. State, 453 So. 2d 756, 759 (Ala.Cr.App.1984) (emphasis in original). See also Lindsey v. State, 456 So. 2d 383, 387 (Ala.Cr.App.1983) ("The trial court's instruction to this effect, that the jury should not consider the lesser included offenses unless it found the appellant `not guilty' of the capital offense was in accordance with and justified by [ 13A-5-41]"), affirmed, 456 So. 2d 393 (Ala.1984), cert. denied, 470 U.S. 1023, 105 S. Ct. 1384, 84 L. Ed. 2d 403 (1985). Here, the jury could logically and reasonably find that the appellant was not guilty of any degree of assault because the victim was killed, but that the appellant was guilty of manslaughter because the victim's death was caused by the appellant's participation. The appellant's argument is without merit. VII. There is no plain error in the trial judge's oral instructions on conspiracy to commit murder. The trial judge fully explained and defined the offenses of capital murder for hire and conspiracy to commit murder. No objection was made at trial. The portion of the judge's charge to which the appellant now objects is as follows: "The difference between the charge of capital murder and conspiracy to commit murder is the additional element in capital murder that the killing must be done for pecuniary, that is for money, or other valuable consideration." R-1650. Taken out of context and isolated, this is an improper statement of law because there are a number of distinctions between the elements of offenses of conspiracy to commit murder and capital murder for hire. However, "[t]he rule is well established that where a portion of the oral charge is erroneous, the whole charge may be looked to and the entire charge must be construed together to see if there be reversible error." Gosa v. State, 273 Ala. 346, 350, 139 So. 2d 321, 324 (1961). "An instruction explanatory of another charge should be considered in connection therewith; and if, when considered together, they assert a correct proposition, the judgment will not be reversed, though the explanatory charge, as a separate and disconnected instruction, may not express all the elements of the proposition." Johnson v. State, 81 Ala. 54, 55, 1 So. 573, 574 (1886). See also Williams v. State, 538 So. 2d 1250, 1252 (Ala.Cr.App.1988). When placed in the context of the entire oral charge, the portion 1085 of the charge quoted above does not constitute plain error. These same principles apply to the trial judge's instructions on the element of intent in connection with the offense of capital murder. The charge on intent, "taken as a whole, was correct." Ex parte Dolvin, 391 So. 2d 677, 680 (Ala.1980). The jury was properly and adequately charged on the necessity of a "particularized intent to kill." Ex parte Raines, 429 So. 2d 1111, 1112-13 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S. Ct. 1804, 76 L. Ed. 2d 368 (1983). See also Ala.Code 1975, 13A-5-40(c). VIII. The trial judge did not violate the holding of Cage v. Louisiana, ___ U.S. ___, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), in instructing the jury on reasonable doubt. In that case, the jury was instructed that a reasonable doubt "must be such doubt as would give rise to a grave uncertainty," that "[i]t is an actual substantial doubt," and that a finding of guilt requires a requiring "moral certainty." ___ U.S. at ___, 111 S.Ct. at 329 (emphasis omitted). The objectionable language in the instruction involves the combination of the words "grave uncertainty," "actual substantial doubt," and "moral certainty" which "suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard." ___ U.S. at ___, 111 S.Ct. at 329-30. In this case, the trial judge employed the terms "actual and substantial doubt" and "moral certainty" in defining reasonable doubt. However, her instructions did not employ the term "grave uncertainty." Here, as in Gaskins v. McKellar, ___ U.S. ___, 111 S. Ct. 2277, 114 L. Ed. 2d 728 (1991) (Stevens, J., concurring in the denial of certiorari), the instructions do not contain the same flaw as the instructions in Cage. "We have specifically examined petitioner's claim that the trial court's instruction to the jury on `reasonable doubt' was `plain error.' In that examination, we have compared the trial court's jury instruction regarding `reasonable doubt' with the instruction recently reviewed by the United States Supreme Court in Cage v. Louisiana, ___ U.S. ___, 111 S. Ct. 328, 112 L. Ed. 2d 339 (1990), and condemned by that Court as violative of Cage's constitutional rights. The instruction given in this case does not contain the same infirmity that the Supreme Court of the United States found in the trial court's instruction in Cage. We hold, therefore, that there is no `plain error' affecting the substantial rights of the petitioner, and thus, no legal reason to grant the petitioner a new trial." Ex parte White, 587 So. 2d 1236 (Ala.1991). IX. The appellant contends that the prosecution failed to disclose other convictions of state's witness Teddy Lynn White in addition to his conviction for burglary, and that the prosecution failed to disclose the fact that White was given favorable treatment in exchange for his testimony. Five days before jury selection proceedings began, the prosecutor copied his entire file and gave it to defense counsel. R. 105-06. See Ex parte Monk, 557 So. 2d 832 (Ala.1989). Apparently, either on that occasion or on an earlier date, the prosecutor gave the defense a copy of White's statement containing his admission that he had been convicted for burglary. Immediately before White testified at trial, defense counsel complained that the State had not given the defense any exculpatory information and that the defense did not have any information "of what [White's] criminal record is." R. 1474. At trial, White testified as a witness for the State to the effect that a week or two before the murder, the appellant had attempted to purchase a gun from White. White testified that the appellant said "he was going to kill somebody. Said that him and Kenny Smith was getting $9000 each." R. 1482. On direct examination, White was specifically asked whether and admitted that he had been convicted of a felony "on more than one occasion." R. 1483 (emphasis added). On cross-examination, White testified that all of his convictions 1086 had been for burglary, and that he presently was in prison for third and second degree burglary. White testified that he had not been promised anything in exchange for his testimony, and that, in fact, while he was in the county jail, "[t]hey [were] talking about putting more charges on [him]." R. 1487-88. At the hearing on the motion for new trial it was discovered that, at the time he testified, White was serving time for four convictions, all received on February 23, 1989, in Lauderdale County: burglary in the third degree, unlawful breaking and entering of a vehicle, theft of property in the second degree, and receiving stolen property in the second degree. R. 2667. It was also discovered that White had a prior burglary felony conviction (R. 1893) for which he had been incarcerated in 1985. With regard to this issue, the district attorney's position was that the defense knew that White had prior convictions and that the defense could have discovered those convictions on their own. The district attorney argued that his office "is not obligated to go out and get material or obtain materials for the defense," and that his office "can't be charged with the knowledge or information that every State agency in the State of Alabama has." R. 1918. At the hearing on the motion for new trial, it was also established that White, who testified in the appellant's trial on June 6, 1989, was approved for release on the Supervised Intensive Restitution (SIR) Program on June 12, 1989, and was released on the SIR program on June 14, 1989. The evidence shows that White was originally scheduled for release on May 24, 989, but that that release was held up on May 19, 1989, which was the same date White gave a statement concerning the appellant to Investigator Ed Sasser at the Elmore Correctional Facility. The "hold up" was "[a]pparently because of a protest from Mr. Steve Graham who is the District Attorney in Lauderdale County." R. 1846. (The appellant was prosecuted by the district attorney of Colbert County.) However, White was placed on SIR despite the protest of the district attorney. A supervision officer for the SIR program testified at the hearing that to his knowledge White was not afforded any kind of "favor" or award in being placed on the SIR program in exchange for his testimony. He testified that this case "is not unusual. It is typical of basically the way most of them go." White testified at the hearing that he was not promised anything for his testimony and that while he was in jail in Lauderdale County the jailer told him that "they was going to bring up some more charges on me." R. 1876-77. However, a detective told him that "they were still investigating and if they did come up with some more then he would let me know about it. And as far as he knew he wasn't going to bring anything against me as far as anything that he had." R. 1877. White testified that he was not offered or promised anything in exchange for his testimony. R. 1884. Investigator Ray also testified that he was not aware of any promise made to White in exchange for his testimony. The appellant's discovery rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), were not violated because the prosecutor is not required to disclose evidence he does not possess. "While it is true that under Brady the good faith of the prosecutor in not disclosing information is irrelevant, 373 U.S. at 87, 83 S.Ct. at 1196, Brady does require that the information requested be known to the prosecution. United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342 (1976); Antone v. Strickland, 706 F.2d 1534, 1544 (11th Cir. 1983) (Kravitch, J., concurring specially) [, cert. denied, 464 U.S. 1003, 104 S. Ct. 511, 78 L. Ed. 2d 699 (1983) ].... [T]hat knowledge may be presumed, as when the information is in the prosecutor's files, see Agurs, 427 U.S. at 110, 96 S.Ct. at 2400." United States v. Walker, 720 F.2d 1527, 1535 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S. Ct. 1614, 80 L. Ed. 2d 143 (1984). Here, there is no evidence that the prosecution suppressed any evidence whatsoever. The contention that White's testimony was secured by a promise of favorable 1087 treatment in regard to SIR is supported only by a coincidence of facts interpreted through conjecture and speculation. The defense knew before trial that White was going to testify. There is no evidence that the prosecution had obtained White's complete criminal record or that the prosecutor had knowledge of all of White's prior criminal convictions. X. On direct examination, White could not identify the exact date on which the appellant came to his residence seeking to purchase a firearm. On cross-examination, defense counsel attempted to establish that White's testimony was based on information he had read in the newspaper. On redirect examination, the following occurred: "Q. But you don't know the exact date for certain do you? "A. No. "Q. But do you remember the day that you heard on the car radio about the killing? "A. Yeah, because I went to John's house. I went and bought a bag of pot from John." R. 1486-87. Immediately, defense counsel approached the bench, made a motion to strike White's answer as "not responsive and ... prejudicial," and requested a mistrial. When those motions were overruled by the trial judge without comment, defense counsel requested the judge to "instruct the jury to disregard that statement." That request was also denied. White's nonresponsive answer was inadmissible under the general principles excluding evidence of crimes not charged in the indictment. C. Gamble, McElroy's Alabama Evidence 69.01 et seq. (4th ed. 1991). We reject the attorney general's argument that evidence that the appellant sold "pot" was admissible to show intent to commit murder. However, the error in the admission of White's comment was harmless under Rule 45, A.R.App.P. In his opening comments, defense counsel stated: "When [the appellant] did recover [from a fall] it affected his brain to a certain extent and that at approximately age 6 he was placed on Ritalin which is a veryÔÇöcan be a very helpful drug. It is definitely a very dangerous drug. When his parents and the doctors tried to remove him from Ritalin at age 12 John went to drugs. He was on drugs and alcohol from that age until the time of the event that he's charged with. So you can see what we're having to deal with in terms of preparing this case." R. 942. The appellant's statement was properly admitted into evidence and contains the following references to drug use: "During this portion of the conversation I [Investigator May] asked him if he hadÔÇöwas using any kind of drugs and he said he was not that day, on the 31st is when we're talking about. I asked him if he was a drug addict and he said he was, but that he had not used any narcotics on the 31st.... He stated that on the way down [to the Sennett residence on the day of the killing] that he shot up 3cc of Talwin.... He stated [that] he had been given a hundred dollars the day before to go buy a handgun and that he had spent that on drugs to shoot up." R. 1416-17, 1420. In closing argument, defense counsel argued: "John was taking drugs. There's no doubt about it. He's a drug addict. He's got a long history. He took some that day." R. 1600. We recognize that the crimes of possession and distribution of an illegal substance are two separate and distinct offenses. See Dortch v. State, 41 Ala.App. 349, 133 So. 2d 43, cert. denied, 272 Ala. 703, 133 So. 2d 44 (1961), but see Woods v. State, 437 So. 2d 636 (Ala.Cr.App.1983). Thus, strictly speaking, it cannot be said in this case that evidence that the appellant sold a "bag of pot" is cumulative of evidence that he was a drug addict and used controlled substances. However, we find no ground for reversal for three reasons. First, from the 1088 arguments made by defense counsel and from the appellant's statement, it is undisputed that the appellant has serious problems with drugs and is a drug addict. Second, White's admission that he purchased marijuana from the appellant was just as prejudicial to White as it was to the appellant. Third, the comment was but a single isolated incident which was not exploited by the prosecution. XI. The appellant maintains that his warrantless arrest at his home was illegal because it was without probable cause. He also argues that because his arrest was illegal, his subsequent statement was inadmissible. In Williams v. State, 565 So. 2d 1233, 1236 (Ala.Cr.App.1990), this Court found that there was probable cause to arrest the appellant's accomplice. "The information obtained from the anonymous telephone informant and corroborated by the sheriff's department satisfies the totality-of-the-circumstances test for determining probable cause set out in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)." Williams, 565 So.2d at 1235. The facts supplying the probable cause for the arrest of Williams, Smith, and the appellant are virtually identical. We find that, based on the specific facts presented in this case, the corroboration of the anonymous telephone informant supplied probable cause for this particular appellant's arrest. See Alabama v. White, ___ U.S. ___, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). In determining the legality of the appellant's arrest, this Court need not decide whether the appellant was actually arrested inside his home or whether any warrantless arrest of the appellant at his home constituted a violation of Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). The statements of the appellant were given to Investigator May at the county courthouse. In New York v. Harris, 495 U.S. 14, ___, 110 S. Ct. 1640, 1644-1645, 109 L. Ed. 2d 13 (1990), the United States Supreme Court held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Therefore, the appellant's statements at the courthouse would have been admissible even if this Court were to accept the appellant's argument that he was arrested without a warrant inside his residence. XII. The appellant argues that his statement was involuntary because he was under the influence of marijuana and alcohol at the time the statement was given and because he had an IQ of 78, which is just above mental retardation. Appellant's brief at 82-83. However, just as there was evidence that the appellant's judgment was impaired, there was contradictory evidence that the appellant knowingly, voluntarily, intelligently, and repeatedly waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In addition, the State's evidence is that the appellant requested to speak to Investigator Ray and thereby initiated the taking of his statements. We have reviewed the testimony adduced both at the hearing on the motion to suppress and at trial. In Williams v. State, 461 So. 2d 834, 838 (Ala.Cr.App.1983), reversed on other grounds, 461 So. 2d 852 (Ala.1984), this Court collected the principles of appellate review of a trial judge's determination of the admissibility of a confession or statement based on conflicting evidence of voluntariness. Applying those principles to the facts of this case, we find no error in the admission of the appellant's statement. "Before a confession is admissible, the trial judge must be satisfied by a preponderance of the evidence that it was voluntarily made.... This finding will not be disturbed on appeal unless it is evident that the determination was palpably contrary to the weight of the evidence." Ex parte Singleton, 465 So. 2d 443, 445 (Ala. 1089 1985). See also Jackson v. State, 562 So. 2d 1373, 1380 (Ala.Cr.App.1990). XIII. The appellant complains about the admission into evidence at trial of expert testimony concerning hair samples from himself and from Kenneth Smith. At the scene of the crime, investigators discovered hairs in a cap located near Mrs. Sennett's body and on an afghan partially covering her body. The appellant and Smith were arrested on March 31, 1988. Hair samples were taken from both Smith and the appellant by Investigator Doug Hargett, who placed each sample in a separate envelope and mailed both envelopes to state criminologist John Kilbourn at the crime lab in Huntsville, Alabama. Kilbourn received the envelopes on April 5, 1988, and compared the known hair samples taken from the appellant and Smith with those found at the scene of the crime. At trial, the envelope that had previously contained Smith's known hair sample was discovered to be empty. However, Kilbourn was permitted to testify that the hairs from the cap and the afghan "were all found to be consistent with the known hair of Kenneth Eugene Smith." R. 1355. Kilbourn also testified that at the time he received the envelope identified as State's Exhibit 40, the envelope was sealed and did contain "several hairs." R-1353. The appellant objected at trial on the ground of "best evidence." On appeal, he argues that the testimony concerning the hair samples was inadmissible because: 1) the hairs "were not available for inspection, testing or verification"; 2) there was a break in the chain of custody of State's Exhibit 40; 3) the hair seized from the appellant was taken without the appellant's consent; and 4) the appellant's hair sample was "irrelevant" because there was "no evidence tying his hair sample with any of the hair samples recovered from the scene." Appellant's brief at 86. Each of these arguments is without merit. First, the fact that Smith's hairs were not present at trial caused no prejudice to the appellant. It is significant that the evidence missing in this case was not the unknown hairs discovered at the scene of the crime, but the known hairs of the appellant's suspected accomplice. There is no contention that the State deliberately "lost" the hair sample or that the known sample was not Smith's hair. There is no contention that before trial the appellant was not familiar with the results of the expert's comparison of the hair from both Smith and the appellant. Second, although there was no explanation of what happened to the missing hair, there was no break in the chain of custody of State's Exhibit 40, the envelope containing Smith's hair. Each link in the chain was accounted for from the time the hair was seized until the time of trial. See Murrell v. State, 377 So. 2d 1102, 1106-07 (Ala.Cr.App.) (fact that bullet was missing from sealed package containing cylinder switch from pistol found at scene did not preclude admission of switch into evidence), cert. denied, 377 So. 2d 1108 (Ala.1979). Here, as when dealing with a controlled substance, "the law is concerned with tracing the integrity of the substance only up through the completion of the analysis." Congo v. State, 409 So. 2d 475, 479 (Ala.Cr. App.1981), cert. denied, 412 So. 2d 276 (Ala. 1982). "Any alteration or substitution of the items after [the expert] finished her analysis and comparison would, therefore, have been immaterial." Blanco v. State, 485 So. 2d 1217, 1219 (Ala.Cr.App.1986). Third, considering the facts that there was probable cause to seize a sample of hair from the appellant and that the appellant was in lawful custody, this Court considers the seizure of a sample of the appellant's hair to "constitute such a minor intrusion that ... [it] is inherently reasonable." 2 W. LaFave, Search and Seizure 5.3(c) at 498 (2d ed. 1987). "Courts have also permitted the warrantless taking of [head] hair samples from a person in custody, finding that the hair is a feature constantly exposed to the public for which a person has little reasonable expectation of privacy. Since the person is already in police custody, 1090 there is no reason to obtain any judicial process to conduct the seizure of the hair." W. Ringel, 2 Searches & Seizures, Arrests and Confessions 18.2(a) at 18-5 (2d ed. 1990) (footnote omitted). The Miranda warnings are not required before the taking of a hair sample from a person in lawful custody because the sample is not "`testimonial' or `communicative' evidence as required by the Supreme Court in order for the Fifth Amendment privilege to apply." 2 Ringel at 26.5(d) at 26-29. See Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). Fourth, the fact that the hair sample taken from the appellant did not connect the appellant with the commission of the crime did not render testimony about that hair sample irrelevant. This was a case based on circumstantial evidence. The fact that no hair found at the scene was consistent with the appellant's hair was a circumstance that the prosecution was entitled to present to the jury in the State's portrayal of the manner in which the crime was allegedly committed. Under the liberal test of admissibility in Alabama, "a fact is admissible if it has any probative value, however slight, upon a matter in the case." McElroy's 21.01 at 34. "Evidence as to the scene of a crime, as to objects found thereat, and as to the condition of the body, is admissible and relevant evidence, when reasonably proximate to the scene in time and location." Petty v. State, 40 Ala.App. 151, 154, 110 So. 2d 319, 322 (1958), cert. denied, 269 Ala. 48, 110 So. 2d 325 (1959). Evidence as to objects found at or near the scene of the crime charged within a reasonable time and proximity after the commission of the crime is "always admissible." Busbee v. State, 36 Ala.App. 701, 703, 63 So. 2d 290, 292 (1953). XIV. The appellant objects to the admission of photographs of a video cassette recorder (VCR) found in the residence of Kenneth Smith on the grounds that the identification of that VCR as the same VCR that was missing from the Sennett residence was based on hearsay information. This argument is grounded on Investigator May's testimony that the only information he had about the serial number of the VCR was information that he had received from a member of the Sennett family. "Q. [defense counsel]: Did any information which you have gathered about a VCR as far as serial number or identification come from what somebody told you? "A. [Investigator May]: It was given to us by a member of the family after the house was released. "Q. Okay. So any information as to identifying it by make and serial number would be something that somebody has told you? "A. No, sir, we have the box the VCR came in showing the serial number. "Q. Where did you get the box? "A. From a member of the family. "Q. Okay, and they gave it to you? "A. That's correct, sir. ".... "Q. So your knowledge would come from what someone gave you, someone that was a member of the family and what people told you that were members of the family, is that correct? "A. Yes, sir, they called us and advised they had the serial number of the VCR from the sales records. ".... "Q. Did that serial number compare with the serial number that you had previously obtained from the Sennett family? ".... "A. Yes, sir, it did." R. 1405-06, 1409. The appellant's objection at trial was "on the grounds that this is hearsay and on the grounds of relevancy." R. 1406. Neither the box showing the serial number nor the sales records were introduced into evidence. No one who had seen the VCR in the Sennett residence or who had firsthand knowledge of that fact testified. Investigator May did testify that a family 1091 member had not only told him the serial number but had delivered to him the actual box containing the serial number. Yet, the fact remains that the testimony connecting the box (and the sales receipt) with the particular VCR removed from the Smith residence was based on Investigator's May's inadmissible testimony of what a family member told him. See Whizenant v. State, 71 Ala. 383, 385 (1882); Bowden v. State, 542 So. 2d 335, 339 (Ala.Cr.App.1989); Parker v. State, 386 So. 2d 495, 496 (Ala.Cr. App.1980). However, any error in the admission of this testimony was harmless. In relating the appellant's confession to the jury, Investigator May testified that the appellant "did say they [the appellant and Smith] took a VCR and he did state the following day that theyÔÇö[the appellant] found a stereo in his car that he threw in the river. He stated that Kenny took that VCR with him that afternoon." R. 1419. The appellant's defense was that he and Smith beat Mrs. Sennett but that they did not kill her. The testimony concerning the VCR merely proved that Smith, and inferentially the appellant, were at the Sennett residence. This was not a disputed fact at trial. In Beverly v. State, 281 Ala. 325, 330, 202 So. 2d 534, 538 (1967), the Alabama Supreme Court held: "Thus appellant could not have probably been injured in any substantial right by the introduction of the bill of sale ... in that this evidence related to evidence not only uncontradicted but fully corroborated by the appellant himself in his confession." See also Alston v. State, 248 Ala. 163, 166, 26 So. 2d 877, 879 (1946). We conclude that the admission of May's testimony concerning the serial number of the VCR "could not reasonably have contributed to [the appellant's] conviction and, therefore, was harmless." Ex parte Musgrove, 519 So. 2d 586, 586 (Ala.1987), cert. denied, 486 U.S. 1036, 108 S. Ct. 2024, 100 L. Ed. 2d 611 (1988). "The rule is that testimony apparently illegal upon admission may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred." Yelton v. State, 294 Ala. 340, 342, 317 So. 2d 331, 333 (1974). XV. The appellant argues that the trial judge erred in permitting prosecution witness Ivan Fike to testify as to the authenticity of business records that were not in his control. Ivan Fike was the accounting supervisor for the Lister Hill Employees' Credit Union in Muscle Shoals, Alabama. He testified that he was "in charge of and considered custodian of the business records there." Through his testimony, the prosecution was permitted to introduce State's Exhibit No. 68, which was a copy of a cancelled check drawn against the credit union in the amount of $3,000 and made payable to Charles E. Sennett. There was testimony that a check that is drawn on Lister Hill Employees' Credit Union is payable through the United States Central Credit Union in Wichita, Kansas. To obtain a copy of the check, Fike submitted a request to the Alabama Corporate Credit Union in Birmingham, Alabama, because "they're affiliated with the U.S. Central Credit Union." Fike testified that the original check had been destroyed in the normal procedures of the credit union and that "[t]he canceled check was microfilmed at U.S. Central Credit Union in Wichita, Kansas." He stated that the copy of the check was generated through records that are kept in the normal course of business. We find that this predicate was sufficient for the admission of the copy of the canceled check. See Reed v. Sears, Roebuck & Co., 44 Ala.App. 506, 508, 214 So. 2d 857, cert. denied, 283 Ala. 717, 214 So. 2d 861 (1968). "Testimony by any witness, frequently the custodian of the record, that the document now exhibited to him is a record of the business; that he knows the method (i.e., the standard operating procedure) used in the business of making records of the kind now exhibited to him; and that it was the regular practice of the business to make records of such kind and to make them at the time of the event recorded or within such specified period thereafter as could be found by 1092 the trier of fact to be reasonable, is a sufficient authentication of the record to require its admittance in evidence." McElroy's at 254.01(3). "The [business records] rule does not require that the person who made the entry be the witness who lays the foundation for the introduction of the record into evidence. See Bailey v. Tennessee Coal, Iron & Railroad Co., 261 Ala. 526, 530-531, 75 So. 2d 117, 120-121 (1954); Mahone v. Birmingham Electric Co., 261 Ala. 132, 135-136, 73 So. 2d 378, 380-381 (1954). Any witness who knows the method used in the business of making records of the kind in question and knows that it was the regular practice of the business to make such records at the time of the event in question or within a specified reasonable time thereafter is competent to lay the foundation by testifying that the exhibit is such a record. Austin v. State, 354 So. 2d 40, 42 (Ala. Civ.App.1977); C. Gamble, McElroy's Alabama Evidence, 254.01(3) (3d ed. 1977)." Ikner v. Miller, 477 So. 2d 387, 390 (Ala. 1985). XVI. Prosecution witness Donald Larry Buckman was properly allowed to testify that Smith asked him if he knew "where he could find a gun at." R. 1262. This statement was a portion of a conversation held in the presence of the appellant. The prosecution presented a prima facie case that Smith and the appellant were both accomplices and co-conspirators. "Where proof of a conspiracy exists, any act or statement by an accused's co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in the furtherance of a plan or design, is admissible against the accused." McElroy's at 195.03(1). XVII. The photographs and other evidence obtained from the appellant's automobile after his arrest were properly admitted into evidence. "Nothing in the reasoning of [Payton v. New York] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that [the appellant] was immune from prosecution because his person was the fruit of an illegal arrest. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 1251, 63 L. Ed. 2d 537 (1980). Nor is there any claim that the warrantless arrest required the police to release [the appellant] or that [the appellant] could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest [the appellant] for a crime, [the appellant] was not unlawfully in custody when he was removed to the station house, given Miranda warnings and allowed to talk. For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested [the appellant] on his door step, illegally entered his home to search for evidence, and later interrogated [the appellant] at the station house. Similarly, if the police had made a warrantless entry into [the appellant's] home, not found him there, but arrested him on the street when he returned, a later statement made by him after proper warnings would no doubt be admissible." New York v. Harris, 495 U.S. at, 110 S.Ct. at 1643. XVIII. The photographs of the body of Mrs. Sennett were properly admitted into evidence. "[P]hotographs depicting the character and location of wounds on a deceased's body are admissible even though they are cumulative and are based on undisputed matters. Magwood [v. State ], 494 So.2d [124, 141 (Ala.Cr.App.1985), affirmed, 494 So. 2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed. 2d 599 (1986) ]. The fact that a photograph is gruesome is not grounds to exclude it 1093 as long as the photograph sheds light on issues being tried. Id. Also, a photograph may be gruesome and ghastly, but this is not a reason to exclude it as long as the photograph is relevant to the proceedings, even if it tends to inflame the jury. Id." Ex parte Bankhead, 585 So. 2d 112 (Ala. 1991). Accord, Ex parte Siebert, 555 So. 2d 780, 783-84 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 3297, 111 L. Ed. 2d 806 (1990); McElroy's at 207.01(2). XIX. At trial, the prosecution introduced separate photographs of Williams, Smith, and the appellant. Each photograph depicted the shoulders and head of the subject in front of a lined height chart. No photograph contained a date, an identification number, or any indication that it was a "police photograph." In Williamson v. State, 384 So. 2d 1224, 1231 (Ala.Cr.App.1980), this Court found that a photograph depicting a frontal view of the subject with a height chart in the background was not objectionable as a "mug shot." "The photograph presently before the court is vastly different from those in Holsclaw [v. State, 364 So. 2d 378 (Ala. Cr.App.), cert. denied, 364 So. 2d 382 (Ala. 1978)] and [United States v.] Harrington [490 F.2d 487 (2d Cir.1973) ]. In each of those cases the courts were considering the effects of `mug shots' consisting of juxtaposed frontal and profile views of the defendant complete with police identification numbers and name of police department. The particular photograph of the instant appellant consists of merely a frontal view of the defendant standing before a height chart. This rather innocuous photograph is devoid of markings which imply past criminal behavior. "One cannot fairly say that the photograph in question was introduced in such a manner as to draw attention to its source or implications. . . . . . . "In sum, the introduction of the photograph of the appellant did not prejudice his right to a fair trial." Williamson, 384 So.2d at 1231. "The presence of lines in a photograph [does] not mean that the person in the photograph is a criminal, has a criminal record, or has committed a crime involving moral turpitude." Lockett v. State, 518 So. 2d 877, 880 (Ala.Cr.App.1987). XX. The appellant argues that the prosecutors' improper closing arguments deprived him of a fair trial and a reliable sentencing proceeding. There was no objection to any argument of the prosecutors either at the guilt or the sentence phase of the trial. Because there was no objection at trial and because this is a death case, we must consider whether the prosecutors' remarks constitute plain error. "`Plain error exists when the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the proceedings...; in other words, `plain error' exists when a substantial right of the defendant has or probably has been adversely affected." Ex parte Smith, 581 So. 2d 531, 532 (Ala.1991). Accord, Kuenzel v. State, 577 So.2d at 481-82. "`Error' is `plain error' only when it `has or probably has adversely affected the substantial rights of the [defendant],' Rule 39(k), A.R.App.P., and plain error is to be acted upon `in the same manner as if the defendant's counsel had preserved and raised [the] error for appellate review.' Johnson v. State, 507 So. 2d 1351, 1356 (Ala.1986)." Ex parte White, 587 So. 2d 1236 (Ala.1991). A. GUILT PHASE ARGUMENT Early in his closing argument at the guilt phase of the trial, the assistant district attorney stated: "What do we have that would go toward tying John Parker to this crime. Of course, the most obvious things we've got is his statement. We got a confession from him. And I know good and well that you don't think that that statement 1094 came any other way but than the way Mr. May said it did. I've known Ronnie May for a long time and worked with him for a long time and, of course, when we put a witness on the witness stand we vouch for their credibility just as the defense does when they call a witness. But I can assure you right now that what Ronnie May testified to you aboutÔÇöabout anything, but particularly about the statement that I'm talking about right now that was given to him on March the 31st by Mr. Parker. I can assure you he told you the truth, what was told him by Mr. Parker. And I don't for any one minute think that any of y'all think he would get up and make it up or fabricate it or anything like that. But I can assure you, ladies and gentlemen, what he told you is the truth with regard to that statement." R. 1575. That same assistant district attorney also stated: "We've got other testimony [in addition to the statement]. We've got the testimony of Donald Buckman. Mr. Buckman came in here and testified before you and I can assure you he didn't have anything against John Parker." R. 1576. "Is that person [the forensic pathologist] best qualified to tell you about it, about the possible murder weapon or is it the doctor that worked on the person in the emergency room and was primarily trying to save her life. Again, I'm not try[ing] to in anyway run down Dr. McKinley. I know Dr. McKinley. He's a personal acquaintance of mine and I can assure he'sÔÇöwhen he came in here and said what he did the other day he was giving you his opinion, his best opinion, but again I say to you; who is best qualified to give that opinion?" R. 1581-82. In the State's final closing argument, the district attorney stated: "There is no such thing as a case that you couldn't look at long enough and hard enough and find some kind of little inconsistency in the testimony and the reason for that is, I submit to you at least from the State's witnesses they were trying very hard to tell you the truth and the truth as they saw it. Like Mr. Hudson said, we vouch for the credibility of those witnesses by putting them on the stand and I submit to you that they've told the truth, ..." R. 1611. Obviously, the above-quoted comments of the prosecutors were improper attempts to bolster witnesses by vouching for their credibility. "`Attempts to bolster a witness by vouching for his credibility are normally improper and error.' United States v. Ellis, 547 F.2d 863, 869 (5th Cir.1977). The test for improper vouching is whether the jury could reasonably believe that the prosecutor was indicating a personal belief in the witness' credibility. United States v. Roberts, 618 F.2d 550, 537 (9th Cir.1980) (citing Ellis, supra). This test may be satisfied in two ways. First, the prosecution may place the prestige of the government behind the witness, by making explicit personal assurances of the witness' veracity. See United States v. Lamerson, 457 F.2d 371, 372 (5th Cir. 1972); Gradsky v. United States, 373 F.2d 706, 709-10 (5th Cir.1967). Secondly, a prosecutor may implicitly vouch for the witness' veracity by indicating that information not presented to the jury supports the testimony. See United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir.1982) (explaining United States v. Roberts, 618 F.2d 530 (9th Cir.1980))." United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983), cert. denied, 465 U.S. 1034, 104 S. Ct. 1304, 79 L. Ed. 2d 703 (1984). The question in this case is whether those comments constitute "plain error." In Murry v. State, 562 So. 2d 1348, 1353-56 (Ala.Cr.App.1988), this Court thoroughly considered a similar issue. Applying the principles there set out, we conclude that the prosecutors' arguments in this case do not constitute plain error. The remarks, although clearly erroneous, do not "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." Murry, 562 So.2d at 1354. Those remarks 1095 must be viewed in the context of the prosecutors' entire argument and in the course of the entire trial. "`"[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." `" Murry, 562 So.2d at 1354 (quoting United States v. Swafford, 766 F.2d 426, 428 (10th Cir.1985)). In his closing argument, defense counsel did not contend that the appellant's confession was false. Indeed, he argued that the appellant is "not denying that he was out there the 18th. His statement says he was." R. 1591. He also argued: "As I said, there's no question, John Parker and Kenny Smith were there and what did he tell Ronnie May. `We were going out there to commit a burglary.'" R. 1596. Furthermore, as this Court stated in Murry, "we are confident that the remark[s] did not undermine the fairness of the trial, because any prejudice which might have resulted from the comment[s] was cured by the court's extensive cautionary instructions in its oral charge to the jury." 562 So.2d at 1355. In her instructions to the jury, the trial judge charged: "In determining what the true facts are in the case, you are limited to the evidence that has been presented from the witness stand as opposed to matters that have been stated by the attorneys in the course of the trial. What the attorneys have said both for the State and for the Defendant is not evidence in the case. What they have argued to you at various points in the trial is not evidence. They have a right and they have a duty at the appropriate time in the trial to comment on the evidence and draw reasonable inferences from the evidence as they argue their respect[ive] positions to you. What they say is not evidence and you should put what they say in a proper category in your thinking and it should not be in the evidence category, just as the indictment in the case should not be in the evidence category." R. 1641-42. In addition, we find in this case, as we did in Murry, that: "when the remark is considered in the context of defense counsel's arguments and subsequent instructions by the court, it did not `induce the jury to trust the Government's judgment rather than its own view of the evidence.' [United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct. 1038, 1048, 84 L. Ed. 2d 1 (1985)]. Finally, while the failure to object certainly does not preclude review in a capital case, it does weigh against any claim of prejudice. See, e.g., Ex parte Bush, 431 So. 2d 563 (Ala.), cert. denied, 464 U.S. 865, 104 S. Ct. 200, 78 L. Ed. 2d 175 (1983)." 562 So.2d at 1355-56. We find that other remarks of the prosecutors which are objected to on appeal for the first time were within the range of legitimate argument and do not constitute improper comment. B. SENTENCE PHASE The appellant complains that during the prosecutor's argument during the sentence phase of the trial, the prosecutor improperly 1) urged the jury to recommend death based upon unsubstantiated allegations of criminal behavior that had never been charged nor proven, 2) exhorted the jury to "do the right thing" and to sentence the appellant to death, and 3) argued that the appellant would kill again. Even accepting the appellant's contention that these comments constituted error, which we do not, any error would be harmless because the jury, by a vote ten to two, recommended life without parole. The present situation is analogous to that in Leverett v. State, 462 So. 2d 972, 977 (Ala. Cr.App.1984), where this Court stated: "[T]he verdict clearly indicates that the jury was not in any manner inflamed or influenced by these bits of evidence. See Morgan v. State, 35 Ala.App. 269, 45 So. 2d 802 (1950). Error in the admission of evidence which is shown by the verdict 1096 to have had no effect on it or to have caused the defendant no prejudice is not reversible. 24B C.J.S. Criminal Law 1915(13) (1962). Thus, there is no reversible error where the defendant was acquitted of the offense with respect to which the improper evidence was admitted, although he was convicted of another offense. Id. See also Middleton v. State, 27 Ala.App. 564, 176 So. 613, 614 (1937); Hanson v. State, 27 Ala.App. 147, 168 So. 698, 700, cert. denied, 232 Ala. 585, 168 So. 700 (1936); Lee v. State, 16 Ala.App. 53, 75 So. 282, 283 (1917)." See also Johnson v. Dugger, 911 F.2d 440, 448, n. 13 (11th Cir.1990)[1] ("Here, however, the sentencing jury returned an advisory sentence of life imprisonment. Hence, any errors in the advisory jury's perception of what constituted mitigating factors would be harmless."). XXI. This Court rejects the appellant's argument that his motion for judgment of acquittal should have been granted because the prosecution failed to prove that the appellant received any "pecuniary or other valuable consideration, to wit: $1,000.00" as charged in the indictment. The trial judge, in her written order on imposition of the death penalty as required by Ala.Code 1975, 13A-5-47(d), made the following findings of facts: "The court finds from the evidence introduced at trial that the defendant, John Forrest Parker, and his friend, Kenneth Eugene Smith, on the morning of March 18, 1988, went to the home of Elizabeth Dorlene Sennett in rural Colbert County, Alabama, with the intent to kill said Elizabeth Dorlene Sennett.... [T]hat the day before, Billy Gray Williams had paid the defendant the sum of One Hundred and No/100 ($100.00) Dollars to use for purchasing a weapon to be used in said murder, but that the defendant used that money for drugs to `shoot up.' ... [T]hat the defendant was promised $1,000.00 for the killing by ... Williams, and that he would be paid the balance when the job was done.... [T]hat ... Smith and the defendant ... drove to the residence of Elizabeth Dorlene Sennett in the defendant's vehicle.... [T]hat the defendant shot up 3 cc's of Talwin on the way to said residence.... [T]hat the defendant had been unsuccessful in securing a gun for `the job' and that he brought with him a survival knife.... [T]hat the defendant drove his vehicle to Elizabeth Sennett's home and that ... Smith sharpened the defendant's knife all the way down there.... [T]hat they parked the defendant's car in the rear of the Sennett home.... [T]hat the defendant and Mr. Smith asked Elizabeth Sennett for permission to use the bathroom, which she gave them. While in the bathroom, the defendant put cotton socks on his hands.... [T]hat when he came out of the bathroom the defendant jumped Elizabeth Dorlene Sennett and started hitting her and together he and Kenneth Eugene Smith killed her by hitting her with a galvanized pipe, holding her down with a small blue chair and stabbing her while she was asking them not to hurt her.... [T]hat the defendant and ... Smith took a VCR and a stereo to make it look like a burglary, which was in accordance with their plan, and that they also broke the glass in the medicine cabinet to further this plan.... [T]hat the defendant and ... Smith threw away the survival knife they had used for the killing, and that the defendant threw the stereo off a bridge and burned his clothes after the killing. The Court further finds that the defendant was paid the additional $900.00 after the killing." R. 2152-53. Specifically, the prosecution presented evidence that on March 17, 1988, the day before the murder, Charles Sennett cashed a check for $3,000. Teddy Lynn White testified that some relatively short period 1097 of time before the murder the appellant told him that somebody had hired him and Smith to kill somebody for some money. In his confession, the appellant admitted that Mr. Sennett had hired him to kill Mrs. Sennett for $1,000. In White v. State, 546 So. 2d 1014, 1016-17 (Ala.Cr.App.), this Court summarized the legal principles involved in the appellate review of the sufficiency of circumstantial evidence. Applying those principles to the facts of this case, we find that the evidence was clearly sufficient to support the appellant's conviction. The evidence supports the finding that the appellant "did intentionally cause the death of Elizabeth Dorlene Sennett, by beating her and stabbing her with a knife, for a pecuniary or other valuable consideration, to wit: $1,000.00, in violation of 13A-5-40(a)(7) of the Code of Alabama" as charged in the indictment. "To prove the corpus delicti it is not necessary to prove that the victim's death was occasioned by the criminal agency of the defendant.... Once there is independent evidence of the corpus delicti, a confession is not required to be corroborated.... The confession of accused, alone, may be sufficient to show his connection with the homicide if the corpus delicti is established by other evidence." Johnson v. State, 378 So. 2d 1164, 1170 (Ala.Cr.App.), cert. quashed, 378 So. 2d 1173 (Ala.1979) (citations omitted). However, in this case we note that there exists independent evidence of the corpus delicti of the charged offense and the appellant's confession was corroborated by other evidence. The appellant's conviction does not rest on his own uncorroborated confession. XXII. The appellant argues that the trial judge should have granted his motion to recuse because that judge, in sentencing Billy Gray Williams to life imprisonment without parole, had determined that Williams had hired the appellant and Smith to murder Mrs. Sennett, that the appellant and Smith had actually murdered Mrs. Sennett, and that the appellant and Smith had been paid for the contract killing. The appellant argues that the trial judge was biased and prejudiced and had prejudged his case because she had been the judge in the trial of the appellant's alleged accomplice Williams, who was tried and convicted prior to the appellant's trial. We hold that the trial judge who presided over the appellant's trial for capital murder was not disqualified because that same judge had previously presided over the trial of the appellant's alleged accomplice in the commission of the same murder for hire. "To disqualify a judge for bias, the bias must be shown to be personal." Ex parte Whisenhant, 555 So. 2d 235, 238 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 3230, 110 L. Ed. 2d 676 (1990). "[T]he fact that the trial judge had presided over the defendant's previous two sentencing trials was not grounds for disqualification. A trial judge need not recuse himself solely on the ground that he was the `same trial judge who had heard the case and imposed the death penalty' in a defendant's prior trial. Ex parte Whisenhant, 482 So. 2d 1241, 1245 (Ala.1983)." Whisenhant, 555 So.2d at 238. "Ordinarily, a judge's rulings in the same or a related case may not serve as the basis for a recusal motion. Jaffe v. Grant, 793 F.2d 1182, 1189 (11th Cir. 1986), cert. denied, 480 U.S. 931, 107 S. Ct. 1566, 94 L. Ed. 2d 759 (1987). The judge's bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case. Id. at 1188-1189. An exception to this general rule occurs when the movant demonstrates `pervasive bias and prejudice.' Id. at 1189 (quoting United States v. Phillips, 664 F.2d 971, 1002-03 (5th Cir., Unit B (1981), cert. denied, 457 U.S. 1136, 102 S. Ct. 2965, 73 L. Ed. 2d 1354 (1982)." McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.1990). In this case, the appellant has made no showing of pervasive bias and prejudice and this Court has found no indication that such was present. Our independent review of the 1098 record convinces this court that the trial judge was fair and impartial. XXIII. The appellant contends that the trial judge's rejection of the jury's recommendation of life imprisonment without parole and her imposition of the death penalty was unconstitutional and resulted in the arbitrary and standardless imposition of the sentence of death. The appellant's argument that the jury override provision of the Alabama statutory sentencing scheme, Ala.Code 1975, 13A-5-47(e), is unconstitutional is without merit. Spaziano v. Florida, 468 U.S. 447, 464-65, 104 S. Ct. 3154, 3164-65, 82 L. Ed. 2d 340 (1984). Frazier v. State, 562 So. 2d 543, 550 (Ala.Cr.App.), reversed on other grounds, 562 So. 2d 560 (Ala.1989), and cases cited therein. Tedder v. State, 322 So. 2d 908, 910 (Fla.1975), requires that in order for a trial judge to reject a jury's recommendation of life without parole, "the facts suggesting a sentence of death [must be] so clear and convincing that virtually no reasonable person could differ." The "Tedder standard" is not constitutionally required. Johnson v. Dugger, 911 F.2d at 452;[2]Ex parte Jones, 456 So. 2d 380, 382 (Ala.1984), cert. denied, 470 U.S. 1062, 105 S. Ct. 1779, 84 L. Ed. 2d 838 (1985). The appellant has advanced no reason or argument to convince this court otherwise. XXIV. Error is found in the sentencing proceedings. The trial judge properly found the existence of the aggravating circumstance that "[t]he capital offense was committed for pecuniary gain." Ala.Code 1975, 13A-5-49(6). The trial judge found that "none of the other aggravating circumstances set out in Section 13A-5-49 of the Code of Alabama, as amended, were proven to exist in this case." R-2153. However, the trial judge failed to "enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in section 13A-5-49," as required by Ala.Code 1975, 13A-5-47(d) (emphasis added). The trial judge found the existence of only one statutory mitigating circumstance: "The court finds one mitigating circumstance in this cause to be the age of the defendant at the time of the commission of the crime, to-wit: 19 years." R.2154. 13A-5-51(7). The trial judge improperly rejected the mitigating circumstance of 13A-5-51(1) that "[t]he defendant has no significant history of prior criminal activity": "The Court further finds that although the defendant does not have a criminal record, he does have a history of criminal activity. The Court finds that the defendant illegally possessed and used illegal drugs and had done so for many years. His mother testified that he had stolen gas from one of his employers at one particular time. His illegal drug use is a significant factor in this defendant's behavior. In fact the defendant was on Talwin when this murder was committed." R. 2154. This was an improper reason for the rejection of this mitigating circumstance. In Cook v. State, 369 So. 2d 1251, 1257 (Ala.1978), "the Alabama Supreme Court held that only convictions can be used to negate the statutory mitigating circumstance of no significant history of prior criminal activity." Hallford v. State, 548 So. 2d 526, 544 (Ala.Cr.App.1988), affirmed, 548 So. 2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342 (1989). The attorney general confesses error in this matter but argues that the error was harmless. Appellee's brief at 143-51. Because the sentencing order of the trial judge contains other errors, we decline to reweigh the proper mitigating and aggravating circumstances or apply a harmless error analysis to this case as we did in Lawhorn v. State, 581 So. 2d 1159 (Ala.Cr. App.1990), affirmed, 581 So. 2d 1179 (Ala. 1991). See also Parker v. Dugger, ___ U.S. ___, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991). 1099 The trial judge rejected the mitigating circumstance of 13A-5-51(6) that "[t]he capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired": "The Court further finds that although evidence was produced by defendant at the sentencing hearing before the jury by Dr. James Crowder, clinical psychologist, that Talwin would have impaired the defendant's judgment, the Court also had evidence before it regarding the defendant's actual actions during and after the murder of Mrs. Sennett which demonstrate that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired. The defendant's actions in placing cotton socks over his hands prior to the killing, his action in throwing away the murder weapon after the killing, his attempting to make it look like a burglary which had `gone bad,' his throwing away the stereo and burning of his clothes is all evidence that the defendant at the time in question appreciated that his conduct was criminal, and that he might be apprehended, and for that reason did what he could to avoid apprehension." R. 2154-55. The rejection of this mitigating circumstance was proper and the findings of the trial judge are supported by the evidence. "[V]oluntary intoxication will not constitute grounds for the mitigating circumstance in this cause." Thompson v. State, 503 So. 2d 871, 881 (Ala.Cr.App.1986), affirmed, 503 So. 2d 887 (Ala.), cert. denied, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155 (1987), followed in Kuenzel v. State, 577 So.2d at 522. The trial judge found the existence of two nonstatutory mitigating circumstances. "[1] The Court does find that the jury's recommendation is a mitigating factor, and the Court has considered said mitigating factor at this sentence hearing. The jury was allowed to hear an emotional appeal from the defendant's mother. Although the defendant's mother attempted to blame the defendant's drug addiction on the medication the defendant had taken as a child for his condition diagnosed as `hyperactivity,' there was no proof that such was the case. Dr. James Crowder testified that a child taking ritalin as prescribed for treatment for hyperactivity would have no withdrawal symptoms from said drug when such drug was discontinued. The Court does not find that the defendant's problems during his childhood is a mitigating factor. He was appropriately treated for said condition according to the testimony of Dr. Crowder. "Furthermore evidence was presented to the jury that the husband of the victim was the instigator of the killing of his wife, but the fact that the victim's husband conspired with the defendant to kill his wife does not make this defendant any less culpable, and is not a mitigating factor. "[2] The court does find that the defendant's remorse is a mitigating factor." R. 2155. The trial judge then weighed the aggravating and mitigating circumstances: "The Court having considered the aggravating circumstance as it was proven, that the murder was done for pecuniary gain and the following mitigating circumstances, namely: the defendant's age and his remorse and the Court having considered as a mitigating factor that the jury recommended a sentence of life without parole, the Court finds that the aggravating circumstance outweigh[s] the mitigating circumstances outlined above and the mitigating factor that the jury recommended a sentence of life without parole. The Court does find that there is a reasonable basis for enhancing the jury's recommendation of sentence for the reasons stated above, that the jury was allowed to consider the defendant's mother's emotional appeal regarding his childhood problems and her opinion regarding the cause of the defendant's illegal drug use and abuse. The Court also finds that the defendant at the time before, during and after the 1100 killing did appreciate the criminality of his conduct and in fact sought to avoid apprehension, and that the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was not substantially impaired. "Therefore, on this the 21st day of June, 1989 with the defendant, John Forrest Parker, being present, and having been convicted by a jury of capital murder and the Court having weighed the aggravating circumstance against the mitigating circumstances and factors and the Court having found that the aggravating circumstance outweigh[s] the mitigating circumstances and factors, "It is therefore, ORDERED, ADJUDGED AND DECREED BY THE COURT, and it is the judgment of this Court and its sentence of law that the defendant, John Forrest Parker, suffer death by electrocution." R. 2155-2156. Nowhere in the sentencing order did the trial judge "enter specific written findings concerning the existence or nonexistence of ... each mitigating circumstance enumerated in section 13A-5-51," as required by Ala.Code 1975, 13A-5-47(d) (emphasis added). For that reason, this Court declines, at this time, to address the appellant's argument that the trial court erred in not finding the existence of the statutory mitigating circumstance that the appellant "was an accomplice in the capital offense committed by another person and his participation was relatively minor," 13A-5-51(4). Because the trial court found the nonexistence of one mitigating factor, this Court also declines, at this time, to address the appellant's argument that the trial judge erred in finding that the aggravating circumstance outweighed the mitigating circumstances. In addition to the reasons set out in Part I of this opinion, this cause is also remanded with instructions that the trial judge 1) make new findings regarding the aggravating and mitigating circumstances, 2) weigh those aggravating and mitigating circumstances and determine whether the aggravating circumstances outweigh the mitigating circumstances, and 3) enter a proper sentencing order as required by Ala.Code 1975, 13A-5-47(d). The trial judge is granted the authority to resentence the appellant in the event she determines that death is not a proper sentence. A return shall be made to this court within 90 days from the date of this opinion. XXV. The trial judge did not violate the principles of Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), and did not minimize the jury's role and responsibility in sentencing by repeatedly using the term "recommended sentence" or "recommendation" in her oral charge to the jury at the sentence phase of the trial. Kuenzel, supra. See Martin v. State, 548 So. 2d 488, 494 (Ala.Cr.App.1988), affirmed, 548 So. 2d 496 (Ala.), cert. denied, 493 U.S. 970, 110 S. Ct. 419, 107 L. Ed. 2d 383 (1989). XXVI. Because one of the appellant's two court-appointed attorneys had five years of prior criminal law experience, the appellant's claim that he is entitled to a new trial on the ground that the requirements of Ala.Code 1975, 13A-5-54, were not met is without merit. See Jacobs v. State, 371 So. 2d 429, 447 (Ala.Cr.App.1977), reversed on other grounds, 371 So. 2d 448 (Ala.1979). The trial judge entered written findings of facts and conclusions of law on this issue. Those findings are supported by the record. Prior to trial, one of the appellant's two appointed counsel, H. Thomas Heflin, Jr., filed, in district court, a "motion for reconsideration of appointment" in which he alleged that "in his opinion he has not had five years prior experience in active practice of criminal law." R. 1938. The district judge ruled that this motion would "follow" the case to circuit court for "further consideration." R. 1948. That motion was denied on April 12, 1988. R. 1964. After conviction and sentence, defense counsel filed a second "motion for reconsideration of appointment," which was denied 1101 on October 26, 1989. Supplemental Transcript at 92. Defense counsel challenged the trial judge's ruling by filing a petition for writ of mandamus in the Court of Criminal Appeals. This Court remanded the cause to the trial judge for an evidentiary hearing and a determination of whether counsel was qualified under Ala.Code 1975, 13A-5-54. That section provides: "Each person indicted for an offense punishable under the provisions of this article who is not able to afford legal counsel must be provided with court appointed counsel having no less than five years' prior experience in the active practice of criminal law." On remand, an evidentiary hearing was held. The trial judge entered lengthy and detailed findings of facts and concluded that Heflin was qualified to represent the appellant. We summarize portions of those findings as follows: Heflin was licensed to practice law in the State of Alabama on September 27, 1979. He clerked for a federal district court judge from August 1979 to August 1980. He practiced law with a law firm in London, England, from September 1980 until April 1981. Immediately after that he entered the general practice of law as an associate with a law firm of Rosser and Munsey in Tuscumbia, Alabama. He remained with that firm until December 1985. During that time he handled four felony cases (three appointed and one retained) involving burglary in the third degree, receiving stolen property in the second degree and theft of property in the first degree, theft in the second degree, and murder. Heflin tried the murder case by himself and preserved error. The conviction was appealed by other counsel and was reversed by the Alabama Supreme Court. See McCormack v. State, 431 So. 2d 1336 (Ala.Cr.App.1982) (Bowen, J., dissenting), reversed, 431 So. 2d 1340 (Ala.1983). While an associate with Rosser and Munsey, Heflin also handled four misdemeanor cases involving harassment, possession of marijuana, and resisting arrest. Documents show that he also handled a misdemeanor charge of assault in the third degree and two felony charges of leaving the scene of an accident. He also handled at least five traffic cases involving speeding, driving on the wrong side of the road (a misdemeanor), and driving under the influence (a misdemeanor). After leaving the Tuscumbia law firm, Heflin engaged in a civil litigation practice from January 1986 until October 1987 with the firm of Hare, Wynn, Newell, and Newton in Birmingham, Alabama. During that time, Heflin was not involved in any criminal litigation. In October 1987, Heflin returned to Tuscumbia and became a partner in the law firm of Rosser and Munsey. He handled one DUI case before April 1988 when he was appointed to represent the appellant. Since that appointment, Heflin handled five criminal cases involving DUI and other misdemeanors. The trial judge then made the following findings: "The Court further finds from the evidence that the law firm of Rosser & Munsey, with whom Mr. Heflin was associated from 1981 through the year 1985 was involved in an active criminal litigation practice. Further, Mr. Heflin's present partners, Michael Ford and Stanley Munsey, both have represented criminal defendants in capital cases prior to attorney Heflin's appointment in the present case, and that Mr. Munsey actually assisted Mr. Heflin in the representation of the defendant in this case. "Mr. Heflin also testified that he is an active trial lawyer, and has tried at least twenty-five to thirty cases before a jury. Although Mr. Heflin testified that he did not consider himself competent at the time of the appointment in April of 1988 he was aware of the requirements of the Code of Professional Responsibility (Canon 6, EC6-1) that the attorney should accept employment in matters which he is or intends to become competent to handle and should use all reasonable effort to acquire the necessary competency prior to the time of trial. The Court finds that Mr. Heflin felt the same way prior to accepting the appointment in the 1102 McCormack murder case which was tried in 1982, and that Mr. Heflin, again consistent with the Code of Professional Responsibility did become competent to try that case at the time of trial. The State's Exhibit No. 8 certainly reflects that Mr. Heflin was familiar with motions and pleading practice in criminal cases at the time he accepted the appointment in 1988, and Mr. Heflin's fee petition certainly is an indication that Mr. Heflin spent an appropriate amount of time on research and motion and pleading practice in the instant case and fulfilled his duty to his client. "The Court further finds that the Honorable Gene M. Hamby, co-counsel for appellant in the instant case, was admitted to the practice of law in the State of Alabama, in 1968.... "The Court further finds that since his admission to the practice of law in the State of Alabama, Mr. Hamby has been engaged in litigation practice and has actually tried 100 cases or more. "Mr. Hamby was involved in criminal litigation in 1969 when he was appointed to a felony case where the charge involved Receiving and Concealing Stolen Property. He has handled a felony drug charge for a regular client in 1971, and may have been involved in one or two other felony cases in the early 70's. Mr. Hamby testified that he has represented regular clients in misdemeanor and traffic cases from 1968 to 1988, but they have been limited to approximately 10-15 cases. Mr. Hamby testified that in his opinion he was not competent to represent the appellant, when he was appointed on April 5, 1988. His opinion is based on his definition of competency which involved three basic criteria: namely (1) general trial ability on the part of the attorney; (2) familiarity with recent case law in the field of criminal law; and (3) familiarity with procedural law in the field of criminal law. Mr. Hamby testified that he felt qualified with respect to the first criteria but felt that the fact that he had not actively kept up with criminal cases and procedural law rendered him incompetent with respect to the two additional criteria. "Mr. Hamby testified that he was familiar with Code of Professional Responsibility and the requirement that he equip himself and becomes competent to handle a case prior to trying it. "The Court further finds that since the appointment in the instant case Mr. Hamby has accepted another appointment in a criminal case. "Mr. Hamby testified that he has been engaged in civil practice of almost any kind. He has never handled a capital case other than the instant. Mr. Hamby also testified that with respect to other criminal cases he has handled during his twenty years of practice he has had to qualify and prepare himself both with respect to issues of substantive criminal law and issues of procedural criminal law. "The Court further finds that while Mr. Hamby was associated with the law firm of Heflin & Rosser in Colbert County, Alabama, he was involved in doing legal research for his partners in criminal cases; he was involved in brief preparation and appellate work. Mr. Hamby testified that the then attorney Heflin, who later became Chief Justice of the Alabama Supreme Court and later United States Senator and attorney Rosser, were individuals knowledgeable in the field of criminal law, that they had an active criminal practice, and that they could and did guide him when he was associated with them. "Mr. Hamby also testified that during a period of time much greater than five years he has handled criminal matters. "The Court further finds from the testimony of Mr. Hamby that there were no attorneys in Colbert County, Alabama, who are considered "Criminal Law Specialist[s]" at the time of Mr. Hamby's and Mr. Heflin's appointment to represent the appellant, nor are there any at the present time. "Mr. Hamby also testified that he would undertake to represent a defendant in a criminal case if he could either 1103 settle it or else associate a lawyer with more criminal law experience than he. "Doug Evans, Assistant District Attorney in Lauderdale County, Alabama, testified that based on his professional interaction with Mr. Heflin, Mr. Heflin had demonstrated knowledge and confidence in the field of criminal law. "Mrs. Carrie King, Deputy Clerk for the Circuit Court, Criminal Division, Colbert County, Alabama, testified that she is familiar with Mr. Heflin and that he regularly has filed pleadings and other documents in criminal cases. ".... "CONCLUSION[S] OF LAW "Section 13A-5-54 of the Code of Alabama, 1975 as amended provides that a defendant in a capital case who is not able to afford legal counsel must be provided with 1 Court appointed counsel having no less than five years' prior experience in the active practice of criminal law. The defendant in the instant case was provided with two attorneys to represent him in the instant case. Using the criteria set forth in Jacobs v. State, 371 So. 2d 429, (1978) as interpreting Section 13A-5-54, the Court concludes that Mr. H. Thomas Heflin, Jr. had no less than five years' prior experience in the active practice of criminal law pursuant to said code provision when he was appointed to represent the appellant, John Forrest Parker. The evidence shows that said attorney has been involved in a variety of criminal litigation, has tried a murder case to completion in which he was the sole attorney for the defendant, prior to being appointed in the instant case, and has exhibited that he is thoroughly familiar with pleading practice, procedure and case law in criminal cases at the time he accepted the appointment in the instant case. The Court concludes that Mr. Heflin is qualified under Section 13A-5-54. "In addition to being afforded legal counsel who is qualified under Section 13A-5-54, the defendant was provided with an additional counsel, who had practiced law in Colbert County, Alabama, for twenty years. Although the Court concludes from the criteria set out in Jacobs v. State, supra that Mr. Hamby had not been involved in the practice of criminal law as provided by Section 13A-5-54, the evidence revealed that he was an experienced trial lawyer. Mr. Hamby himself testified that he felt competent to undertake representation in criminal cases of defendants if he either could settle the matter, or associate another attorney with a broader experience in criminal law. In the instant case Mr. Hamby, a competent trial lawyer, was associated with an attorney who was more experienced in the active practice of criminal law, namely, Mr. Heflin, and thus Mr. Hamby was competent pursuant to his own testimony. "It is the conclusion of this Court that the appellant, John Forrest Parker, was provided with one attorney, Mr. Heflin, who is qualified under Section 13A-5-54. Additionally, to further insure that the defendant was furnished competent representation in this matter, the court appointed an able trial lawyer to assist Mr. Heflin in the defense of the defendant. Thus the Court concludes that the requirements pursuant to the Code of Alabama, Section 13A-5-54 are met." Supplemental Record at 97-103 (emphasis in original). We find that the appellant had the counsel to which he was entitled under Ala.Code 1975, 13A-5-54. This cause is remanded for the reasons set forth in Parts I and XXIV of this opinion. REMANDED WITH DIRECTIONS. All Judges concur. NOTES [] Reporter of Decision's Note: The June 14, 1991, opinion in Bird was withdrawn and a new decision issued on December 6, 1991. [1] The panel decision in this case was subsequently vacated, Johnson v. Dugger, 920 F.2d 721 (11th Cir.1990), and reheard en banc, Johnson v. Singletary, 938 F.2d 1166 (11th Cir.1991). It appears that the panel decision on this point was not disturbed by the opinion en banc. 938 F.2d at 1186. [2] See n. 1, supra.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1725797/	275 N.W.2d 605 (1979) 202 Neb. 379 STATE of Nebraska, Appellee, v. James S. HEGWOOD, Appellant. No. 42028. Supreme Court of Nebraska. February 20, 1979. 606 Thomas M. Kenney, Douglas County Public Defender, Stanley A. Krieger, Daniel K. Powers, Asst. Public Defenders, Omaha, for appellant. Paul L. Douglas, Atty. Gen., Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee. Heard before KRIVOSHA, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ. WHITE, Justice. This is an appeal from a conviction for the offense of robbery. The defendant was sentenced to a term of from 6 to 10 years in the Nebraska Penal and Correctional Complex. The defendant appeals. The defendant alleges the trial court committed reversible error in failing to instruct the jury on the lesser-included offense of larceny from the person and/or petit larceny. We reverse and remand for a new trial. The state's version of the case is that on November 2, 1977, defendant and another individual came to the victim's home. The defendant, who is a neighbor of the victim, allegedly wished to repay him $2 that the victim had lent the defendant earlier. When the victim opened his door, the defendant grabbed him around the neck and forced him back into the house, throwing him on the floor. The defendant and the other individual made him lay against a wall and proceeded to remove some items and money from his home. The victim identified the defendant and heard his voice during the robbery. The defendant's version, given in his testimony, was that he indeed went to the home with his friend to pay back the $2. When the victim opened the door, the defendant was suddenly pushed into the house and blindfolded, presumably by his friend. He stated that somehow he became aware of the presence of a third individual he was able to identify only by the name of John. The defendant denied he went to the home with the intention of robbing the victim or that he was aware of any intention on behalf of his friend and the third party John to rob the victim. He stated that after he had ascertained that the friend and John had left the victim's home, he removed the blindfold, observed the victim on the floor, and saw a shotgun in the corner belonging to the victim and left the home with the shotgun. He was seen by a neighbor and apprehended by the police. 607 The following proceedings took place at trial in chambers. "THE COURT: Just let the record show that we're having a conference on the proposed instructions, and the State has no objections or any requests or any additions or any deletions. And I think Mr. Powers (defense counsel) has several requests in regard to the instructions. "MR. POWERS: Yes, I would request that an instruction be given on 28-505, that is, larceny from a person and/or, in the alternative, an instruction be given on petit larceny. "THE COURT: The court's going to deny both requests, and I want the record to show what my reasoning is. The evidence is clear from this case that a robbery took place, and that's taking all the testimony both from the State and the defendant himself; that the money or property was taken from the victim; and that force was used in the taking of the property. "The request comes on the basis of the defendant's testimony that he was not a part of that act; and then, after the crime had been completed, that he was in a separate room, that he was blindfolded and had no part in that crime; that he, as an afterthought after that transaction was completed, took a shotgun. There was no evidence in the record as to the value of the shotgun, since the charge by the State was that of robbery and not larceny from a person or petit larceny or grand larceny; that if these facts were known to the Stateand there's nothing in the record to show that these facts were ever knownperhaps a separate crime of larceny from the person or grand larceny or petit larceny could have been filed. "It's the Court's position that the defendant is either guilty or not guilty of the charge of robbery; and that his admission of taking the shotgun constitutes a separate crime, which is not a lesser-included crime; and the giving of extra instructions would only tend to confuse the jury as to his guilt or innocence of the robbery. Anything further?" The State concedes that our recent case of State v. Tamburano, 201 Neb. 703, 271 N.W.2d 472, controls here. We said in that case, quoting the Minnesota Supreme Court: "`The test which must be applied in determining whether or not to submit a lesser-included offense is whether there is evidence which produces a rational basis for a verdict acquitting defendant of the offense charged and convicting him of the lesser offense.'" Under that test, refusal of the instruction requested here was clearly erroneous. The State seeks to sustain this conviction on the basis of section 25-1111, R.R. S.1943, which states: " * * * and either party may request instructions to the jury on points of law, which shall be given or refused by the court. All instructions asked shall be in writing." The State cites State v. Bell, 194 Neb. 554, 233 N.W.2d 920, for the proposition that the refusal to give a requested instruction shall never constitute grounds for reversal unless the request had been submitted to the trial court in writing. The case does not so hold. In that case there was no request for an instruction at all. The State further cites State v. Maxwell, 193 Neb. 807, 229 N.W.2d 195, for the same proposition. The charge in that case was burglary. The defendant complained in this court of the failure of the trial court to give an instruction, requested orally, on the crime of receiving stolen property. This court affirmed for the reason that "Neither the information nor the evidence sustained such an instruction." There was no identification of the property taken in the burglary and the defendant denied he had received any stolen property. Unlike the case at bar, there was thus no factual basis on which the charge could have been submitted. Language in the opinion which might be understood to require that requests for instructions should, in every case, be submitted in writing was clearly dicta. This court, in a rule adopted at the time of the publication of Nebraska Pattern Jury Instructions, urged the trial judges of this state to hold instruction conferences at *608 which requests for instructions are made to the court. The trial court in this case knew exactly what defense counsel was requesting and denied the request on the trial court's understanding of the law. To have required, in addition to this presentation directly to the trial court, that the refused instruction be reduced to writing would be a meaningless triumph of form over substance. We do not so hold. The defendant made a proper request to the court for a lesser-included offense instruction. The instruction was warranted. The trial court refused to do so. This was error and requires reversal. REVERSED AND REMANDED FOR NEW TRIAL.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1913286/	981 A.2d 305 (2009) CENTRAL PENN v. DUNLOP. No. 2792 EDA 2008. Superior Court of Pennsylvania. June 24, 2009. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1266446/	248 Ga. 898 (1982) 287 S.E.2d 11 DICK v. THE STATE. 38103. Supreme Court of Georgia. Decided February 9, 1982. Thomas J. McHugh, for appellant. Jeff C. Wayne, District Attorney, Michael J. Bowers, Attorney General, for appellee. HILL, Presiding Justice. The defendant, Dennis Dick, was convicted in 1979 of the murder and armed robbery of O. C. (Red) Rider. His convictions and death sentence for murder and life sentence for armed robbery were affirmed by this court in Dick v. State, 246 Ga. 697 (273 SE2d 124) (1980), cert. denied 451 U. S. 976 (101 SC 2059, 68 LE2d 357). On September 17, 1981, the defendant filed an extraordinary motion for new trial based on newly discovered evidence. The motion recited in conclusory fashion that the evidence was material, not merely cumulative or impeaching in nature and had only been recently acquired, that there was no want of diligence in acquiring it sooner, and that it would probably produce a different result in the case. The motion itself did not state what the new evidence was. An affidavit from the defendant's attorney accompanied the motion. The affidavit stated that the attorney had agreed to represent the defendant on July 20, 1981, that on July 21, 1981, he was provided with a copy of a letter from Billy Webster, a co-conspirator, which "indicates" that the defendant had been "involuntarily drugged" on the night of the crimes, and that Webster had left the state and his whereabouts had only recently been discovered.[1] The copy of the letter from Webster was not attached to the affidavit. The trial court refused to issue a rule nisi and denied the motion without a hearing. The defendant appeals this summary denial and the only question for our determination is whether the defendant's pleadings (the motion and the affidavit) were sufficient to require the trial court to hold a hearing on the merits of the motion. 1. At the outset, we note that there is a distinction between a motion for new trial and an extraordinary motion for new trial. A 899 motion for new trial is one made "within 30 days of the entry of the judgment on the verdict, or entry of the judgment where the case was tried without a jury." Code Ann. § 70-301. An extraordinary motion for new trial is one made after the time for filing a motion for new trial has expired. See Code Ann. §§ 70-301, 70-303.[2] "Extraordinary motions for a new trial are not favored, and a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on that ground." Wallace v. State, 205 Ga. 751 (2) (55 SE2d 145) (1949). Accord, Music v. State, 244 Ga. 832, 833 (262 SE2d 128) (1979). Thus, although we have held that under our Code the trial court is required to hold a hearing on a motion for new trial, Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973); Foster v. State, 230 Ga. 870 (199 SE2d 790) (1973), we have also held that an extraordinary motion for new trial which fails to show any merit may be denied without the necessity of a hearing. Fulford v. State, 222 Ga. 846, 847 (152 SE2d 845) (1967); Harris v. Roan, 119 Ga. 379 (5) (46 SE 433) (1903); see also Sinkfield v. State, 232 Ga. 892 (209 SE2d 188) (1974). Rubenstein v. United States, 227 F2d 638 (10th Cir. 1955), cert. denied 350 U. S. 993, cited by the defendant for the proposition that it is error to refuse a hearing on a motion based on newly discovered evidence, dealt with a motion which alleged facts sufficient to state a claim for relief and, therefore, is inapposite. 2. There being no statutory requirements as to extraordinary motions for new trial (see fn.2), the procedural requirements for such motions are the product of case law. These procedural requirements have not been modified by the notice pleading provisions of the Civil Practice Act, Code Ann. § 31A-108, because the CPA is not applicable to criminal cases. See Jordan v. State, 247 Ga. 328, 331 (276 SE2d 224) (1981). Therefore, if the pleadings in an extraordinary motion for new trial in a criminal case do not contain a statement of facts sufficient to authorize that the motion be granted if the facts developed at the hearing warrant such relief, it is not error for the trial court to refuse to conduct a hearing on the extraordinary motion. The requirements for granting an extraordinary motion for new 900 trial are clear. "On [an extraordinary] motion for a new trial based on newly discovered evidence, it is incumbent on the movant to satisfy the court: (1) that the newly discovered evidence has come to his knowledge since the trial; (2) that want of due diligence was not the reason that the evidence was not acquired sooner; (3) that the evidence was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credit of a witness. Bell v. State, [227 Ga. 800, 805 (183 SE2d 357) (1971)]; Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980)." Tanner v. State, 247 Ga. 438, 443 (276 SE2d 627) (1981). "Implicit in these six requirements is that the newly discovered evidence must be admissible as evidence." Timberlake v. State, supra, 246 Ga. at 491. An extraordinary motion for new trial and its accompanying affidavits must set forth facts satisfying these requirements; conclusions of counsel will not suffice. The defendant's pleadings in this case do not show facts satisfying the first, second, third or fifth requirements, or the overriding requirement that the newly discovered evidence be admissible. We consider the first and second requirements together in this case. The attorney's affidavit states that he was provided with the Webster letter on July 21, 1981, the day after he agreed to represent the defendant. That affidavit does not contain a copy of the letter and does not set forth the date of the letter or the name of the addressee. So far as the motion and affidavit show on their face, the letter may have been known to the defendant or his previous counsel for a considerable period of time. More importantly, there is no affidavit from the defendant saying when he first learned he was "involuntarily drugged." A "mere assertion that the evidence could not have been discovered by ordinary diligence is insufficient." (Cits.) Timberlake v. State, supra, 246 Ga. at 492. The third requirement is not satisfied by conclusions of counsel. While voluntary intoxication is not an excuse for criminal acts, involuntary intoxication is a defense if the defendant did not have sufficient mental capacity to distinguish between right and wrong. Code § 26-704. The evidence showed that the defendant had been drinking on the night of the crimes (246 Ga. at 697-698). Defendant's defense at trial was prolonged voluntary drunkenness causing insanity (246 Ga. at 702-703). Yet his confession and testimony at trial showed that he recalled commission of the crimes. He has failed to show on this record how the alleged consumption of drugs without his knowledge affected his voluntary behavior or would probably produce a different verdict. 901 The defendant's attorney's statement by affidavit that "said Billy Webster has left the State of Georgia and that his whereabouts have only been learned on this date" does not satisfy the fifth requirement, an affidavit from Webster himself or its absence accounted for. Webster might now repudiate or disavow any "indications" contained in the letter that the defendant was "involuntarily drugged." Thus, in order to insure that there were sufficient grounds upon which to base an extraordinary motion for new trial which would not be merely frivolous, the motion should have set forth facts showing the prospects for obtaining Webster's statements under oath. Finally, the defendant's pleadings fail to show that the newly obtained evidence would be admissible as evidence if a new trial were to be granted. We repeat, Webster's letter was not included with the pleadings. Does it say that Webster slipped drugs into the defendant's drinks, or does it say that Hoerner told Webster that he (Hoerner) slipped drugs into the defendant's drinks? Thus, for all the trial judge knew the contents of the letter and any testimony from Webster would be inadmissible hearsay. "`It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court ...' as to each of the six requirements." (Cits.) Timberlake v. State, supra, 246 Ga. at 491, and the trial court's denial of the motion will not be reversed absent an abuse of discretion. E.g., Drake v. State, 248 Ga. 891 (1982); Music v. State, supra, 244 Ga. at 833; Brannon v. State, 190 Ga. 203, 205 (9 SE2d 152) (1940). In light of the defendant's failure to plead facts satisfying the six requirements, we cannot say that the trial court abused its discretion in refusing to conduct a hearing on the extraordinary motion for new trial. 3. Contrary to the defendant's contention, his due process and equal protection rights were not violated by the trial court's summary denial of his extraordinary motion for new trial when he failed to comply with the procedural requirements of state law. 4. In adhering, as we do today, to strict pleading requirements as to extraordinary motions for new trial, we are aware that this same matter may reappear on habeas corpus as an attack on the effectiveness of counsel, and that judicial economy might suggest that a hearing be required on all extraordinary motions for new trial. However, in order to prevail on habeas corpus it will be necessary to show that counsel was able to plead sufficient facts so as to prevail; i.e., it will be necessary to show that a new trial based on newly discovered evidence was warranted. Moreover, if we were to adopt a notice pleading approach to extraordinary motions with a hearing required in each instance, the penalty of death could be postponed 902 simply by a conclusory motion alleging newly discovered evidence filed at the last minute, thereby necessitating a hearing and postponement of the carrying out of the sentence. Therefore, strict pleading will continue to be required so that the judge to whom the motion is presented can readily ascertain whether a new trial based on newly discovered evidence is warranted or unwarranted. Judgment affirmed. All the Justices concur. NOTES [1] The evidence at defendant's trial showed that the defendant and Billy Webster and Christopher Hoerner committed the crimes. Hoerner was sentenced to life in a separate trial, Hoerner v. State, 246 Ga. 374 (271 SE2d 458) (1980), and Webster, who was also tried separately, was acquitted. Neither Webster nor Hoerner testified at this defendant's trial. [2] There is no affirmative statutory authority in Georgia for extraordinary motions for new trial. Instead, they are authorized indirectly by Code Ann. §§ 70-301 ("[a]ll applications for new trial, except in extraordinary cases, shall be made within 30 days....") and 70-303 ("[w]henever a motion for a new trial shall have been made at the term of trial in any criminal case and overruled, or when a motion for a new trial has not been made at such term, no motion for a new trial from the same verdict shall be made or received, unless the same is an extraordinary motion or case, and but one such extraordinary motion shall be made or allowed.")	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1413381/	257 S.C. 551 (1972) 186 S.E.2d 410 NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent-Appellant, v. J. Harold BAIR, Individually, and as Administrator of the Estate of Edward Byers Bair, et al., Appellants-Respondents. 19362 Supreme Court of South Carolina. January 20, 1972. 552 R. Bruce Shaw, Esq., of Nelson, Mullins, Grier & Scarborough, Columbia, for Respondent-Appellant. Messrs. Kearse, Kemp & Rhoad, of Bamberg, for Appellants-Respondents. 553 R. Bruce Shaw, Esq., of Nelson, Mullins, Grier & Scarborough, Columbia, for Respondent-Appellant, in Reply. January 20, 1972. BRAILSFORD, Justice. Nationwide Mutual Insurance Company brought this action for declaratory relief to determine the extent of its liability under the uninsured motorist and medical payments endorsements of a policy issued to J. Harold Bair. The policy was in force on July 6, 1968, when the policyholder's 1963 Chevrolet, one of two automobiles covered by the policy, was in collision with an automobile driven by an uninsured motorist, whose fault is stipulated. The defendants are the three surviving occupants of the Bair automobile, and the personal representatives of three other occupants who died in the accident. Nationwide, admitting liability to all the defendants under the uninsured motorist provisions of its policy, sought a declaration that its total liability cannot exceed $20,000.00. The court below in granting that declaration rejected the defendants' contention that Nationwide's liability is forty thousand dollars since two cars were covered by the Bair policy. The defendants have appealed, claiming first that the result they seek is compelled by the applicable statutes. We affirm. Section 46-750.32, Code of 1962, as amended, forbids the issuance of a policy of automobile liability insurance "unless 554 it contains a provision insuring ... against loss from ... liability ..., subject to limits exclusive of interest and costs, with respect to each motor vehicle, as follows: ten thousand dollars because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, twenty thousand dollars because of bodily injury to or death of two or more persons in any one accident ...." Section 46-750.33 requires such policies to contain a further provision "undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of any uninsured motor vehicle, within limits which shall be no less than the requirements of § 46-750.32 [as amended from time to time]." Plainly, the floor set by Section 46-750.33 for uninsured motorist protection against bodily injury or death is the same as that established by Section 46-750.32 for liability coverage. The defendants have not suggested that cumulation, or "stacking," of policy limits[] is required by statute where liability coverage is concerned. They nevertheless urge that cumulation of limits for the uninsured motorist endorsement is required. Their principal reliance is upon the phrase which we have italicized in the foregoing quotation from Section 46-750.32. We think it clear that this phrase, "with respect to each motor vehicle," as used in Section 46-750.32, plays no part in fixing the minimum dollar limits required of liability coverage. Rather, it relates to the scope of the policy, assuring its application to any one of the listed vehicles which becomes involved in an accident, regardless of what liability may already have accrued to the insurer by reason of other accidents involving other vehicles insured by the policy. See the cases collected at 37 A.L.R. (3d) 1263 (1971), several of which attribute this import to policy language analogous to the statutory phrase in question. The placement of this phrase behind the word "limits" in 555 the statute is only a happenstance; it could be transposed elsewhere with no change in meaning. Since the phrase does not relate to the limits required of liability coverage by Section 46-750.32, it can bear no relation to those limits as incorporated by the uninsured motorist section. Defendants further argue that the statutory scheme governing distribution of the Uninsured Motorists Fund to insurers shows a legislative intent to require cumulated limits within a policy. Section 46-138.4(2), as amended, directs the Chief Insurance Commissioner to distribute the fund in proportion to the "exposure to loss" faced by insurers by reason of uninsured motorist coverage. It is stipulated that such distribution is made by the Commissioner in simple proportion to the total number of vehicles insured under the policies of a given company. We fail to see how the election to disperse the fund on this basis bespeaks an administrative interpretation that cumulated limits are the rule. On the contrary, distribution of the fund without regard to the number of vehicles covered under a particular policy, as is now done, seems more consistent with an administrative view that uninsured motorist coverage is not multiplied by the number of vehicles included under a single policy. Nor does the present method of distribution have the effect of compensating the insurer as if policy limits were cumulated, as the defendants contend. We hold that Section 46-750.33 does not require uninsured motorist endorsement limits to be multiplied by the number of vehicles insured under the policy of which the endorsement forms a part. We find no merit in the defendants' additional argument that the terms of the policy are ambiguous as to whether cumulation of limits was intended. In addition to the uninsured motorist question, Nationwide sought adjudication of the extent of its liability under the medical payments endorsement of the Bair policy. This portion of the contract consists of "Endorsement 534," 556 pages 10 and 11 of the policy, with the pertinent portion of the "Century Policy Declarations" sheet. By Endorsement 534, the company promises to pay medical expenses under a variety of circumstances. The promise applicable to the facts of this case is to pay the expenses of "each person whose bodily injury or death was accidentally sustained while in ... the described automobile ..." Five conditions are attached to the promise, the fifth of which reads: "The amount payable under this endorsement to or for the benefit of any one person and arising out of any one accident shall not exceed the amounts set forth in the Century Policy Declarations." The declarations sheet, at the front of the policy, lists the 1963 Chevrolet as Automobile Number 1 and a 1952 Chevrolet as Automobile Number 2. The various coverages provided, the limits of each and the premiums charged therefor are listed separately for each automobile. Both cars are shown to be covered by Endorsement 534, Automobile Medical Payments, with limit of liability for each person $500.00, at a premium of $2.30 for each car. It is undisputed that all six occupants of the Bair automobile were insureds under the terms of the endorsement, and that the medical expenses of each exceeded $1,000.00. On these facts the court below concluded that Nationwide's liability under the medical payments endorsement was $1,000.00 to each of the four occupants who were members of the policyholder's household, and $500.00 to each of the other two occupants. The one-thousand-dollar figure was obtained by cumulating the limits of coverage provided for each of the two automobiles described in the declarations sheet. Nationwide has appealed from that portion of the judgment declaring it liable in excess of $500.00 per person. We reverse. The applicable section of the medical payments endorsement insures those who sustain injury while occupying the described automobile. None of the other coverages afforded by the endorsement fit these facts. 557 The accident involved the 1963 Chevrolet, called in the declarations sheet "Automobile Number 1." The 1952 Chevrolet is also a "described automobile" under the medical payments endorsement but no "bodily injury or death was accidentally sustained while in or upon, entering or alighting from" this automobile. Therefore, the medical payments provisions of the policy as to "Automobile Number 2" are irrelevant to these claims. The defendants claim to find ambiguity in the fifth condition of coverage, which limits the insurer's liability to "the amounts set forth" in the declarations. We think it certain that "the amounts" referred to do not include entries found under declarations not pertinent to the insurer's obligation under the facts. The declarations relating to Automobile Number 2 have no connection with "the described automobile" in which the injuries were sustained for which the insurer's obligation to pay arose. The amounts available to occupants of Automobile Number 2, should they suffer medical expense by reason of injury sustained therein, are no more germane to the limits of the insurer's obligation under the present facts than are "the amounts" found in the liability section of the declarations, or in the uninsured motorist endorsement. We recognize that stacking of medical payments limits has been approved in a number of decisions. However, the controlling policy provisions in those cases, apparently without exception, differed crucially from those now before us. The cases are collected at 21 A.L.R. (3d) 900 (1968). See also the careful analysis of these cases according to policy language found in Wachovia Bank & Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 172 S.E. (2d) 518 (1970). We do not disapprove cases reaching a different conclusion under different policy provisions, but limit our holding to the terms of the contract now before us and the facts of this case. Under the policy's plain and unambiguous provisions, the insurer's medical payments obligation is limited to $500.00 per person. 558 Affirmed in part; reversed in part. MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur. NOTES [*] I.e., multiplying the face limits of a policy by the number of vehicles insured thereunder to arrive at a higher limit of recovery.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1833542/	824 So. 2d 747 (2002) ROYAL INSURANCE COMPANY OF AMERICA, as subrogee of R.E. Grills Construction Co., Inc. v. WHITAKER CONTRACTING CORP. 1000944. Supreme Court of Alabama. January 11, 2002. 748 Richard W. Lewis and Joseph E.B. Stewart of Austill, Lewis & Simms, P.C., Birmingham, for plaintiff. F. Lane Finch, Jr., and Ryan M. Aday of Haskell, Slaughter, Young & Rediker, L.L.C., Birmingham, for defendant. STUART, Justice. The United States Court of Appeals for the Eleventh Circuit has certified the following question to this Court: "Must an indemnity agreement specifically state that an indemnitor will indemnify the indemnitee for a nondelegable duty to which the indemnitee is subject under state law to require indemnification for the failure to execute such nondelegable duty, which results in the underlying cause of action for which indemnification is sought?" We answer this question in the negative. Background In November 1993, R.E. Grills Construction Co., Inc. ("Grills"), a general contractor, entered into a contract with the State of Alabama; pursuant to that contract Grills was to widen, grade, provide drainage, and pave approximately a six-mile stretch of Alabama Highway 75 in Blount County. The contract incorporated designated portions of the Alabama Highway Department Standard Specifications for Highway Construction (1992 ed.) ("the standard specifications"). The standard specifications required Grills, as the general contractor, to "assume full responsibility for the continuous and expeditious maintenance of all construction warning signs, barricades and other traffic control devices"; they also provided that the general contractor "is not relieved of his responsibility to continuously review and maintain all traffic handling measures and insure himself that adequate provisions have been made for the safety of the public and workmen. Construction signs and other traffic control devices specified by plan details are considered the necessary requirements for satisfactory traffic control." Grills subsequently entered into a subcontract with Whitaker Contracting Corp. ("Whitaker"), pursuant to which Whitaker was to perform the paving of Highway 75 required by the contract between Grills and the State. Grills provided the form of the subcontract between Whitaker and Grills; that subcontract contained the following indemnity agreement: "The Subcontractor covenants to indemnify and save harmless and exonerate the Contractor and the Owner of and from all liability, claims and demands for bodily injury and property damage arising out of the Work undertaken by the Subcontractor, its employees, agents or its subcontractors, and arising out of any other operation no matter by whom performed for and on behalf of the Subcontractor, whether or not in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner." On April 11, 1996, automobiles being driven by Rhonda Chase and Vicky Hood Washburn collided at the intersection of Highway 75 and Blount County Road 1, on 749 that portion of Highway 75 that was the subject of the contract between Grills and the State and of the paving subcontract between Grills and Whitaker. Chase died as a result of the injuries she sustained in the collision. The administratrix of Chase's estate (hereinafter referred to as "Chase" or "Chase's estate") sued Whitaker, Washburn, and Washburn's insurance carrier in state court. During her deposition, Washburn, who was attempting to enter Highway 75 from County Road 1 when the accident occurred, testified that barricades, barrels, and equipment at the construction site obstructed her ability to see north onto Highway 75 and contributed to her pulling out in front of Chase's vehicle. After the deposition, Chase filed an amended complaint, adding various negligence claims against Grills. In those claims, Chase alleged, among other things, that Grills had breached its duty of ordinary care by failing to follow the traffic-control plan designed for the job site on Highway 75 and that Grills had failed to provide an adequate number of barricades, barrels, signs, and other safety devices at the job site to protect the public. During discovery in Chase's lawsuit, it was learned that the barrels and barricades that allegedly had obstructed Washburn's view were placed and maintained by Grills under the supervision of the Alabama Department of Transportation. It was also revealed during discovery that, before the date of the accident, those barrels and barricades had been set up 13 feet from the edge of Highway 75. However, at the time of the accident, they were within three to five feet of the edge of Highway 75. Although this three- to five-foot distance did not comply with the standard specifications, the parties learned during discovery that Grills's original placement of the barrels and barricades i.e., 13 feet from the highwaywas also not in compliance with the standard specifications or with the traffic-control plan specifically designed for the job site on Highway 75. Evidence was also presented in the form of deposition testimony by David Nooney, vice president of Grills, that, immediately upon learning of the accident, two employees of Grills placed additional barrels at the job site. Additionally, the parties do not dispute that Whitaker was performing paving work on Highway 75 near the intersection of Highway 75 and County Road 1 on the date of the accident. However, no evidence other than the fact that Whitaker was paving Highway 75 in the vicinity of the accidentwas offered to establish that Whitaker had moved any of the barrels or barricades from where Grills had placed them. On the morning of the trial, Grills settled the claims asserted against it for $400,000. Later that day, Whitaker settled the claims asserted against it for $250,000. The other defendants settled the claims pending against them for various amounts. Thus, the claims asserted by Chase's estate were never adjudicated, but were resolved through settlement, with no admission of liability by any of the defendants. Royal Insurance Company of America ("Royal"), Grills's liability insurer, then sought indemnity from Whitaker for the $400,000 Royal paid on Grills's behalf to settle the claims against Grills. Whitaker denied that it was obligated to indemnify Grills or its insurer, and Royal instituted this action in the federal district court. In the district-court action, Royal asserted that because a trier of fact could have reasonably determined that before the accident Whitaker had moved the barrels and barricades that Washburn says 750 blocked her line of sight, Whitaker had performed the acts upon which Chase's claims of liability against Grills were based. Accordingly, Royal claimed it was entitled to indemnification under the indemnity provision of the subcontract between Grills and Whitaker. During his deposition, David Nooney, Grills's vice president, testified that he did not believe the indemnity provision required the subcontractor to indemnify Grills for Grills's own negligence. Royal's claims specialist, George Mahon, agreed with Nooney's interpretation of the indemnity provision. Moreover, both Nooney and Mahon admitted that the amended complaint stated claims against Grills for Grills's independent and active negligence or wantonness. However, both Nooney and Mahon claimed that Grills was not working at the job site on the day of the accident, while it is undisputed that Whitaker was working in the vicinity where the accident occurred. Therefore, according to Nooney and Mahon, Whitaker's personnel must have moved the barrels and barricades and thereby caused the accident. However, it was undisputed that employees of the Alabama Department of Transportation were present at the job site before the accident to inspect the barrels and the barricades; it was also undisputed that other persons were at the job site before the accident. The district court granted Whitaker's motion for a summary judgment, finding that Royal was not entitled to indemnification under the indemnity provision in the subcontract between Grills and Whitaker. The district court held that Whitaker was not obligated to indemnify Royal under either of only two possible scenarios presented (1) that Grills was not itself negligent and that Whitaker therefore could not be required to indemnify Royal where Grills was never liable, or (2) that Grills was itself negligent and Royal could be seeking indemnification only under the express language of the indemnification provision. In holding that Royal was not entitled to indemnification if it was traveling under the second scenario, the district court found the indemnification provision to be ambiguous and "grammatically meaningless," and noted that the provision must be construed against Grills, the drafter of the provision. Therefore, the district court concluded, Royal could not enforce the indemnity provision. Royal appealed, and the United States Court of Appeals for the Eleventh Circuit found that Grills had a nondelegable duty as a matter of law and as a matter of contract "to maintain a safe roadway for the traveling public during the road construction work." Royal Ins. Co. of America v. Whitaker Contracting Corp., 242 F.3d 1035, 1040 (11th Cir.2001). According to the Eleventh Circuit, this was the basis on which Grills agreed to the settlement. 242 F.3d at 1041 ("Consequently, Grills settled the case with Chase's administratrix for $400,000, which Royal paid."). The Eleventh Circuit then stated: "In this appeal, we must decide whether the indemnification agreement in Whitaker's subcontract with Grills entitles Royal to reimbursement from Whitaker of the $400,000 plus interest, costs, and attorney's fees that it has paid for Grills's settlement. Therefore, the issue to be resolved is whether Grills's nondelegable duty to provide a safe roadway for the traveling public, which was not stated specifically in the indemnity agreement, affects our analysis of this agreement under which Royal proceeds for reimbursement. "The Alabama Supreme Court has decided that indemnity agreements between private parties are valid where the parties knowingly, evenhandedly, 751 and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemnitee's own wrongs, if expressed in clear and unequivocal language.' Industrial Tile, Inc. v. Stewart, 388 So. 2d 171, 176 (Ala.1980). Nevertheless, the Alabama Supreme Court subsequently clarified how strictly the `"clear and unequivocal language"' of the indemnity agreement is to be construed. Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 945 (Ala.1983) (quoting Industrial Tile, 388 So.2d at 176). `Agreements by which one party agrees to indemnify another for the consequences of the other's acts or omissions are carefully scrutinized,' and such an agreement `is enforceable only if the indemnity provisions are unambiguous and unequivocal.' City of Montgomery v. JYD Int'l, Inc., 534 So. 2d 592, 594 (Ala.1988). "In Brown, the Alabama Supreme Court instructed that three factors are to be considered by a court interpreting an indemnity agreement: (1) `contractual language,' (2) `identity of the draftsman of the language,' and (3) `the indemnitee's retention of control.' Brown, 431 So.2d at 946. While particular language in the indemnity agreement is not required, the requisite intent of the parties must be clear. See id. at 945. Ambiguous language in an indemnity agreement is construed against the drafter. See id. at 946. Finally, we must consider `the degree of control retained by the indemnitee over the activity or property giving rise to liability.' Brown, 431 So.2d at 946; see City of Montgomery, 534 So.2d at 595 (`The more control the indemnitee retains over the area, the less reasonable it is for the indemnitor to bear the responsibility for injuries that occur in that area.'). "The district judge concluded that the indemnity agreement in this case is `ambiguous' and `grammatically meaningless.'... Even if we were to supply `due' under Alabama rules of contract construction to overcome the ambiguity of the wording of the indemnity agreement at issue, as Royal suggests, we cannot resolve this appeal because we do not have direction from the Alabama Supreme Court that this indemnity agreement would include indemnity for Grills's failure to perform its nondelegable duty to insure a safe roadway for the traveling public when this omission is not specifically stated in the indemnity agreement as it was in Industrial Tile. "Accordingly, we certify to the Supreme Court of Alabama ... the following question: "`Must an indemnity agreement specifically state that an indemnitor [Whitaker] will indemnify the indemnitee [Royal] for a nondelegable duty to which the indemnitee [Royal] is subject under state law to require indemnification for the failure to execute such nondelegable duty, which results in the underlying cause of action for which indemnification is sought?' "Our statement of the certified question is not meant to limit the scope of inquiry by the Alabama Supreme Court." 242 F.3d at 1041-44 (footnotes omitted). Analysis As the Eleventh Circuit noted, no reported case from this Court involves the precise fact situation presented herea cause of action resulting from an indemnitee's failure to perform a nondelegable duty under state law and for which it seeks indemnity. However, we have addressed the enforceability of agreements that seek 752 to indemnify a party for the negligent acts and omissions of another. In City of Montgomery v. JYD International, Inc., 534 So. 2d 592 (Ala.1988), this Court stated: "Agreements by which one party agrees to indemnify another for the consequences of the other's acts or omissions are carefully scrutinized.... An agreement by one person to indemnify another for the other's negligent conduct is enforceable only if the indemnity provisions are unambiguous and unequivocal. Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala.1980), cert. denied, 449 U.S. 1081, 101 S. Ct. 864, 66 L. Ed. 2d 805 (1981).... "`. . . .' "In Industrial Tile we rejected the rule of no indemnification for the indemnitee's own negligence: "`The Court's insistence that such provisions be unambiguous and unequivocal arises from its concern that, generally speaking, one should not be able to contract against the consequences of his own wrong. However, as stated in 41 Am.Jur.2d, Indemnity, § 9 (1968), the general rule seems to be: "`"Broadly speaking, a promise of indemnity for the performance of an act not illegal, immoral, or against public policy is valid. Thus, indemnity against loss on account of a business transaction is proper. And, although there is some earlier authority to the contrary, it is now the prevailing rule that a contract may validly provide for the indemnification of one against, or relieve him from liability for, his own future acts of negligence provided the indemnity against such negligence is made unequivocally clear in the contract." "`Section 15 [Am.Jur.]: "`"A contract of indemnity purporting or claimed to relieve one from the consequences of his failure to exercise ordinary care must be strictly construed. Accordingly, it is frequently stated as the general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it." "`Alabama has generally followed these general rules when construing contracts between private parties, as distinguished from corporations performing a public service. American District Telegraph Company of Alabama v. Roberts & Son, Inc., 219 Ala. 595, 122 So. 837 (1929). "`Industrial Tile argues that Alabama, in 1978, in Alabama Great Southern Railroad Co. v. Sumter Plywood Corp., 359 So. 2d 1140 (Ala.1978), rejected the general rule and now follows the rule that, as between private parties, any contract which permits the indemnification of the indemnitee against his own wrongs is void as against public policy. We agree that there is language in the opinion which supports Industrial Tile's contentions. However, after carefully reviewing all of the authority in this state, we are compelled to conclude that, if the parties knowingly, evenhandedly, and for valid consideration, intelligently enter into an agreement whereby one party agrees to indemnify the other, including indemnity against the indemnitee's own wrongs, if expressed in clear and unequivocal language, then such agreements will be upheld. To the extent that Alabama Great Southern 753 Railroad Co. v. Sumter Plywood Corp., supra, holds otherwise, it is hereby modified.' "While the per se elimination of indemnity was rejected in Industrial Tile v. Stewart, supra, it was rejected by way of an implicit balancing of the interests served by tort law and the interests served by contract law. The tort law incentive to exercise due care could be shifted to the indemnitor through a negotiated contract but only if the indemnitor was clearly aware of his obligation and therefore was at least given the opportunity to attempt to monitor the activities of those whom he indemnified. While the tort law incentive is clearly less effective if the actual actor is not required to shoulder the burden associated with his actions, at least some safety incentive theoretically exists in, and can be acted on, by the indemnitor. ". . . . "In Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932 (Ala.1983), we noted that the degree of control retained by the indemnitee over the activity or property giving rise to liability is a relevant consideration. This is true because the smaller the degree of control retained by the indemnitee, the more reasonable it is for the indemnitor, who has control, to bear the full burden of responsibility for injuries that occur in that area. However, the opposite is also true: The more control the indemnitee retains over the area, the less reasonable it is for the indemnitor to bear the responsibility for the injuries that occur in that area.... To allow the indemnitee to transfer financial responsibility to the indemnitor under such circumstances [where the indemnitor has no control over the area where the injury occurs] would be totally at odds with the tort system's incentives to encourage safety measures. See Industrial Tile, Inc., supra (Jones, J., dissenting). Any argument that the agreement simply shifts the burden to the indemnitor to take such measures is untenable if the indemnitor has no right to exercise control over the potentially hazardous area or activity." 534 So.2d at 594-95. Under the facts presented by this certified question, we find it unnecessary to expand upon the language quoted above. That language is applicable in this case: "if the parties knowingly, evenhandedly, and for valid consideration, intelligently entered into an agreement" whereby one party agreed to indemnify the other for its negligent acts and omissions, and the agreement is expressed in "clear and unequivocal language," then that agreement is enforceable under Alabama law. By the same rationale, the words "nondelegable duty" need not be expressly included in an indemnity provision before an agreement to indemnify a party for a breach of its nondelegable duty will be enforceable. However, the burden of proof is on the indemnitee to establish the requirements set forth above before the indemnitee is entitled to indemnification under such an agreement. Accordingly, we answer the certified question presented in the negative. Our response is limited solely to the certified question presented; we express no opinion as to the manner in which this Court would resolve the factual or other legal issues presented by this case. QUESTION ANSWERED. MOORE, C.J., and HOUSTON, SEE, LYONS, BROWN, HARWOOD, and WOODALL, JJ., concur. JOHNSTONE, J., concurs in the result. 754 JOHNSTONE, Justice (concurring in the result). I concur only that our answer to the certified question should be in the negative. I do not concur in the rationale, because it does not address the question asked by the Eleventh Circuit. The rationale of the main opinion advances only the proposition that, under certain circumstances, a party may contract for indemnification for that party's own negligence. The Eleventh Circuit did not ask us whether a party may contract for indemnification for that party's own negligence. Therefore, I express no opinion on that proposition. The Eleventh Circuit asked us whether specified contract language is essential for a party to contract for indemnification for breach of that party's nondelegable duty. Contracting for indemnification for breach of the contracting party's nondelegable duty is not synonymous with contracting for indemnification for the party's own negligence. The nondelegability of a party's duty does not mean that the party must personally perform that duty and therefore cannot need indemnification for another's breach of that duty. Parties who owe nondelegable duties commonly and legally contract with others to perform them. The nondelegability of a party's duty simply makes that party liable even for a breach committed by a duly employed independent contractor, just as though the independent contractor were the agent of the party owing the nondelegable duty. The nondelegability of a duty is not a prohibition against the owing party's contracting with another to perform the duty. The nondelegability is simply a safeguard and benefit to those who may be injured by a breach of the duty. First, the nondelegability motivates the owing party to exercise care in the selection of independent contractors. Second, the nondelegability adds the owing party as a source for payment even for injuries caused by the negligence of an independent contractor employed by the owing party. That is, the independent contractor's breach is deemed the owing party's breach because the duty is nondelegable. The party owing the nondelegable duty typically would want and need indemnification for the liability he or it would incur from a hired independent contractor's breach of the duty. Such indemnification would not be for the nondelegable-dutyowing party's own personal negligence. Likewise, the party owing the nondelegable duty would commonly want and need indemnification against an injured plaintiff's allegations of that party's own negligence, even if the allegations were untrue, because typically an injured plaintiff will sue every person or entity with any significant relation to the injury, and such suits occasion the expenses of defense and often the expenses of a settlement based on pragmatism rather than actual truth, and because commonly the negligence of an independent contractor employed by the party owing the nondelegable duty will occasion such a suit. Some of these fact scenarios not entailing the negligence of the party owing the nondelegable duty and claiming the right to indemnification may obtain in the case now before us. The Eleventh Circuit has not asked us to decide the facts. The Eleventh Circuit has simply asked us about the contract language necessary to constitute a valid agreement for indemnification for the breach of a nondelegable duty. Specifically, the Eleventh Circuit asks whether the agreement must tell the indemnitor that the indemnitee's duty is nondelegable. 755 The answer is no. Our law contains no requirement for any such recitation. Nor does any policy militate in favor of any such recitation. The indemnitor in this case is Whitaker, an independent contractor who wanted to undertake the duty of the indemnitee Grills to pave the highway safely. Whitaker wanted to undertake the duty in order to earn the profits of the job. Grills, which owed the duty, needed for Whitaker to do the job safely and to indemnify Grills if Whitaker's performance injured somebody and occasioned a lawsuit, which Grills would inevitably need to defend. Whitaker wanted the job enough to agree to the indemnification. What difference would a recitation in the indemnity agreement that the duty was nondelegable make to Whitaker? The nondelegability neither increased nor decreased Whitaker's burden in the performance of the paving duty. Whitaker would be liable for damages caused by Whitaker's own breach of that duty in any event. The nondelegability would simply make Grills liable too. Whitaker knew it was agreeing to indemnify Grills against some lawsuits. At the least, Whitaker would have expected that the agreement would require indemnification for a lawsuit occasioned by Whitaker's own breach of duty, the very kind of lawsuit that the nondelegability of the duty constituted a risk to Grills. Therefore, a recitation in the indemnification agreement that Grills's duty was nondelegable would have been superfluous. That is, such a recitation would have told Whitaker only that Grills would be liable for any damages caused by Whitaker's breach of the duty, when, as a minimum, Whitaker knew it was agreeing to indemnify Grills against lawsuits for such damages. In the case, as here, of an independent contractor who undertakes a nondelegable duty owed by another, an agreement by the independent contractor to indemnify the other for a breach of the duty is beneficial and not harmful to those who may be injured by the breach. First, the indemnification obligation will motivate the independent contractor to perform the duty carefully in order to avoid causing an injury and owing money on the indemnification obligation. Second, the indemnification agreement does not deprive an injured plaintiff of any otherwise existing source of payment, for the party who owes the nondelegable duty remains liable for damages caused by its breach of that duty.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1212415/	179 Ga. App. 750 (1986) 347 S.E.2d 612 THE STATE v. SPENCE. 72150. Court of Appeals of Georgia. Decided June 17, 1986. Rehearing Denied July 14, 1986. 754 Ralph T. Bowden, Jr., Solicitor, Elliott A. Shoenthal, Henry M. Newkirk, Assistant Solicitors, for appellant. Charles A. Mullinax, for appellee. Norman Miller, Joseph L. Chambers, Charles H. Frier, amici curiae. BANKE, Chief Judge. At issue in this appeal is whether a criminal defendant can file a valid demand for trial, within the contemplation of OCGA § 17-7-170 (a), with respect to a traffic charge which has not yet been formally docketed or filed in any court. The defendant in this case was arrested by a state patrolman on February 1, 1985, on charges of driving under the influence and violating the Georgia Controlled Substances Act. A separate "Uniform 751 Traffic Citation, Summons, Accusation/Warning" was executed by the patrolman with respect to each offense. See generally OCGA § 40-13-1. The defendant was then transported to the DeKalb County Jail, where, upon being released on bond, he was given a notice purporting to have been issued by the Clerk of the State Court of DeKalb County directing him to appear in that court for arraignment on May 6, 1985. The uniform traffic citations were subsequently delivered to the Office of the DeKalb County Solicitor. On March 28, 1985, the defendant filed with the Clerk of the State Court of DeKalb County a demand to be tried on the charges within the next subsequent term of court. It is undisputed that the language of this demand met the requirements of State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982), so as to invoke the automatic acquittal provisions of OCGA § 17-7-170 (a). However, at the time the demand was filed, the traffic citations had not yet been filed with the clerk's office but were still in the possession of the solicitor's office. The solicitor's office filed the citations a week later, on April 4, 1985, along with a formal accusation signed by the solicitor. The State Court of DeKalb County has four annual terms, beginning in January, April, July, and October, respectively, of each year. The defendant filed his demand for trial during the January term, at a time when it is undisputed that there were qualified jurors impaneled before whom he could have been tried. The defendant was not placed on trial during that term or within the next subsequent term; and, consequently, on July 8, 1985, he successfully moved for discharge and acquittal pursuant to OCGA § 17-7-170. On appeal, the state contends that the defendant's demand for trial was invalid because it was filed before any accusation had been filed against him. Held: OCGA § 17-7-170 provides as follows: "(a) Any person against whom a true bill of indictment or an accusation is found for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is found or at the next succeeding regular court term thereafter; or, by special permission of the court, he may at any subsequent court term thereafter demand a trial. In either case, the demand for trial shall be placed upon the minutes of the court. (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation." (Emphasis supplied.) In Majia v. State, 174 Ga. App. 432 (1), 433 (330 SE2d 171) (1985), citing similar language appearing in Collins v. State, 154 Ga. App. 651 (1) (269 SE2d 509) (1980), this court stated that where a defendant is issued a Uniform Traffic Citation, "the citation itself 752 contains the accusation, and an accusation subsequently filed by the solicitor's office is superfluous." This ruling is consistent with the language of OCGA § 40-13-3, which provides, in pertinent part, as follows: "Except for offenses tried in the superior courts, all other courts having jurisdiction of the offense shall proceed with the adjudication of the offenses contained within the [uniform traffic citation and complaint form] without the necessity of filing an indictment or other accusation in order to bring the accused to trial." (Emphasis supplied.) But see Roberts v. State, 171 Ga. App. 131 (1) (319 SE2d 42) (1984) (in which a contrary holding was set forth, without reference either to the above statute or to the existing authority of Collins v. State, supra). In Majia and Collins, supra, this court held that a defendant's right to file a demand for trial with respect to a charge for which he had been arrested and issued a uniform traffic citation commenced upon the return of the citation to recorder's court, even though the recorder's court did nothing more than transfer the case to state court for trial. These two cases would appear to stand for the general proposition that an accusation embodied in an existing uniform traffic citation is "found" within the meaning of OCGA § 17-7-170 (a) at the moment any court which is lawfully entitled to do so asserts its jurisdiction over the case. Although in the present case no judge had taken any action on the charges against the defendant at the time he filed his demand for trial, we hold that the issuance by the clerk of the state court of the notice directing him to appear in that court on a specified date for arraignment constituted a sufficient exercise of jurisdiction over the case by that court to support the filing of the demand. Consequently, we hold that the trial court did not err in granting the motion for discharge and acquittal. To rule otherwise would be to enable a state court solicitor effectively to frustrate a defendant's rights pursuant to OCGA § 17-7-170 by the simple expedient of delaying, perhaps for many months, the filing of the uniform traffic citation with the clerk's office. Judgment affirmed. Birdsong, P. J., and Sognier, J., concur. ON MOTION FOR REHEARING. On motion for rehearing, the state argues that our decision in the present case is in conflict both with our holding in Fisher v. State, 143 Ga. App. 493 (238 SE2d 584) (1977), and with certain language appearing in Andrews v. State, 175 Ga. App. 22, 24 (332 SE2d 299) (1985), and Haisman v. State, 242 Ga. 896, 898 (252 SE2d 397) (1979). The defendant in Fisher v. State, supra, was not arrested pursuant 753 to a uniform traffic citation but pursuant to a warrant issued by a justice of the peace. There is, of course, no statute analogous to OCGA § 40-13-3 permitting an arrest warrant to be used as a substitute for a formal accusation. The cases of Andrews v. State, supra, and Haisman v. State, supra, are inapposite in that the defendants therein never filed statutory demands for trial; rather, they were asserting violations of their constitutional right to a speedy trial. While it is true that each of these cases contains language supportive of the general proposition that the right to file a statutory demand for trial does not attach until an indictment has been returned or an accusation filed, none of them purports to address the specific issue presented by the present case, i.e., whether an accusation may be deemed to have been "found" within the meaning of OCGA § 17-7-170, so as to permit the filing of a valid demand for trial, where an arrest has been effected pursuant to a uniform traffic citation, and the clerk of the trial court has issued the defendant a notice to appear in that court for arraignment on the charges specified therein. As previously indicated, this court has twice held that where a defendant has been bound over to state court by a recorder's court to be tried on the charges set forth in a uniform traffic citation, he need not await the filing of the citation in state court to file a statutory demand for trial. See Majia v. State, 174 Ga. App. 432 (330 SE2d 171) (1985); Collins v. State, 154 Ga. App. 651 (269 SE2d 509) (1980). It necessarily follows that in such cases the accusation is considered "found" within the meaning of the code section before it is actually filed with the clerk of the trial court. In response to the state's additional assertion on motion for rehearing that justice will not be served "if a defendant can force a prosecutor to trial, particularly in a complicated and perhaps serious case, before that prosecutor has had a reasonable opportunity to prepare the case," we observe that prosecutions based on uniform traffic citations will not normally be so serious or complex as to require lengthy pretrial investigation or preparation. That is undoubtedly one of the reasons the Legislature chose to dispense with the necessity of a formal accusation in such cases. Finally, our decision in the present case should not be interpreted as limiting the discretion of the solicitor to proceed on the basis of a formal accusation rather than on the basis of the uniform traffic citation where one has been issued. We merely hold that the solicitor's discretion in this regard will not control the defendant's right to file a statutory demand for trial with respect to charges on which he has been arrested, issued a uniform traffic citation, and notice to appear in the trial court for arraignment.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873318/	752 N.W.2d 32 (2008) IN RE K.B. No. 07-1901. Court of Appeals of Iowa. February 13, 2008. Decision without published opinion. Reversed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1275591/	175 Ga. App. 802 (1985) 334 S.E.2d 389 ALLIED PRODUCTS COMPANY v. GREEN. ALLIED PRODUCTS COMPANY v. TOLIVER. 70288, 70289. Court of Appeals of Georgia. Decided September 5, 1985. Earle B. May, Jr., John I. Spangler III, for appellant. Oddie Richard, for appellees. BENHAM, Judge. Appellees Green and Toliver filed separate tort suits against appellant Allied Products Company. When each appellee failed to respond to interrogatories propounded by Allied, the trial court, acting on Allied's motion, imposed sanctions of $100 each pursuant to OCGA § 9-11-37 (d) (1). After the imposition of sanctions, each appellee voluntarily dismissed his lawsuit and refiled within six months. OCGA § 9-2-61 (a). However, in neither case was the $100 sanction paid prior to refiling. Allied filed a dismissal/summary judgment motion in each case, contending that the $100 sanction imposed was a court cost of the previously dismissed action, which cost had to be paid prior to refiling the lawsuit. OCGA § 9-11-41 (d); Little v. Walker, 250 Ga. 854 (301 SE2d 639) (1983). We granted interlocutory review of the trial court's denial of appellant's motions. OCGA § 9-11-37 (d) (1) empowers a trial court to require a party failing to respond to interrogatories to pay "the reasonable expenses, including attorney's fees, caused by the failure [to respond to the interrogatories]." (Emphasis supplied.) "The term `costs,' as applied to proceedings in a Court of Justice, has, in the acceptation of the profession, and by the practice of all Courts in Georgia, a well understood *803 meaning. It includes all charges, fixed by statute, as compensation for services rendered by officers of the Court in the progress of the cause." Davis v. State of Ga., 33 Ga. 531, 533 (1863). Not all expenses incurred by a party are regarded as costs. See Stone Mtn. Mem. Assn. v. Stone Mtn. Scenic R., 232 Ga. 92, 94 (205 SE2d 293) (1974). The Supreme Court has specifically held that "expenses in discovery are not taxed as costs. . ." City of Atlanta v. Intl. Assn. of Firefighters &c., 240 Ga. 24 (4b) (239 SE2d 353) (1977). In light of the above authority, we conclude that a monetary sanction imposed under OCGA § 9-11-37 (d) does not constitute a court cost which must be paid before a plaintiff refiles an action he previously dismissed. OCGA § 9-11-41 (d). Appellant suggests that the decision in Williams v. Holland, 9 Ga. App. 494 (71 S.E. 760) (1911), is analogous to the case at bar. In Williams, the plaintiff paid the clerk and sheriff "such portion of the costs as had not been previously paid to them by the defendant," but made no payment or tender to the defendant of the costs which the defendant had paid in the earlier proceeding. The Williams court held that all costs, whether due to court officers or the opposite party, had to be paid before the commencement of the second suit. We agree with the Williams holding and do not find it analogous to the present situation where payment of an expense, not a cost, is at issue. Our decision in these cases is in no way to be interpreted as an endorsement of appellees' abuse of the discovery rules, and should not be viewed as a means of avoiding sanctions imposed for such abuse. Our holding is that the failure of appellees to pay the sanctions does not merit dismissal of their timely recommenced actions. Judgments affirmed. Banke, C. J., and McMurray, P. J., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1296019/	138 Ga. App. 849 (1976) 227 S.E.2d 802 BERMAN v. RUBIN. 51940. Court of Appeals of Georgia. Argued March 8, 1976. Decided May 13, 1976. Rehearing Denied June 9, 1976. Custer, Smith & Manning, Lawrence B. Custer, for appellant. Neely, Freeman & Hawkins, Paul M. Hawkins, Andrew M. Scherffius, for appellee. STOLZ, Judge. This suit for legal malpractice arose from the actions of attorney Rubin in negotiating a property settlement for Dr. Berman relating to the latter's divorce. As executed, the portions of the settlement pertinent to this appeal read as follows: "(a) At the present time, the Husband earns approximately [a stipulated amount]. To the extent 850 that in any one year, the Husband shall earn in excess of this said sum, the amount of child support per child for that year and alimony for the wife for that year shall be increased by 15% of such increase ... (b) nothing herein contained shall permit the amount of child support per child to exceed $8,000 for any 1 year, nor shall any amount of alimony to the wife exceed $16,000 ..." (Emphasis supplied.) The record shows that Dr. Berman read this agreement, initialed each page and signed his name at the end. In a subsequent contempt hearing, the trial court judge construed the agreement to require payment of 15% of such increased earnings to each of his three children and 15% to his wife (an aggregate of 60% of his excess earnings). The trial court's order holding Dr. Berman in contempt was affirmed in Berman v. Berman, 231 Ga. 723 (204 SE2d 124). Subsequent to this construction, Dr. Berman sued Mr. Rubin for misrepresentation and malpractice. As to Count 1, alleging negligent misrepresentation of the settlement, the trial court found that Rubin's actions merely constituted interpretation of a legal document later construed to the contrary by an appellate court. As to Count 2 of Berman's complaint, alleging Rubin's failure to properly advise him, the trial court found that the plaintiff had actual knowledge of the information allegedly withheld. The trial court entered summary judgment in Rubin's favor on both counts. The thrust of this appeal is Berman's contention that he signed the agreement only upon the assurances of Rubin, his attorney, that the additional payments would total only 15% of his earnings in excess of that sum upon which the settlement was based.[1]Held: This particular legal malpractice claim is for Rubin's negligence in representing to Berman the contents of the child support and alimony provisions of the property 851 agreement. The initial requirement for establishing liability is that there be a duty; this arises from the attorney-client relationship itself. Lewis v. Foy, 189 Ga. 596, 598 (6 SE2d 788); Republic Mortg. Corp. v. Beasley, 117 Ga. App. 303 (3) (160 SE2d 429); O'Kelley v. Skinner, Wilson & Beals, 132 Ga. App. 792 (2) (209 SE2d 242). As to particular examples, see generally Arey v. Davis, 233 Ga. 951 (213 SE2d 837) (retained counsel); State v. Goode, 84 S. D. 369 (171 NW2d 733) (court-appointed counsel); Young v. United States, 346 F2d 793 (D. C. Cir.) (legal aid society counsel); American Employers' Ins. Co. v. Goble Aircraft Specialties, Inc., 205 Misc. 1066 (131 NYS2d 393) (insurance company's counsel). Once this relationship existed, a duty devolved upon Rubin, as Berman's attorney, "to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake." Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 98 Cal. Rptr. 837 (491 P2d 421). For other formulations of this standard, see Hodges v. Carter, 239 N. C. 517, 520 (80 SE2d 144, 146) ("ordinary care and diligence"); Glenn v. Haynes, 191 Va. 574, 581 (66 SE2d 509) ("reasonable degree of care and skill"); Ward v. Arnold, 52 Wash. 2d 581, 584 (328 P2d 164) ("reasonable amount of skill and knowledge"). "An attorney is not bound to extraordinary diligence. He is bound to reasonable skill and diligence, and the skill has reference to the character of the business he undertakes to do." Cox v. Sullivan, 7 Ga. 144, 148 (50 AD 386). Thus, while the standard of care required of an attorney remains constant, its application may vary. O'Barr v. Alexander, 37 Ga. 195. Two important considerations in particularizing this rather general standard in a given case are the number of options available to the attorney and the amount of time which he has to consider them.[2] As to this, see Comment, Attorney 852 Malpractice, 63 Colum. L. Rev. 1292, 1301 and cits.; J. Wade, The Attorney's Liability for Negligence, 12 Vand. L. Rev. 755, 765 and cits. Although he is not an insurer of the documents he drafts,[3] the attorney may breach his duty towards his client when, after undertaking to accomplish a specific result, such as to approve a marketable title or draft a will, he then fails to comply with prescribed statutory formalities or to effectuate the intent of the parties. See, e.g., Lilly v. Boyd, 72 Ga. 83 (1) (title examination); Theobald v. Byers, 193 Cal. App. 2d 147 (13 Cal. Rptr. 864) (failure to register a chattel mortgage); Ward v. Arnold, 52 Wash. 2d 581, supra (advice to wife that a will for her husband was not necessary); Slade v. Harris, 105 Conn. 436 (135 A 570) (failure to include intended covenant not to compete in a contract); McCullough v. Sullivan, 102 N. J. L. 381 (132 A 102) (failure to state true consideration in chattel mortgage where prescribed by statute); Stein v. Kremer, 112 N.Y.S. 1087 (employment contract intended for definite period written so as to be revocable at will). Likewise, ignorance of basic, well-established and unambiguous principles of law has been held to be a breach of duty towards the client in the following situations: permitting a devisee to witness a will (Goldberg v. Bosworth, 29 Misc. 2d 1057 (215 NYS2d 849)[4]; filing a chattel mortgage in the wrong county (Hampel-Lawson Mercantile Co. v. Poe, 169 Ark. 840 (277 S.W. 29)); advising a co-principal that he would not be jointly and severally liable for the total amount of his 853 bond (Cochrane v. Little, 71 Md. 323 (18 A 698)). However, this question arises only when the law is fundamental; unless the law is so well settled, clear, and widely recognized, an attorney acting in good faith and to the best of his knowledge will be insulated from liability for adverse results. See Hodges v. Carter, 80 SE2d 144, supra; Lucas v. Hamm, 364 P2d 685, supra, n. 3. Res ipsa loquitur is simply not applicable to suits for legal malpractice. See Olson v. North, 276 Ill. App. 457. In malpractice actions against attorneys, as is the case against other professionals, it is essential that competent evidence be presented as to the acceptability of particular conduct. "Attorneys are very properly held to the same rule of liability for want of professional skill and diligence in practice, and for erroneous or negligent advice to those who employ them, as are physicians and surgeons, and other persons who hold themselves out to the world as possessing skill and qualifications in their respective trades or professions." Citizens' Loan, Fund & Savings Assn. v. Friedley, 123 Ind. 143, 145 (23 N.E. 1075). Accord, Theobald v. Byers, 13 Cal. Rptr. 864, supra; Slade v. Harris, 135 A. 570, supra; Cook v. Irion, 409 S.W.2d 475, supra, n. 2. Hence, except in clear and palpable cases (such as the expiration of a statute of limitation), expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. See Dorf v. Relles, 355 F2d 488 (7th Cir.); Olson v. North, 276 Ill. App. 457, supra; Brown v. Gitlin, 19 Ill. App. 3d 1018 (313 NE2d 180); Sanders v. Smith, 83 N. M. 706 (496 P2d 1102); Walters v. Hastings, 84 N. M. 101 (500 P2d 186). Compare Central Cab Co. v. Clarke, 259 Md. 542 (270 A2d 662) (not required where counsel failed to notify client of termination of employment in time to avoid default). The reason for this requirement is simply that the jury cannot rationally apply a general statement of the standard of care unless it is aware of what the competent lawyer would have done under similar circumstances. Nor can the jury be permitted to speculate about what the "professional custom" is. Competent evidence as to the 854 "professional custom," in a given situation is required in malpractice actions against other professionals. See, e.g., Washington v. City of Columbus, 136 Ga. App. 682 (222 SE2d 583) (physician); Stallcup v. Coscarart, 79 Ariz. 42 (282 P2d 791) (dentist); Paxton v. County of Alameda, 119 Cal. App. 2d 393 (259 P2d 934) (architect); Tremblay v. Kimball, 107 Me. 53 (77 A 405) (pharmacist). Consistency demands a similar standard for attorneys. Of course, the fact that the defendant has followed customary procedures will not always insulate him from liability. "While custom provides an important indication of what constitutes reasonable care and what is negligent, it is not dispositive of the question ..." Gleason v. Title Guarantee Co., 300 F2d 813 (5th Cir.). Although it would otherwise be a jury question as to whether or not defendant Rubin had breached his duty towards Dr. Berman (Venable v. Block, 138 Ga. App. 215 (4)), we do not reach that issue in this case. The record affirmatively shows that Rubin's actions were not the cause of the alleged injury to appellant Berman. The agreement in this case is not ambiguous, nor is it technical or laced with "legal jargon." Appellant Berman admits that an initial draft of the agreement was unsatisfactory to him, that the draft was changed, that he read the changes, that he initialed each and every page, and that he placed his signature on the final page. There are few rules of law more fundamental than that which requires a party to read what he signs and to be bound thereby. See, e.g., Ga. Mut. Ins. Co. v. Meadors, 138 Ga. App. 486; State Hwy. Dept. v. Raines, 129 Ga. App. 123, 128 (199 SE2d 96); Lewis v. Foy, 189 Ga. 596, supra. This rule has particular force when the party is well educated and laboring under no disabilities. To hold otherwise is to create the potential for malpractice litigation in every contract dispute. Our decision should not be read to state or imply that an attorney may not be held responsible for his negligent draftsmanship whenever the client can or does read the document. Indeed, where the document requires substantive or procedural knowledge, is ambiguous, or is of uncertain application, the attorney may well be liable for negligence, notwithstanding the fact that his client 855 read what was drafted. This holding is simply that when the document's meaning is plain, obvious, and requires no legal explanation, and the client is well educated, laboring under no disability, and has had the opportunity to read what he signed, no action for professional malpractice based on counsel's alleged misrepresentation of the document will lie. Appellant Berman having failed to show that Mr. Rubin's actions, and not his own, were the cause of his alleged injury, the grant of summary judgment to defendant Rubin was not error. Although the basis for our decision was not urged below, "where the judgment of the trial court is proper and legal for any reason it will be affirmed ..." Turner v. Baggett Transportation, 128 Ga. App. 801, 806 (198 SE2d 412). Judgment affirmed. Bell, C. J., and Clark, J., concur. ON MOTION FOR REHEARING. In his motion for rehearing, the appellant urges that "[t]his decision, if allowed to stand, will allow one's own counsel intentionally to misrepresent a document and escape liability..." However, the counts of the appellant's complaint do not allege an intentional or fraudulent misrepresentation and the record is bare of any evidence or inference thereof. The appellant may neither extend the facts of his case nor enlarge upon his cause of action by means of a petition for rehearing. In every tort action, causation must be established. Where, as here, there is an intervening factor which breaks that chain of causation leading from defendant to plaintiff, there can be no recovery. In this case the appellant's ability to read and comprehend, together with his failure to do so, constitute that intervening cause. *856 Motion for rehearing denied. NOTES [1] Apparently, the appellant has abandoned his appeal on Count 2 of the complaint, since it has been argued neither in his brief nor during oral argument. O'Kelley v. Hayes, 132 Ga. App. 134 (207 SE2d 641). [2] For example, the tactical decisions made during the course of litigation require, by their nature, that the attorney be given a great deal of discretion. See Cook v. Irion, 409 S.W.2d 475 (Tex. Civ. App.), holding that the particular local situation (in that case, the possible jury composition) is significant in determining the reasonableness of a decision not to join possible defendants. See also Hill v. Mynatt, 59 S.W. 163 (Tenn. Ch. App.) as to choice of venue for an action. [3] Lucas v. Hamm, 56 Cal2d 583, 591 (364 P2d 685, 15 Cal. Rptr. 821), cert. den., 368 U.S. 987; Babbitt v. Bumpus, 73 Mich. 331 (41 N.W. 417). [4] See Biakanja v. Irving, 49 Cal. 2d 647 (320 P2d 16) (beneficiary may have standing to sue).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2422279/	248 F. Supp. 2d 867 (2003) AMWEST SURETY INSURANCE CO., Plaintiff, v. CONCORD BANK, Defendant. No. 4:00-CV-1988 SNL. United States District Court, E.D. Missouri, Eastern Division. February 4, 2003. 870 Bernard A. Reinert, Aaron G. Weishaar and Issa K. Emeish, Reinert & Rourke, P.C., St. Louis, for Plaintiff Amwest Surety Insurance Company. Richard E. Coughlin, Gillespie, Hetlage & Coughlin, L.L.C., Clayton, for Defendant Concord Bank. MEMORANDUM LIMBAUGH, Senior District Judge. Plaintiff has filed this multi-count diversity action seeking actual and punitive damages in connection with the alleged wrongful dishonor of a "letter of credit" it presented to the defendant. Plaintiff seeks legal redress for the alleged wrongful dishonor of a sight draft drawn on the letter of credit, as well as for conversion. This matter is before the Court on the plaintiffs motion for summary judgment (# 85), filed April 30, 2002. This cause of action is set for trial on the Court's trial docket of February 10, 2003. Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." ML Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988). Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); 871 Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Butter v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem., Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With these principles in mind, the Court turns to an examination of the facts. On October 25, 1999 defendant Concord Bank issued an Irrevocable Letter of Credit (hereinafter referred to as the Letter of Credit or LOC) in the amount of One Million Two Hundred Thousand Dollars ($1,200,000.00) to plaintiff Amwest Surety as beneficiary. The LOC was established and issued at the request of defendant's loan customer, CMR Construction, Inc. (CMR). The LOC was a condition precedent to the issuance of performance and payment bonds by Amwest, as surety, on behalf of CMR, as principal, to secure the performance of a construction project known as the Argyle Parking Garage for which CMR was the general contractor. The LOC was provided as collateral security for the performance and payment bonds issued by Amwest, as surety, for CMR, as principal, to the City of St. Louis, as obligee in connection with the construction of the Argyle Parking Garage in St. Louis, Missouri. The LOC provides in pertinent part: "You may draw hereunder by means of your drafts on us at sight accompanied by the following written certification: This Irrevocable Letter of Credit was taken as collateral on the bond(s) for the above-mentioned principal. As of this date, we have not been released of liability by the obligee and/or claims have been made against the bond(s). The proceeds of our draft will be retained and used by Amwest. In the event our liability under our bond(s) is satisfied, Amwest will refund to you the amount paid, less any amounts which may have been paid by Amwest in the interim under our bond(s) and for any unpaid premium due Amwest on said bond(s). We engage with you that all drafts drawn under and in compliance with the terms of this credit will be duly honored if presented at this office on or before October 25, 2000 or any automatically extended date as herein before set forth. We confirm credit and hereby undertake that all drafts drawn and presented will be duly honored by us within fifteen days of receipt." Furthermore, pursuant to the terms of the LOC, the LOC was subject to the "Uniform Customs and Practices for Documentary Credit (1993 Revision), International Chamber of Commerce, brochure no. 500". The initial term of the LOC was for one year ending October 25, 2000. However, the LOC was extended automatically by its terms, without amendment, to October 25, 2001. The automatic extension was confirmed September 1, 2000 by letter from Amwest to Concord Bank, with acquiescence to the extension by Dennis Geoghegan, President of Concord Bank. In addition to the subject LOC, certain other contractual documents were executed among parties to the Argyle Parking Garage project. As part of the project management, all funds paid by the City of St. Louis for the project were to be disbursed by a professional construction disbursement company and no funds were to be paid directly to CMR except for sums approved by the Construction Manager for the City, and then, only through the 872 disbursement company. To facilitate this financial arrangement, CMR, Amwest Surety, St. Louis Disbursing Corp., and Contractor Disbursement Services (CDS) entered into a Disbursement Agreement. Furthermore, the City executed a "Letter of Direction", as an attachment to the Disbursement Agreement, directing that all payments made under the construction contract be sent to Enterprise Bank for deposit in an account opened for purposes of the Disbursement Agreement.[1] Despite the Disbursement Agreement and the Letter of Direction, during the spring and summer of 2000, the City made two payments (totaling $80,000.00) directly to CMR instead of depositing same in Enterprise Bank for disbursement by CDS.[2] St. Louis Distribution Corp. notified the City of the improper payments and warned that any further misdirected payments would jeopardize coverage under the bonds. Unfortunately, the warning was not heeded, and again in September 2000, the City misdirected payments in the amount of $481,122.90 to CMR directly. Said payments were to cover labor and materials furnished in July 2000. By October 2000, relations had fallen apart among the Argyle Garage Project parties, and the project closed down. On November 15, 2000 plaintiff advised defendant that it was considering paying on the performance bond having decided that its liability (under the performance bond) would only be released "pro tanto " by the City's actions[3]. It further advised defendant that Amwest had received written notice from subcontractors and vendors stating their intention to file claims on the labor and material payment bond. On November 17, 2000 plaintiff presented a sight draft drawing on the LOC in the amount of $1,200,000.00, the face value of the LOC. With the sight draft, Amwest presented the written certification as specified in the Letter of Credit. After receipt of the sight draft and accompanying documentation, defendant sent same to its attorney who advised the Bank not to fund the LOC. On December 5, 2000, more than fifteen (15) days after defendant's receipt of the plaintiffs sight draft and accompanying documents (original LOC and the certification statement), defendant, through its attorney, sent notice to plaintiff that defendant was dishonoring the November 17, 2000 sight draft for failure to meet the terms and conditions of the LOC. Concord Bank's notice of dishonor of the draft drawing upon the LOC stated in part: "As you know, one of the terms and conditions of the letter of credit is that `Amwest has not been released of liability by the obligees.' Despite your certification to the contrary, it is apparent that Amwest has, in fact, been released by the obligor [sic]. As a result, we are dishonoring your draft dated November 17, 2000. Concord Bank is basing its decision upon information, in part, which is well known and documented by Amwest." Concord Bank then proceeded to support its decision by referencing remarks made 873 by Amwest's investigator, and attaching copies of a letter dated May 8, 2000 from St. Louis Disbursing Corp. to the City's Treasurer's Office, and a letter dated October 13, 2000 from CDS to CMR. These letters inform the City of its misdirection of payments to CMR, and finally, of CMR's default of the Distribution Agreement by retaining these misdirected funds and not paying the subcontractors for labor and materials. Finally, defendant contends that contrary to the plaintiffs certification, based upon a vague citation to the case of Prairie State National Bank of Chicago v. United States,[4] plaintiff has been released from liability due to the City's misdirection of payments in connection with the Argyle Garage Project. Nowhere in its notice of dishonor does defendant state or allude to plaintiffs financial condition and ability to refund excess funds (under the LOC) as a reason for its dishonor of the sight draft. As of the date of the filing of this lawsuit, defendant Concord Bank has retained the original LOC, along with the sight draft and accompanying documentation, in its files. As of the date of the filing of this lawsuit, defendant (through its officers) has made no overtures to plaintiff regarding the return of said documents to plaintiff. On December 15, 2000 Amwest filed its complaint for wrongful dishonor of a letter of credit, conversion, declaratory and injunctive relief, as well as, exemplary and punitive damages. As part of its prayer for declaratory relief, plaintiff seeks that 1) the Court declare that Amwest has done all that is necessary to entitle it to payment of its sight draft on Letter of Credit No. 10291131 of defendant Concord Bank, and 2) the Court declare that defendant Concord Bank's grounds for dishonor of Amwest's sight draft drawing on Letter of Credit No. 10291131 are legally insufficient and that the sight draft must be honored. In response to the complaint, defendant Concord Bank has filed an answer[5] and its counterclaim for declaratory relief.[6] Among its affirmative defenses, defendant contends that it has properly dishonored the sight draft because plaintiff has committed fraud as defined in U.C.C. § 5-109 in that contrary to its certification, plaintiff has been released from liability due to the City's actions, and furthermore, that due to its financial situation [7] it would not be able to return any excess funds to the defendant. In its counterclaim, defendant again asserted its affirmative defense of fraud under the U.C.C. and sought, in pertinent part, a declaration: 874 "(a) That the actions of the City of St. Louis breaching its agreements with respect to payment of funds for the project constituted a material breach of its obligations to Amwest; (b) That the aforesaid actions by the City of St. Louis led to or caused all of the damages it claimed and caused the increased cost with respect to the Argyle Parking Garage project; (c) That as a result thereof Amwest was released from any obligations under its Payment and Performance Bonds; (d) That the November 17, 2000 certification by Amwest to Concord Bank was false and fraudulent in that Amwest had been released from its liability by the obligee, that the certification was further false and fraudulent in that at the time of the presentation of the sight draft Amwest was and would be incapable of refunding any funds to Concord Bank in the event cost of completion was less than the amount paid by Concord; (e) That Concord Bank properly dishonored the November 17, 2000 sight draft for the aforesaid reasons; and (f) such further and other relief as the Court deems proper under the premise." Plaintiff asserts that it is entitled to summary judgment on all counts. It argues that under Missouri UCC law and the UCP 500 it has met the required standard of strict compliance with its November 17, 2000 presentation of the sight draft and certification. It further argues that the defendant's failure to honor the presentation based upon defendant's review of the underlying contractual relationships and events violates the firmly established letter of credit rule known as the "independence principle". It further contends that the defendant's notice of dishonor was untimely, and furthermore, the untimeliness of the dishonor precludes the defendant from not arguing any other cause for dishonor not stated in the notice. It further contends that, assuming the certification was incorrect as to the release of liability, defendant should have still honored the sight draft on the alternative basis; i.e. at the time of the presentation, claims on the payment bond had been made against Amwest. Finally, Amwest contends that the defendant's failure to return the original sight draft and certification constitutes conversion under Missouri law. Defendant argues that its notice of dishonor was timely because said dishonor was based upon defendant's assertion that the certification was fraudulent. Defendant further contends that only in the absence of fraud does the "independent principle" apply. Finally, defendant contends that plaintiff has failed to prove the required elements of conversion because plaintiff never sought the return of the sight draft or the certification. A "letter of credit" (LOC) is an arrangement by which a customer engages a bank (or other person) to honor a draft (or some other negotiable instrument) for payment by a third-party beneficiary upon compliance with conditions specified in the letter of credit. Bank of Newport v. The First National Bank and Trust Company of Bismarck, 687 F.2d 1257, 1261 (8th Cir.1982); Missouri Highway and Transportation Commission v. Morganstein, et al, 703 S.W.2d 894, 898 (Mo.1986); Waidmann v. Mercantile Trust Co. National Association, 711 S.W.2d 907, 911 (Mo.App. 1986). "An irrevocable letter of credit creates an independent obligation of the issuing bank to pay the beneficiary upon timely presentment of the documents specified in the credit." Global Network Technologies v. Regional Airport Authority of Louisville and Jefferson County, 122 F.3d 661, 664 n. 2 (8th Cir.1997). Article 5 of the Uniform Commercial Code (U.C.C.) generally governs letters of credit; however, Missouri has codified Article 5 in 875 § 400.5-101 et.seq. R.S.Mo. Since this is a diversity case, the law of Missouri will apply. Under Missouri law, the provisions of the UCC do not apply to a letter of credit which states that it is governed by the UCP. Fidelity & Deposit Company of Maryland v. Federal Deposit Insurance Corp., 54 F.3d 507, 510 n. 3 (8th Cir.1995); Landmark Bank v. National Credit Union Administration, 748 F. Supp. 709, 714-15 (E.D.Mo.1990); Anchor Centre Partners, Ltd. v. Mercantile Bank, N.A., 803 S.W.2d 23, 34 (Mo. 1991); see also, § 400.5-103 R.S.Mo. The UCP (formally known as the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce, Publication No. 500) is an internationally accepted compilation of international customs and practices regarding letters of credit.[8] The UCP sets forth basic principles and specific rights and obligations of parties involved in letter of credit transactions and is commonly adopted by international and domestic letters of credit as the "law of the transaction" by agreement of the parties. See, 832 PLI/Comm. 13: Regal, Dorothea W., Basic Principles of Letters of Credit; see also, Uniform Commercial Code Comment to §§ 400.5-102 and 103. The UCP is revised every ten (10) years; the latest revision UCP 500 was last revised in 1993.[9] A LOC governed by the UCP will be governed by the UCC (or in this case § 400.5-101 et.seq. R.S.Mo.) only in those instances wherein the UCP does not contain any provision relevant to the issue in controversy. A letter of credit is actually the third part of a complex triparte contractual transaction consisting of three (3) separate and distinct contracts. They are: 1) The contract between the issuer (generally a bank) and its customer (the applicant) whereby the issuer agrees to issue the letter of credit (to the thirdparty beneficiary); 2) the underlying contract between the applicant and the beneficiary giving rise to the issuance of the letter of credit; and 3) the letter of credit itself, which is a contract between the issuing bank and the beneficiary and provides that the issuing bank agrees to pay the draft(s) drawn against the letter of credit upon presentation of said draft(s) and accompanying requisite documents. In re Papio Keno Club, 247 B.R. 453, 459 (8th Cir.BAP2000), affd 262 F.3d 725 (8th Cir.2001); Bank of Newport, at 1261; Morganstein, at 898; Waidmann, at 911-12. The issuer of a LOC has a direct primary obligation to honor a demand for payment under the LOC. This obligation arises merely upon the proper and timely presentation of a demand for payment, accompanied by any documents, statements, or certifications specified in the LOC as required by the terms and conditions of the LOC. Morganstein, at 898. The most fundamental principle of modern letter of credit law is that the three (3) contractual relationships giving rise to the letter of credit are completely independent of each other, and the rights and obligations of the parties to one are not affected by the breach or nonperformance of any of the others. See, 832 PLI/Comm 13; B.E.I. International, Inc. v. The Thai Military Bank, 978 F.2d 440, 876 442 (8th Cir.1992); Bank of Newport, at 1261; Morganstein, at 898. This fundamental principle of letters of credit law is commonly referred to as the "independence principle". Thus, the LOC is separate and distinct from the underlying contractual transactions among the issuing bank, the bank customer, the beneficiary, and others. B.E.I. International, supra.; Bank of Newport, supra.; Anchor Centre, at 34-35. The LOC creates an independent obligation of the issuing bank to pay the beneficiary upon timely presentation of the draft and documents as specified in the LOC. Papio Keno Club, 247 B.R., at 459; Global Network, at 664 n. 2; Bank of Newport, supra. The issuing bank's obligation to honor the presented draft exists regardless of any default of the underlying contractual transaction(s). Papio Keno Club, 247 B.R. at 459; Anchor Centre, at 34-35; Morganstein, at 898; Waidmann, at 912. The "independence principle" is based upon two (2) public policy considerations. "First, the issuing bank can assume no liability for the performance of the underlying contract because it has no control over making the underlying contract or over selection of the beneficiary. Second, the letter of credit would lose its commercial vitality if, before honoring drafts, the issuing bank were obliged to look beyond the terms of the letter of credit to the underlying contractual controversy between its customer and the beneficiary." Bank of Newport, at 1261-62 (citations omitted). Thus, in determining whether to honor a draft drawn upon a LOC, the issuing bank should look solely to the letter of credit and the documents required therein regardless of whether the underlying contract has been performed. Waidmann, at 912 citing Morganstein, at 899. The UCP 500, Article 3 articulates the "independence principle" as follows: "(a) Credits, by their nature, are separate transactions from the sales or other contract(s) on which they may be based and banks are in no way concerned with or bound by such contract(s), even if any reference whatsoever to such contract(s) is included in the Credit. Consequently, the undertaking of a bank to pay, accept and pay Draft(s) or negotiate and/or to fulfill any other obligation under the Credit, is not subject to claims or deferences by the Applicant resulting from his relationships with the Issuing Bank or the Beneficiary." The "independence principle" works in tandem with a "strict compliance" standard applicable to the draft and accompanying documents' presentation for payment. The issuing bank's obligation to honor the presentation is triggered by the timely and proper presentation of the draft and conforming documents. If the LOC is governed by the UCP, then the parties are bound by the strict compliance standard of the UCP. Morganstein, at 898; Waidmann, at 912. Article 13 of the UCP 500 provides in part: "Banks must examine all documents stipulated in the Credit with reasonable care, to ascertain whether or not they appear, on their face, to be in compliance with the terms and conditions of the Credit." Thus, if the beneficiary tenders the appropriate documentation, in a timely manner, the issuing bank must honor the presentation. Only the propriety of the tender of the draft and documents presented can be considered by the issuing bank. Morganstein, supra.; see also, Global Network, at 665 citing Anchor Centre, at 34-35 ("Because of the issuing bank's independent commitment to honor its letter of credit, courts require that documents submitted with a draw comply precisely with the literal terms of the credit. That reduces the issuer's task to comparing the documents against its credit."). 877 There is only one limited exception to the "independent principle": fraud in the transaction. There is no provision in the UCP 500 regarding fraud or means for stopping payment under a LOC in any circumstance. However, Section 5-109 of the UCC (§ 400.5-109 R.S.Mo.) permits an issuer to dishonor where a "presentation is made that appears on its face strictly to comply with the terms and conditions of the letter of credit, but a required document is forged or materially fraudulent or honor of the presentation would facilitate a material fraud by the beneficiary on the issuer or applicant".[10] This recodification clearly denotes that fraud must be found either in the documents or must have been committed by the beneficiary on the issuer or applicant. § 400.5-109 R.S.Mo., Uniform Commercial Code Comment. Furthermore, "[m]aterial fraud by the beneficiary occurs only when the beneficiary has no colorable right to expect honor and where there is no basis in fact to support such a right to honor." Uniform Commercial Code Comment, Id. Finally, an issuer is precluded from justifying a dishonor upon any ground that was not identified by the issuer in a timely notice of dishonor. Article 14 of the UCP 500 provides in pertinent part: "(d)(i) If the Issuing Bank and/or Confirming Bank, if any, or a Nominated Bank acting on their behalf, decides to refuse the documents, it must give notice to that effect by telecommunication or, if that is not possible, by other expeditious means, without delay but no later that the close of the seventh banking day following the day of receipt of the documents. Such notice shall be given to the bank from which it received the documents, or to the Beneficiary, if it received the documents directly from him. (ii) Such notice must state all discrepancies in respect of which the bank refuses the documents and must also state whether it is holding the documents at the disposal of, or is returning them to, the presenter. (e) If the Issuing Bank and/or Confirming Bank, if any, fails to act in accordance with the provisions of this Article and/or fails to hold the documents at the disposal of, or return them to the presenter, the Issuing Bank and/or Confirming Bank, if any, shall be precluded from claiming that the documents are not in compliance with the terms and conditions of the Credit." To balance the rule of strict compliance, Article 14 provides for a rule of strict preclusion. "It bars the issuer from relying on any nonconformity in the documents if it failed to give the prescribed timely notice of dishonor or if it failed to identify in its notice of dishonor the discrepancy upon which it subsequently seeks to rely." 832 PLI/Comm 13, 71-72. Thus, an issuer must not only give its notice of dishonor within the proscribed time, but must also clearly and specifically identify the defect in the draft and/or accompanying required documents or the notice has no effect. See, Toyota Tsusho Corp. v. Comerica Bank, 929 F. Supp. 1065,1074-76 (E.D.Mich.1996). After careful consideration of the matter, the Court finds that defendant Concord Bank wrongfully refused to honor the November 17, 2000 sight draft drawn on the subject letter of credit as presented by plaintiff Amwest Surety. It is undisputed that Amwest presented its sight draft and accompanying certification on November 17, 2000. It is also undisputed that Article 14 of the UCP 878 clearly provides that an issuer must give notice of dishonor of a LOC "no later than the close of the seventh banking day following the day of the receipt of the documents." There is no dispute that this deadline was November 28, 2000. Defendant offers no excuse for its lateness for tendering the notice of dishonor except to contend that its allegation of fraud obliterates the notice deadline of Article 14.[11] Article 14 of the UCP deals with patent defects. It is true that by its wording, Article 14 proscribes a specific deadline by which defects evidenced on the face of the documents should be readily discovered and notice of same given. Article 14 does not appear to deal with latent defects; i.e. cases in which the issuer discovers fraud, not readily apparent on the face of the documents, sometime after the time for notice of defects has passed. Caselaw addressing Article 14's notice of defect deadlines is scarce; however, one case (cited by both parties) has held that an issuing bank can disclaim based on latent fraud after the Article 14(d)(i) period has expired. Hamilton Bank v. Kookmin Bank, 245 F.3d.82, 91 (2nd Cir.2001). It is clear that the Bank's claim of fraud is not based on latent fraud. The Bank's notice of dishonor clearly stated that it was rejecting the sight draft because the statement in the certification regarding Amwest's non-release from liability by the obligee was "fraudulent". Furthermore, this wasn't a case where acts of fraud were discovered sometime after the notice of dishonor deadline had passed. Concord Bank concedes that its dishonor was based upon information it had in its possession prior to receipt of the sight draft and certification. Defendant's excuse of fraud as justification for its late notice of dishonor does not suffice as a matter of law. Furthermore, not only was the notice of dishonor late in violation of Article 14, but the notice itself was defective in that it failed to state all the discrepancies upon which the LOC was being refused. Concord Bank contends that not only did it reject the sight draft due to the (mis)statement concerning Amwest's release from liability but that it also rejected the draft because Amwest was financially weak at the time of the draw and would not be able to refund any excess amounts under the LOC. The December 5, 2000 notice of dishonor stated only one reason for the refusal to honor: Amwest's alleged fraudulent statement that it had not been released from liability by the obligee. Nowhere in the notice of dishonor is there any reference to Amwest's financial condition as being grounds for refusal to honor the draft. Once again, the notice of dishonor was insufficient as a matter of law. Defendant Concord Bank is further precluded from claiming that the sight draft and/or its accompanying documents are not in compliance with the terms and conditions of the LOC by its dereliction in returning the documents to Amwest. Article 14(d)(ii) of the UCP 500 requires that the notice of dishonor not only state all discrepancies upon which the notice is based but that the notice "must also state whether it is holding the documents at the disposal of, or is returning them to, the presenter." Article 14(e) of the UCP 500 clearly states that if the issuing bank "fails to act in accordance with the provisions of this Article and/or fails to hold the documents at the disposal of or return to the presenter, the issuing 879 bank shall be precluded from claiming that the documents are not in compliance with the terms and conditions of the letter of credit. In the present case, the notice of dishonor clearly fails to state that Concord Bank is holding the subject documents at the disposal of or is returning them to Amwest. Concord Bank concedes that it still holds the subject documents having never offered to return them to Amwest prior to this litigation. Its justification for this action is simply that Amwest never asked for the sight draft or the accompanying documents back. However, neither the UCC nor the UCP places any affirmative duty on the presenter to ask for the return of the documents. The only affirmative duty existing is upon the issuing bank to state its intentions with regard to the documents in its notice of dishonor. See, § 400.5-108 R.S.Mo. Failure of Concord Bank to fulfill this notice requirement in Article 14 precludes it from asserting any grounds for rejecting the LOC documents. See, Toyota Tsusho Corp. v. Comerica Bank, 929 F. Supp. 1065 (E.D.Mich. 1996). Assuming arguendo that there was no prevailing issue of timeliness of the notice or insufficiency of the notice under the UCP, no reasonable juror could conclude that Amwest had not strictly complied with the presentation requirements under the subject LOC, and that Concord Bank's dishonor of the presentation of the sight draft and accompanying documents was in violation of the UCC, the UCP, and the well-established principles of letter of credit law. As its primary reason for dishonoring the LOC involved here, Concord Bank contends that when Amwest Bank certified that it had not been released by the obligee from its liability under the bonds, such statement was false. It then exerts considerable effort detailing the underlying contractual relationships of non-party entities, especially, the actions by the City of St. Louis with respect to certain payments it made in connection with the Argyle Parking Garage project. It concludes, based upon its investigation and outside research, that the City's misdirection of funds, in violation of certain contracts (to which Concord was not a party), was a material breach releasing Amwest completely from liability under the performance bond. It is clear that this argument depends on support upon legal interpretations of transactions other than those facially represented in the documents presented with the sight draft. Such consideration by this Court clearly violates the well-established letter of credit "independence principle". Firstly, the Comments to the UCC in connection to § 400.5-109 R.S.Mo. embrace a narrow scope defining the fraud required to support a dishonor. Such fraud not only has to be found either in the documents themselves or committed by the beneficiary, but also the fraud must be "material"; i.e. "the fraudulent act must be significant to the participants in the underlying transaction.". The Comment further defines such a material fraud as "occurfing] only when the beneficiary has no colorable right to expect honor and where there is no basis in fact to support such a right to honor." Finally, the Comment "indorses articulations" found in prior Section 5-109 cases which relied upon the phrase "fraud in the transaction".[12] Concord's assertion of fraud fails because the subject statement does not carry with it any connotation that Amwest itself was 880 guilty of participating in any fraudulent act in the underlying contractual transactions. Concord concedes that any "material breach" of the underlying contract(s) was carried out by the City. Amwest had nothing to do with the misdirection of funds by the City. It was not a party to the contracts among the City, CMR, and the disbursing companies. More importantly, Concord Bank was not a party to any of these contracts. Not only was Amwest not involved with the material breach repeatedly argued by Concord, the alleged material breach by the City did not involve Concord Bank. The matter of the diverted contract funds paid by the City to CMR is entirely collateral to and beyond consideration of the "face" of the documents presented on November 17, 2000. Any alleged fraud in a collateral transaction is not the fraud contemplated by the UCC as a justifiable cause for dishonoring a LOC. Next, even if this Court were to find cause to violate the "independence principle" and review the underlying transactions and contractual relationships of non-parties, it is clear that there was a basis in fact to support Amwest's colorable right to expect honor. Concord argues extensively that the City's misdirection of funds completely released Amwest from its liability under the performance bond. In support of this contention, in its notice of dishonor, it relied on the old case of Prairie State National Bank of Chicago v. United States, 164 U.S. 227, 17 S. Ct. 142, 41 L. Ed. 412 (1896). This case is totally inapplicable as it did not involve a letter of credit or alleged fraud by the beneficiary in its presentation of a sight draft under a LOC. Current surety caselaw indicates, that at best, the actions of the City would only reduce Amwest's liability pro tanto; i.e., only by the amount of the City's misdirected funds. See, National Surety Corp. v. United States, 118 F.3d 1542 (Fed.Cir. 1997).[13] Furthermore, there is no evidence that the misdirected funds would completely release Amwest from liability under the payment bond. There are no documents executed by the City or any subcontractor completely releasing Amwest from liability under either the performance or payment bonds. No reasonable juror could conclude that Amwest had without a doubt been completely released from liability under either of the bonds, especially in light of the correspondence sent by Amwest to Concord (between November 17, 2000 and December 5, 2000) informing Concord that claims had been made against the payment bond by subcontractors and suppliers, and that the City had made a written demand on Amwest for it to honor all of its obligations under the performance and payment bonds. Concord Bank decided to dishonor the sight draft relying upon its own independent review of the underlying contractual relationships and actions by non-parties, and its own "legal" research regarding Amwest's rights under the performance and payment bonds. Amwest, not Concord Bank, bears the burden of determining its rights under the subject bonds because it is in the business of issuing such 881 bonds and is in a better position to know and protect its rights. See, Fidelity & Deposit Company of Maryland, at 514 (issuing bank determining whether the beneficiary surety under a LOC had obligations to its customer at time of presentation violated the rule of independence because surety alone is responsible for determining its rights under a bond). This research and the reliance there upon violated the "independence principle" and the relevant provisions of the UCC and the UCP 500. It is this Court's finding that fraud is neither an affirmative defense nor a viable reason for dishonoring the sight draft and accompanying document(s) under the subject LOC as presented by plaintiff on November 17, 2000. Furthermore, as no material issue of fact exists that the notice of dishonor was given after the Article 14(d)(i) of the UCP 500 time period for notification of dishonor had passed, Concord Bank could not refuse to honor the LOC and the sight draft presented drawing upon it based upon fraud in the transaction, fraud in the documents presented, or the financial condition of Amwest at the time of the presentation. Finally, as no material issue of fact exists that the notice of dishonor failed to apprise Amwest of whether Concord Bank was holding the subject documents at the disposal of, or was returning them to Amwest Bank, and in fact still remains in possession of said documents[14], in violation of Article 14(d)(ii) of the UCP 500, Concord Bank could not refuse to honor the LOC and the sight draft presented drawing upon it based upon fraud in the transaction, fraud in the documents presented, or the financial condition of Amwest at the time of the presentation. Since there is no material issue of fact that the sight draft and accompanying documents presented under the subject LOC by Amwest on November 17, 2000 strictly complied with the terms and conditions of the subject LOC, Concord Bank dishonored the sight draft wrongfully as a matter of law. In light of the above findings, the Court sees no reason to address the remaining grounds proffered by the plaintiff in support of its motion for summary judgment as to Count I. Count II of the plaintiffs complaint seeks damages on the basis of state-law conversion. Amwest contends that Concord Bank, by retaining the sight draft and accompanying documents presented under the subject LOC on November 17, 2000, it has violated certain provisions of the UCC and the UCP 500 and thus, has converted said documents to its own use under Missouri law. Concord Bank essentially contends that the documents have not been converted under Missouri law, that such documents are worthless, and that Amwest can have them back anytime upon request. Both the UCC and the UCP require the issuing bank to return the LOC's draft and accompanying documents to the beneficiary upon rejection of same, or to hold them for disposal as directed by the beneficiary. Regardless of which action the issuing bank takes, it has the affirmative duty to inform the beneficiary of its intent in the notice of dishonor. Section 400.5-108(h) R.S.Mo.; Article 14(d)(ii) of the UCP 500. It is undisputed that Concord Bank not only failed to give notice as to whether it intended to return the documents or hold them for disposal as directed by Amwest; but, has in fact retained said documents without authorization from Amwest. Under Missouri law, there are three (3) ways a plaintiff can prove conversion: 1) by tortious taking; 2) by any use or appropriation to use of the person in possession indicating a claim of right in 882 opposition to the rights of the owner; and 3) by refusal to give up possession to the owner on demand. Lucas v. Lucas, 946 F.2d 1318, 1323 (8th Cir.1991); Lacks v. R. Rowland & Co., 718 S.W.2d 513, 521 (Mo. App.1986). The subject of the conversion need not be strictly a "tangible chattel" but can be the ownership interests in a negotiable interest, such as stock certificates, or as in this case, a letter of credit. See, Lucas v. Lucas, at 1323; Lacks, at 517; see also, Dodge Motor Trucks, Inc. v. First National Bank of Omaha, 519 F.2d 578, 583 (8th Cir.1975)("A letter of credit is in the nature of a negotiable instrument, and is a letter whereby a person requests another to advance money or give credit to a third person and promises to repay the person making the advancement."). In order to prove conversion by tortious taking[15], Amwest had to submit evidence showing that Concord Bank wrongfully took possession of the LOC sight draft and accompanying documents for itself. See, Lucas v. Lucas, at 1324-25. In the present case, it is undisputed that Concord Bank took possession of the sight draft and accompanying documents and has retained possession of said documents for itself. It is also undisputed that the notice of dishonor did not notify Amwest of either Concord Bank's intention to return the documents or to hold them for disposal at Amwest's directions. Concord Bank's failure to comply with the provisions of Article 14 of the UCP 500 and Section 400.5-108(h) by retaining possession of the sight draft and accompanying documents without Amwest's authorization and/or in disregard of its demand for return (via its complaint filed in this litigation) conclusively establishes plaintiffs claim for conversion under Missouri law. Concord Bank's contention that conversion does not lie under Missouri law because the documents are worthless is without merit. It is clear under Missouri law that the physical manifestation of the security ownership (such as stock certificates) is not the subject of the conversion, but rather is only the "symbol" of the underlying ownership interest in the security. See, Lucas v. Lucas, at 1323; Lacks, at 517 ("Historically wrongful appropriation of stock certificates constitutes conversion of the stock."). Here, the sight draft represents Amwest's exclusive right to collect monies based upon the terms and conditions of the LOC. In this case, that exclusive right is hardly "worthless", rather it is worth at least $1,200,000.00 plus interest. Furthermore, defendant's contention that plaintiffs claim of conversion fails because Amwest has not asked for the documents is equally without merit. As previously noted, the UCC and the UCP 500 both place an affirmative duty upon Concord Bank, as the issuing bank dishonoring the sight draft, to notify the beneficiary (Amwest) of either its intention to return the documents or to hold them for disposal at the beneficiary's directions. Concord Bank did not comply with the requirements of the UCC and the UCP 500, and has retained the subject documents despite the filing of this lawsuit. Finally, it is no defense to a claim of conversion that the act was in good faith or in honest belief that the possession was lawful. See, Ensminger v. Burton, 805 883 S.W.2d 207, 211 (Mo.App.1991). There is no material issue of fact regarding Concord Bank's non-compliance with the notice of dishonor requirements of the UCC and the UCP 500, and its retention of the subject documents. Amwest is entitled to summary judgment on its Count II claim for conversion as a matter of law. Exemplary and punitive damages are not addressed by the UCP 500. The UCC expressly forbids the award of consequential damages in cases of wrongful dishonor. § 400.5-111(a) R.S.Mo. The UCC does not address the issue of punitive damages but the Uniform Commercial Code Comment to Section 5-111(4) states that "[a] fortiori punitive and exemplary damages are excluded, however, this section does not bar recovery of consequential or even punitive damages for breach of statutory or common law duties arising outside of this article." Although the plaintiff seeks $1,200,000.00 plus interest as an award of punitive damages under Count III, it fails to provide this Court with any statutory or caselaw authority in support of its demand. It is this Court's considered opinion that punitive damages are disfavored by commercial law, especially in the context of letter of credit law, and the instant case does not provide evidence of the type supporting an award of punitive damages for wrongful dishonor of a letter of credit. As for plaintiffs conversion claim, plaintiffs lack of legal authority supporting its claim for punitive damages, coupled with the fact that the primary basis for the conversion claim is defendant's failure to comply with the notice requirements of the UCP 500, leads this Court to deny Count III's claim for punitives as to the conversion claim also. Although not addressed by the UCP 500, Missouri's UCC clearly provides for prejudgment interest in cases of wrongful dishonor. An issuing bank which is found to have wrongfully dishonored a sight draft presented under a letter of credit "... shall pay interest on the amount owed thereunder from the date of wrongful dishonor or other appropriate date." § 400.5-111(d) R.S.Mo. Since the UCC fails to define the applicable statutory rate, plaintiff offers two (2) rates for consideration by the Court: 10% per annum pursuant to § 433.050 R.S.Mo. or 9% per annum pursuant to § 408.020 R.S.Mo. Under Missouri's UCC, in cases of wrongful dishonor by an issuing bank, a beneficiary may recover the face value of the LOC. A beneficiary whose LOC has been wrongfully dishonored has no duty to "prove" its damages or to mitigate its damages; its damages are for the breach of its credit contractual relationship with the issuing bank and the appropriate measure of such damages is the face value of the LOC. See, Hamilton Bank v. Kookmin Bank, at 93; Ross Bicycles v. Citibank, N.A., 161 Misc. 2d 351, 613 N.Y.S.2d 538 (N.Y.Sup.Ct.1994); see also, Kelley v. First Westroads Bank, 840 F.2d 554 (8th Cir.1988). After review of the plaintiffs arguments and the relevant statutory provisions cited by plaintiff[16], the Court has determined that the applicable statutory interest rate is 9% per annum pursuant to § 408.020 R.S.Mo. Section 408.020 R.S.Mo. states: 884 "Creditors shall be allowed to receive interest at the rate of nine percent per annum, when no other rate is agreed upon, for all moneys after they become due and payable, on written contracts and on accounts after they become due and payment is made; for money recovered for the use of another, and retained without the owner's knowledge of the receipt, and for all other money due or to become due for the forbearance of payment whereof an express promise to pay interest has been made." As stated previously, a letter of credit implicates three (3) contractual relationships. The LOC itself is in the nature of a contract between the issuer and the beneficiary and is independent of underlying contracts. To apply § 433.050 R.S.Mo. and determine that Concord Bank stands as a "co-principal debtor" (as argued by the plaintiff) would violate the "independence principle". The LOC stands as its own contract and since it does not stipulate any specific interest rate, § 408.020 R.S.Mo. applies. Plaintiff contends that prejudgment interest should ran from December 2, 2000 to March 20, 2002. It chose December 2, 2000 as the date upon which interest commenced because under the LOC the last day for Concord Bank to pay on the draft was December 2, 2000 (fifteen days from the date of receipt of the draft). Since there is no dispute as to the use of these dates for the computation of prejudgment interest, the Court will accept same. Under Missouri law, the proper measure of damages for conversion is the reasonable market value of property at the time of the conversion. Lucas v. Lucas, at 1328-29; Citizens Bank of Appleton City v. Schapeler, 869 S.W.2d 120, 130 (Mo.App. 1993); Ensminger v. Burton, et. al., 805 S.W.2d 207, 218 (Mo.App.1991); Southern Missouri Bank v. Fogle, 738 S.W.2d 153, 158 (Mo.App.1987); Lacks v. R.Rowland & Co., at 520. Interest, pursuant to §§ 408.020 R.S.Mo. and 537.520 R.S.Mo., is allowed in conversion cases on the value of the converted property from the date of its conversion. Citizens Bank of Appleton City, at 130; Ensminger, at 218 (relying on Fogle); Fogle, at 158. In the instant case, plaintiff seeks damages for the face value of the rejected LOC sight draft, and interest at the 9% per annum rate proscribed by § 408.020 R.S.Mo. Plaintiff further seeks said interest from December 2, 2000 to March 20, 2002. The Court concurs. Thus, on Counts I and II, the interest figured at 9% on the One Million Two Hundred Thousand Dollars ($1,200,000.00) due and owing on the Letter of Credit as of December 2, 2000 through March 20, 2002 is Two Hundred Ninety-Five Dollars and Eighty-Nine Cents ($295.89) per day for a total of One Hundred Thirty-Nine Thousand Nine Hundred Fifty-Five Dollars and Ninety-Seven Cents ($139,955.97). In an action for wrongful dishonor of a letter of credit, "[reasonable attorney's fees and other expenses of litigation must be awarded to the prevailing party ...". § 400.5-111(e). An award of fees is mandatory. In the instant case, plaintiff seeks a large amount of fees based upon a generalized invoice documenting fees in this litigation. Furthermore, it seeks interest upon said fees. See, Plaintiffs Exhibit R and R1. The Court has reviewed the plaintiffs exhibit in support of its claim for attorneys' fees and finds same inadequate. Attorneys' fees will be awarded; however, such award will be made upon the proper presentation of documents in support of such fees. Plaintiff shall submit affidavits of education background, litigation experience in similar cases as this one, and standard hourly rate for each attorney and paralegal who performed work in this matter. Furthermore, legal fees shall be limited 885 to those hours spent on plaintiffs claim for wrongful dishonor and conversion, not on plaintiffs claim for punitives. Finally, each attorney and paralegal's hours expended in this case shall be specifically identified. Essentially, documentation shall be filed which identifies the attorney or paralegal who worked on this case and the hours that person expended. Finally, it is not this Court's standard practice to award interest on attorneys' fees; however, the Court will entertain this request upon a valid showing of statutory law and/or caselaw supporting the award of interest on attorneys' fees. In light of the above findings of this Court, summary judgment will be granted to plaintiff on Counts I and II of its complaint; summary judgment will not be granted on Count III of plaintiffs complaint. Furthermore, attorneys' fees will be awarded at a later date. NOTES [1] Except for Amwest, none of the parties to the Construction Contract, Disbursement Agreement, and Letter of Direction are parties to this lawsuit. Defendant Concord Bank is not a party to any of the afore-referenced contractual documents. [2] It is unclear as to what ultimately happened with regard to these two payments. [3] Plaintiff contends that it would not be completely released of liability under the performance bond due to the City's actions, but rather, it would be released pro tanto; i.e. its obligation reduced only the amount of the City's misdirected payment. [4] No citation nor reference to a page number was given by defendant when it cited to this case in its notice of dishonor. For the record, the complete citation is as follows: Prairie State National Bank of Chicago v. United States, 164 U.S. 227, 238, 32 Ct. Cl. 614, 17 S. Ct. 142, 41 L. Ed. 412 (1896). [5] Actually, presently before the Court in the defendant's second amended answer. [6] In a companion order and memorandum, the Court has recently granted the plaintiff's motion to dismiss defendant's counterclaim. [7] Due to financial difficulties, Amwest's bond rating was reduced from A- to ultimately B-. As of June 1, 2001 Amwest became the subject of an "Order of Liquidation, Declaration of Insolvency, and Injunction" entered by the District Court of Lancaster County, Nebraska. See, Exhibit A to Defendant's Suggestion of Receivership, # 23, filed July 11, 2001. However, the Special Deputy Liquidator relative to the Liquidation of Amwest Surety Ins. Co. (Michael J. Fitzgibbons) has authorized plaintiff's counsel to proceed with this litigation on behalf of Amwest Surety. See, Exhibit A to Plaintiff's Response to Court Order of August 6, 2001 (inquiring as to the status of the plaintiff in light of the liquidation), # 25, filed August 27, 2001. [8] A copy of the UCP 500 is provided as Plaintiff's Exhibit M. [9] Much of the applicable caselaw refers to the prior 1983 UCP revision. However, many of the legal principles articulated in the UCP 400 (1983) remained unchanged in the UCP 500 (1993). [10] Except in instances where the presentation is made by a nominated person, a confirmer, a holder in due course, or assignee in good faith. § 400.5-109(a)(1). [11] The subject LOC states only that the honor of the sight draft must be made no later than fifteen (15) days from date of receipt by the Concord Bank. Since the LOC does not reference any specific deadline in connection to the "dishonor" of a sight draft, the seven (7) banking day rule of the UCP 500 applies. [12] Fraud as an affirmative defense to a wrongful dishonor was previously set forth in the 1962 Code in Section 5-114. The current UCC is commonly referred to as the revised 1995 Code and, as previously set out, the fraud provision is now contained in Section 5-109. [13] Curiously, although Concord Bank argues generally that the misdirected funds constituted a material breach by the City of its contractual obligations to other non-parties, which would relieve Amwest completely of its liability under the performance bond, it states unequivocally that "...Plaintiff and Mr. Haren knew that any obligations to the City would be reduced by at least $481,122.90 that the City had improperly paid directly to the contractor" (citing National Surety, supra.). Defendant Concord Bank's Memorandum in Opposition to Summary Judgment, pg. 8. Such a statement would appear to embrace Amwest's position regarding a pro tanto reduction of liability, as opposed to a complete release of liability. [14] At least as of the time of the filing of this summary judgment package. [15] Although the plaintiff never identifies which of the three (3) ways one can prove conversion it is relying upon, the facts of this case indicate that the claim is one for conversion by tortious taking. A weaker case could be made for conversion by refusal to give up possession in the face of a demand given that as of the filing of the plaintiff's complaint on December 15, 2000 seeking damages and the return of the subject documents, Concord Bank has retained possession of same. Either way, Amwest has proven conversion as set forth above. [16] Defendant's only argument addressing damages was limited to its position that plaintiff had not suffered any damages because it had been completely released from liability under the performance bond and/or that plaintiff's damages were "self-inflicted" because plaintiff chose to finance the completion of the garage project. Both of these arguments have been shown to lack merit. Defendant did not address the issue of the statutory interest rate applicable to damages in a wrongful dishonor case.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8326454/	Murtagh, Thomas R., J. The undisputed facts and the contested facts stated favorably to the defendant are as follows. 1. American International Chemical, Inc. (“AIC”) provided Bismuth Subsalicylate USP (“BSS”) to ANIP Acquisitions Company (“ANIP”), which in turn used the BSS as the active ingredient in the manufacture of generic versions of Pepto-Bismol. 2. Prior to purchasing any quantity of an active ingredient such as BSS from a particular supplier/manufacturer, ANIP first tests and validates the material in order to credential the source. 3. ANIP performed this validation and testing process on the BSS manufactured by Omicron Quimica, S.A. (“Omicron”), which is distributed in the United States by AIC. ANIP’s validation process involves multiple steps and took as long as ninety (90) days. AIC sent a specification sheet to ANIP and the business relationship commenced in either 2002 or 2003. 4. In October 2006 and January 2007, AIC provided BSS to ANIP pursuant to ANIP purchases orders 70776 and 71632. 5. Among the BSS that AIC sold and shipped to ANIP pursuant to those purchase orders were AIC Lot Numbers 62440023 (“Lot 23”) and 62440040 (“Lot 40”) (the “First BSS Shipment”). 6. ANIP received Lots 23 and 40 on or about October 3, 2006 and January 17, 2007, respectively. 1897. ANIP’s cost of Lot 23 was $9,675 and for Lot 40 was $11,250, for a combined cost of $20,925. 8. From AIC Lot 23, ANIP created finished product batches Y167-Y173. 9. From AIC Lot 40, ANIP created finished product batches Y222-Y224 and X038. 10. According to expressed terms, ANIP P.O.s 70776 and 71632 required that AIC provide Bismuth Subsalicylate USP (manufactured by Omicron), and that each lot of material include a certificate of analysis (“COA”). ANIP’s purchase orders also requested product from one manufacturer’s lot and that the product have a shelf life of no more than (2) years. 11. AIC understood that ANIP most likely intended to use the BSS which it purchased for use in a liquid product thus requiring the BSS to remain in suspension. At the commencement of their relationship AIC provided initial samples of BSS to ANIP, which samples were tested and approved by ANIP. Veegum and other agents are added to the liquid with the intention of keeping the BSS particles in suspension. 12. At that time (and presently), the United States Pharacopeia (the “USP”) standard body specifications contained no particle size specification for BSS. 13. Indeed, ANIP conducted tests on the First BSS Shipment to ensure that the BSS met the USP specifications. 14. ANIP did not test for particle size prior to releasing the material into production, either in October 2006 or January 2007. 15. The COAs that AIC provided with the First BSS Shipment did not warrant a specific particle size. Rather, the COAs provide the manufacturer’s test results for USP specifications, as well as other information concerning the manufacture of the BSS (including but not limited to the manufacturer’s name, Omicron Química, S.A., and the date of manufacture). They do not certify or even reference a particle size. 16. AIC’s own product listing by which it offers BSS for sale does not contain, reference or warrant a certain particle size. It mirrors the USP requirements, the same product specification requirement pursuant to which ANIP ordered the First BSS Shipment (and all of its BSS shipments). 17. On or about October 30, 2006, after using ninety-five percent (95%) of the 450 kilograms of BSS in Lot 23, ANIP performed a sieve analysis which involved passing a thirty-eight (38) gram sample of the unused raw BSS through a 40-mesh screen. After doing so, ANIP determined that 6.1% of the material did not pass through the screen and was therefore prevented from being filled into the bottle. 18. On or about January 30, 2007, after using sixty-seven percent (67%) of the 500 kilograms of BSS in Lot 40, ANIP passed fifty (50) grams of the BSS through a 40-mesh screen and concluded that 4.2% of the BSS was prevented from being filled into the bottle. 19. Ultimately, ANIP discarded its finished product batches Y168-Y171 and Y173 from AIC Lot 23, and all finished product batches from AIC Lot 40 for low assay strength. Because of the too large particle size which did not stay in suspension, the levels of active ingredient fell below specification in the finalized bottled product. 20. ANIP did not immediately reject the First BSS Shipment, but instead, after testing it for conformity with its required specifications, passed the material into production. 21. Between April 25, 2007 and July 5, 2007, AIC provided an additional $103,275 worth of BSS to ANIP pursuant to invoices numbers 217325, 218424 and 219155 (the “Second BSS Shipment”). 22. Of that amount, ANIP paid $16,931, leaving a balance of $86,344. 23. The balance of $86,344 represented the value that ANIP assigned to its rejected finished product batches due to the allegedly non-conforming particle sizes in the First BSS Shipment. 24. ANIP used that material from the Second BSS Shipment to create a viable end product that it was able to sell. DISCUSSION AIC seeks to recover the full unpaid balance of $86,344 for the Second BSS Shipment. ANIP maintains it owes nothing more to AIC because it is entitled to offset its claim against AIC resulting from its alleged need to reject finished product batches of its product because of too large particle sizes in AIC’s First BSS Shipment to ANIP. ANIP claims offsetting damages against AIC in an amount which exceeds the amount owed to AIC with respect to the Second BSS Shipment. ANIP argues that genuine issues of material fact exist with respect to its counterclaim for breach of contract, breach of the implied covenant of good-faith and breach of warranty of fitness for a particular purpose. The transactions at issue between AIC and ANIP involve the sale of goods and are governed, therefore, by Article 2 of the Uniform Commercial Code. I. ANIP’s Counterclaims A. Breach of Contract Defendant’s counterclaim for breach of contract appears to be based upon an allegation that AIC promised to deliver BSS with a particle size limit. 190There is nothing in the purchase order confirmation documents which reference a particle size. The COA also made no mention of a particle size. In other words, no relevant document specifies the requirement of a particular particle size for product to be furnished to ANIP. As evidence of a particle size limit, ANIP points to a 1997 AIC product specification sheet that contains amaximum mean particle size designation of 3.4 microns. However, in addition to there being no evidence that ANIP knew about or relied upon this specification sheet, the specification sheet concerns a different Bismuth product which carried a different product code (BISSPH) than that applied to the product sold to ANIP (BISSUP). It appears unchallenged that BISSPH was a specifically ordered product for a specific customer who imposed additional requirements for AIC’s BSS product. ANIP contends that AIC did not deliver a product consistent with not only samples but also with prior product shipments. The Court has found no evidence on the record of a particle size for product previously delivered or for samples. Without such evidence, a claim of inconsistency cannot be established. ANIP ordered BSS conforming with USP standards. ANIP was aware that the USP specification for BSS contained no particle size specification. ANIP received product from AIC in compliance with UPS specifications. ANIP did not impose its own particle size requirements on the product it ordered. When product was delivered, ANIP tested the product for compliance with USP specifications and did not test for particle size. After the sieve tests which demonstrated that the sieve prevented BSS from passing into the bottle, ANIP only then decided it was important to determine a particle size specification with AIC, to have the particle size specification and result appear on the manufacturer’s Certificate of Analysis and to perform a sieve analysis to determine product retained on a 40-mesh screen until the particle size specification was established. AIC is entitled to Summary Judgment on ANIP’s breach of contract claim. B. Warranty of Fitness for a Particular Purpose In order to establish a claim for breach of an implied warranty of fitness for a particular purpose, ANIP must demonstrate the following three elements. First, the seller must have reason to know of the particular purpose for which the buyer requires the goods; second, the seller must have reason to know that the buyer is relying on the seller’s skill or judgment in selecting or furnishing suitable goods; and third, the buyer in fact must rely upon the seller’s skill or judgment. Glyptal, Inc. v. Engelhard Corporation, 801 F.Sup. 887, 897-98 (D.Mass 1992) (granting summary judgment against claimant-buyer of chemical product where buyer tested samples to ensure product met its requirements before purchasing) (emphasis added), citing Fernandes v. Union Bookbinding Co., 400 Mass. 27, 34 (1987). As a matter of law, ANIP cannot establish the second and third elements and its claim must fail. Based upon the validation testing performed by ANIP and the beginning of the arrangement with AIC/OMICRON and the testing performed by ANIP on each lot it received from AIC for compliance with USP specifications, there is no reason to believe that ANIP was relying on AIC’s skill or judgment in selecting AIC’s BSS product. Given ANIP’s testing it is quite clear that ANIP did not rely on AIC’s skill or judgment but rather its own analysis and conclusions. See Glyptal at 898. C. Implied Covenant of Good Faith and Fair Dealing The implied covenant of good faith and fair dealing “does not create rights and duties not otherwise provided for with the existing contractual relationships.” North American Expositions Company Limited Particularly v. Corcoran, 458 Mass. 852, 869 (2009). The Court has already concluded that there was no requirement in any contrast between AIC and ANIP that AIC produce for ANIP a BSS product with a particular particle size. Thus, for this and other reasons, this claim fails. II. AIC’s Claims for Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing and Quantum Meruit It is undisputed that ANIP accepted the Second BSS Shipment from AIC and incorporated AIC’s BSS in products which ANIP then sold. Thus, under its purchase order contract with AIC, ANIP owes AIC the sum of $86,344 representing the amount remaining unpaid for the Second BSS Shipment. AIC is entitled to Summary Judgment concerning its Breach of Contract Claim (Count I). ANIP’s claims for Breach of Implied Covenant and Good Faith and Fair Dealing (Count II) duplicates its contract claim and adds nothing. This Count should be dismissed. Likewise, the Quantum Meruit Claim (Count III) should be dismissed. A Quantum Meruit claim might be an appropriate remedy where no contract is established. Here, liability of AIC exists under a contract theory. ORDER Judgment is to enter for Plaintiff AIC on Count I in the amount of $86,344. Counts II and III of the Complaint are dismissed. Judgment enters for Plaintiff AIC on all of defendant ANIP’s Counterclaims.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/2225568/	782 N.W.2d 829 (2010) In re Petition for DISCIPLINARY ACTION AGAINST Jesse GANT, III, a Minnesota Attorney, Registration No. 214772. No. A09-1998. Supreme Court of Minnesota. June 8, 2010. ORDER In November 2009, the Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action alleging that respondent Jesse Gant, III, committed professional misconduct warranting public discipline, namely, bringing a defamation action that had no basis in law or fact, in violation of Minn. R. Prof. Conduct 3.1 and 8.4(d). Respondent filed an answer to the petition, and we referred the matter to a referee for findings of fact and recommendations for disposition. At the hearing before the referee, respondent withdrew his previously filed answer and admitted the allegations of the petition. Respondent and the Director jointly agreed that the referee could recommend to our court that respondent be publicly reprimanded, conditioned upon respondent paying sanctions and costs assessed against him by the district court and court of appeals in the matter of McClure v. Le Phan, No. A08-673, 2009 WL 605740 (Minn.App. Mar.10, 2009), rev. denied (Minn. May 19, 2009). The referee has issued findings of fact, a conclusion of law, and recommendation for discipline in accordance with the parties' agreement. The court has independently reviewed the file and adopts the referee's recommended disposition. Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that respondent Jesse Gant, III, is publicly reprimanded. Respondent shall pay the sanctions and costs assessed against him by the district court and court of appeals in the matter of McClure v. Le Phan on the following schedule: respondent shall pay $1,000 on or before July 1, 2010, and thereafter shall pay $1,000 per month until the full amount owed is paid. Respondent shall provide the Director with documentation of each of the required payments at the time the payment is made. Should respondent not make any payment as ordered, upon request of the Director and after giving respondent an opportunity to be heard, the court may impose such additional discipline as it deems appropriate. In addition, in this matter respondent shall pay $900 in costs and disbursements in this matter pursuant to Rule 24, Rules on Lawyers Professional Responsibility. /s/ Alan C. Page Associate Justice.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2907132/	In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-09-00304-CR _____________________ EX PARTE WESLEY VINSON On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 2280 (09-05673) MEMORANDUM OPINION On June 29, 2009, the trial court denied Wesley Vinson's application for writ of habeas corpus without conducting an evidentiary hearing or issuing the writ of habeas corpus. We questioned our jurisdiction over the appeal. Vinson filed a response labeled "writ of mandamus" in which he argues the merits of his application for writ of habeas corpus without first establishing that the order is appealable. No appeal lies from the refusal to issue a writ of habeas corpus unless the trial court rules on the merits of the application. Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991); Ex parte Noe, 646 S.W.2d 230 (Tex. Crim. App. 1983). In this case, it does not appear that the trial court addressed the merits of the application. The trial court did not issue a writ of habeas corpus, nor did the court conduct an evidentiary hearing on the application for the writ. Compare Ex parte Silva, 968 S.W.2d 367 (Tex. Crim. App. 1998); Ex parte McCullough, 966 S.W.2d 529 (Tex. Crim. App. 1998). We conclude we have no jurisdiction over this appeal. (1) Accordingly, we dismiss the appeal for want of jurisdiction. APPEAL DISMISSED. DAVID GAULTNEY Justice Opinion Delivered August 26, 2009 Do Not Publish Before Gaultney, Kreger, and Horton, JJ. 1. Even if we were to read the appellant's response broadly as a request for a writ of mandamus to compel the trial court to consider the merits of the application, the response in this case does not present a sufficient basis for this Court to grant that request.	01-03-2023	09-10-2015
https://www.courtlistener.com/api/rest/v3/opinions/2564309/	298 F.Supp.2d 1259 (2003) In re: MANAGED CARE LITIGATION This Document Relates to Provider Track Cases No. MDL 1334-MD. United States District Court, S.D. Florida, Miami Division. December 8, 2003. 1260 1261 1262 1263 1264 1265 1266 1267 1268 1269 1270 OMNIBUS ORDER GRANTING IN PART AND DENYING IN PART JOINT MOTION TO DISMISS THE SECOND AMENDED CONSOLIDATED CLASS ACTION COMPLAINT MORENO, District Judge. TABLE OF CONTENTS I. INTRODUCTION ...................................................1271 A. COMPLAINT ...................................................1271 II. LEGAL STANDARD .................................................1272 III. DISCUSSION .....................................................1272 A. RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT ........................................................1273 1. "ENTERPRISE" .............................................1273 2. PREDICATE ACTS ...........................................1277 3. PROXIMATE CAUSE ..........................................1280 4. RICO CONSPIRACY ..........................................1280 5. EQUITABLE RELIEF UNDER RICO ..............................1281 6. MCCARRAN-FERGUSON ACT ....................................1283 7. ARBITRABLE PRIMARY RICO CLAIMS ...........................1285 B. ERISA PREEMPTION ............................................1287 1. SECTION 502 PREEMPTION ...................................1289 2. SECTION 514 PREEMPTION ...................................1292 3. EXHAUSTION OF REMEDIES ...................................1294 C. CHOICE OF LAW ...............................................1296 D. STATE COMMON LAW CLAIMS .....................................1297 1. QUASI-CONTRACT CLAIMS ....................................1297 E. STATE STATUTORY CLAIMS ......................................1298 1. PROMPT PAY: PRIVATE RIGHT OF ACTION ......................1298 2. CAL. BUS. & PROFESSIONS CODE ง 17200 ................1300 3. NEW JERSEY CONSUMER FRAUD ACT ............................1303 F. MEDICAL ASSOCIATION STANDING ................................1305 1271 1. INDIVIDUAL STANDING: INJURY-IN-FACT ......................1305 2. REPRESENTATIVE STANDING ..................................1307 G. PARENT-SUBSIDIARY RESPONSIBILITY ............................1308 IV. CONCLUSION .....................................................1310 I. INTRODUCTION This multi-district litigation involves two separate categories of plaintiffs who have filed suit against various insurance companies that provide managed care. One group of plaintiffs consists of Providers[1] who allege that the managed care company defendants, both individually and in combination, engaged in a pattern of failing to pay claims in full and in a timely manner, thereby breaching certain agreements and selected federal and state statutes. The Providers include those in the Main Track nationwide class action complaint as well as certain tag-along plaintiffs transferred to this Court from locations around the country by the Judicial Panel on Multi-District Litigation. Before the Court is the second phase of motions to dismiss in the Provider track of this litigation. Defendant managed care companies[2] jointly seek to dismiss various portions of the Main Track Second Amended Consolidated Class Action Complaint for failure to state a claim upon which relief can be granted. Through numerous pleadings spanning many months and a hearing on August 14, 2003, these well-matched parties have participated in a classic legal contest. For the reasons outlined below, the joint motion to dismiss is GRANTED in part and DENIED in part consistent with this opinion. A. COMPLAINT The Main Track Second Amended, Consolidated Class Action Complaint (the "SAC") (D.E. No. 1607) contains ten separate causes of action: (1) RICO conspiracy, 18 U.S.C. ง 1962(d); (2) RICO aiding and abetting, 18 U.S.C. ง 2((1) and (2) collectively referred to herein as "secondary RICO violations"); (3) primary RICO, 18 U.S.C. ง 1962(a) & (c); (4) RICO declaratory and injunctive relief, 18 U.S.C. ง 1964(a); (5) breach of contract; (6) unjust enrichment/constructive contract; (7) violation of various state prompt pay statutes; (8) violation of the California Business & Professions Code ง 17200; (9) violation of the Connecticut Unfair Trade 1272 Practices Act[3]; and (10) violation of the New Jersey Consumer Fraud Act. II. LEGAL STANDARD A court will not grant a motion to dismiss unless the plaintiff fails to prove any facts that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). When ruling on a motion to dismiss, a court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's well-pleaded facts as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); St. Joseph's Hosp., Inc. v. Hosp. Corp. of Am., 795 F.2d 948 (11th Cir.1986). III. DISCUSSION Coventry, Health Net, Humana, PacifiCare, Prudential, United and WellPoint have filed a joint motion to dismiss the SAC.[4] Anthem and Coventry have also filed separate motions to dismiss.[5] The Court has issued several Orders of Dismissal as to previous versions of both Provider and Subscriber Track complaints. Many of these previous rulings are pertinent to resolution of the instant motions. (1) The Court rejected Defendants' position that claims under 18 U.S.C.1962(a) must result from the "investment" of racketeering proceeds, rather than merely flow from predicate acts of racketeering. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 441 (5th Cir.2000); Fogie v. THORN Americas, Inc., 190 F.3d 889, 899 (8th Cir.1999); Vemco v. Camardella, 23 F.3d 129, 132 (6th Cir.1994). The Court adopted the minority position that does not require an investment use injury independent of the alleged predicate acts under Section 1962(a). See In re Managed Care Litig., 150 F.Supp.2d 1330, 1351-52 (S.D.Fla.2001); See also Busby v. Crown Supply, 896 F.2d 833, 836-40 (4th Cir. 1990); accord Avirgan v. Hull, 691 F.Supp. 1357, 1362 (S.D.Fla.1988), aff'd, 932 F.2d 1572 (11th Cir.1991). Nonetheless, in the most recent version of the Complaint, Plaintiffs have alleged that they suffered injury from Defendants' "investment and reinvestment of [racketeering] income ... to operate, expand and perpetuate [the Managed Care Enterprise]." SAC ถถ 186, 192, 197. (2) The Court rejected Defendants' position that Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), supercedes Eleventh Circuit precedent that authorizes a private cause of action for "aiding and abetting" a RICO violation pursuant to 18 U.S.C. ง 2. See In re Managed Care Litig., 135 F.Supp.2d 1253, 1267 (S.D.Fla.2001); see also Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir.1994); cf. Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1204 (11th Cir. 2001). (3) The Court held that the central enterprise allegations underlying all of Plaintiffs' RICO claims were untenably broad, and that the supporting averments were too vague, incomplete or indefinite. Plaintiffs failed to identify the third-party entities which formed the enterprise, and also did not provide sufficient detail regarding the links between these third-party entities. Accordingly, the Court directed 1273 Plaintiffs to "identify who comes within the ambit of [the RICO] enterprise, or where [plaintiffs' RICO claims] begin and end." In re Managed Care Litig., 135 F.Supp.2d 1253, 1262 (S.D.Fla.2001). (4) With regard to state prompt-pay statutes, the Court required Plaintiffs to "identify which state statutes are being alleged and which Defendants are alleged to have violated which statute" and "state how each Defendant violated the statute." Id. at 1269-70. A. RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (COUNTS I-IV) The Racketeer Influenced and Corrupt Organizations Act ("RICO") provides that it is "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. ง 1962(c). Therefore, "to state a RICO claim, a plaintiff must plead (1) that the defendant (2) through the commission of two or more acts (3) constituting a `pattern' (4) of `racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an `enterprise' (7) the activities of which affect interstate or foreign commerce." McCulloch v. PNC Bank, 298 F.3d 1217, 1225 (11th Cir.2002). "Racketeering activity" is defined to include "any act which is indictable under a lengthy list of criminal offenses." Langford v. Rite Aid of Ala., Inc., 231 F.3d 1308, 1312 (11th Cir.2000). 1. "ENTERPRISE" a. Requirement of a Discernible "Entity" Defendants argue that the SAC again fails to define a sufficiently discrete enterprise for purposes of RICO liability. Plaintiffs include the following entities within their definition of the Managed Care Enterprise ("MCE"): Defendants, their trade associations, a few named vendors, unidentified "health insurance companies not named as defendants herein," and "other third party entities." SAC ถถ 26-31. Plaintiffs previously alleged that the RICO enterprise comprised the entire health care industry, including both providers and the numerous different companies connected in some professional fashion with the nation's system for providing private health care coverage. While the scope of the alleged enterprise is still quite large, the Court finds that Plaintiffs have answered the challenge and added the requisite amount of detail to successfully allege an association-in-fact enterprise. An association-in-fact enterprise requires the existence of an entity, "an ongoing organization, formal or informal, and evidence that the various associates function as a continuing unit." United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981); see also NOW v. Scheidler, 510 U.S. 249, 259 n. 5, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994) (noting that an "enterprise" under Section 1962(a) must "be an entity that was acquired through illegal activity," whereas an "enterprise" under Section 1962(c) is "generally the vehicle through which the unlawful pattern of racketeering is committed, rather than the victim of that activity"). Whether the enterprise is the prize, victim, instrument, or perpetrator, this requirement ensures that all RICO enterprises have a structure and some mechanism for "controlling and directing the affairs of the enterprise on an ongoing, rather than ad hoc basis." United 1274 States v. Riccobene, 709 F.2d 214, 222-23 (3d Cir.1983); Bachman v. Bear Stearns & Co., 178 F.3d 930, 932 (7th Cir.1999) (stating that a RICO enterprise requires "continuity of structure and personality," the ability "to hold [itself] together through time," and "hierarchal or consensual decision-making"). While in particular cases the proof used to establish the enterprise and the racketeering pattern requirements may coalesce, the possibility of evidentiary overlap does not detract from the fact that the existence of an enterprise remains a separate element. Turkette, 452 U.S. at 583, 101 S.Ct. 2524 ("The `enterprise' is not the `pattern of racketeering activity'; it is an entity separate and apart from the pattern."). A RICO enterprise "require[s] a certain amount of organizational structure which eliminates simple conspiracies from the Act's reach. That is, simply conspiring to commit a fraud is not enough to trigger the Act if the parties are not organized in a fashion that would enable them to function as racketeering organization for other purposes." VanDenBroeck v. CommonPoint Mortgage Co., 210 F.3d 696, 699 (6th Cir.2000); Fitzgerald v. Chrysler Corp., 116 F.3d 225, 228 (7th Cir.1997). Since "diverse parties ... customarily act for their own gain or benefit in commercial relationships," a complaint founded on commercial relationships between the alleged components of the enterprise should plead facts "dispel[ling] the notion that the different parties entered into [the alleged] agreements ... for their own gain or benefit." Stachon v. United Consumers Club, Inc., 229 F.3d 673, 677 n. 4 (7th Cir.2000). Defendants argue that the SAC's factual averments are insufficient even to allege concerted action that legally amounts to a conspiracy, much less an "entity" with the type of ongoing organization and structure necessary to meet RICO's enterprise requirement. They claim that Plaintiffs' new allegations of a MCE continue to cast too wide a net, in effect over an entire industry. Moreover, Defendants assert that there are no specific factual allegations showing a common link between the alleged participants. Thus, they assert that this "nebulous, open-ended description" is insufficient. Richmond v. Nationwide Cassel, L.P., 52 F.3d 640, 645 (7th Cir.1995); see also Brannon v. Boatmen's First Nat'l Bank of Okla., 153 F.3d 1144, 1149 (10th Cir.1998). Once again, Defendants turn to authority outside the Eleventh Circuit holding that severally contracting with various Defendants is insufficient.[6] 1275 Yet, the Eleventh Circuit has not bound itself to strict metaphysical structural requirements and has authorized just the type of allegations made in this case. "An enterprise under [RICO] is any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact though not a legal entity. Moreover, under our case law, a RICO enterprise need not possess an ascertainable structure distinct from the association necessary to conduct the pattern of racketeering activity.... We have held that Turkette left intact this Circuit's holding in United States v. Elliott, 571 F.2d 880 (5th Cir.1978), that the definitive factor in determining the existence of a RICO enterprise is the existence of an association of individual entities, however loose or informal, that furnishes a vehicle for the commission of two or more predicate crimes, that is, the pattern of racketeering activity requisite to the RICO violation." United States v. Goldin, 219 F.3d 1271, 1274-75 (11th Cir.2000) (internal quotations and citations omitted). Indeed, "[A] RICO enterprise may be an `amoeba-like' structure of a loose informal association." Avirgan v. Hull, 932 F.2d 1572, 1578 (11th Cir.1991) (citing United States v. Cagnina, 697 F.2d 915, 921 (11th Cir.1983)), cert. denied, 502 U.S. 1048, 112 S.Ct. 913, 116 L.Ed.2d 813 (1992). Plaintiffs argue that the SAC satisfies Goldin and cures the deficiencies previously noted by the Court. See SAC ถถ 126-131. While Defendants protest that the level of factual detail has not been reached, the pleadings are justifiably limited at this stage because Plaintiffs have not had the aid of discovery. The Court finds that the preliminary sketch of a RICO enterprise provided by the Plaintiffs adequately meets the Court's challenge. Moreover, although the MCE that the Provider Plaintiffs have alleged is admittedly larger in scope than the one found sufficient in the Subscriber Track, there are a few analogous similarities. First, the Plaintiffs have not bundled a random assortment of contracts and labeled it an enterprise. Each of the entities are tied together with the common purpose established by the Defendants. Second, the associations and third-party entities are alleged to have a stake in the ongoing function of the enterprise. Indeed, the links between the entities go beyond ordinary contractual bonds โ for example, the hiring of each other's senior-level employees, the use of similar patient care guidelines and computer software packages, and formation and membership in trade associations that unify the industry voice. SAC ถ 130. Every individual entity plays a role in the enterprise equation: each Defendant and their subsidiaries throughout the country; other health insurance companies not expressly named; third party entities that develop claims processing systems or components; third party entities which promulgate patient care guidelines; third party entities that Defendants hire to review and wrongfully deny claims; trade associations; and a health industry database, MedUnite. SAC ถ 127. The maintenance of this organized system requires an ongoing enterprise. Accordingly, the Plaintiffs have set out to the Court's satisfaction the associational links comprising the Managed Care Enterprise and the Court therefore finds that Plaintiffs have 1276 sufficiently alleged an enterprise for the purposes of RICO. b. Antitrust in Disguise Defendants next argue that Plaintiffs' concentration on "market dominance" confirms that the SAC is nothing more than vague antitrust allusions impermissibly dressed in RICO garb. SAC ถถ 112-15, 130. RICO's history indicates that Congress did not intend for it to be used as a vehicle for evading the strict legal requirements applicable to antitrust claims. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 498-99, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). Moreover, RICO enterprises are entities that might be victimized by, or used as vehicles for, the commission of the crimes enumerated by RICO. NOW v. Scheidler, 510 U.S. 249, 259 n. 5, 114 S.Ct. 798 (1994). Defendants claim that if Plaintiffs are allowed to proceed on their collusive-industry enterprise theory, all businesses might face similar liability for engaging in business practices that have not been shown to harm consumers or competition. Plaintiffs should not be able to use RICO to evade the requirements of applicable antitrust law. The broader regulation of competition, markets or lines of commerce remains the exclusive focus of antitrust laws. Jennings v. Emry, 910 F.2d 1434, 1438 (7th Cir.1990) (holding that antitrust conspiracy allegations are not "racketeering acts" under RICO, because a "violation of antitrust law is not a predicate act under RICO"); Prince Heaton Enters., Inc. v. Buffalo's Franchise Concepts, Inc., 117 F.Supp.2d 1357, 1363 (N.D.Ga.2000); Schwartz v. Hosp. of Univ. of Pa., CIV A. No. 88-4865, 1993 WL 153810, 7 (E.D.Pa. May 7, 1993) (finding that plaintiff could not advance a RICO claim that "is dependent on an antitrust violation."). Defendants contend that Plaintiffs' "antitrust" averments would require dismissal under settled doctrine, as evidenced by their failure to allege harm to competition or define the relevant product and geographic markets. Feldman v. Palmetto Gen. Hosp., Inc., 980 F.Supp. 467, 469 (S.D.Fla.1997); see also Wagner v. Magellan Health Servs., Inc., 121 F.Supp.2d 673, 682 (N.D.Ill.2000). In the process of asserting that Plaintiffs' claims have antitrust implications, however, Defendants actually undermine their position that Plaintiffs' RICO claims encroach on antitrust territory when they attempt to demonstrate that an antitrust claim does not exist. Indeed, the fact that Defendants might be legitimate organizations does not take them out of RICO's ambit. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. at 499, 105 S.Ct. 3275 (1985). Defendants urge the Court to adopt some sort of antitrust preemption, but none has been statutorily authorized by Congress. c. "Operation and Management" of the Enterprise Section 1962(c) imposes RICO liability on a defendant only if it "conduct[s]" or "participate[s] ... in the conduct" of an enterprise. Congress' insistence that the defendant must have "conduct[ed]" the affairs of the enterprise is not merely synonymous with "aid and abet," or otherwise "superfluous," but rather constitutes a separate and distinct requirement. Reves v. Ernst & Young, 507 U.S. 170, 178, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). Accordingly, Defendants must exercise "some degree of direction" of the enterprise as well as an element of "control." Id. at 179, 184, 113 S.Ct. 1163. "[L]iability depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs." Id. at 185, 113 S.Ct. 1163; Brannon v. Boatmen's First 1277 Nat. Bank of Oklahoma, 153 F.3d 1144, 1146 (10th Cir.1998). Defendants argue that Plaintiffs merely recycle allegations of individual predicate acts that each Defendant is alleged to have committed in the course of the operation of its own business. SAC ถถ 112-14, 130. Nevertheless, the Court finds that these allegations are sufficient at this stage. Plaintiffs begin by alleging that Defendants have violated Section 1962(c) "by conducting ... the affairs of the Managed Care Enterprise." See Am. RICO Case Statement ถ 6(d). Plaintiffs paint a further picture of the enterprise's operation and control by alleging that Defendants played a part in directing the affairs of the enterprise by developing guidelines and standards to use as criteria to deny claims, by hiring others to develop automated systems for manipulating claims, by creating MedUnite as a common entry point for physician data, and by approving on a CEO by CEO basis the joint actions of the Coalition for Quality Healthcare. SAC ถ 130(a), (c), (f) & (g). These allegations, if established, would show that the MCE furnishes a vehicle for the commission of continuing predicate crimes with the Defendants squarely in the driver's seat. While Defendants quibble about needing more specificity regarding the operation and control of the enterprise, the Court nevertheless finds that Plaintiffs have alleged the basic contours of control necessary to survive a Fed.R.Civ.P. 12(b)(6) motion. 2. PREDICATE ACTS a. "Breach as Fraud" Theory Anthem and the Joint Defendants contend that Plaintiffs' mail and wire fraud allegations amount at most to breach of contract (or quasi-contract) not the criminal fraud prohibited by 18 U.S.C. งง 1341, 1343 which constitute RICO predicate acts. They argue that most of the representations alleged by Plaintiffs are merely communications that announce the disposition of a particular request for contractual reimbursement. See Amended RICO Case Statement ถถ 70-237. Plaintiffs, however, allege that each Defendant became guilty of fraud by failing to disclose secret cost containment mechanisms โ such as the use of computer software to review claims โ that Defendants allegedly use to deny, diminish and delay payment for covered, medically necessary services. SAC ถถ 78, 84-96. Rather than honoring their contractual and quasi-contractual obligations, Defendants "use cost-based or other actuarial criteria unrelated to [contractual and quasi-contractual] requirements to approve and deny claims submitted by Plaintiffs and the class." Id. ถ 84. At the outset, the Court notes that simple allegations of withholding or delaying payment under a contract, even for extortionate purposes, do not constitute criminal mail and wire fraud. Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1318-19 (11th Cir.1998); see also United States v. D'Amato, 39 F.3d 1249, 1261 n. 8 (2d Cir.1994); McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F.2d 786, 791 (1st Cir. 1990). Moreover, nondisclosure of an intent not to perform a contract generally cannot be used to bootstrap a fraud claim, since the mail and wire fraud statutes only proscribe representations designed to defraud. McNally v. United States, 483 U.S. 350, 357, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); Reynolds v. E. Dyer Dev. Co., 882 F.2d 1249, 1252 (7th Cir.1989); Zemans v. Karris, No. 87 C 171, 1989 WL 13161, 1 (N.D.Ill. Feb. 16, 1989). In addition, the Court also notes that the Defendants' arguments do not apply to Plaintiffs who treated Defendants' insureds outside of any contractual 1278 relationship. Further, as to the contractual claims, commercial contractual relationships are generally not the type of special relationship of trust that imposes an affirmative duty to disclose information. Langford v. Rite Aid, 231 F.3d 1308, 1314 (11th Cir.2000). However, contractual settings can provide the context for RICO mail fraud claims if there is a pattern of misrepresentations amounting to both a scheme to defraud and racketeering activity, Robert Suris Gen. Contractor Corp. v. New Metro. Fed. Sav. & Loan Ass'n, 873 F.2d 1401, 1404 (11th Cir.1989); United States v. Kreimer, 609 F.2d 126, 128 (5th Cir.1980). Concealment of critical data, even without a formalized duty to disclose, may also constitute mail and/or wire fraud in certain situations. Langford, 231 F.3d at 1312-13. In the SAC, the Plaintiffs allege a fraudulent scheme based upon the failure to disclose a plethora of automated processing techniques to diminish, deny or delay payments. SAC ถ 78. See McNally v. United States, 483 U.S. 350, 357, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987); Reynolds v. E. Dyer Dev. Co., 882 F.2d 1249, 1252 (7th Cir.1989). These contractual promises were allegedly never intended to be performed. Moreover, the allegations in the SAC can be distinguished from Johnson Enterprises, cited by Defendants, where the corporate defendant's undue delay in payment did not constitute criminal fraud as it did not constitute a "scheme to defraud". Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1318-19 (11th Cir.1998). In contrast, these failed disclosures alleged in the SAC go to `the heart of their relationship' and disclosure was necessary to prevent the doctors from being misled by Defendants' apparent actions and statements. Therefore, the allegations, if proven, constitute circumstances that might trigger a duty to disclose. See, e.g., United States v. Brown, 79 F.3d 1550, 1558 (11th Cir.1996) ("it can be criminal fraud for a seller to conceal, or even fail to disclose, information after already affirmatively misleading customers about material facts"). While Defendants insist on focusing on the individual contractual level in this class action, the Plaintiffs' allegations of a fraudulent scheme takes place on a far wider systematic level โ a significant distinction. Accordingly, while their claims are indeed embedded in a contractual relationship, Plaintiffs's allegations of mail fraud continue to be viable. b. Fraud Claims and Fed.R.Civ.P. 9(b) The Joint Defendants also argue that all the fraud claims are not pled with the requisite particularity. Fed.R.Civ.P. 9(b); see also United States ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1310 (11th Cir.2002). The Court previously held that Plaintiffs' allegations of "downcoding, CPT code manipulation, improper bundling and use of inappropriate criteria to deny or reduce claims" satisfied Fed.R.Civ.P. 9(b) and thus "properly pled against each Defendant predicate acts of mail and wire fraud constituting a continuing pattern of racketeering activity." See In re Managed Care Litig., 135 F.Supp.2d 1253, 1263 (S.D.Fla.2001). The Court has not had occasion, however, to address the Plaintiffs' capitation-related allegations contained in the SAC. Plaintiffs allege that Defendants misrepresent that their capitation rates are actuarially sound, SAC ถ 103, that Defendants overcharge risk funds for the cost of prescription medicine, id. ถ 106, that Defendants manipulate pharmacy risk pools so that there is never any money in the pools at the end of the year to pay doctors, id. ถ 107, and that Defendants delay furnishing providers with initial capitation payments, id. ถถ 104-05. Moreover, Plaintiffs 1279 allege that the Providers possessing capitation agreements with one or more of the Defendants receive monthly capitation rolls supposedly listing the patients in their group, but that the rolls do not include enrolled patients who have yet to seek any treatment, allowing Defendants to retain the full premiums for "well" members and forcing the doctors to absorb the costs of treating a group artificially inflated with sick patients. SAC ถถ 105-106 Defendants claim that Plaintiffs have provided only one allegation of fraud relating to one Defendant's capitation payments and have provided no specific allegations of fraud relating to any Defendant's risk sharing arrangements. Once again, this argument hinges on levels of specificity which are not required at this stage. Plaintiffs have provided the same level of detail in the capitation allegations as they did for the claims processing allegation, which this court found sufficient for the purposes of pleading RICO mail and wire fraud. Similarly, other courts have found that such detail is not required for numerous misrepresentations that occur over an extended period of time. Fujisawa Pharmaceutical Co. v. Kapoor, 814 F.Supp. 720, 726 (N.D.Ill.1993); Sunbird Air Servs., Inc. v. Beech Aircraft Corp., 789 F.Supp. 364, 366 (D.Kan.1992); United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 20 F.Supp.2d 1017 (S.D.Tex.1998). Accordingly, Plaintiffs have provided the requisite allegations which allow their claims to proceed. c. Deprivation of a Property Interest Striking at the substantive merits of Plaintiffs' mail and wire fraud claims, Defendants contend that Plaintiffs' claims of mail and wire fraud cannot be proven as a matter of law because the Plaintiffs have not alleged the deprivation of any cognizable property interest. The Supreme Court has held that the "mail fraud statute is limited in scope to the protection of property rights." McNally v. United States, 483 U.S. 350, 360, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). This is because "the original impetus behind the mail fraud statutes was to protect the people from scheme to deprive them of their money or property." Id. at 356, 107 S.Ct. 2875. Defendants argue that the providers possess services, and even though they expect to give that up in exchange for money, that does not make it a property interest. Defendants' arguments have principally arisen in the wake of the recent Scheidler v. NOW decision, where the Supreme Court held, among other things, that by interfering with "a woman's right to seek medical services from a clinic" and "the right of the doctors, nurses, or other clinic staff to perform their jobs" individual and corporate entities did not "obtain" or attempt to obtain a property right from women's rights organization or abortion clinics.[7]Scheidler v. NOW, 537 U.S. 393, 399-402, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003). Plaintiffs, however, argue that services indeed can be considered property, and allegations that they performed the services and were defrauded out of rightful monetary payments easily falls under the rubric of a property interest. The Court agrees. The allegations in part concern a scheme using claims processing mechanisms to deny, diminish, and delay payments for services that have been performed. Therefore, the providers are being deprived of a property right โ in 1280 this case money rightfully theirs โ in perhaps the most legally primitive sense. 3. PROXIMATE CAUSE Defendants argue that Plaintiffs' allegations that Defendants have injured individual physicians by economically manipulating the entire managed care industry fail under RICO's stringent proximate cause requirements. Holmes v. Sec. Invest. Prot. Corp., 503 U.S. 258, 267-68, 272-73, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (requiring "some direct relation between the injury asserted and the injurious conduct alleged" and stating that RICO's reach does not extend past the intervening acts of third parties). In the SAC, Plaintiffs have alleged that their injuries result from the participants in the managed care industry who have been "coerced" into participating in Defendants' supposed "scheme." For example, Plaintiffs allege that Defendants' subsidiaries enter into capitation agreements with providers through independent medical groups ("IPAs"). Many of these IPAs themselves receive monthly capitation payments for each enrolled patient and agree to assume responsibility for processing and paying the claims of their individual doctors. According to Plaintiffs, Defendants' fraudulent misrepresentations render those payments actuarially unsound and cause the group's capitation fund to run dry. Defendants argue that it is speculation whether an individual doctor's failure to receive payments is directly attributable to insufficient capitation payments as opposed to the business practices of individual medical groups or IPAs, including their administrative overhead, efficiency and claims processing procedures. See Holmes, 503 U.S. at 258, 112 S.Ct. 1311. Even assuming that the appropriate assessment of factual causation could be made out with respect to some members, Defendants argue that this would be determinable in many cases only after culling out those members whose incomes were reduced as a result of mistakes or poor business practices and then apportioning damages among individual members accordingly. The ensuing causal investigation would open the door to the kind of "massive and complex damages litigation" that Holmes held had no place in RICO. Id. at 274, 112 S.Ct. 1311. The Court disagrees. Exploring Defendants' nightmarish causal scenario is inappropriate at this stage and Defendants fail in their attempt to create multiple layers of attenuation. Nothing like the extended chain of causation that existed in Holmes exists here โ indeed, Defendants' conduct is alleged to be the precipitating force in the Plaintiffs' injuries in a simple causal relationship. The fee-for-service Plaintiffs are injured when their bills are not paid in full by the Defendants. The capitation Plaintiffs are injured when they fail to receive payment, in this case, the full capitation payments that they are entitled to, directly or indirectly, through the IPAs that pass them along. Accordingly, Plaintiffs have satisfactorily alleged proximate cause. 4. RICO CONSPIRACY (SECTION 1962(D)) To successfully allege a Section 1962(d) claim, a plaintiff must allege "that the conspirators agreed to participate directly or indirectly in the affairs of an enterprise through a pattern of racketeering activity." United States v. Castro, 89 F.3d 1443, 1451 (11th Cir.1996). Proof of an agreement to participate in a RICO conspiracy can be established by either: (1) "showing an agreement of an overall objective or (2) in the absence of an agreement on an overall objective, by showing 1281 that a defendant agreed personally to commit two predicate acts." United States v. Church, 955 F.2d 688, 694 (11th Cir.1992), cert. denied, 506 U.S. 881, 113 S.Ct. 233, 121 L.Ed.2d 169 (1992). Plaintiffs must allege both that the conspirators agreed to participate in the affairs of an enterprise through a pattern of racketeering activity, see United States v. Castro, 89 F.3d at 1451, and sufficient conduct on the part of the participants that such an agreement can be inferred, see United States v. Church, 955 F.2d at 694. The existence of an agreement to further illegal acts is the key. In re Asbestos Sch. Litig., 46 F.3d 1284, 1290 (3d Cir.1994). Paragraphs 165 and 166 of the SAC allege the formal RICO conspiracy language for both Sections 1962(a) and (c). Defendants argue that Plaintiffs' conspiracy allegations merely allege conscious parallelism and constitutionally protected (First Amendment) conduct. See SAC ถถ 116, 118, 120 ("Defendants employ similar business practices in dealing with claims for reimbursement and participate in trade associations and other industry groups that are vehicles for the exchange of sensitive information."). Defendants assert that this is an insufficient factual basis from which to infer an agreement to violate RICO. O'Malley v. O'Neill, 887 F.2d 1557, 1560 (11th Cir.1989); Schiffels v. Kemper Fin. Servs., Inc., 978 F.2d 344, 352 (7th Cir.1992). They argue that evidence of membership in trade associations or other similar groups "is not probative of conspiracy." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Blomkest Fertilizer, Inc. v. Potash Corp., 203 F.3d 1028, 1038 (8th Cir.2000); In re Citric Acid Litig., 191 F.3d 1090, 1097-98 (9th Cir.1999). Nor is conspiracy demonstrated by "consciously parallel action" among industry members who belong to the same industry groups. Consolidated Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 293-94 n. 30 (5th Cir.1988). In the previous Order of Dismissal, this Court found that the Plaintiffs had adequately pled a conspiracy claim under Section 1962(d). Nevertheless, the claim was dismissed due to a defect in the enterprise allegations. Now that the Court has found that the Plaintiffs have satisfied the enterprise pleading requirements in the newest iteration of the complaint, there is no reason to depart from the previous finding. Indeed, close inspection of the SAC demonstrates that Plaintiffs continue to satisfy the pleading requirements. An agreement to the overall objective of the conspiracy as well as to commit predicate acts is contained in Paragraph 117, the functional necessity of such an agreement is contained in Paragraph 118, and subagreements, like agreeing to use the same standards, guidelines and automated processing techniques to deny or diminish claims are alleged in Paragraph 130(b) and (d). Paragraphs 112 through 120 of the SAC allege conduct from which the requisite agreement can be inferred. As to the First Amendment concerns, Plaintiffs' allegations go far beyond participation in trade associations. The First Amendment does not protect illegal conduct implemented through trade associations. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). Thus, discovery is necessary to determine the significance and probative value of these associational activities. 5. EQUITABLE RELIEF UNDER RICO (COUNT IV) Defendants argue that RICO does not authorize a private plaintiff to obtain equitable or declaratory relief, only treble damages. 18 U.S.C. ง 1964(a). Section 1282 1964(a) grants district courts "jurisdiction to prevent and restrain violations" of RICO by issuing various forms of injunctive relief โ including "ordering dissolution or reorganization" โ but does not expressly set forth a cause of action for any sort of relief. Section 1964(b) states that "[t]he Attorney General may institute proceedings under this section," and that "[p]ending final determination thereof," the court may enter appropriate interim restraining orders. Section 1964(c) provides that "[a]ny person injured in his business or property by reason of a [RICO] violation ... may sue ... and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." There is no controlling legal precedent that governs the Court's disposition of this issue. Defendants argue, however, that based upon the text, structure and history of the statute, only the Attorney General may seek final and interim injunctive relief. A slim plurality of courts of appeals appear to agree, but most have addressed the issue in terms of interim or temporary equitable relief. Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076, 1087 (9th Cir.1986) (addressing the availability of interim injunctive relief); In re Fredeman Litig., 843 F.2d 821, 830 (5th Cir.1988) (holding that interim injunctive relief was unavailable); Sedima, S.P.R.L. v. Imrex, 741 F.2d 482, 489 n. 20 (2d Cir.1984), rev'd on other grounds, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985); see also Johnson v. Collins Entm't Co., 199 F.3d 710, 726 (4th Cir. 1999) (expressing doubt as to the availability of injunctive relief for private plaintiffs); cf. Bennett v. Berg, 685 F.2d 1053, 1064 (8th Cir.1982) (citing law review article supporting injunctive relief), aff'd on reh'g, 710 F.2d 1361 (1983) (en banc) (McMillan, J., concurring) (suggesting injunctive relief is available). Conversely, most courts have held that the Attorney General may not seek treble damages. United States v. Bonanno, 879 F.2d 20, 22-24 (2d Cir.1989). Furthermore, amendments that would have added a private right to injunctive relief were omitted from the final version of the statute. See Religious Tech. Ctr. v. Wollersheim, 796 F.2d 1076, 1084-85 (9th Cir. 1986) (discussing RICO's long legislative lineage). One circuit court, however, has recently held that private parties may obtain injunctive and declaratory relief under RICO. NOW v. Scheidler, 267 F.3d 687 (7th Cir.2001), rev'd on other grounds, 537 U.S. 393, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003).[8]Scheidler relied entirely upon the plain meaning of the statutory text: "Section 1964(a) ... grants the district courts jurisdiction to hear RICO claims and also sets out general remedies, including injunctive relief, that all plaintiffs authorized to bring suit may seek. Section 1964(b) makes it clear that the statute is to be publicly enforced by the attorney general and it specifies additional remedies, all in the nature of interim relief that the government may seek. Section 1964(c) similarly adds to the scope of 1964(a), but this time for private plaintiffs. Those private plaintiffs who have been injured in their business or property by reason of a RICO violation are given a right to sue for treble damages." Id. at 696. The decision in NOW v. Scheidler is most closely on point with the remedies sought in the SAC as Scheidler 1283 arose from the district court's grant of permanent, rather than temporary, injunctive relief, akin to what Plaintiffs are seeking in the case at bar. Furthermore, few courts have squarely addressed the issue of the availability of equitable remedies and even then, do not reason in unison that permanent injunctive relief is unavailable. See In re Fredeman Litig., 843 F.2d 821, 830 (5th Cir.1988) ("[w]e need not decide, however whether all forms of injunctive or other equitable relief are foreclosed to private plaintiffs under RICO"). While the many authorities cited above render this interpretation a close call, the Court will follow the persuasive interpretation of the NOW v. Scheidler decision in the Seventh Circuit as it appropriately tracks the plain language of the statute. The Eleventh Circuit has cautioned district courts not to consult legislative history (including failed amendments) when the plain meaning is clear. CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1225, 1227-28 (11th Cir.2001). Therefore, the Court finds that RICO authorizes the injunctive and declaratory relief that Plaintiffs are seeking. 6. MCCARRAN-FERGUSON ACT Defendants contend that the McCarran-Ferguson Act, 15 U.S.C. ง 1012(b) (the "Act"), bars several named Plaintiffs' claims in Alabama, California, Florida and Louisiana. Section 1012(b) provides that "[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance." 15 U.S.C. ง 1012(b). The Act was enacted for the express purpose of rendering the antitrust laws inapplicable to insurers who are regulated by the several states, and in particular to allow insurers to form trade associations and share underwriting data. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 221-22, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). The Act "reverses the doctrine of preemption in cases involving state insurance law, such that a state law specifically regulating the business of insurance shall preempt a conflicting federal law unless that federal law specifically relates to the business of insurance." Blackfeet Nat'l Bank v. Nelson, 171 F.3d 1237, 1243 (11th Cir.1999) (stating that McCarron-Ferguson was passed to "make clear that states generally retained the power to regulate the business of insurance"). The Eleventh Circuit has directed a three part inquiry for the preemption analysis. First, was the relevant state law enacted "for the purpose of regulating the business of insurance?" Second, is the matter at issue (provider agreements) properly considered the "business of insurance?" Third, does the federal act (the Act) "specifically relate to the business of insurance?" Id. at 1240, 1245-46. In its previous decisions, the Court has not specifically dealt with the issue of whether the Defendants' challenged activities vis-เ-vis the Providers fall under the "business of insurance." The meaning of insurance in this context is a question of federal law. Blackfeet, 171 F.3d at 1245; Royal Drug Co., 440 U.S. at 205, 99 S.Ct. 1067; St. Bernard Hosp. v. Hosp. Serv. Ass'n of New Orleans, Inc., 618 F.2d 1140 (5th Cir.1980); Gen. Motors Corp. v. Caldwell, 647 F.Supp. 585 (N.D.Ga.1986). Some courts have found that similar provider contracts do not constitute the business of insurance. See Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979); St. Bernard Hosp. v. Hosp. Serv. Ass'n of New Orleans, Inc., 618 F.2d 1140, 1144-45 (5th 1284 Cir.1980), cert. denied, Hospital Service Association of New Orleans, Inc. v. St. Bernard General Hospital, Inc., 466 U.S. 970, 104 S.Ct. 2342, 80 L.Ed.2d 816 (1984) In Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), the Supreme Court held that contracts setting the amount of reimbursement health insurance companies would pay to pharmacies providing drugs to insureds were not within the business of insurance. Similarly, in Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982), the Court held that a peer review process for determining the reasonableness of health care claims was outside of the business of insurance. Through Royal Drug and its progeny, the Supreme Court articulated a three-part test in determining whether a practice falls under the business of insurance: "first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry." Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 120, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982). It is unclear whether the provider agreements at issue here constitute the "business of insurance" within the meaning of the Act. Blackfeet National Bank v. Nelson, 171 F.3d 1237, 1245 (11th Cir. 1999); Espinoza v. Union Sec. Life Ins. Co., 1996 WL 380702, at 2 (N.D.Ga. Jan. 24, 1996). In the instant case, the provider agreements generally are fee-for-service agreements, which merely minimize the costs Defendants must incur to fulfill their underwriting obligations. See Liberty Glass Co. v. Allstate Ins. Co., 607 F.2d 135, 137 (5th Cir.1979) (finding that service and price agreements between automobile insurers and glass installers for covered automobile glass replacement was not the "business of insurance"). Some lower courts have found that the relationship between insurers and service providers falls outside the "business of insurance." See, e.g., St. Bernard Hosp., 618 F.2d at 1144-45 (contract between mutual insurance association and non-member hospital was not the business of insurance because the purpose of the agreement was to minimize the insurer's costs, rather than to spread risk). Moreover, the SAC alleges practices which clearly do not deal with the transfer or spreading of a policy-holder's risk. The provider contracts are simply business contracts that allow Defendants to carry out their obligations to their insureds. While some type of provider agreement may be necessary for the Defendants' plans to exist, "it does not follow that because an agreement is necessary to provide insurance, it is also the `business of insurance.'" Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 214, n. 9, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979). Even though the provider contracts might inure to the benefit of policyholders, they are still not part of the core insurance policy. Defendants counter that the Court's previous decisions in the subscriber track provide support for their contentions that the claims are created by an underlying insurance policy. See SAC ถ 75 ("These services are provided based upon the fundamental premise that, if the services are covered by Defendants and are medically necessary, the Plaintiffs and class members will be compensated in a timely manner..."). In this case, however, the relationship between the provider and insurance company is an arrangement for the purchase of goods and services. Royal 1285 Drug, 440 U.S. at 214, 99 S.Ct. 1067. Thus, it is distinguishable from the Subscriber Track, where the holders of the insurance policies were pursuing RICO claims. Defendants also encourage the Court to adopt a more expansive interpretation of the "business of insurance." Citing United States Dep't of the Treasury v. Fabe, 508 U.S. 491, 506, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993), the Defendants contend that the reach of the Act is not confined to the business of insurance; rather, the inquiry is focused on whether application of federal law impairs, interferes or conflicts with a State's broad regulatory authority over the business of insurance. Fabe, 508 U.S. at 505, 113 S.Ct. 2202. Defendants point to Fabe's language which interprets the Act to preclude any suit that seeks to supplant state efforts directly or indirectly "aimed at protecting or regulating" the performance of an insurer's obligations or ensuring that policyholders "ultimately will receive payment." Id. at 506, 113 S.Ct. 2202. Nothing in Fabe, however, suggests that the Act sweeps within its scope all laws that affect insurance companies. Indeed, the Supreme Court in Fabe supported the interpretation of the "business of insurance" as focusing on the relationship between the insurance company and the policyholder. See Blackfeet National Bank v. Nelson, 171 F.3d 1237, 1246 (11th Cir. 1999). Here, Plaintiffs' relationship to the insurer is ancillary to the actual insurance contract itself. See Royal Drug, 440 U.S. at 216, 99 S.Ct. 1067. The contracts of insurance were between Defendants and the insureds, not between Defendants and the individual providers (service agreements). Accordingly, the Court finds that the relationship between insurers and providers falls outside the "business of insurance" and thus the Act does not pose a preemption issue.[9] 7. ARBITRABLE PRIMARY RICO CLAIMS Defendants argue that secondary RICO claims (Counts I and II) that derive from primary RICO claims, 18 U.S.C. ง 1962(a) and (c) (Count III), ordered to arbitration or abandoned by Plaintiffs must be dismissed,[10] because Plaintiffs may not recover for secondary violations without first establishing primary RICO violations. The issue presented by Defendants is indeed a novel one. Yet Defendants are unable to cite controlling case law on point that convinces this court to override Plaintiffs' prerogative in framing their claims. Defendants first submit that Plaintiffs must validly assert a direct RICO claim in order to maintain secondary claims including conspiracy and aiding and abetting. This is not possible, according to Defendants, given the Plaintiffs' abandonment of arbitrable direct RICO claims. It is well established that if a plaintiff fails to state a claim of a primary RICO violation, then the plaintiff's civil conspiracy claims necessarily fails. See, e.g., GE Invest. Private Placement Partners II v. Parker, 247 F.3d 543, 551 n. 2 (4th Cir.2001); Efron v. Embassy Suites, P.R., Inc., 223 F.3d 12, 21 (1st Cir.2000); Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (2d Cir.1996), vacated on other grounds, 525 U.S. 128, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998); Lightning Lube, Inc. 1286 v. Witco Corp., 4 F.3d 1153, 1191 (3d Cir. 1993); Religious Technology Center v. Wollersheim, 971 F.2d 364, 367 n. 8 (9th Cir.1992); Danielsen v. Burnside-Ott Aviation Training Ctr., Inc., 941 F.2d 1220, 1232 (D.C.Cir.1991); Craighead v. E.F. Hutton & Co., 899 F.2d 485, 495 (6th Cir. 1990); In re Edwards, 872 F.2d 347, 352 (10th Cir.1989). Civil conspiracy is not an independent cause of action; it is a liability spreading device based upon a viable underlying cause of action. See United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1294 (11th Cir.2001); Beck v. Prupis, 162 F.3d 1090, 1099 n. 18 (11th Cir.1998), aff'd, 529 U.S. 494, 120 S.Ct. 1608, 146 L.Ed.2d 561 (2000) (analyzing whether a RICO conspiracy Plaintiff can recover against a defendant when a co-conspirator commits any overt act in furtherance of the conspiracy, even if the overt act is neither a predicate act of racketeering or an actionable primary RICO violation). Civil (not criminal) common law conspiracy principles have been held to be applicable to secondary RICO claims. Beck, 529 U.S. at 500-01 n. 6, 120 S.Ct. 1608. Similarly, to be guilty of criminal aiding and abetting under 18 U.S.C. ง 2, the prosecution must first show that a substantive offense was committed. United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir.1989); see also United States v. Lozano-Hernandez, 89 F.3d 785, 790 (11th Cir.1996). Civil common law principles of aiding and abetting lead to the same result. Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983). Defendants use these preceding principles to argue that Plaintiffs cannot seek secondary liability by proving, without seeking judgment or damages for, primary claims that are subject to arbitration. Further, those direct RICO determinations must be made before an arbitrator. Defendants' attempt to piggyback on this line of reasoning is to no avail. Defendants do not cite to any controlling authority that squarely supports their theory.[11] In this case, as they must, Plaintiffs argue that, in the course of asserting their secondary RICO claims, they have pled and intend to prove that each Defendant committed primary RICO violations.[12] Nevertheless, Plaintiffs need not pursue a discrete claim, i.e., seek judgment and damages, for the underlying violation that is the object of the conspiracy or the alleged aiding and abetting violation. Put another way, while it may be necessary for Plaintiffs to plead a violation of the direct RICO statute in order to properly assert the secondary claims, it is not mandatory that they also seek relief for the underlying violation. Adoption of this principle 1287 permits Plaintiffs to remain masters of their own complaint. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-99, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Indeed, the Supreme Court's Beck decision confirms that Section 1962(d) can be used to sue a defendant who might not have violated one of the substantive provisions of Section 1962. Beck, 529 U.S. at 506-07, 120 S.Ct. 1608. Defendants' theory is therefore a non-starter. Close inspection of the substantive principles contained in the secondary causes of action confirms this view. Under common law civil conspiracy law, Plaintiffs need not sue all co-conspirators. Wilson P. Abraham Constr. Corp. v. Texas Indus., Inc., 604 F.2d 897, 904 n. 15 (5th Cir.1979); Non-Ferrous Metals, Inc. v. Saramar Aluminum Co., 25 F.R.D. 102, 104 (N.D.Ohio 1960). Moreover, in aiding and abetting prosecutions, the principal who committed the offense need not be convicted, joined or even identified. United States v. Campa, 679 F.2d 1006, 1013 (1st Cir.1982); United States v. Perry, 643 F.2d 38, 45 (2d Cir.1981); United States v. Ruffin, 613 F.2d 408, 412-13 (2d Cir.1979). Therefore, it would be illogical to preclude Plaintiffs from pursuing secondary RICO claims simply because they are not seeking judgment or relief from the underlying claim. While Defendants contend that there is no meaningful distinction between proving and pursuing a direct RICO violation, nevertheless, the fact remains that Plaintiffs as masters of their complaint still face a hurdle of proving every substantive element of their primary and secondary RICO claims in order to obtain the relief they request.[13] B. ERISA PREEMPTION Defendants renew their reliance on the preemption provision of the Employee Retirement Income Security Act of 1974 ("ERISA") in seeking to dismiss certain claims in the SAC. Defendants contend that the SAC's new set of allegations reveal that Plaintiffs' claims are not only substantially preempted by ERISA's two species of preemption, Section 502 and Section 514, but also to the extent that Plaintiffs seek to pursue their non-participating provider claims through ERISA, those claims must be dismissed for failure to exhaust administrative remedies. ERISA applies to any employee benefit plan, provided that it is established or maintained by an employer or employee organization engaged in commerce or in any industry or activity affecting commerce. 29 U.S.C. ง 1003(a). The statute explicitly includes plans provided through the purchase of insurance. 29 U.S.C. ง 1002(1). Section 514(a), the specific preemption provision, states that this federal statute preempts all state laws insofar as they "relate to" any employee benefit plan. 29 U.S.C. ง 1144(a) (1988). A state law "relates to" a covered employee benefit plan "if it has a connection with or reference to such a plan." District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 129, 113 S.Ct. 580, 121 L.Ed.2d 513 (1992) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). The Eleventh Circuit has recognized two types of ERISA preemption; complete preemption and defensive, or conflict, preemption. ERISA's specific preemption provision under Section 514 1288 triggers conflict preemption, which applies where the court has subject matter jurisdiction over the case but the plaintiff's claim is subject to ERISA's express preemption provision, 29 U.S.C. ง 1144(a) (i.e. if any of plaintiffs' claims "relate to any employment benefit plan"). This "defensive" preemption does not provide independent federal subject matter jurisdiction. Rather, it provides an affirmative defense to state law claims. See Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1211 (11th Cir.1999). This Court has had occasion to consider the issue of ERISA preemption in a prior iteration of Plaintiffs' complaint and previously found that Plaintiff providers in the Shane consolidated provider-track action could "bring their breach of contract claims free of the shadow of ERISA preemption." In re Managed Care Litigation, 135 F.Supp.2d 1253, 1268 (S.D.Fla. 2001); see also Cutler v. Humana Health Plan, Inc. No. 00-630, slip. op. at 1-2 (S.D.Fla. Mar. 7, 2001) (finding no ERISA preemption based upon provider's breach of contract and violations of Florida statutory law claims), Blackshear v. United Health Care of Florida, Inc., No. 00-1334, slip. op. at 2 (S.D.Fla. May 4, 2001) (same).[14] The analysis previously performed by the Court, however, was in accordance with Section 514(a). This Court reasoned that "state law claims brought by health care providers too tenuously affect ERISA plans to be preempted by the Act." See In re Managed Care Litig., 135 F.Supp.2d at 1268 (citing Lordmann Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1533 (11th Cir.1994)). Furthermore, the Court found that Plaintiffs' claims that Defendants breached their contracts by bundling and downcoding did not require plan interpretation so as to "relate to" any ERISA plan. See id. at 1268. On the other hand, there is another type of preemption provided by Section 502(a) of ERISA's statutory scheme, which Defendants urge the Court to apply to a substantial number of claims in the most recent complaint. This complete preemption, or "super-preemption," arises from Congress's creation of a comprehensive remedial scheme in 29 U.S.C. ง 1132 for loss or denial of employee benefits. See Butero v. Royal Maccabees Life Insurance Co., 174 F.3d 1207 (11th Cir. 1999). Complete preemption applies where "Congress preempts an area of law so completely that any complaint raising claims in that area is necessarily federal in character and therefore necessarily presents a basis for federal jurisdiction." Kemp v. Int'l Bus. Mach. Corp., 109 F.3d 708, 712 (11th Cir.1997). This doctrine serves as an exception to the "well-pleaded complaint rule" and even permits a defendant to remove a case to federal court even when only state law claims are alleged in the complaint. Id. Congress has established complete preemption in the realm of ERISA under Section 502(a), which provides that ERISA is the exclusive cause of action for the recovery of benefits under an ERISA plan. 29 U.S.C. 1289 ง 1132(a); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Therefore, put more succinctly, if a state law claim is in fact properly one that arises under ERISA's enforcement provisions, e.g. a claim for benefits, ERISA complete preemption should apply.[15]Id. The Court will accordingly bifurcate its discussion of ERISA preemption. 1. SECTION 502 PREEMPTION a. Express Contract Claims (Count V) Defendants assert that the Provider Plaintiffs' breach of contract claims are subject to complete preemption under Section 502(a) because they are attempting to assert an alternative basis, outside of ERISA, for enforcing plan obligations to pay for covered, medically necessary services. Confronted with this Court's clear precedent of holding that ERISA preemption is inapplicable to the Plaintiffs' state law contract claims, Defendants claim that regardless of whether there was ordinary preemption under Section 514(a), ERISA nonetheless preempts all the state law contract claims, whether or not they relate to an ERISA plan, because Plaintiffs seek to impose an alternative enforcement mechanism for benefits that are created by ERISA plans. Specifically, Defendants argue that under Rush Prudential v. Moran, 536 U.S. 355, 122 S.Ct. 2151, 153 L.Ed.2d 375 (2002), the Supreme Court made stark the applicability of Section 502(a) to this context. At the outset, the Court notes that Section 502(a)(1)(B) provides that an ERISA plan "participant or beneficiary" may bring a civil action "to recover benefits due to him under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. ง 1132(a)(1)(B). Defendants argue that Plaintiffs' claims are substantially preempted by Section 502(a) of ERISA because Plaintiffs now concede that Defendants are liable under their state-law theories only for "medically necessary" services that are "covered" for Defendants' insureds. SAC ถ 76. Therefore, Defendants argue that the great bulk of plaintiffs' state-law claims, if permitted to go forward, would plainly constitute the type of alternative enforcement mechanisms that are squarely foreclosed by ERISA's "carefully integrated" civil enforcement provisions. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Defendants, however, misconstrue the scope of preemption under Section 502(a). While Defendants read Section 502(a) to encompass a much broader area of preemption, by its very terms, Section 502(a) provides for preemption only in suits for benefits among ERISA entities. See id. at 54, 107 S.Ct. 1549 ("the policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA") (emphasis added). This dispute, therefore, boils down to whether the Provider Plaintiffs are considered "ERISA entities" who have standing to pursue an ERISA claim for benefits. The only parties that have standing to sue under ERISA are those listed in the civil 1290 enforcement provision of ERISA, codified at 29 U.S.C. ง 1132(a).[16] Under 29 U.S.C. ง 1132(a)(1)(B), a plaintiff must be either a "participant" or a "beneficiary" of the ERISA plan in order to have standing. See Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1241 (11th Cir.2001). To be a "participant," one must be an "employee or former employee of an employer, or any member or former member of an employee organization." 29 U.S.C. ง 1002(7). A "beneficiary" is "a person designated by a participant or by the terms of an employment benefit plan, who is or may become entitled to a benefit thereunder." Id. at ง 1002(8). Therefore, only two categories of individuals are permitted to sue for benefits under an ERISA plan โ plan beneficiaries and plan participants. Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1351 (11th Cir. 1998). Generally, health care providers such as the Provider Plaintiffs lack independent standing under ERISA's statutory scheme because they are not ordinarily considered "beneficiaries" or "participants." See Cagle v. Bruner, 112 F.3d 1510, 1514 (11th Cir.1997). However, when they receive assignments of benefits from beneficiaries or participants of an ERISA plan, they can acquire derivative standing. Id. Therefore, whether complete preemption applies is largely a function of whether an existing assignment entitles the provider to have standing under ERISA, or whether the provider can `step into the shoes' of a participant or beneficiary. Here, there can be no doubt that Plaintiffs with express fee-for-service contracts are not ERISA beneficiaries because they are suing under the terms of their independent contracts with Defendants. Since Section 502(a) is meant to remedy the denial of ERISA benefits, it logically follows that doctors, who are not among the persons or entities entitled to bring an ERISA claim under Section 502(a), cannot be affected by this species of ERISA's preemptive force if they are merely filing suit for payment under the terms of their independent contracts. Accordingly, the Court finds that the Plaintiffs' breach of contract claims continue to remain outside of the shadow of ERISA preemption. b. Constructive Contract Claims(Non-Participating Providers)(Count VI) The issue of the non-participating providers gives the Court some pause. By definition, the non-participating providers lack an express contractual relationship with Defendants. Nevertheless, on the face of the SAC, there are at least two distinct sub-classes of non-participating providers lacking a contractual relationship: those with assignments from participants or beneficiaries ("Provider-Assignees") and those without them. 1291 Defendants contend that the Provider-Assignees' constructive contract claims are subject to complete preemption under Section 502(a) of ERISA because whatever their characterization, they are in reality claims for ERISA plan benefits made by doctors rendered outside of a contractual relationship with the insurer. Defendants claim these claims can only be brought on the basis of an assignment of the patient's rights. Section 502(a)(1)(B) provides that an ERISA plan "participant or beneficiary" may bring a civil action "to recover benefits due to him under the terms of his plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. ง 1132(a)(1)(B). As discussed supra, ERISA complete preemption exists only when the "plaintiff is seeking relief that is available under 29 U.S.C. ง 1132(a)." Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir.1999) (quoting Whitt v. Sherman Int'l Corp., 147 F.3d 1325, 1330 (11th Cir.1998)). In order for state law claims to be subject to ERISA complete preemption, four elements must be present: (1) a relevant ERISA "plan"; (2) the plaintiff must have standing to sue; (3) the defendant must be an ERISA entity; and (4) the complaint must seek relief akin to what is available under 29 U.S.C. ง 1132(a). Butero, 174 F.3d at 1212. In the instant case, the first and third elements are undisputedly met. Therefore to determine whether the Provider-Assignees are in reality seeking relief under Section 502(a), the Court must decide first, whether they are indeed participants or beneficiaries in order to have standing under ERISA, and second, whether they are attempting to recover benefits due to them under the terms of an ERISA plan. Since the Provider-Assignees possess assignments from plan beneficiaries, they clearly possess derivative standing under controlling Eleventh Circuit precedent. In Cagle v. Bruner, 112 F.3d 1510 (11th Cir. 1997), reh'g en banc denied, 124 F.3d 223 (11th Cir.1997), the Eleventh Circuit held that a healthcare provider had derivative standing to bring an action against an ERISA plan insurance fund where the record showed that the provider had been assigned the right to payment of medical benefits. See Cagle, 112 F.3d at 1512-13 (patient's father signed form assigning to hospital right to payment of dependent son's medical benefits under ERISA-governed plan); see also HCA Health Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 985, 991 (11th Cir.2001) (patient assignment to hospital the rights to recover 80% of the costs of surgery from the insurance company) As to the fourth element of complete preemption, Defendants maintain that it is beyond dispute that Provider-Assignees are attempting to collect unpaid benefits due under a plan because there is no independent contract that entitles them to payment for services. The Court agrees. In possessing an assignment, the provider-assignees hold the right to collect such unpaid benefits. Virtually every court to consider this question has held that reimbursement and related claims involving services provided to ERISA beneficiaries on a non-participating basis may be pursued only through ERISA's civil enforcement provision. See, e.g., Hermann Hosp. v. MEBA Med. & Benefits Plan, 845 F.2d 1286, 1290 (5th Cir.1988) (holding non-participating provider's state-law claims for breach of fiduciary duty, breach of contract, negligence, equitable estoppel, and fraud preempted, and limiting provider to ERISA remedy); Charter Fairmount Inst., Inc. v. Alta Health Strategies, 835 F.Supp. 233, 239-40 (E.D.Pa.1993) (holding non-participating provider's state law 1292 claims for estoppel, misrepresentation, and negligent misrepresentation preempted, and limiting provider to ERISA); See also Cagle v. Bruner, 112 F.3d 1510, 1515 (11th Cir.1997) (it is the assignment by a physician of the right to be "paid for [the assignor-patient's bills]" that triggers the providers' assignee-standing under ERISA Section 502(a)). Moreover, "[r]egardless of the merits of the Plaintiff's actual claims (recast as ERISA claims), relief is available, and there is complete preemption when the four elements are satisfied." Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir.1999). The Court consequently finds that Provider-Assignees possess derivative standing and thus all of their claims โ including those for constructive contract โ are recast under the doctrine of complete preemption as ERISA claims for benefits under Section 502(a). Accordingly, this statute constitutes their exclusive avenue for enforcing claims for ERISA benefits. 29 U.S.C. ง 1132(a)(1)(B).[17] A caveat is in order, however. This finding is contingent upon production of valid subscriber assignments from the Provider-Assignee subclass. To the extent that Defendants are not able to produce proof of a valid assignment from patients, the derivative standing doctrine does not apply to those providers. Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1242 (11th Cir.2001). 2. SECTION 514 PREEMPTION a. Express Contract and Constructive Contract Claims Although this Court previously held that Plaintiffs might pursue certain breach of contract claims notwithstanding ERISA, Defendants maintain that the new allegations in the SAC reveal that the issue of ERISA Section 514(a) preemption must be revisited. Under the new allegations, Defendants claim that Plaintiffs have conceded in the SAC that doctors are to be paid for "covered, medically necessary services." Defendants assert that this Court's previous opinion stressed that Plaintiffs' claims โ as they were then pleaded โ "might sustain a breach of contract claim without a need for reference to the interpretation of ERISA plans." In Re Managed Care Litig., 135 F.Supp.2d at 1268. Since the complaint purports to seek payments for "covered" procedures, this is necessarily a term that will require interpretation of "insured's plans and policies" โ as Plaintiffs' own complaint concedes. SAC ถ 77. Therefore, Defendants argue that applying the reasoning of this Court's previous decision, the allegations of the new complaint therefore require reference to a plan. Plaintiffs contend that the Court's earlier decision, discussed supra, still controls the outcome here and Defendants's arguments are largely semantic in nature. The Court agrees and sees no reason to depart from its previous ruling. The Provider Plaintiffs' state law claims are still for payment for services rendered, not for ERISA benefits. Moreover, Plaintiffs contend, correctly, that Defendants' attempt at linking the issue of plan interpretation to their allegations that the services are "covered" does not trigger ERISA preemption because the Defendants have already determined that these claims are 1293 covered. See SAC ถ 205. The dispute in this case centers on whether Defendants have the right to deny full and complete payment to doctors based upon facts that do not relate to issues of coverage, for example, bundling and downcoding. See SAC ถ 84. Therefore, what is at issue is the amount of payment, not whether a right to payment exists. See Blue Cross of California v. Anesthesia Care Assoc. Medical Group, Inc., 187 F.3d 1045 (9th Cir. 1999); Medical and Chirurgical Faculty of the State of Maryland v. Aetna U.S. Healthcare, 221 F.Supp.2d 618, 621 (D.Md. 2002) (finding that HMO plan documents did not need to be interpreted in dispute over services provided by Providers). Accordingly, the breach of contract claims continue not to "relate to" the administration of an ERISA plan. i. Non-Participating, Non-Assignee Providers As a subsidiary issue, Defendants contend that the constructive contract claims brought by non-participating Providers who lack assignments ("Non-Par Providers") must be preempted under Section 514(a) because they are essentially promises to pay benefits embodied in the patients' ERISA plans. Defendants argue that these claims necessarily "relate to" employee benefit plans. See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657-58, 662-63, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). Plaintiffs assert that the preemption analysis for the constructive contract claims is no different than an express contract claim, since these continue to be claims by health care providers against plan insurers brought by independent third parties that do not require plan interpretation and promote the goals of ERISA. See In re Managed Care Litig., 135 F.Supp.2d at 1268. Plaintiffs maintain that the Non-Par Providers can bring their own direct claims for payment, and therefore, these claims escape ERISA preemption because they are not based upon "the relationship between the insured and insurer, but upon Defendants' solicitation and knowing acceptance of their services." SAC ถถ 210-214. The Non-Par Providers are independent third parties whose claims have accrued based on their status as a non-contracted health provider and not accrued upon an entitlement to benefits arising through an assignment of such benefits by patients treated by Plaintiff. Further, their constructive contract and unjust enrichment claims are not based upon the "relationship between the insured and insurer" but upon Defendants' solicitation and knowing acceptance of the Providers' services. SAC ถถ 210-214. Moreover, Defendants are alleged to engage in denying, diminishing, and delaying payments for these services. SAC ถ 212. While it is possible that some of the Non-Par Providers may obtain assignments, that fact alone does not force them to pursue the ERISA claims route instead of bringing claims against Defendants in their own independent right. In Lordmann v. Equicor, 32 F.3d 1529 (11th Cir. 1994), the Eleventh Circuit did not preclude the provider plaintiff's secondary claims of fraudulent misrepresentation, even when the Plaintiff had asserted two claims as an assignee. Moreover, other courts in this District have allowed a claim for promissory estoppel to go forward even with the presence of an assignment of plan benefits. See, e.g., Variety Children's Hospital, Inc. v. Blue Cross/Blue Shield of Florida, 942 F.Supp. 562, 568 (S.D.Fla. 1996). Therefore, Plaintiffs need not necessarily be channeled into the ERISA statutory scheme when simultaneously bringing direct claims in their own right. 1294 Given the similarity of the allegations to ones previously considered, the Court applies its prior ruling declining to extend the preemptive reach of ERISA to the claims of third-party-providers to the current subclass of non-participating providers who do not hold assignments. The claims made by these providers are not issues relating to the relationship between a beneficiary patient and the plan administrator; rather, they give rise to a separate relationship between the provider and plan administrator. Therefore, these claims fit logically within the framework set out by this Court's previous decision. b. Prompt Pay Claims (Count VII) Defendants contend that all the "prompt pay claims based upon statutory rights of action are preempted by ERISA." They assert that courts which have analyzed either the prompt pay statutes on which Plaintiffs rely or substantially similar statutes have concluded uniformly that claims under these provisions "relate to" ERISA plans and therefore are preempted under both Section 502(a) and Section 514(a), See, e.g. Cramer v. Association Life Ins. Co., 569 So.2d 533, 536 (La. 1990) (explaining that "[t]he basis for the plaintiff's suit is the defendant-insurer's allegedly arbitrary and capricious failure to pay benefits under an employee benefit plan."); Biondo v. Life Ins. Co. of North America, 116 F.Supp.2d 872 (E.D.Mich. 2000). Indeed, the Complaint alleges that all the "prompt-pay" plaintiffs may be asserting claims as the assignees of the patients' rights. SAC ถ 221. These cases, of course, are not binding on this Court. The Court finds that in line with its prior analysis the Providers are bringing their prompt pay claims in their provider capacities, rather than as assignees of plan benefits, the prompt pay claims are not preempted by ERISA ง 514. Moreover, to the extent that prompt pay claims must be brought on the basis of patient assignments, they are brought under Section 502(a) of ERISA. SAC ถถ 221, 222. c. Unfair Trade Practice Claims (Counts VIII and X) The Provider Plaintiffs assert that their unfair trade practice claims are not preempted by ERISA because there are brought by health care providers against insurers in their own right rather than as assignees. Defendants contend that these type of claims are precisely the sort of state law claims which ERISA preempts. See Anderson v. Humana, Inc., 24 F.3d 889 (7th Cir.1994); Sanson v. General Motors Corp., 966 F.2d 618 (11th Cir.1992). The cases cited by Defendants are distinguishable, however, as they were brought by plan participants for either fraud or statutory unfair trade practices in connection with the administration of ERISA plan benefits. Here, as it is providers, not subscribers, bringing the claim, the result does not hold. Moreover, the relationship between ERISA plans and their beneficiaries is not affected; these unfair trade claims arise out of the relationship between the providers and the Defendants. Therefore, the unfair trade practice claims also continue to escape the shadow of ERISA preemption. 3. EXHAUSTION OF REMEDIES Defendants argue that to the extent that Plaintiffs seek to pursue their Non-Participating Provider claims through the exclusive ERISA remedy, these claims must be dismissed for failure to exhaust administrative remedies. Therefore, Plaintiffs' claims regarding nonparticipating providers who bring ERISA claims must be dismissed with leave to refile after exhaustion of administrative remedies. 1295 It is well-established that plaintiffs must normally exhaust available administrative remedies under their ERISA-governed plans before they bring suit in federal court. Springer v. Wal-Mart Assocs.' Group Health Plan, 908 F.2d 897, 899 (11th Cir.1990); Perrino v. Southern Bell Tel. & Telegraph Co., 209 F.3d 1309, 1315 (11th Cir.2000). This requirement applies to actions in which the plaintiff sues individually as well as actions where the plaintiff sues as a representative of a putative class. See Perrino, 209 F.3d at 1315 (applying exhaustion requirement to a class action). Moreover, this requirement applies to actions in which a plaintiff sues as an assignee of a participant's claim. See, e.g., Variety Children's Hosp. v. Century Health Med. Plan, Inc., 57 F.3d 1040, 1042 (11th Cir.1995). This Court must "apply the exhaustion requirement strictly" and "recognize narrow exceptions only based on exceptional circumstances." Perrino, 209 F.3d at 1318. Exhaustion of administrative remedies is not required when it would be futile, the administrative remedy is inadequate, or meaningful access to administrative review is denied. Id. at 1316-1318. Defendants argue that Plaintiff's allegations targeted to trigger one of the three limited exceptions are conclusory and made without any factual basis. The Court agrees. First, Plaintiffs allege that resort to administrative review would be futile because there is "no honest dispute over services rendered" since there is a "long-standing, integrated, automated and intentional scheme to deprive doctors of payment." SAC ถ 223. Yet, simple allegations of fraudulent conduct are not enough to invoke this exception. The Eleventh Circuit has never held that mere allegations of a "fraudulent" scheme are sufficient to excuse the exhaustion requirement. See Mason v. Continental Group, Inc., 763 F.2d 1219, 1224 (11th Cir.1985), cert. denied, 474 U.S. 1087, 106 S.Ct. 863, 88 L.Ed.2d 902 (1986) ("simply characterizing the claim as a tort claim rather than a breach of contract claim does not excuse the failure to pursue [administrative] remedies"). This Court previously noted that crediting such allegations "would apparently excuse any ERISA plaintiff who alleges malfeasance by a defendant." In re Managed Care Litig., 185 F.Supp.2d 1310, 1333 (S.D.Fla.2002). In fact, there are no allegations in the SAC maintaining that Plaintiffs' actual efforts at obtaining administrative review have been somehow blocked or impeded by Defendants. Second, Plaintiffs maintain that administrative remedies are inadequate because this is not a case involving claims by plan participants focused on their own care; rather, these claims are asserted by "busy doctors who are being nickelled (sic) and dimed to death on requests for payment that, on an individual basis, are just not worth pursuing." Pl.'s Opp'n Br. at 45. Plaintiffs provide no basis in fact, however, for their allegation that the administrative remedies are inadequate because they are neither practical nor effective. Plaintiffs "do not plead the nonexistence of administrative review for a denial of benefits." In re Managed Care Litig., 185 F.Supp.2d 1310, 1332 (S.D.Fla.2002). Nor do Plaintiffs plead that existing remedies would be insufficient. See Amato v. Bernard, 618 F.2d 559, 568 (9th Cir.1980). Indeed, Plaintiffs have not alleged any attempt to pursue the relevant administrative remedies. See Perrino, 209 F.3d at 1319 ("This case might be different if Appellants actually had resorted to the grievance and arbitration procedure" only to be told that relief would not be made available. "However, none of the Appellants even pursued the grievance and arbitration procedure available."). At bottom, this is an argument that the administrative procedures 1296 are effectively too much of a hassle to merit the Plaintiffs' trouble, and this, with no allegations that the plan procedures provide no remedy, is insufficient for a successful invocation of the exception.[18] Finally, Plaintiffs claim that any meaningful or timely access to administrative review is alleged to have been blocked by "misleading coded explanations and by refus[als] to disclose claims processing techniques." SAC ถถ 98, 99. Again, Plaintiffs fail to specify any attempts to conduct a good faith inquiry into the applicability of these administrative proceedings. In re Managed Care Litig., 185 F.Supp.2d 1310, 1332 (S.D.Fla.2002). Moreover, they do not allege any failure to receive plan documents outlining the availability of administrative procedures. Indeed, in a previous order in the subscriber track, this Court refused to allow similar allegations of a denial of notice due to Defendants' fraudulent policies to constitute a denial of meaningful access to the administrative review scheme. Id. Moreover, adequacy will generally be an issue when administrative review procedures are non-existent or the existing remedies would not provide a claimant all the relief he is entitled to under a plan. See id. Accordingly, because Plaintiffs have failed to sufficiently plead an exception to the exhaustion requirement, the ERISA claims brought by Providers are DISMISSED with leave to re-file. C. CHOICE OF LAW Defendants assert that Plaintiffs are limited to invoking only the regulatory statutes of those States in which they reside or treat patients, on the basis of their contracts with the local subsidiaries of defendants with whom plaintiffs have dealt. In short, Defendants argue that Plaintiffs' state law claims under out-of-state statutory schemes must be dismissed. The Commerce Clause and Due Process Clauses limit the ability of each state to apply its own laws and policies to conduct occurring beyond its borders. BMW of N. Am. v. Gore, 517 U.S. 559, 572, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). A state's laws are "presumptively territorial and confined to limits over which the law-making power has jurisdiction." Sandberg v. McDonald, 248 U.S. 185, 195, 39 S.Ct. 84, 63 L.Ed. 200 (1918). None of the state statutes invoked by Plaintiffs expressly apply beyond the borders of the states that enacted them. These are fundamental substantive limits on the scope of state regulatory jurisdiction โ limits that the procedural vehicle of a class action cannot justify transgressing. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 288 F.3d 1012, 1018 (7th Cir.2002). In cases transferred pursuant to 28 U.S.C. ง 1407, the transferee district court must apply the state law, including its choice of law rules, that would have been applied had there been no change of venue. Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); see also Ferens v. John Deere Co., 494 U.S. 516, 525-26, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990); In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 1297 F.3d 1050, 1055 (8th Cir.1996). Federal courts sitting in diversity must apply state choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); see also Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663, 681 (7th Cir.1986) (holding that Klaxon applies to determine law governing pendant state claims). The Main Track Plaintiffs practice medicine โ and are presumably licensed to practice medicine โ in only seven states: Alabama, California, Colorado, Florida, Georgia, Kentucky and Texas. SAC ถถ 11-29. The SAC is a composite of actions originally commenced in multiple jurisdictions including Kentucky (Shane), California (Klay and CMA), Alabama (Mangieri) and Georgia (Harrison). For each Plaintiff the controlling law is that of the state where the Plaintiff resides (or practices medicine) and where his dealings with Defendants' corporate subsidiaries occurred and his alleged injuries were sustained. Henderson v. Superior Ct., 77 Cal. App.3d 583, 592-93, 142 Cal.Rptr. 478 (1978) (most significant relationship); Morris v. SSE, Inc., 912 F.2d 1392, 1394 (11th Cir.1990) (Alabama applies lex loci contractus); Fitts v. Minn. Mining & Mfg. Co., 581 So.2d 819, 820-23 (Ala.1991) (lex loci delicti); Int'l Bus. Machs. Corp. v. Kemp, 244 Ga.App. 638, 536 S.E.2d 303, 306-07 (2000) (lex loci contractus & lex loci delicti); Sec. Ins. Co. v. Kevin Tucker & Assocs., 64 F.3d 1001, 1005-06 (6th Cir. 1995) (most significant relationship); Breeding v. Mass. Indem. & Life Ins. Co., 633 S.W.2d 717, 719 (Ky.1982); Rayle Tech., Inc. v. DEKALB Swine Breeders, Inc., 897 F.Supp. 1472, 1476 (S.D.Ga.1995); IBM v. Kemp, 244 Ga.App. 638, 536 S.E.2d 303, 306-07 (2000); Ex Parte Exxon Corp., 725 So.2d 930, 932 (Ala.1998). Contract rules also should apply to quantum meruit and violation of prompt pay and consumer protection statutes, absent choice of law provisions in the relevant contracts. The Court finds that the Connecticut Unfair Trade Practices Act, the New Jersey Consumer Fraud Act and the various prompt pay statutes of applicable states can have no application to Plaintiffs that neither reside, treat patients nor have engaged in a relevant transaction in that particular State. Nevertheless, while no named Plaintiff resides or practices medicine in either Connecticut or New Jersey, members of the class presumably do reside in all fifty states. The Court will revisit this issue further along the proceedings, as this ruling will become more applicable at the summary judgment stage when Plaintiffs' claims will be fully fleshed out. D. STATE COMMON LAW CLAIMS 1. QUASI-CONTRACT CLAIMS (COUNT VI) Defendants contend that Plaintiffs may not simultaneously pursue contract and quasi-contract claims because under any applicable state law, a contracting party cannot assert quasi-contract claims.[19] Therefore, they argue Count VI fails to state a claim for relief because claims for unjust enrichment and breach of constructive contract will not lie in the face of an express contract. Further, states in which the Providers reside uniformly bar suits that maintain quasi-contractual theories, such as quantum meruit, in the face of an express contract between the parties. See, e.g. Harris v. Schickedanz Bros.-Riviera Ltd., 746 So.2d 1152, 1154 (Fla. 4th DCA 1298 1999). The Defendants also point out that the benefit is actually conferred upon the patient โ the recipient of the health care โ and not the HMO because HMOs have no duty or obligation to provide treatment to members of its health plans. Rather, their only obligation is to reimburse their insureds for expenses incurred if, and only to the extent, those expenses are covered in accordance with the terms of the patient's health plan. Plaintiffs do not dispute the principle, but maintain that it does not apply to their Count VI claims. (Plaintiffs concede that a Count VI claim cannot be asserted against Anthem. Pl. Opp. at 51 n. 18). Plaintiffs maintain that while all of the Count VI Plaintiffs, with the exception of Dr. Mangieri, have contracts with one or more of the Defendants, they also have treated the insureds of one or more of the Defendants outside of any contractual relationship. SAC ถถ 11-13, 16, 18, 22, 27-29. Therefore, Plaintiffs are not asserting quasi-contractual theories for treatments of insured under express contracts. Given the complexity of relationships alleged in the SAC, this issue is essentially one of characterization. As a matter of law, however, the Court finds that Plaintiffs may not assert constructive contract claims against a Defendant where the Provider is also bringing a claim for breach of contract against the same Defendant. In its separate brief, Coventry also asserts that neither of the quasi-contractual claims are stated because the benefit received when Providers, such as Dr. Backer, treated patients, they were obligated to provide treatment, and thus, these are not the kind of direct benefits required to support a claim. It is merely incidental or indirect. Plaintiffs contend, correctly, however, that satisfaction of an obligation will support a claim for unjust enrichment. Restatement of the Law of Restitution, ง I; Wolf v. National Council of Young Israel, 264 A.D.2d 416, 694 N.Y.S.2d 424, 425-26 (2d Dep't 1999) (plaintiff whose funds were used to satisfy the obligation of defendants had claim for unjust enrichment). Therefore, Coventry's argument must be rejected. E. STATE STATUTORY CLAIMS[20] 1. PROMPT PAY: PRIVATE RIGHT OF ACTION Count VII asserts claims based upon the prompt pay statutes of 32 states. As a preliminary matter. Defendants concede that five states give those classes of individuals referenced in the particular statutes an express right of action (Alabama, Mississippi, Texas, Nevada and Virginia)[21] and that in four others a private right of action for certain classes exists by implication (Oklahoma, Maine, Massachusetts, New Hampshire). These unilateral concessions leaves 22 states in dispute where Plaintiffs claim that a private right of action exists. Whether a private action can be implied from a statute depends upon legislative intent. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979); Cannon v. Univ. of Chic., 441 U.S. 677, 694, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); 1299 Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The Court analyzes any explicit or implicit indication of legislative intent either to create such a remedy or deny one, and whether such an implication is consistent with the underlying purposes of the legislative scheme. Where a legislature expressly provides a means for enforcing compliance with a particular statute, it is unlikely that it forgot to mention an intended private right. Transamerica, 444 U.S. at 20, 100 S.Ct. 242; Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 14, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Ayres v. Gen. Motors Corp., 234 F.3d 514, 522-23 (11th Cir.2000); Farlow v. Union Cen. Life Ins. Co., 874 F.2d 791, 795 (11th Cir.1989) ("Federal courts should be reluctant to read private rights of action into state laws where state courts and state legislatures have not done so. Without clear and specific evidence of legislative intent, the creation of a private right of action by a federal court abrogates both the prerogatives of the political branches and the obvious authority of states to sculpt the contents of state law."). However, a legislature's enactment of regulatory standards and a corollary scheme of administrative enforcement does not alone demonstrate intent to afford parallel private remedies. Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In litigating whether the prompt pay statutes afford private remedial rights, the parties have included appendixes which exhaustively outlined a state-by-state analysis. Plaintiffs assert that each legislature must have implicitly intended to allow private rights of action in enacting prompt pay statutes. Pointing to the text of the prompt pay statutes, the Plaintiffs contend that while each statute was enacted to address payment disputes by insurer, they contain no specific mechanism โ either by those effected or by insurance commissioners โ to recover unpaid interest, which is the express remedy provided for violations. Plaintiffs argue that no rational legislature would expect state insurance commissioners to have the time, resources or inclination to take legal action to recover interest for individual providers and that state insurance commissioners are supposed to correct more widespread abuses. Plaintiffs also note that no state prompt pay statute expressly denies a private right of action and that no state provides an exclusive administrative enforcement scheme that applies only to claims under the prompt pay statutes. Nevertheless, the Court cannot countenance flimsy evidence of intent premised on what is at best, seemingly logical assumptions. The Plaintiffs have conceded that when identifying private rights of action, legislative intent remains the touchstone. It is Plaintiffs' burden to demonstrate that a private right of action is consistent with applicable legislative intent. Plaintiffs provide very little material evidence of legislative intent, but instead opine that the various state legislatures "must have intended" a dual enforcement regime. This appeals to one's common sense, but it is more difficult to square with the text and structure of the actual provisions. Indeed, the remaining prompt pay statutes all have strong public enforcement mechanisms, including the right to impose fines, conduct hearings, and revoke certificates to sell insurance. Often, the legislature's decision to erect an express "array of administrative remedies" creates a "strong inference" that a legislature, state or federal, "did not intend to create a private right action." Ayres v. General Motors Corp., 234 F.3d 514, 522-23 (11th Cir.2000). Accordingly, the remaining prompt pay claims under statutes which do not provide an express private right of 1300 action or are not conceded by Defendants to contain an implied private right are DISMISSED.[22] 2. CAL. BUS. & PROFESSIONS CODE ง 17200 (COUNT VIII) The California Business and Professions Code Section 17200 defines unfair competition "as any unlawful, unfair, or fraudulent business act or practice." Cal. Bus. & Prof.Code ง 17200. Under Section 17200 ("UCL"), courts may not declare a practice "unlawful" or "unfair" where the state has specifically declared the practice to be lawful. See Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 541 (1999). Defendants assert that Plaintiffs' claims are meritless under Section 17200 because (1) they impermissibly seek to convert Section 17200 into an alternative regulatory framework for managed care, and (2) they improperly seek monetary damages. The Court disagrees. a. Interference with the Department of Managed Health Care's Statutory Authority Defendants first contend that Plaintiffs impermissibly seek to convert Section 17200 into an alternative regulatory framework for managed care. Defendants claim that as these claims impermissibly intrude upon the regulatory functions of the California Department of Managed Health Care, the Section 17200 claims must be precluded. Pursuant to the Knox-Keene Health Care Service Plan Act of 1975, a comprehensive scheme regulating almost every aspect of "health care service plans" in California has been erected. See Cal. Health & Safety Code งง 1340, 1399.76; see also id. ง 1345(f) (defining the term "health care service plan" to include HMOs). Through the Knox-Keene Act, the California legislature intended to "occupy the field" and "to vest all authority to regulate and supervise health plans in the Department [of Managed Care]." Van de Kamp v. Gumbiner, 221 Cal.App.3d 1260, 270 Cal.Rptr. 907, 921-22 (1990). The Department of Managed Care is granted rights to license all California HMOs, pursuant to the Knox-Keene Act. Further, the Knox-Keene Act's comprehensive scheme bars "courts [from] assum[ing] general regulatory power over the health maintenance organizations through the guise of enforcing Section 17200." Samura v. Kaiser Foundation Health Plan, 17 Cal. App.4th 1284, 1300-1302, 22 Cal.Rptr.2d 20 (Cal.Ct.App.1993), cert. denied, 511 U.S. 1084, 114 S.Ct. 1835, 128 L.Ed.2d 463 (1994). At first blush, Defendants' position seems compelling. The Plaintiffs' claims are premised on Defendants' alleged systematic practices that deny and delay their rightful payments. However, Defendants' creative contention is not fully supported by relevant statutory or case law. Essentially, the Defendants ask this court, sitting in equity, to abstain from adjudicating the instant case. See Desert Healthcare, 94 Cal.App.4th 781, 795-96, 114 Cal. Rptr.2d 623. Defendants primarily cite Desert Healthcare Dist. v. PacifiCare FHP, Inc., 94 Cal.App.4th 781, 794-95, 114 Cal.Rptr.2d 623 (2001) in support of its argument that courts must not accept invitations to intervene in an area of complex 1301 economic policy. The Desert Healthcare court noted that adjudicating plaintiff's claim that defendant health care service plan "abused the capitation system by transferring too much risk to an intermediary without adequate oversight" under Section 17200 would require the trial court to "determine appropriate levels of capitation and oversight." Id. at 795-96, 114 Cal.Rptr.2d 623. However, while the subject matter of this action may pique an academic interest of the Department of Managed Health Care, there is no evidence that this Court will engage in "broad-based complex economic regulation" if it allows the claims to proceed. In the case at bar, the Plaintiffs are not attempting to impose broad-based policy objectives on Defendants; rather they are asking the Court to enjoin current violations of their contractual duties to Plaintiffs and of relevant statutes. The remedies sought by Plaintiffs would be embedded in contractual relationships and representations made to Providers; uniform determinations of economic policy are therefore precluded by the very nature of the relief requested by Plaintiffs themselves. Defendants' reliance on Samura v. Kaiser Foundation Health Plan, 17 Cal. App.4th 1284, 22 Cal.Rptr.2d 20 (1993), cert denied, 511 U.S. 1084, 114 S.Ct. 1835, 128 L.Ed.2d 463 (1994), in arguing that the Plaintiffs' UCL claims predicated on certain provisions of Knox-Keene Act are precluded is misplaced because the Samura court itself did not preclude any adjudication of claims under the UCL because of the Knox-Keene act. The Knox-Keene act arguably makes unlawful some of the challenged practices that deal with unfair payment practices. See Cal. Health & Safety Code ง 1371.37. Yet, Section 1371.37(f) also states that "[t]he penalties set forth in this section shall not preclude, suspend, affect, or impact any other duty, right, responsibility, or obligation under a statute or under a contract between a health care service plan and a provider." Id. (emphasis added); see also Coast Plaza Doctors Hosp. v. UHP Healthcare, 105 Cal.App.4th 693, 707, 129 Cal.Rptr.2d 650 (Cal.Ct.App.2002) (holding that Knox-Keene Act was not a bar to defendant health care provider's suit for reimbursement for services rendered to enrollees of health care plan). Moreover, California courts have expressly recognized that UCL claims predicated on violations of certain provisions of regulatory statutes are properly adjudicated in the courts. See Stevens v. Superior Court, 75 Cal. App.4th 594, 606, 89 Cal.Rptr.2d 370 (1999) ("to summarize, the [UCL] allows nearly any law or regulation to serve as its basis unless the predicate statute explicitly bars a private right of action, or the defendant is otherwise privileged or immune"). Indeed, the Samura court recognized that UCL actions may exist even when a separate statutory enforcement scheme such as the Knox-Keene Act exists. Samura v. Kaiser Foundation Health Plan, 17 Cal. App.4th 1284, 1299, 22 Cal.Rptr.2d 20 (1993). Second, Defendants argue that this Court cannot entertain Section 17200 claims premised on practices alleged in the SAC because they have been permitted by the state regulatory structure and would countermand the state regulators' exercise of the powers of oversight. Courts cannot declare a practice "unlawful" or "unfair" under Section 17200 where the state has itself specifically declared the practice to be lawful. Rather, "[i]f the Legislature has permitted certain conduct or considered a situation and concluded no action should lie, courts may not override that determination." Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone 1302 Co., 20 Cal.4th 163, 83 Cal.Rptr.2d 548, 973 P.2d 527, 541 (1999). In contending that the "great bulk of practices that plaintiffs seek to challenge are affirmatively permitted by th[e] state regulatory structure" the Defendants neglect to provide any specific evidence of statutory authority for this sweeping statement. Indeed, the Court is doubtful that the automated practices alleged by Plaintiffs, such as downconding and bundling, are accepted by the appropriate regulatory authorities. Moreover, Defendants' specific citations to California code provisions regarding setting actuarial rates for medical underwriting decisions and licensure are not applicable to the practices alleged by Plaintiff. See, e.g., Cal. Health & Safety Code งง 1349, 1351(d), 1389.2. Finally, this Court is not compelled to automatically divest itself of Section 17200 claims in all cases involving the conduct of health care plans. Notably, in an analogous case involving allegations of unfair payment patterns, another appellate court declined to defer to the Department of Managed Health Care. See Coast Plaza Doctors Hosp. v. UHP Healthcare, 105 Cal.App.4th 693, 707, 129 Cal.Rptr.2d 650 (2002). Moreover, the extremely high level of intervention, oversight and management that Defendants claim will transpire should these claims proceed is simply too speculative to fix at this stage. Therefore, other cases cited by Defendants as support for their position that economic policy is being implicated are distinguishable. See California Grocers Ass'n v. Bank of America, National Trust and Sav. Ass'n, 22 Cal.App.4th 205, 218, 27 Cal.Rptr.2d 396 (1994) (deciding whether service fees charged by banks were too high); Wolfe v. State Farm Fire & Casualty Ins. Co., 46 Cal.App.4th 554, 53 Cal.Rptr.2d 878 (1996) (requirement that insurers continue to issue new homeowner policies against their will). b. Remedies Under Section 17200 Defendants assert that Section 17200 does not authorize claims for money damages, and that such claims must be dismissed even if labeled as "restitution." See, e.g., Bank of the West v. Superior Court, 2 Cal.4th 1254, 10 Cal.Rptr.2d 538, 833 P.2d 545, 555 (1992) (en banc). They argue the relief that Plaintiffs seek are unavoidably measured by the amount of damages for breach of the provider contracts, and therefore because the basis of relief is one at law, it cannot be characterized as restitution. Stationary Engineers Local 39 Health and Welfare Trust Fund v. Philip Morris, Inc., 1998 WL 476265 at 18 (N.D.Cal. April 30, 1998). Thus, because the UCL does not authorize money damages for breach of contract, Defendants argue that these claims are improper. The restitution remedy, however, is one expressly available under the UCL to ensure that victims are returned to the status quo and to also to ensure that Defendants do not gains as a result of unlawful or deceptive conduct. Recent cases hold that Section 17200 authorizes restitution and disgorgement of profits resulting from unfair competition. See Cortez v. Purolator Air Filtration Products Co., 23 Cal.4th 163, 96 Cal.Rptr.2d 518, 999 P.2d 706, 714-15 (2000) (an award for back pay could represent damages in contract action but also includes an element of restitutionโthe return in excess of what the plaintiff gave the defendant over the value of what the plaintiff received). Therefore, equitable damages that resemble damages at law are not necessarily precluded by the UCL. The Court recognizes, however, that this is essentially an issue of characterization. Therefore, to the extent that Plaintiffs' equitable claims are caused by 1303 Defendants' unfair and unlawful business practices that result in compensation being withheld that rightfully belong to the Providers for services they rendered, they shall proceed. Nevertheless, if at a later date in the proceeding, the remedies at law are indeed a mirror image of the restitution remedy, the Court will allow Defendant to revisit this issue. 3. NEW JERSEY CONSUMER FRAUD ACT (COUNT X) Defendants argue that Plaintiffs claims under the New Jersey Consumer Fraud Act, N.J.S. ง 56:8-1 et seq. (the "New Jersey Act") are preempted by a detailed state administrative framework governing claims payments and are, in any event, deficient under the terms of the statute itself. As a threshold issue, it appears that this Count only applies to Defendant Prudential. The New Jersey Consumer Fraud Act provides in relevant part, that: "The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression or omission, in connection with the sale or advertisement of any merchandise ... or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been mislead, deceived or damaged thereby, is declared to be an unlawful practice." N.J.S. ง 56:8-2. Additionally, "[a]ny person who suffers any ascertainable loss of moneys or property ... as a result of the use or employment by another person of any method, act or practice declared unlawful by this act" may bring a claim under the statute. Id. ง 56:8-19. Plaintiffs allege that by failing to provide adequate reimbursement through implementation of the deceptive practices described in the SAC, Prudential has, in connection with the sale of health insurance, compromised the ability of physicians to provide continuity of care and the level of care by sound medical judgment by imposing financial hardships and undue burdens on physicians. SAC ถถ 121, 255. As such, Plaintiffs allege that the application of the New Jersey Act to the SAC will serve the interests of consumers. The Court declines to accept Plaintiffs's expansive interpretation, as it runs afoul of decisions that have established the outer boundaries of the statute. Plaintiffs offer no compelling precedent that mandates that this Court accept the applicability of the statute to the factual scenario presented by the SAC. It is true, as Plaintiffs point out, that "[t]he language of the [New Jersey Act] evinces a clear legislative intent that its provisions be applied broadly in order to accomplish its remedial purpose, namely to root out consumer fraud," Lemelledo v. Beneficial Mgmt. Corp., 150 N.J. 255, 696 A.2d 546, 551 (1997). Nevertheless, Plaintiffs' allegations fall short of alleging a prima facie case under the New Jersey Act in two major respects. First, Plaintiffs are not "consumers" under the Act. The Act was enacted in response to sharp practices and dealings in the marketing of merchandise and real estate. Daaleman v. Elizabethtown Gas. Co., 77 N.J. 267, 390 A.2d 566, 568 (1978). In order to recover under the Act, a Plaintiff must be a consumer of the product vis-เ-vis the defendant. Specialty Ins. Agency v. Walter Kaye Assocs., Inc., 1989 WL 120752, at 5, 1989 U.S. Dist. LEXIS 11842, at 15 (D.N.J. Oct. 2, 1989) "[C]onsumers are regarded as those who both use and consume economic goods and services." Del Tufo v. Nat'l Republican Senatorial Committee, 248 1304 N.J.Super. 684, 591 A.2d 1040, 1042 (1991); Hundred East Credit Corp. v. Eric Schuster Corp., 515 A.2d 246, 248 (N.J.Super.A.D.1986) (consumer "uses (economic) goods, and so diminishes or destroys their utilities") (citation omitted). Therefore, economic middle-men, such as franchisors or distributors or others who merely contract for a stream of payments, are not covered. J & R Ice Cream Corp. v. Cal. Smoothie Licensing Corp., 31 F.3d 1259, 1274 (3d Cir.1994); Waterloov Gutter Prot. Sys. Co. v. Absolute Gutter Prot., L.L.C., 64 F.Supp.2d 398, 424 (D.N.J. 1999); see also Windsor Card Shops, Inc. v. Hallmark Cards, Inc., 957 F.Supp. 562, 567 n. 6 (D.N.J.1997) (retailer not consumer of goods offered for resale to the public). The Act also does not apply to goods or services that are not available to the public at large. BOC Group, Inc. v. Lummus Crest, Inc., 251 N.J.Super. 271, 597 A.2d 1109, 1112-13 (1990); Naporano Iron & Metal Co. v. Am. Crane Corp., 79 F.Supp.2d 494, 508-00 (D.N.J.1999). One federal district court has even held that the Act does not apply to a "scheme to cheat" another by systematically failing to apply proper credits to the other's account. Bracco Diagnostics, Inc. v. Bergen Brunswig Drug Co., 226 F.Supp.2d 557, 559-61 (D.N.J.2002). Here, the Provider Plaintiffs cannot be considered "consumers" by any interpretive stretch of the New Jersey Act. Plaintiffs receive a "stream of income" for their services and they do not use or consume any economic goods or services offered for sale by Defendants. Nor is the provider relationship available to the public. In the SAC, Plaintiffs merely offered a conclusory allegation that they are "consumers" under the New Jersey Act. SAC ถ 248. In response to Defendants' briefing, however, Plaintiffs now argue that there is no requirement that the Plaintiff himself be a consumer, so long as the practices complained of are carried out in connection with the sale or advertising of any merchandise, including services offered directly or indirectly to the public. For instance, the definition of "consumer" explicitly includes associations. N.J.S. ง 56:8-1(d). Nevertheless, while Plaintiffs attempt to wrap themselves in the laudatory goals of the New Jersey act, the fact remains that a desire to help consumers is insufficient as a matter of law because "[t]he cause of action is created only as to bona fide consumers of the product." See, e.g., Grauer v. Norman Chevrolet Geo, 321 N.J.Super. 547, 729 A.2d 522, 524 (1998) (rejecting allegation that defendant committed fraud on the "general public" as basis for New Jersey Act suit). Moreover, Plaintiffs' strained interpretation is accorded even less weight in light of the New Jersey Supreme Court's explanation of the Act's purpose, which was "aimed basically at unlawful sales and advertising practices designed to induce consumers to purchase merchandise or real estate" Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 568 (1978). Second, Plaintiffs' provision of medical services to Defendants' insureds does not constitute the "sale" of "merchandise" under the New Jersey Act. The New Jersey Act generally does not cover disputes as to amounts owed to professionals in connection with the rendition of professional services. Hampton Hosp. v. Bresan, 288 N.J.Super. 372, 672 A.2d 725 (1996) (services rendered to patients pursuant to medical judgment); Vort v. Hollander, 257 N.J.Super. 56, 607 A.2d 1339, 1342 (1992), certif. denied, 130 N.J. 599, 617 A.2d 1221 (1992) (attorneys). Professional services are covered only when rendered in connection with the types of consumer transactions (e.g. real estate) specifically enumerated in the New Jersey 1305 Act. S & D Envt'l Servs., Inc. v. Rosenberg Rich Baker Berman & Co., 334 N.J.Super. 305, 759 A.2d 360, 368 (1999); Blatterfein v. Larken Assocs., 323 N.J.Super. 167, 732 A.2d 555, 562 (1999). Plaintiffs attempt to argue that the fraudulent practices they contest are actually those of Defendants in administering their health care plans, not those vis-เ-vis the providers themselves. They cannot, however, escape the abundance of allegations in the SAC where they allege in detail Prudential's harmful activities aimed at physicians. Nor can they ultimately ignore the heavy weight of case law that precludes their claim. F. MEDICAL ASSOCIATION STANDING This court is a court of limited jurisdiction with the power to review only concrete controversies brought by plaintiffs with standing to raise the issue they seek to have the court decide. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The doctrine of standing serves to "identify those disputes which are appropriately resolved through the judicial process." Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Defendants contend that the six medical associations[23] ("Associational Plaintiffs") that appear as Plaintiffs in the newest Shane complaint do not possess standing. Defendants contest standing because there has been insufficient associational "injury in fact" to have standing, and second, the Associational Plaintiffs have no derivative standing to sue on behalf of their members because the relief requested cannot be achieved demonstrably independent of securing the participation of their members in the lawsuit. In this action, the Associational Plaintiffs assert claims on their own behalf to vindicate "associational injuries" and on behalf of their members.[24]See, e.g., SAC ถถ 32, 35. The Court first turns to the issue of individual standing. 1. INDIVIDUAL STANDING: INJURY-IN-FACT In order to allege a direct injury to the organization, at an "irreducible constitutional minimum," the Associational Plaintiffs must allege (1) a cognizable "injury in fact" which is an invasion of a legally protected interest that is both "concrete and particularized" and "actual or imminent, not `conjectural' or `hypothetical;'" (2) a "causal connection between the injury and the conduct complained of" that is fairly traceable to the challenged action; and (3) a likelihood, as opposed to a mere speculative possibility, that the injury will be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The Associational Plaintiffs allege, among other things, that the systemic practices being challenged in this lawsuit have caused them to lose membership and to expend their own time and resources fighting Defendants' tactics. SAC ถถ 30-44. Defendants claim that the Associational 1306 Plaintiffs lack any direct organizational injury because there are no "discrete programmatic concerns," and further the Complaint lacks an objectively quantifiable, concrete set of costs, other than the cost of this litigation. For example, exploring Plaintiffs' allegations that delayed and denied payments to individual physicians ultimately depress aggregate membership levels would require a speculative tracing of economic ripple-effects through the associations' membership rolls. See National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1431 (D.C.Cir.1995) (allegation that challenged regulations raising taxes on contributions to non-profit organizations had the effect of "undercutting NTU's fund-raising initiatives" is "entirely speculative"). Further, Defendants argue that these supposed injuries in fact would be entirely speculative and hopelessly attenuated because proof of causation would be extremely difficult. Defendants, however, wade into territory that need not be entered at this stage of the proceeding. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). As the Supreme Court explained in Lujan, 504 U.S. at 560, 112 S.Ct. 2130, when it comes to standing, "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. (internal quotations and alterations omitted); see also Bischoff v. Osceola County, Fla., 222 F.3d 874, 878 (11th Cir.2000) ("[G]eneral factual allegations of injury resulting from the defendant's conduct may be sufficient to show standing."). Here, the allegations, if proven, constitute injuries in fact that are likely to be redressed by a favorable outcome and thus are sufficient to confer standing. See, e.g., Havens Realty Corp, 455 U.S. at 379, 102 S.Ct. 1114 (association had standing when the defendant's conduct caused more than a setback to its abstract social interests, specifically including injury to its counseling activities and a drain on its resources); Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1571 (11th Cir.1991)(allegations of membership loss due to Defendants' activities was sufficient); Robinson v. Block, 869 F.2d 202, 207, 210 n. 9 (3d Cir.1989)(organization forced to expend time, money, and resources advocating on behalf of welfare recipients had standing). Contrary to the cases cited by Defendants where associations were found not to have standing, the Associational Plaintiffs in this case are distinguishable because they are narrowly focused on the medical field and provide more services than just general advocacy and policy work. See National Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1431 (D.C.Cir.1995) (non-profit organization challenging general Federal tax increases); Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394 (10th Cir.1992) (non-profit association challenging government expenditures spent to defeat referendum). Indeed, there is a significant difference between associations that further certain abstract and philosophical interests, such as environment and taxation, with member-driven organizations such as the Associational Plaintiffs ostensibly dedicated to the holistic welfare of their physicians as well as the practice of medicine. Surely then, allegations that the Defendants have interfered in medical treatment decisions and developed systemic practices regarding payments directly affect medical associations who must deal with the fallout of such behavior. Accordingly, because the Court finds that the Associational Plaintiffs have sufficiently alleged the elements of individual standing, they are properly before this court. 1307 2. REPRESENTATIVE STANDING Even assuming that the association has not suffered an injury-in-fact, Plaintiffs contend that an association may have standing "solely as a representation of its members." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Supreme Court has recognized an exception to the general ban on third-party standing in cases where organizations sue on behalf of its members. Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Under the test outlined in Hunt, the prerequisites for association standing are three-fold. First, the association's members must otherwise have standing to sue in their own right. Id. Second, the interests that the association "seeks to protect [must be] germane to the organization's purpose." Id. And, third, both the claim asserted and the relief requested must be demonstrable independently of "participation of individual members in the lawsuit." Id. Both parties concede that the first element is satisfied. Although the main-track Defendants effectively concede the existence of the second element, Defendant Coventry argues that the Medical Association of Georgia and Louisiana State Medical Society ("LSMS") fail to meet the second prerequisite because the interests they seek to assert in this case are not "germane" to their organizational purposes because the "stated mission" of LSMSโ"to provide leadership for the advancement of the health of the people of Louisiana"โ cannot be construed to include litigating its physicians members' contracts, nor do the Plaintiffs aver that the society's 6,800 members joined LSMS with this purpose in mind. Id. at ถ 42. See, e.g., Brotherhood of Teamsters v. Brock, 812 F.2d 1235, 1239 (9th Cir.1987) (challenge to racketeering act disqualifying persons convicted of certain crimes from seeking employment in a labor organization was not germane to the purpose of a labor union). This contention, however, must be rejected. Courts have cautioned against reading the germaneness test too restrictively, emphasizing that the standard is "undemanding" and that there need be only "mere pertinence" between the subject of the litigation and the organizational purpose. See, e.g., Humane Society v. Hodel, 840 F.2d 45, 58 (D.C.Cir.1988). Moreover, the practices challenged in this case go to the heart of the problems confronting the medical profession today, and are pertinent to the work of the two associations in representing and advocating for their physician members. Accordingly, the second element is clearly met. The parties primarily dispute the existence of the third Hunt requirement. Defendants argue that extensive member participation will be necessary to both prove the Associational Plaintiffs' claims and recover damages on their behalf. Defendants claim this case is based upon allegations of fraud and "failing to disclose internal policies" that result in the Defendants' non-compliance with their contractual and non-contractual obligations. As such, resolution of this issue would require an investigation into the particular contracts signed by particular physicians not to mention whether arbitration agreements are included. Defendants also contend that the monetary relief requested for violations of the RICO statute would involve individualized investigations because associations have been barred from seeking monetary relief on behalf of their members. See United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Insurance Corp. of Am., 919 F.2d 1398, 1400 (9th Cir.1990); see also Warth v. Seldin, 422 U.S. 490, 515, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (where damages sought on behalf of members, "whatever injury 1308 may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof," a fact that precludes derivative association standing); Friends for American Free Enter. Ass'n v. WalMart Stores, Inc., 284 F.3d 575, 577 (5th Cir.2002) (claims for tortious interference of contract would require individualized proof, precluding derivative associational standing). In certifying the Provider class, this Court has already held that Plaintiffs' allegations can be resolved by the means of common proof and that individual issues do not predominate. See In re Managed Care Litig., 209 F.R.D. 678, 694-97 (S.D.Fla.2002) ("numerous issues are common to all claims ... [I]n addition, the global class issue of whether a conspiracy exists, and if so, the extent of its impact is necessarily a common question which predominates in this action."). Moreover, when confronted by similar allegations, other courts have specifically rejected Defendants' arguments in the context of challenges to the alleged abusive practices of managed care companies. For example, in Pennsylvania Psychiatric Society v. Green Spring Health Servs., 280 F.3d 278, 286 (3rd Cir.2002), the plaintiff medical association had voiced concerns about the methods that Defendants Managed Care companies employed for making decisions regarding patient care. Id. at 286 (emphasis in original). The Green Spring court determined that on a motion to dismiss, the pleadings sufficiently alleged that the medical association could establish the alleged violations without significant individual participation. Id. Similarly, the SAC allegations centers on a broad-based scheme where systemic techniques are used to make decisions regarding patient care and compensation for treatment. Second, the Associational Plaintiffs are not seeking damages for their members, only injunctive and declaratory relief. See SAC ถ 30. It is well-established that an association may seek equitable relief on behalf of its members without running afoul of the third prong of the Hunt test. See, e.g., Hunt v. Washington State Apple Advert. Comm., 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1571-72 (11th Cir.1991). Defendant Coventry advances several additional arguments that are similarly without merit. First Coventry argues that associations cannot obtain equitable relief under RICO. This argument has been discussed supra. Second, Coventry asserts that the Associational Plaintiffs' members have an adequate remedy at law for the remaining claims in the complaint. However, Plaintiffs correctly argue that whether money damages will prove to be an adequate remedy at law cannot be determined at this state of the proceeding. Finally, Coventry contends that the absence of any individual Plaintiffs from Louisiana precludes the Louisiana State Medical Society from obtaining relief. There is no requirement, however, for an association suing on behalf of its members be joined by any of them in order to bring a valid claim. See, e.g., Doe v. Stincer, 175 F.3d 879, 882 (11th Cir.1999)("an association may bring suit on behalf of its members or constituents despite the fact that individual members have not actually brought suit themselves"). Accordingly, this Court finds that, in addition to having standing in their individual capacities, the Associational Plaintiffs also possess standing in a representative capacity. G. PARENT-SUBSIDIARY RESPONSIBILITY In the SAC, Plaintiffs assert two theories to hold the HMO holding companies 1309 liable for their subsidiaries' acts: (a) an alter ego theory to "pierce the corporate veil" and (b) vicarious liability based on actual agency principles. Plaintiffs have sued the parent corporations rather than entities licensed in each State to administer and market health-coverage products, reasoning that "all substantive practices are established, implemented, monitored and ratified by" those parent companies and that "[l]ocal subsidiaries or affiliates of the named defendants do not function as independent corporate entities but rather have an alter ego relationship with the named defendants and function as agents under the Defendants' direction and control." SAC ถ 45. Among the tools used by the parent companies to defraud Plaintiffs include the alleged auto-adjudication scheme. Defendants contend that Plaintiff's allegations of individual liability of Defendant parent companies are insufficient to state a cause of action under settled principles of corporate liability. They claim that it is a "general principles of corporate law deeply ingrained in our economic and legal systems that a parent corporation ... is not liable for the acts of its subsidiaries." United States v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). Defendants argue that this presumption can only be overcome upon well-pleaded allegations that the subsidiary is a "sham" corporation amounting to no more than the "alter-ego" of the parents. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110-11, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969) (parent is not liable for judgment entered against subsidiary unless subsidiary is shown to be its alter ego). Therefore, under the law of the state in which the corporation is domiciled, each subsidiary corporation must be shown to be a mere "sham." Defendants argue that Plaintiffs' alter ego allegations are pleaded without relevant factual support. The Court finds that Plaintiffs sufficiently alleged direct liability of the parent corporations. First, although Plaintiffs have offered a menu featuring three theories of parent-subsidiary liability, they are primarily alleging that Defendants are subject to direct, rather than derivative or vicarious liability. See SAC ถ 45 ("all of the substantive practices, policies, and procedures of the Defendants' health plans are established, implemented, monitored, and ratified by the Defendants themselves")(emphasis added). The Supreme Court has noted that in cases where the "alleged wrong can seemingly be traced to the parent through the conduit of its own personnel and management" and "the parent is directly a participant in the wrong complained of" will, in such "instances, [be] directly liable for its own actions." United States v. Bestfoods, 524 U.S. 51, 64-65, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (citations omitted). Direct liability is therefore imposed when the parent has "forced the subsidiary to take the complained-of action in disregard of the subsidiary's distinct legal personality." Pearson v. Component Technology Corp., 247 F.3d 471 (3rd Cir.2001) (quoting Esmark, Inc. v. NLRB, 887 F.2d 739, 756-57 (7th Cir.1989)). While the question of proof is a matter for a different day, in alleging that the parent corporations directly participated in formulating and implementing the auto-adjudication claim schemes, the Plaintiffs have met their burden at this stage of the proceedings.[25] 1310 IV. CONCLUSION THE COURT has considered the motion, the responses and the pertinent portions of the record, and being otherwise fully advised in the premises and in open court, it is ADJUDGED that the joint motion to dismiss (D.E. No. 1662) is GRANTED in part and DENIED in part, with prejudice, consistent with the above opinion. Accordingly, Counts IX and X are dismissed in their entirety. NOTES [1] The Main Track Provider Plaintiffs include: Charles B. Shane, M.D., Jeffrey Book, D.O., Michael Burgess, M.D., Edward L. Davis, D.O., Lance R. Goodman, M.D., R. Robert Harrison, M.D., Glenn L. Kelly, M.D., Leonard J. Klay, M.D., Eugene Mangieri, M.D., Kevin Molk, M.D., Martin Moran, M.D., Manuel Porth, M.D., Thomas Backer, M.D., David Boxstein, M.D., Susan Hansen, M.D., Andres Taleisnik, M.D., Julio Taleisnik, M.D., Roger Wilson, M.D., Navid Ghalambor, M.D., the California Medical Association, the Texas Medical Association, the Medical Association of Georgia, the Florida Medical Association, the Louisiana State Medical Association and the Denton County Medical Association (collectively referred to as "Plaintiffs" or "Providers"). [2] The Main Track Defendants include: UnitedHealthcare, Inc. and UnitedHealth Group Incorporated f/k/a United HealthCare Corporation ("United"); Health Net, Inc. f/k/a Foundation Health Systems, Inc. ("Health Net"), WellPoint Health Networks, Inc. ("WellPoint"), The Prudential Insurance Company of America ("Prudential"), CIGNA Corporation ("CIGNA"), PacifiCare Health Systems, Inc. ("PacifiCare"), Humana, Inc. and Humana Health Plan, Inc. ("Humana"), Coventry Health Care, Inc. ("Coventry"), and Anthem, Inc. ("Anthem") (collectively referred to herein as "Defendants" or "HMOs"). [3] Count IX only applies to Aetna entities which have settled their claims. In accordance with the Final Approval Order and Judgment as to Aetna, Inc. and Aetna-U.S. Healthcare, entered October 24, 2003, this Count is therefore dismissed. [4] Aetna and CIGNA have settled their claims. [5] The motions to dismiss filed by Anthem and Coventry shall be dealt with in a separate order. [6] See, e.g., 800537 Ontario, Inc. v. Auto Enters., Inc., 113 F.Supp.2d 1116, 1123 (E.D.Mich.2000) (finding that two importers did not participate in "any type of hierarchy beyond their contractual relationship"); Stachon v. United Consumers Club, Inc., No. 98 C 7020, 1999 WL 971284 (N.D.Ill. Oct. 21, 1999), aff'd, 299 F.3d 673 (7th Cir.2002) (finding that buying club and its contracting manufacturers, suppliers and members established a discrete market, not an on-going enterprise); see also In re MasterCard Int'l, Inc., Internet Gambling Litig., 132 F.Supp.2d 468, 486-87 (E.D.La.2001) (finding that Internet casinos, credit card companies and issuing banks merely constituted "a routine contractual combination for the provision of financial services"); In re SmithKline Beecham Clinical Labs., Inc. Lab. Test Billing Practices Litig., 108 F.Supp.2d 84, 94 (D.Conn.1999) (finding that network of laboratories either owned, affiliated or in varying contractual arrangements with SBCL was insufficient); El-Issa v. Compaq Computer Corp., No. 97 C 5839, 1997 WL 790730, at 3 (N.D.Ill. Dec. 19, 1997) (finding that competing retail distribution agents for Compaq computers were not an enterprise, even though they train together on Compaq computers and act as conduits for allegedly false Compaq advertising); First Nationwide Bank v. Gelt Funding Corp., 820 F.Supp. 89, 98 (S.D.N.Y.1993) ("Plaintiff merely asserts that for over six years [brokers] shared common fraudulent purposes and plans. Conclusory allegations that disparate parties were associated in fact by virtue of their involvement in the real estate industry in the 1980s are insufficient to sustain a RICO claim, absent allegations as to how the members were associated together in an `enterprise.'"). [7] Plaintiffs have withdrawn their claims of extortion under the Hobbs and Travel Acts. See Transcript of Motion to Dismiss Hearing, p. 15. [8] The Court notes that the Supreme Court expressly declined to address "whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U.S.C. ง 1964." Scheidler v. NOW, 537 U.S. 393, 411, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003). [9] Since the claims asserted by the Plaintiffs are outside the business of insurance, the Court does not reach Defendants' specific arguments concerning the insurance laws of four states. [10] See Order Granting in Part and Denying in Part Various Defendants' Motions to Compel Arbitration at 31 (December 11, 2000). [11] When confronted with the precise issue, the Supreme Court has declined to resolve whether a ง 1962(d) RICO conspiracy claim must be predicated on an actionable violation of งง 1962(a)-(c). Beck, 529 U.S. at 506 n. 10, 120 S.Ct. 1608. [12] Defendants' reliance on McCowan v. Sears, Roebuck & Co., 908 F.2d 1099 (2d Cir.1990) in support of their proposition that 9 U.S.C. ง 3 requires a mandatory stay is similarly misplaced as it is factually distinguishable. In McCowan, the plaintiffs sued Sears, with whom they had no arbitration agreement, based upon "controlling person" liability under the Virginia Securities Act for the acts of Dean Witter, with whom the plaintiffs did possess an arbitration agreement. Id. at 1106. While the Second Circuit reversed the trial court's denial of a mandatory stay under ง 3 to Dean Witter, it did not reverse the denial of the stay against the other defendant Sears. Id. at 1107. In fact, the Court declined to pass judgment on the viability or abitrability of Sears' claims. Id. The continuing value of McCowan is also in doubt as it has been implicitly repudiated by later precedent. See Citrus Marketing Board v. J. Lauritzen A/S, 943 F.2d 220, 224-25 (2d Cir.1991). Moreover, this argument invites the Court to disturb previous rulings. [13] Courts have stressed the opposite logie โ i.e., requiring Plaintiffs to prove injury from a racketeering act first prevents them from simply alleging a RICO conspiracy and therefore evading the other elements of a RICO action. See Beck v. Prupis, 162 F.3d 1090 (11th Cir. 1998). [14] Other courts have also followed this line of analysis. See, e.g. Blue Cross of California v. Anesthesia Care Associates Medical Group, Inc., 187 F.3d 1045 (9th Cir.1999) (holding that "Providers' claims, which arise from the terms of their provider agreements and could not be asserted by their patient-assignors, are not claims for benefits under the terms of ERISA plans..."); Lakeland Anesthesia, Inc. v. Louisiana Health Service & Indemnity Co., 2000 WL 1801834 (E.D.La. Dec. 6, 2000) (holding that ERISA preemption is not triggered where the plaintiff health care providers sought to enforce contractual rights under provider agreements); Riverhills Healthcare, Inc. v. Aetna U.S. Healthcare, Inc., et al, 2000 U.S. Dist. LEXIS 19313 (S.D.Ohio. Oct. 23, 2000) (granting motion to remand where providers sued HMOs for breach of contract of provider agreement). [15] In order for state law claims to be subject to ERISA complete preemption, four elements must be present: (1) a relevant ERISA "plan"; (2) the plaintiff must have standing to sue; (3) the defendant must be an ERISA entity; and (4) the complaint must seek relief akin to what is available under 29 U.S.C. ง 1132(a). Butero v. Royal Maccabees Life Ins. Co., 174 F.3d 1207, 1212 (11th Cir.1999). [16] The civil enforcement provisions state in pertinent part: A civil action may be brought - (1) by a participant or beneficiary (A) for the relief provided for in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; (2) by the Secretary, or by a participant, beneficiary, or fiduciary for appropriate relief under section 1109 of this title; (3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of this plan. 29 U.S.C. ง 1132(a). [17] Defendants do not expressly argue that claims brought by non-participating providers who do not hold assignments are completely preempted by Section 502(a). See Def. Reply at 37 n. 10. Nevertheless, without an assignment, the non-participating provider lacks standing under Section 502(a) and complete preemption is inapplicable. See Sanson v. General Motors Corporation, 966 F.2d 618 (11th Cir.1992) ("only a participant or beneficiary can file a civil action under ERISA"). [18] While similar allegations regarding the costs of pursuing individual claims far exceeding their actual value were countenanced in this Court's Order Certifying the Provider Track Class, the inquiry for ERISA exhaustion requirements is distinguishable from concerns that underpin Fed R. Civ. P. 23(a). ERISA's statutory scheme strongly favors plan review procedures in order to minimize the cost of dispute resolution and prevent premature judicial intervention in the decision making process. Mason v. Continental Group, Inc., 763 F.2d 1219, 1227 (11th Cir. 1985). [19] Plaintiffs asserting simultaneous contractual and quasi-contractual claims include plaintiffs Backer, Book, Boxstein, Burgess, Davis, Harrison, Molk, Moran, Porth, Shane, A. Taleisnik, and J. Taleisnik. [20] It is unnecessary to analyze the Connecticut Unfair Trade Practices Act, because the only applicable Defendant is AETNA. See Order Denying Without Prejudice Certain Motions Filed by Defendants AETNA, Inc. and AETNA-U.S. Healthcare, Inc., dated June 4, 2003. [21] Ala.Code ง 27-1-19; Miss.Code Ann. ง 83-9-5; Tex. Ins.Code Ann. ง 20A.18B; Nev.Rev.Stat. Ann. งง 689A.410, 689B.255 and 696C.185; and Va.Code Ann. ง 38.2-3407.15. [22] These states are Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Illinois, Kansas, Kentucky, Louisiana, Maryland, Michigan, Missouri, New Mexico, New Jersey, New York, Ohio, Tennessee, and Washington. Plaintiffs have dropped all claims for interest under Pennsylvania's statute based upon a lower court ruling that this statute does not provide a private right of action. [23] California Medical Association, the Denton County Medical Society, the Medical Association of Georgia, the Texas Medical Association, the Florida Medical Association and the Louisiana Medical Society. [24] The Associational Plaintiffs only join selected claims asserted by the Provider Plaintiffs claims for RICO conspiracy under 18 U.S.C. ง 1962(d); aiding and abetting RICO violations; breach of contract; "quasi-contract"; violations of the Connecticut Unfair Trade Practices Act, and violations of the New Jersey Consumer Fraud Act. The California Medical Association also asserts claims under California's "Unfair Competition Law," Cal. Bus. & Prof.Code ง 17200. [25] In finding that the Plaintiffs have successfully alleged direct liability, the Court does not reach the two other bases of parent-subsidiary liability: (a) the agency theory where the parent corporation uses a subsidiary to do its bidding; and (b) the instrumentality theory, under which the plaintiff must establish that the parent exercised a significant degree of control over the subsidiary's decision-making. See, e.g., Frank v. West, 3 F.3d 1357, 1362 n. 2 (10th Cir.1993) (veil will be pierced when "parent exercises extensive control over the acts of the subsidiary giving rise to the claim of wrongdoing").	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2613044/	73 Cal. App. 2d 103 (1946) CLYDE H. BRAWLEY et al., Respondents, v. CROSBY RESEARCH FOUNDATION, INC. (a Corporation) et al., Appellants. Civ. No. 15039. California Court of Appeals. Second Dist., Div. One. Feb. 18, 1946. Conroy & Conroy, Edward L. Conroy, Chambers & Lyman and Robert Chambers for Appellants. LeRoy B. Lorenz for Respondents. WHITE, J. Defendants appeal from an adverse judgment rendered against them in an action for declaratory relief under section 1060 of the Code of Civil Procedure, construing a contract for the development, exploitation and commercialization of a rotary pump. By their amended complaint plaintiffs in substance alleged that on and for some time prior to May 15, 1944, they were the owners of a valuable invention, being an original design of a rotary pump; that prior to the last-mentioned date defendant Crosby Research Foundation, Inc. represented itself to be and was widely reputed to be engaged in the business of developing, exploiting and commercializing inventions for the mutual benefit of inventors and said defendant corporation. It was then alleged that for some time prior to May 15, 1944, plaintiffs had been negotiating with defendant Foundation for a contract under the terms of which the latter should undertake "to do certain things by way of developing, exploiting and commercializing the said newly invented rotary pump; that one of the essential elements of such projected contract was, and still is, the nature and extent of the acts that the said defendant Foundation was to perform by way of effecting and accomplishing such development, exploitation and commercialization of said invention; that another essential element of said projected contract was, and is, the nature and extent of the obligation, on the part of the defendant Foundation, to prosecute, defend, protect and improve any and all patent rights obtained or obtainable in connection with the said invention." It was then averred that on or about May 15, 1944, plaintiff and defendant Foundation "did agree upon certain elements of such proposed contract and reduced said matter to the form of a written instrument." A copy of such written contract was attached to the amended complaint, marked "Exhibit A." Plaintiffs then alleged that "said purported 106 contract is not valid, binding or enforceable; that it is not a contract." By their answer defendants denied that the aforesaid contract did not contain all of the details agreed upon between the parties; denied that the contract was not valid, binding or enforceable, and denied that there was an actual controversy between the parties thereto relating to their legal rights and duties under such contract. As a separate defense, defendants alleged that since the execution of the written agreement, and relying thereon, the defendants had in good faith vigorously prosecuted the development, exploitation and commercialization of the invention; had promptly paid to plaintiffs all the royalties provided for in said contract, and that in addition to the minimum royalties reserved in the contract defendants had expended in developing, exploiting and commercializing said invention more than $4,000. The contract in question, denominated an "exclusive license agreement," was entered into by plaintiff Clyde H. Brawley as party of the first part and defendant Foundation as party of the second part. The agreement set forth that plaintiff Brawley had assigned to the other plaintiffs herein an undivided one-fourth interest in and to any and all proceeds, earnings or accruals derived by him by virtue of said invention. Although plaintiff Brawley appears as party of the first part in said agreement, the same is signed by all of the plaintiffs. After reciting the respective interests of plaintiffs in and to the rotary pump invention and that defendant Foundation was engaged in the business of "research, development, production and commercialization of new articles of commerce" and was desirous of acquiring commercial rights to the aforesaid invention "for the purpose of introducing said invention as a new and useful product," the pertinent provisions of the contract provided that for and in consideration of the payment of the sum of one dollar by second party and "further sums and considerations as hereinafter set forth, the mutual covenants of the parties hereto herein made, and the faithful performance thereof," the first party, with the knowledge and consent of his associates, granted to second party "an exclusive license for the use of said inventions together with any improvements thereon made or to be made, and benefit of disclosures or other claims to novelty made or to be made by said first party, together with any application or applications for letters patent thereon made or to be made in the 107 United States or countries foreign thereto." It was further provided that the term of said license should be for the "full life of any patent or patents to be issued to first party on said inventions, any improvements thereon, developments thereof, or anything pertaining thereto." After granting to second party the right to file application or applications for letters patent on said invention or any improvements thereof, and to defend against any interference or infringement proceedings, as well as to file infringement proceedings, and plaintiff Brawley agreeing to make himself available for consultation or assistance in matters relating to tests, development and improvements in connection with the invention and in connection with applications for letters patent, it was provided that the second party should pay to the first party a royalty based upon the total net sales, which it was provided should be construed to mean the "gross sales less returns, allowances and normal trade discounts," said royalty to be computed upon the following basis: (1) up to and including net sales in the amount of $500,000, a royalty of six per cent of the net billing thereof; (2) upon net sales in excess of $500,000, a royalty of five per cent of the net billing thereof. The agreement provided that "the aforesaid royalty payments shall be based upon the total net sales of said inventions made each respective calendar month throughout the life of this license, and payment therefor shall be made to first party by second party each calendar month on or before the twentieth (20th) day thereof." The agreement then provided that the party of the second party was to pay to the party of the first part a minimum monthly royalty of $100 each calendar month, commencing with July, 1944, and continue the payment of such minimum royalty for a period of six months; that commencing with January, 1945, a minimum royalty of $200 should be paid each calendar month thereafter. The contract further provided that in the event of a dispute between the parties thereto involving their respective rights, such dispute should be submitted to arbitration for decision; that such arbitration was to be conducted in accordance with the provisions of title X, part III, of the Code of Civil Procedure of the State of California, each party selecting one arbitrator and the arbitrators so chosen should select a third, and the three arbitrators so selected should constitute the board of arbitration, "whose decision shall be final." 108 It was further provided that in the event of default of either party in the faithful performance of the terms and conditions of the contract and the failure of the party in default to cure the same within thirty days after notice from the other party, "this license may, at the option of the party not in default, be terminated by a notice in writing served upon the party so in default. Such cancellation and termination shall become effective thirty days from and after the day of such notice." It was then provided that "second party may at its option terminate this license upon sixty days' written notice served upon first party and in accordance with the conditions and limitations hereinafter set forth." These conditions and limitations provided that in the event of such cancellation by the second party the latter should fully release to the first party all "claim, right, title and interest in and to said inventions, letters patent thereon or applications therefor, and no claim or obligation shall be made or allowed by either party hereto against the other in any manner whatsoever except as may relate to the aforesaid royalty payments which second party shall be required to make in full to the first party as of the last day of sales and account therefor as hereinbefore defined." The cause proceeded to trial before the court sitting without a jury, at which time the plaintiffs produced one witness, L. P. Gibford, himself a plaintiff, who testified as to the signing and execution of the contract. The contract was then offered in evidence and the plaintiff rested. The testimony offered by the defendants was equally meager, consisting of that given by Laurence E. Crosby, one of the defendants, who testified that he was president of the defendant Foundation; that "pursuant to the contract, plaintiffs' Exhibit No. 1, Crosby Research Foundation expended moneys for the development of the pump and payment of royalties. By payment of royalties I mean the royalties provided for in plaintiffs' Exhibit 1. ... The moneys were paid out for salaries, sample pumps, royalties, including the payments on Mr. Gibford's home, which he was about to lose, which was $250. The balance of over $4,000 was expended on the pump and its development plus the royalties." It was conceded at the trial that when this action was commenced plaintiffs "refused to accept the royalties because they had disaffirmed the contract." The defendants thereupon rested. 109 The court found that all of the allegations contained in plaintiffs' amended complaint were true, and that "there was some evidence that a substantial sum of money was spent by, or on behalf of, the answering defendants; but that there was no evidence as to how much was spent by the Crosby Research Foundation, Inc., nor by any of the other answering defendants, and no evidence as to what any such sums were spent for; that there was no evidence tending to prove any other allegation of the 'Further, Separate and complete Defense to the Amended Complaint', and, therefore, that the allegations of said affirmative defense are found to be untrue." The conclusions of law filed by the court recite that the prime purpose of plaintiffs in entering into the contract with defendant Foundation was to secure from the latter a promise and obligation to "develop, exploit and commercialize" the plaintiff Brawley's invention; that the contract which was prepared by defendant Foundation gave the latter an "option" to develop, exploit and commercialize said invention, but did not "require" defendant Foundation "to do anything by way of developing, exploiting or commercializing said invention"; that one of the considerations which induced plaintiffs to contract away the exclusive right to use the said patent "was the promise of said Foundation to pay the inventor 6% of net sales up to one-half million dollars; but that there was no obligation to do anything in the direction of producing or inducing or making any sales; that there was no 'meeting of the minds'" between the parties. As a further conclusion of law the court determined that while plaintiffs were dependent upon the promise of defendant corporation to pay percentage royalties "if there were any sales," and to pay a minimum royalty irrespective of sales, that defendant Foundation "reserved the unrestricted and arbitrary right to cancel the entire contract at its option; that, if this were a valid 'meeting of the minds' at its inception, it had no 'mutuality of consideration' as an executory contract." The court further concluded that "if this instrument constituted a valid contract at its inception, it furnished only a basis upon which the parties might deal so long as it was mutually agreeable, with no obligation upon either party requiring a continuance of the relation." With reference to defendants' affirmative defense, the court as a conclusion of law determined that the matters therein set forth, "if proved, could not operate to estop the plaintiffs' 110 asking the court to declare the contract unenforceable"; that because at its inception the contract lacked "mutuality of obligation" or consideration, the facts set forth in defendants' affirmative defense could not supply such requisites; and that for the recovery of anything of value furnished by defendant Foundation to plaintiffs at the latters' request which in law they were required to restore to defendant Foundation, that the latter had an adequate remedy at law. By its judgment the court decreed the agreement in question to be void and unenforceable; that defendant Foundation had no right, title or interest thereunder in and to the patents therein referred to; that defendant Foundation be enjoined from exercising any of the rights purportedly conferred upon it by said agreement, and that it deliver to plaintiffs drawings, designs, plans, specifications, test-models, patent-applications and any other papers or documents received pursuant to the agreement in question. [1] Since the court decreed that the contract is void and unenforceable, we shall first test the same for validity. By its terms the first party granted to second party the exclusive license to exploit, manufacture, sell, use or license the invention for the life of any patents issued or to be issued thereon. First party, Brawley, agreed to make himself available at the expense of second party for consultation and assistance relative to any improvements and applications for patents. The second party was granted the right to file applications for letters patent on the invention or on any improvements or development thereof and to defend the same against infringement; all such applications and actions to be in the name of the first party. In return for the grant of the right to develop, manufacture, exploit and sell the rotary pump, the second party agreed to at all times acknowledge the invention and the first party's right thereto; agreed not to contest the validity of any patent covering the invention in question, and to pay the first party, in consideration of the rights conveyed, a royalty upon the net sales of the pumps made and sold under the license. The term "net sales" was defined in the agreement. The amount of the royalties and the basis for computation thereof was clearly set forth, as hereinbefore narrated, as were the dates of such royalty payments. It was provided that a statement of sales made should accompany each royalty payment. A minimum royalty of $100 per month during the year 1944 was provided for, with a monthly royalty of $200 per month 111 commencing with January, 1945, regardless of the amount of sales made. Provision was made for arbitration in the event of dispute, but plaintiffs did not resort thereto. Should either party default the other was authorized to terminate the contract by giving thirty days' notice in writing to the defaulting party. The second party was empowered to terminate the contract at its option upon giving sixty days' written notice of such intention to first party, provided, however, that should second party exercise its right of termination, it would release to first party all rights under the contract and surrender all inventions, applications or improvements thereon made or held by second party, and would continue to pay royalties in accordance with the agreement during the aforementioned sixty days. We perceive no invalidity in this contract. Respondents, however, first contend that the contract is incomplete and therefore void because the parties thereto failed to agree upon an element which was essential to the agreement and therefore there was no "meeting of the minds." The "essential element" to which respondents refer is the claimed absence in the agreement of "any expression of what the Foundation undertook to do by way of developing, exploiting and/or commercializing the invention." While it is true that the contract contains no express provisions as to when the second party should commence the production and sales of the rotary pump, there is contained in the agreement a provision that at all times, whether or not pumps were produced or sold, second party should pay first party a minimum royalty commencing forty-five days after the execution of the agreement, and the minimum royalty was doubled effective January, 1945. Thus it seems obvious from these provisions that the parties had in mind that sales might not be made immediately and that during the period of development, production and exploitation of the pump by second party, the latter was to pay a fixed royalty. Had the parties contemplated that production and sale of the pump should commence within a specified time they could easily have so provided. By the very terms of the contract it was provided that the first party "is now desirous of securing further development, exploitation and commercialization of said inventions." That certain development work would have to be done was obviously in contemplation of the parties, because in paragraph 1 of the agreement it is further provided that the license granted to 112 second party in the agreement "shall be the right to develop, exploit, manufacture, sell, use, license or sublicense said invention or any rights thereto, to the sole benefit and use of said second party, except for the payment of royalties and the performance of any other obligations on the part of the second party as hereinafter set forth." (Emphasis added.) [2] The admitted payment of the royalties conferred upon the first party a benefit which constituted a good consideration within the meaning of section 1605 of the Civil Code, and consideration supplies mutuality of obligation to the contract. If the amount of the minimum royalties was not adequate, respondents should have so determined in their own minds before signing the contract, but having signed it, they must live up to their agreement. [3] The law does not weigh the quantum of the consideration. (6 Cal.Jur., p. 169.) Contrary to the finding of the trial court, the contract with which we are here concerned does require that appellant Foundation manufacture and sell the pump. The terms of the contract, instead of relieving appellant, as claimed by respondents, from exploiting, manufacturing and selling the pump, on the contrary require just that. [4] In this, as in every contract, there is the implied covenant of good faith and fair dealing; that neither party will do anything that would result in injuring or destroying the right of the other to enjoy the fruits of the agreement. (Universal Sales Corp. v. California Press Mfg. Co., 20 Cal. 2d 751, 771 [128 P.2d 665]; Silva v. Providence Hospital, 14 Cal. 2d 762, 773 [97 P.2d 798]; Long Beach Drug Co. v. United Drug Co., 13 Cal. 2d 158, 164 [88 P.2d 698, 89 P.2d 386]; Citron v. Franklin, 23 Cal. 2d 47, 56 [142 P.2d 16]; Civ.Code, 1655, 1656.) The law will therefore imply that under its agreement appellant was obligated in good faith and by its reasonable and best efforts to develop, exploit, produce and make sales of the rotary pump in question. That appellant did not do so was not alleged in the pleadings or proved at the trial. The cases cited by respondents in support of their claim that the contract before us is incomplete are distinguishable, in that the cited cases present situations wherein the contract was incomplete on its face and the deficiencies of the contract were in relation to matters treated in the contract, while in the case at bar, as admitted by respondents, the matters now claimed to be necessary to a "complete" contract are not mentioned in the agreement. [5] In the instant case the agreement reflects a complete mutuality between the parties 113 wherein the first party granted to second party a license to improve upon, develop, exploit, produce and sell a certain rotary pump invented by the former, in consideration of the payment of certain minimum royalties pending development and sale of the product, with percentage royalties thereafter, but in any event and regardless of the amount of sales, the first party was at all times to receive the minimum royalty provided. [6] Lack of mutuality is tantamount to want of consideration, and where, as in this case, sufficient consideration is otherwise present, mutuality is not essential. It becomes essential only when its absence would leave a party without a valid or available consideration for his promise. (Clarey v. Security Portland C. Co., Inc., 99 Cal. App. 783, 786 [279 P. 483]; 17 C.J.S., 100, p. 444; 12 Am.Jur. 13, p. 509.) [7] Respondents next insist that the judgment must be affirmed because the defendant Foundation's arbitrary right of cancellation destroys the mutuality. While it is true the contract provided that the second party might at its option terminate the same upon sixty days' written notice served upon first party, the exercise of such option was required to be, as provided in the contract, "in accordance with the conditions and limitations hereinafter set forth." These conditions and limitations were declared in the contract to be as follows: "In the event of cancellation and termination of this license as hereinbefore provided second party shall fully release to first party all claim, right, title and interest in and to said inventions, Letters Patent thereon or Applications therefor and no claim or obligation shall be made or held by either party hereto against the other in any manner whatsoever, except as may relate to the aforesaid royalty payments which second party shall be required to make in full to first party as of the last day of sales and account therefor as hereinbefore defined." It was upon this provision of the contract that the court concluded as a matter of law that "the Foundation reserved the unrestricted and arbitrary right to cancel the entire contract at its option; that, if this were a valid 'meeting of the minds' at its inception, it had no 'mutuality of obligation' or 'mutuality of consideration' as an executory contract; that, if this instrument constituted a valid contract at its inception, it furnished only a basis upon which the parties might deal so long as it was mutually agreeable, with no obligation upon either party requiring a continuance of the relation." 114 We are constrained to hold that the weight of authority in California is to the effect that a provision in a contract that it shall come to an end at the option of one of the parties under the terms, conditions and limitations embodied in the agreement before us, does not render such contract unenforceable. That a contract containing an option that it may be cancelled by one of the parties by written notice is a valid provision and is supported by the original consideration was the holding in Thomas v. Anthony, 30 Cal. App. 217, where, at page 222 [157 P. 823], we find the following: "The contract also reserved to the defendant the right to cancel it upon fifteen days' notice, unused deposits to be thereupon returned. We do not think, as urged by the appellant, that this provision of the contract makes it void for lack of mutuality. In Page on Contracts, section 306, the author in treating of this phase of the law, says: 'If A and B make mutual promises to each other, and A is to have the right at his election to withdraw from the contract and relieve himself from all liability thereunder at his pleasure, some courts hold that such contract is without consideration. ... If, however, A must give notice for a substantial period of time before ending his liability under the contract, and such liability is to last until the end of time for which the notice is given, A's promise is a consideration. Thus if A has the right to end the contract at the end of any year, or on ten days' notice, or on two weeks' notice, A's promise is a consideration.'" (Emphasis added.) And in the case of Associated Oil Co. v. Myers, 217 Cal. 297, 301 [18 P.2d 668], which involved a lease terminable upon ninety days' notice by the lessee, the court said: "First of all it is argued that the agreements lack mutuality of remedy and obligation. The argument advanced by respondents to support this assertion is based upon the proposition that the lease granted appellant the right to cancel upon giving a ninety days' written notice. The authorities are unanimous to the effect that when the contract is terminable at the will of the plaintiff he may not have relief against the defendant. But to assert, as a matter of equity, that a lease for a three months' period is of no value and entitled to no protection is, we think, going further than the doctrine warrants. Furthermore, it is a recognized rule of equity that where, as here, 'the reciprocal obligations of the parties to the contract are concurrent, the continuance of the obligation of each to perform his part being dependent upon continued performance 115 by the other, any material injury which otherwise might be sustained by the defendant, of whom performance is required, in consequence of his not having an efficient remedy for coercing future performance by the plaintiff, is effectually avoided by making the defendant's obligation to continue performance dependent upon a continuance of performance by the plaintiff.'" (Emphasis added.) In the instant case we are impressed that to assert as a matter of equity--where one of the parties to the contract may terminate the same provided he gives sixty days' written notice, during which interim he is obligated to pay the royalties provided for in the agreement, and at the expiration of which notice he is required to restore to the other party all right, title and interest in and to the inventions, letters patent thereon and pending applications for patents -- that such sixty days' contract is without value and not entitled to protection, goes further than the doctrine relied upon by respondents warrants. Volume 12 American Jurisprudence, section 434, page 1014, reads in part: "The assent of both parties to a rescission is sometimes expressed in the original contract, as where an option to rescind is given to one or both of the parties. One of the parties to a contract may end it if the contract so provides." In 17 Corpus Juris Secundum, section 399, page 888, it is said: "A contract may provide that it shall come to an end at the option of one or either of the parties, and such a stipulation when fairly entered into will be enforced if not contrary to equity and good conscience. The presence of such a provision has no effect on the binding obligations of the contract as long as the parties continue to act under it before revoking or terminating it." The cases relied upon by respondents are readily distinguishable from the case at bar. In Chas. Brown & Sons v. White Lunch Co., 92 Cal. App. 457 [268 P. 490], there was involved an executory contract whereby a corporation engaged in operating a chain of restaurants agreed, in consideration of the purchase by another corporation engaged in the hardware business of shares of stock in the restaurant corporation, to purchase in the future from said hardware corporation such wares as it needed and that the hardware corporation could supply. The court held that the contract was not binding for want of mutuality as it imposed no burdens, promises or restrictions upon the hardware corporation and the latter was 116 free to terminate the contract at will at any time. The court therein stated: "Had plaintiff discontinued its business or refused to sell its wares to defendant, defendant would have been without a remedy. A contract which can be terminated at the will of one of the parties without liability for damages, so far as it remains executory is not binding for want of mutuality." (Emphasis added.) In the cited case the promise made by defendant was a promise to enter into future contracts for the purchase of supplies from plaintiff which defendant might from time to time be in need of and which plaintiff could supply. The court quoted in part from 1 Elliott on Contracts, section 175, as follows: "Unless an agreement to make a future contract is definite and certain upon the subjects to be embraced therein, it is nugatory. Consequently, the acceptance of a proposition to make a contract, the terms of which are to be subsequently fixed, does not constitute a binding obligation." (Emphasis added.) Neither the facts nor the legal issues presented therein are at all similar to the ones confronting us. In Shortell v. Evans-Ferguson Corp., 98 Cal. App. 650 [277 P. 519], the contract was one containing a promise by one of the parties to enter into a future contract for the purchase of certain lots by reference to an unrecorded map. The holding was that the contract was void ab initio and unenforceable because it contravened the mandate of a statute, that the making of the contract was a misdemeanor, and the vendee might recover the money paid on such a contract. (Stats., 1907, p. 290, now incorporated in Bus. & Prof. Code, 11538 and 11541.) While upholding appellant's further contention that the contract being void there was a failure of consideration and hence it was lacking in mutuality, the court definitely stated, "A brief analysis of the document in question demonstrates that it bound respondents to nothing"; that it contained a reservation authorizing the owner of the property "to return the above money" paid on account of the contract at any time "before a contract of sale is signed and approved by the owner," thereby giving to one of the parties the election to perform. Such is not the situation in the case at bar, wherein the right of second party to terminate the contract was conditioned upon the performance of the terms thereof by the payment of royalties during the interim between giving the notice and the effective date thereof. 117 Respondents place great reliance upon County of Alameda v. Ross, 32 Cal. App. 2d 135 [89 P.2d 460], wherein the petitioner sought by means of a writ of mandamus to compel respondent as county auditor to issue a warrant in payment for materials ordered by the board of supervisors of Alameda County with which to repair a part of the Fruitvale Avenue Bridge across the Oakland Estuary, which portion of the bridge was used exclusively for the benefit of the Southern Pacific Company. It appears that the United States, through its Secretary of War, issued to the county of Alameda a license revocable at will, to use, maintain and operate the bridge in question across navigable waters. The license required the maintenance of the bridge in question by the county. The main, if not the sole question necessary to the decision was whether or not the board of supervisors could expend public money for maintaining or repairing that portion of the bridge used exclusively for the benefit of a private corporation. In that regard the court held that "the particular indebtedness which is involved in this proceeding constitutes a gift of public funds to a private corporation in conflict with article IV, section 31, of the Constitution of California." It is true the court further held that the expenditure was unauthorized "for the reason that the license is revocable at will by the Secretary of War and therefore lacks mutuality of obligations and consideration, which renders it void." Though it be conceded that such last-mentioned holding was necessary to the decision, it must, however, be borne in mind that the court treated the document in question as a license issued by sovereign authority, revocable at will and without notice. The same court, in Rosenblatt v. California State Board of Pharmacy, 69 Cal. App. 2d 69, 74 [158 P.2d 199], held that a license issued by a sovereign "has none of the elements of a contract and does not confer an absolute right but a personal privilege to be exercised under existing restrictions and such as may thereafter be reasonably imposed." In the instant case we are not confronted with a "license" issued by a sovereignty, but with a contract between private persons, terminable by one of them only upon sixty days' written notice and subject to obligations and limitations imposed upon the party vested with the right of termination. In the Alameda County case the court recognizes that an option to terminate a contract on notice does not void every such contract. Quoting from 1 Williston on Contracts, page 118 365, section 105, the court says: "Since the courts, however, do not favor arbitrary cancellation clauses, the tendency is to interpret even a slight restriction on the exercise of the right of cancellation as constituting such legal detriment as will satisfy the requirement of sufficient consideration; for example, where the reservation of right to cancel is for cause, or by written notice, or after a definite period of notice, or upon the occurrence of some extrinsic event, or other objective standard." (Emphasis added.) In commenting upon the provisions of the license in the Alameda County case, the court at page 145 says: "A careful reading of the defendant leaves no doubt it was the intention of the government, clearly expressed in unequivocal language, that it reserves the absolute right to revoke the license at will with or without cause. It contains no limitation whatever upon that arbitrary power. It is therefore void for lack of mutuality and for lack of consideration." No such situation exists in the contract now engaging our attention, and our examination of the Alameda County case does not impress us that it supports the ruling of the trial court that a cancellation clause of the nature and character contained in the contract here involved renders the agreement void. [8] It is not necessary that the provision giving to one party an option to terminate on substantial notice shall be supported by a consideration different from considerations supporting the entire agreement. One valid consideration supports each and all of the obligations of the contract. In this regard, the court in Tennant v. Wilde, 98 Cal. App. 437, 442 [277 P. 137], said: "On this point it may be said that where there is consideration for any of the agreements specified in a contract the contract as a whole cannot be said to lack mutuality or consideration nor can any particular promise or agreement contained therein be singled out and deemed inoperative because no special or particular consideration appears to have been given or promised for it. Mr. Page in his Law of Contracts thus states the rule: ... 'While a consideration is a necessary element of every contract, it is not necessary that each separate promise or covenant should have a distinct consideration. If there is but one consideration offered in return for several promises, and it is accepted for them together, it will support them. This principle is often invoked in question of mutuality of obligation. If A gives value for two or more promises from B, B cannot claim that 119 one of such promises was not supported by consideration, though the parties have not apportioned the consideration to the separate promises. ...'" As to defendants Laurence E. Crosby, J. Rex Davis and Major Pump Corporation, there is no evidence whatever connecting them with the contract in question or with any issue raised by the pleadings or made by evidence before the court. In view of the foregoing conclusions at which we have arrived concerning the validity of the contract, it becomes unnecessary to give consideration to other grounds presented on this appeal. The judgment is reversed and the cause remanded with directions to the court below to enter judgment declaring the contract valid. York, P. J., and Doran, J., concurred.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873341/	241 S.W.3d 834 (2007) Reginald MOOREHEAD, Appellant, v. STATE of Missouri, Respondent. No. ED 88446. Missouri Court of Appeals, Eastern District, Division Four. December 18, 2007. Jessica Hathaway, St. Louis, MO, for Appellant. Shaun J. MacKelprang, Jaime Corman, Jefferson City, MO, for. Respondent. Before MARY K. HOFF, P.J., SHERRI B. SULLIVAN, J., and GEORGE W. DRAPER III, J. Prior report: 136 S.W.3d 821. ORDER PER CURIAM. Reginald Moorehead (hereinafter, "Movant") appeals from the motion court's judgment denying his motion for post-conviction relief pursuant to Rule 29.15 after an evidentiary hearing. Movant claims his trial counsel denied him effective assistance of counsel by failing to prove he was incarcerated from September 29, 1999, through June 26, 2000, and failing to impeach the victim's testimony. We have reviewed the briefs of the parties and the record on appeal and find the motion court's decision was not clearly erroneous. Rule 29.15(k); Middleton v. State, 80 S.W.3d 799 (Mo. banc 2002). An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, we have provided a memorandum opinion only for the use of the parties setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1375323/	461 S.E.2d 589 (1995) 218 Ga. App. 423 HAMMONDS v. The STATE. No. A95A1203. Court of Appeals of Georgia. August 31, 1995. John O. Cole, Macon, for appellant. Charles H. Weston, District Attorney, Elizabeth K. Bobbit, Laura D. Hogue, Assistant District Attorneys, Macon, for appellee. SMITH, Judge. Willie Hammonds appeals his conviction for the sale of cocaine, his motion for new trial having been denied. 590 1. Hammonds enumerates as error the denial of his motion for new trial, made on the ground of ineffective assistance of counsel. He contends that trial counsel expressed anger toward him and did not adequately discuss with him a proposed plea agreement. During the hearing on Hammonds' motion for new trial, his experienced trial counsel testified that he met with Hammonds numerous times, advised him regarding his options, investigated the case, and reviewed the State's file. He explained to Hammonds the danger that he could be convicted of a second sale of cocaine and that he would face life imprisonment if he were convicted. After counsel labored to obtain a plea agreement, he conveyed to Hammonds an offer made by the State that could have lessened Hammonds' sentence significantly. Hammonds had previously indicated to his trial attorney that a plea agreement would be acceptable, but when the offer was explained to Hammonds, he "turned it down flat" and likened his attorney to previous counsel with whom he had apparently been dissatisfied. Counsel became angry at Hammonds, exchanged angry words with him, and left the room. Hammonds testified that after this incident, he did not trust his attorney, was "leery of him," and "didn't want to go in the courtroom with him." He testified that the two never again discussed the agreement; his trial attorney testified to the contrary that he met with Hammonds on several subsequent occasions and during each meeting reiterated the existence of the plea agreement and explained that he felt it was in Hammonds' "best interest" to accept the plea offer that had been recommended. The confrontation between Hammonds and his attorney and Hammonds' ensuing "distrust" is not determinative of effectiveness. As observed by the United States Supreme Court in Morris v. Slappy, 461 U.S. 1, 14, 103 S. Ct. 1610, 1617-18, 75 L. Ed. 2d 610 (1983) and by this court in Jefferson v. State, 209 Ga.App. 859, 862(1), 434 S.E.2d 814 (1993), "a meaningful relationship" between a defendant and his counsel is not a Sixth Amendment guarantee. Rather than describe his feelings toward counsel, Hammonds' burden is to show that counsel's performance was deficient and that this deficiency prejudiced the outcome of the case. O'Neal v. State, 211 Ga.App. 741, 743(4), 440 S.E.2d 513 (1994). After reviewing the record, including Hammonds' testimony, we find ample evidence supporting the trial court's finding that counsel was not ineffective. Hammonds has not complained about counsel's performance at trial, and as previously discussed, counsel investigated the case, interviewed Hammonds several times, reviewed the State's file, and conveyed the State's offer to Hammonds on numerous occasions. Under these circumstances, any disagreements Hammonds and his new attorney may have regarding trial counsel's decisions and actions do not demand a finding of ineffectiveness under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).[1] 2. Hammonds contends his Sixth Amendment right to counsel was violated because a sheriff's deputy, without the knowledge of Hammonds' trial counsel, advised him to go to trial. Hammonds testified at the hearing on his motion for new trial that he discussed his case with a Bibb County officer who also happened to be a friend of his from school and that the officer recommended that he go to trial because he could "beat" the charge. "[V]arious kinds of state interference with counsel's assistance can result in denial of effective assistance of counsel." (Citations and punctuation omitted). Pullen v. State, 208 Ga.App. 581, 585(3), 431 S.E.2d 696 (1993). In this case, however, Hammonds has not met his burden of showing that his Sixth Amendment rights were violated. He testified it was his own decision to go to trial. Hammonds' reliance on Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964) and Brewer v. Williams, 591 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) is misplaced. In those cases, law enforcement officers elicited statements from the defendants without presence of their counsel. Massiah, supra, 377 U.S. at 204, 84 S.Ct. at 1202; Brewer, supra, 430 U.S. at 401, 97 S.Ct. at 1241. Here, no incriminating statements were made by Hammonds, nor does the evidence show that law enforcement officers attempted to elicit any such statements from him. His trial counsel made great efforts to persuade Hammonds to enter a plea, explaining to him the possible consequences of his failure to do so. That Hammonds appears to have attached greater significance to the alleged comments of an acquaintance rather than to the advice of his own attorney does not change the fact that it was Hammonds' own decision to proceed to trial. This enumeration has no merit. 3. Hammonds contends the trial court erred in admitting evidence of three prior incidents involving the sale of cocaine. The State introduced the similar acts to show identity, intent, and course of conduct. Hammonds argues that evidence of similar transactions was inappropriately admitted because he admitted identity and intent, and these were not issues. On the contrary, the issue of identity was a focus of cross-examination during the State's case, and the threshold issue of whether Hammonds intended to facilitate a drug transaction or merely purchase drugs for himself permeated the entire trial. Regardless of Hammonds' purported "admissions," it was the State's burden to prove each and every element of the crime beyond a reasonable doubt. The State could not depend on Hammonds' defense, i.e., whatever he might or might not "admit," after it rested its case. Hammonds' claim that the evidence was erroneously admitted to show identity and intent is meritless. 4. Hammonds also contends the State did not show sufficient similarity so that proof of the former crimes tends to prove the latter. We disagree. Two former undercover officers testified regarding their contacts with Hammonds. On three different dates, Hammonds "flagged down" or approached the officers/"customers" and sold them drugs. Both officers "purchased" drugs ranging in price from $20 to $30. In two of the prior transactions, Hammonds acted as an intermediary in the purchase; he took the officers to a location where another individual provided drugs in return for money. Hammonds admitted that he sold cocaine on these three occasions to the officers. Similar transactions need not be identical to the crime charged to be admissible. Boyd v. State, 217 Ga.App. 668, 669, 458 S.E.2d 692 (1995). Rather, the evidence must show that the defendant committed the other crimes and that sufficient similarity between the crime charged and the prior crimes exists, "so that proof of the former tends to prove the latter." Id.; Williams v. State, 261 Ga. 640, 642(2b), 409 S.E.2d 649 (1991). Though Hammonds' testimony was somewhat contradictory to that of the investigating officer,[2] the jury was authorized to believe the State's evidence that Hammonds approached the undercover officer who purchased the drugs in the same vicinity as he approached officers in prior sales. Evidence showed that Hammonds and the officer spoke with an unidentified man and that the officer gave Hammonds $40, which Hammonds gave to the other man in exchange for what later was identified as crack cocaine. These crimes were sufficiently similar that proof of the three earlier sales tended to prove the offense charged in the instant case, and the trial court did not err in admitting the evidence. 5. Hammonds contends the trial court erred in enhancing his sentence under OCGA § 16-13-30(d). He asserts that the statute "discriminates on the basis of race in violation of the Fourteenth Amendment to the United States Constitution and the Constitution of the State of Georgia." We do not agree. This issue was decided adversely to *592 Hammonds in Stephens v. State, 265 Ga. 356, 456 S.E.2d 560 (1995). The Georgia Supreme Court examined a similar challenge and found that the sentencing scheme "does not deprive persons of due process or equal protection under the law. [Cits.]" Id. at 359-360(4), 456 S.E.2d 560. Consequently, this contention is without merit. Judgment affirmed. BIRDSONG, P.J., and JOHNSON, J., concur. NOTES [1] Hammonds also contends that he was denied effective assistance of counsel because an indictment "for prior sale was allowed to go to the jury, although the charge was dropped to simple possession on that indictment." This contention is not supported by argument or citation to authority and is therefore deemed abandoned. Court of Appeals Rule 27(c)(2). [2] Hammonds testified that while he offered to help the officer find some drugs and drove him around in pursuit of this offer, he had nothing to do with the transaction that occurred between the officer and the unidentified man. Hammonds' position was that he made a purchase from the unidentified man, after which the officer made a purchase, and that he had nothing to do with the transaction between the officer and the unidentified man.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2600575/	139 P.3d 762 (2006) 143 Idaho 160 Charles Wesley SUITS, Petitioner-Appellant, v. STATE of Idaho, Respondent. No. 31444. Court of Appeals of Idaho. April 11, 2006. Review Denied July 18, 2006. 763 Andrew Parnes, Ketchum, for appellant. Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent. Ralph R. Blount argued. PERRY, Chief Judge. Charles Wesley Suits appeals from the district court's order denying his application for post-conviction relief following an evidentiary hearing. We affirm. I. FACTS AND PROCEDURE Suits was an osteopathic physician. After a friend of Suits's was accused of violating her probation, the friend informed police that she and Suits used methamphetamine together and that Suits provided her with prescriptions for Vicodin, which she sold on the street. The friend agreed to assist police in apprehending Suits in exchange for leniency regarding her probation violation. In December 1998, the friend arranged for Suits to provide a Vicodin prescription to an undercover officer in exchange for methamphetamine. In the parking lot of the hospital where Suits worked, Suits gave a Vicodin prescription to the undercover officer and the officer gave Suits a baggie containing methamphetamine. Suits was arrested and charged with possession of a controlled substance. At trial, the state introduced audio recordings of conversations between Suits, his friend, and the undercover officer. Suits asserted that those recordings had been altered to make it appear like he had committed a crime when he had not. Suits contended that he wrote a prescription to the undercover officer for the purpose of medical treatment and was unaware that the officer had given him methamphetamine. A jury found Suits guilty. The district court sentenced Suits to a unified term of three years, with a minimum period of confinement of eighteen months. The district court suspended the sentence and placed Suits on probation for three years. In 2002, this Court affirmed Suits's judgment of conviction in an unpublished opinion. State v. Suits, Docket No. 26663, 138 Idaho 125, 58 P.3d 109 (Ct.App.2002). In June 2003, Suits filed an application for post-conviction relief alleging that he received ineffective assistance of trial counsel. Suits contended that counsel erroneously advised him that, in order to utilize an entrapment defense, he would have to admit possessing methamphetamine. At Suits's trial, two attorneys represented him. At the time of the evidentiary hearing held on Suits's application for post-conviction relief, the attorney who had acted as lead trial counsel was deceased. The second attorney, Suits, and an attorney with whom Suits consulted prior to trial testified at the evidentiary hearing. The district court concluded that Suits's defense counsel did not unreasonably interpret the law of entrapment. The district court also found Suits's conspiracy defense was inconsistent with a defense of entrapment and, thus, Suits failed to demonstrate that he suffered any prejudice from trial counsel's failure to request an entrapment jury instruction. The district court therefore denied Suit's application for post-conviction relief. Suits appeals. II. STANDARD OF REVIEW In order to prevail in a post-conviction proceeding, the applicant must prove the allegations by a preponderance of the evidence. I.C. § 19-4907; Stuart v. State, 118 Idaho 865, 801 P.2d 1216 (1990). When reviewing a decision denying post-conviction relief after an evidentiary hearing, an appellate court will not disturb the lower court's factual findings unless they are clearly erroneous. I.R.C.P. 52(a); Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990). The credibility of the witnesses, the weight to be given to their testimony, and the inferences to be drawn from the evidence are all matters solely within the province of the district court. Larkin v. State, 115 Idaho 72, 73, 764 P.2d 439, 440 (Ct.App.1988). We exercise 764 free review of the district court's application of the relevant law to the facts. Nellsch v. State, 122 Idaho 426, 434, 835 P.2d 661, 669 (Ct.App.1992). A claim of ineffective assistance of counsel may properly be brought under the post-conviction procedure act. Murray v. State, 121 Idaho 918, 924-25, 828 P.2d 1323, 1329-30 (Ct.App.1992). To prevail on an ineffective assistance of counsel claim, the defendant must show that the attorney's performance was deficient and that the defendant was prejudiced by the deficiency. Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224 (Ct.App.1995); Russell, 118 Idaho at 67, 794 P.2d at 656; Davis v. State, 116 Idaho 401, 406, 775 P.2d 1243, 1248 (Ct.App.1989). To establish a deficiency, the applicant has the burden of showing that the attorney's representation fell below an objective standard of reasonableness. Aragon v. State, 114 Idaho 758, 760, 760 P.2d 1174, 1176 (1988); Russell, 118 Idaho at 67, 794 P.2d at 656. To establish prejudice, the applicant must show a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different. Aragon, 114 Idaho at 761, 760 P.2d at 1177; Russell, 118 Idaho at 67, 794 P.2d at 656. This Court has long adhered to the proposition that tactical or strategic decisions of trial counsel will not be second-guessed on appeal unless those decisions are based on inadequate preparation, ignorance of relevant law or other shortcomings capable of objective evaluation. Howard v. State, 126 Idaho 231, 233, 880 P.2d 261, 263 (Ct.App.1994). III. ANALYSIS Suits contends that his trial counsel erroneously concluded Suits was required to admit committing the elements of possession of methamphetamine, including that he knew he possessed the methamphetamine, as a prerequisite to claiming that he was entrapped. Suits urges that counsel's erroneous conclusion led them to perform incompetently by failing to request an entrapment jury instruction. Suits also contends that he suffered prejudice as a result of counsel's deficient performance because the evidence at trial supported a defense of entrapment and, thus, had the jury been instructed on the law of entrapment there was a reasonable possibility Suits would have been found not guilty. A defendant cannot be convicted of a crime he or she was entrapped into committing. State v. Canelo, 129 Idaho 386, 391, 924 P.2d 1230, 1235 (Ct.App.1996); State v. Mata, 106 Idaho 184, 186, 677 P.2d 497, 499 (Ct.App.1984). Historically, under the subjective test, the entrapment defense has been grounded upon the principle that, where criminal intent is an element of an offense, such intent must originate in the defendant's mind. Mata, 106 Idaho at 186, 677 P.2d at 499. Thus, entrapment occurs when an otherwise innocent person, not inclined to commit a criminal offense, is induced to do so by a state agent who, desiring grounds for prosecution, originates the criminal design and implants in the mind of the innocent person the disposition to commit the alleged offense. Canelo, 129 Idaho at 391, 924 P.2d at 1235; State v. Kopsa, 126 Idaho 512, 519, 887 P.2d 57, 64 (Ct.App.1994). There is a distinction however, between originating the idea to commit the crime and merely furnishing the opportunity to commit it. Kopsa, 126 Idaho at 519, 887 P.2d at 64; Mata, 106 Idaho at 186, 677 P.2d at 499. Furnishing the opportunity is not entrapment but, rather, a legitimate means to ferret out crime. Canelo, 129 Idaho at 392, 924 P.2d at 1236; Kopsa, 126 Idaho at 519, 887 P.2d at 64; Mata, 106 Idaho at 186, 677 P.2d at 499. Although it was once generally accepted that a defendant who denied perpetrating a crime could not alternatively rely on the subjective entrapment defense, that approach has eroded over time. State v. Buendia, 121 N.M. 408, 912 P.2d 284, 287 (Ct.App.1996). The United States Supreme Court held that, even if a federal criminal defendant denies one or more elements of the crime, he or she is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. See Mathews v. United States, 485 U.S. 58, 62, 108 S. Ct. 883, 99 L. Ed. 2d 54 (1988). Some courts have reasoned that it is not necessarily inconsistent to introduce evidence 765 showing the defendant did not commit the unlawful acts or did not commit them with the requisite unlawful intent, in addition to evidence that he or she lacked criminal predisposition and that there was inordinate government inducement. See Strong v. State, 591 N.E.2d 1048, 1051-52 (Ind.Ct.App. 1992); Buendia, 912 P.2d at 289. Thus, in line with Mathews, many state courts have concluded that, if a defendant disputes the particulars of the crime or having the requisite intent, he or she is not precluded from presenting an entrapment instruction to the jury. Buendia, 912 P.2d at 288; see also State v. Rokos, 771 So. 2d 47, 48-49 (Fla.Dist. Ct.App.2000); Strong, 591 N.E.2d at 1051-52; Commonwealth v. Tracey, 416 Mass. 528, 624 N.E.2d 84, 88 (1993); Hopson v. State, 625 So. 2d 395, 399-400 (Miss.1993). Nevertheless, the Mathews decision did not rest on constitutional grounds and is not binding on the states. State v. Soule, 168 Ariz. 134, 811 P.2d 1071, 1072 (1991); Buendia, 912 P.2d at 288. Courts have commented that it is both factually and legally inconsistent for a defendant to deny committing the offense and then to assert as a defense that he or she committed the offense, but only because of incitement or inducement by authorities. See St. Jean v. State, 255 Ga.App. 129, 564 S.E.2d 534, 536 (2002); People v. Arndt, 351 Ill.App.3d 505, 286 Ill. Dec. 754, 814 N.E.2d 980, 990 (2004). Further, to allow inconsistent defenses can foster perjury and confuse the jury. Soule, 811 P.2d at 1073. Accordingly, some courts have rejected Mathews and continue to require that a defendant admit committing the offense with which he or she is charged before being permitted to submit an entrapment instruction to the jury. See Soule, 811 P.2d at 1073-74; Weaver v. State, 339 Ark. 97, 3 S.W.3d 323, 325 (1999); People v. Hendrickson, 45 P.3d 786, 791 (Colo.App.2001); People v. Cooper, 239 Ill.App.3d 336, 179 Ill. Dec. 873, 606 N.E.2d 705, 715 (1992). At the evidentiary hearing held on Suits's application for post-conviction relief, Suits's second attorney testified that he and the lead attorney were frequently at odds on many points in the case, including the issue of entrapment. The second attorney indicated that he was unaware of what research the lead attorney had conducted. However, the second attorney conducted his own research on entrapment law, including this Court's decision in Mata, the California Supreme Court's decision in People v. Barraza, 23 Cal. 3d 675, 153 Cal. Rptr. 459, 591 P.2d 947 (1979),[1] and Justice Bistline's dissent in State v. Hansen, 105 Idaho 816, 673 P.2d 416 (1983), in which he discusses various entrapment decisions including the Barraza decision. Based on this research, the second attorney concluded that the lead attorney was probably correct and Suits was required to admit the elements of possession in order to raise an entrapment defense. Idaho courts have not explicitly held whether this state permits a defendant to deny some or all of the elements of an offense while still claiming entrapment. Nevertheless, Suits contends that trial counsel's conclusion was based on ignorance of the law because, had counsel reviewed State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975), counsel would have realized that Idaho does not require a defendant to admit all the elements of an offense before being permitted to raise an entrapment defense. Suits notes that the defendant in Tucker raised an entrapment defense notwithstanding his denial of engaging in some of the conduct charged by the state. However, in Tucker, the pertinent issue was whether the trial court should have determined whether the defendant was entrapped as a matter of law, rather than submitting the issue to the jury. Tucker involves no discussion of inconsistent 766 defenses and the Court did not consider whether the defendant's denial barred him from asserting entrapment. Instead, because the law as it existed at the time of the defendant's trial[2] permitted either the trial court or the jury to decide entrapment, the Court concluded that the trial court did not err by submitting the entrapment question to the jury. Tucker, 97 Idaho at 13, 539 P.2d at 565. The Court remanded for consideration of the defendant's ineffective assistance of counsel allegations, including his allegation that trial counsel performed ineffectively by failing to ask the trial court to decide the entrapment issue. Id. Therefore, contrary to Suits's assertion, Tucker does not stand for the proposition that, where a defendant denies commission of the offense, he or she may nevertheless present what may appear to be an inconsistent defense of entrapment. Suits also alleges that it was unreasonable for trial counsel to conclude the inconsistent defenses rule applied in Idaho because Idaho Criminal Jury Instruction 1513 does not indicate a defendant must admit all elements of an offense before requesting an entrapment instruction.[3] However, there are countless ways to provide effective assistance in any given case and even the best criminal defense attorneys would not defend a particular client in the same way. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Regardless of whether inconsistent defenses could have reasonably been argued in Suits's trial, it was not professionally unreasonable to conclude that, in the absence of definitive authority, Idaho applied the general rule that Suits must necessarily admit committing an offense before he could claim entrapment. Furthermore, following Suits's trial the Idaho Supreme Court noted in Suits v. Idaho Bd. of Professional Discipline, 138 Idaho 397, 64 P.3d 323 (2003), that Suits was not in a position to assert the entrapment defense because he had not admitted committing the underlying offense and his defense that the crime did not happen was inconsistent with his claim that he was entrapped into committing it. Citing to Mata, the Court indicated an entrapment defense necessarily implies that a defendant admits to engaging in the criminal acts. Suits, 138 Idaho at 400, 64 P.3d at 326. The Court thus concluded that it did not need to decide whether Suits could raise the entrapment defense as a shield in the disciplinary proceeding for suspension of his license to practice medicine. Id. We are constrained to follow the Supreme Court's indication in Suits that Idaho follows the rule prohibiting inconsistent defenses. Therefore, we conclude that Suits' deficient performance allegation must fail because the advice given by Suits's counsel was later determined to be correct. We also note that the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Strickland, 466 U.S. at 691, 104 S. Ct. 2052. When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he or she did so for tactical reasons rather than through sheer neglect. Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). Here, Suits consistently denied having any knowledge of the methamphetamine. At the hearing held on Suits's application for post-conviction relief, the second attorney testified that he agreed to represent Suits because of his belief it was unlikely Suits had knowingly possessed methamphetamine. *767 The second attorney indicated he examined the recordings used to implicate Suits in order to confirm whether Suits was being truthful when he denied committing the crime. After the second attorney reviewed the recordings, he became convinced that the recordings had been altered as claimed by Suits. Thus, it was not unreasonable for trial counsel to conclude that, rather than further pursuing the developing law on entrapment, trial preparation efforts should focus on building the defense theory consistent with the version of events relayed by Suits.[4] Suits's trial counsel researched entrapment law and their conclusion that Suits must necessarily admit committing the elements of possession to claim entrapment was not professionally unreasonable. Thus, trial counsel's conclusion was not based on ignorance of the relevant law, and we will not second-guess the tactical or strategic decisions made by Suits's trial counsel on appeal. Because we conclude that Suits failed to meet his burden of proving his trial counsel's performance was deficient, we need not determine whether Suits was prejudiced by counsel's failure to request an entrapment jury instruction. III. CONCLUSION We conclude that trial counsel's position regarding the law on entrapment did not fall outside the wide range of objectively competent representation. Therefore, the district court did not err by concluding that Suits failed to demonstrate ineffective assistance of counsel by a preponderance of the evidence. The district court's order denying Suits's application for post-conviction relief is affirmed. Judge LANSING and Judge GUTIERREZ concur. NOTES [1] In Barraza, the California Supreme Court adopted an objective theory of entrapment, which considers whether the conduct of a law enforcement agent was likely to induce a normally law-abiding person to commit the offense. See Barraza, 153 Cal. Rptr. 459, 591 P.2d at 955. In contrast to the subjective test used in Idaho, under the objective test, the character of the suspect, his or her predisposition to commit the offense, and his or her subjective intent are irrelevant. See id. at 956. The rule prohibiting a defendant from claiming entrapment if he or she denies committing the offense is generally not applied in jurisdictions using the objective test because objective entrapment concerns only the nature of the government's actions and whether they were improper. Buendia, 912 P.2d at 287. [2] At the time of the defendant's trial, the Penal and Correctional Code, which provided a defendant the option of presenting an entrapment issue to either the court or the jury, was in effect. Tucker, 97 Idaho at 13, 539 P.2d at 565. At the time of the Idaho Supreme Court's opinion in Tucker, the Penal and Correctional Code had been repealed. See id. [3] Idaho Criminal Jury Instruction 1513 indicates that law enforcement entraps a defendant where: (1) the idea for committing the crime came from an agent of the state and not from the defendant; (2) the state agent then persuaded or talked the defendant into committing the crime and did not merely give the defendant an opportunity to commit the crime; and (3) the defendant was not ready and willing to commit the crime before law enforcement spoke with the defendant. If the jury has a reasonable doubt as to whether the defendant was entrapped into committing an offense, the jury must find the defendant not guilty. I.C.J.I. 1513. The comment to this instruction indicates it should be given when the defendant has produced some substantial evidence supporting the defense of entrapment. [4] Indeed, the presentation of inconsistent defenses may confuse the jury. See Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir.1995); Soule, 811 P.2d at 1073; Weaver, 3 S.W.3d at 326. In other cases, defendants have claimed they received ineffective assistance of counsel as a result of counsels' decisions to argue inconsistent defenses. See Singleton v. Lockhart, 871 F.2d 1395, 1400 (8th Cir.1989); Commonwealth v. Gonzales, 18 Mass.App.Ct. 979, 470 N.E.2d 403, 404 (1984). Thus, as noted by the district court, had Suits's counsel raised an entrapment defense, their conduct might also have been subject to a claim of ineffective assistance of counsel.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2600607/	186 P.3d 326 (2008) 220 Or. App. 446 STATE of Oregon, Plaintiff-Respondent, v. Zeferino OROBIO-JUAN, Defendant-Appellant. A132306, 05C53403. Court of Appeals of Oregon. Submitted April 30, 2008. Decided June 11, 2008. 327 Peter Gartlan, Chief Defender, Legal Services Division, and David C. Degner, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Carolyn Alexander, Assistant Attorney General, filed the brief for respondent. Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge. PER CURIAM. Defendant was convicted of assault in the second degree, ORS 163.175, contempt of court, ORS 33.015, and two counts of felony fourth-degree assault, ORS 163.160. On appeal, defendant argues that the trial court erred in failing to merge the two convictions for felony fourth-degree assault. Defendant acknowledges that he did not preserve the claim of error, but asserts that it is error apparent on the face of the record, ORAP 5.45(1), and that we should exercise our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991), to correct it. We agree and, consequently, reverse defendant's convictions for felony fourth-degree assault, with instructions to enter a single conviction for that crime, and remand for resentencing. The indictment in this case alleged two separate felony fourth-degree assault charges, based on the same conduct involving the same victim on the same date. One count alleged, as a predicate, that defendant previously had been convicted of assaulting the same victim, ORS 163.160(3)(a); the other, that defendant committed the assault in the immediate presence of, or it was witnessed by, the victim's minor child, ORS 163.160(3)(c). The state concedes that, under State v. Yong, 206 Or.App. 522, 138 P.3d 37, rev. den., 342 Or. 117, 149 P.3d 139 (2006), the trial court erred in not merging those convictions into a single conviction. We agree and, thus, accept the state's concession as well founded. Furthermore, and consistently with the reasoning in State v. Valladares-Juarez, 219 Or.App. 561, 184 P.3d 1131 (2008), we conclude that it is appropriate for us to exercise our discretion to correct the error in this case. In Valladares-Juarez, we determined that the relevant considerations under Ailes, 312 Or. at 382 n. 6, 823 P.2d 956, State v. Fults, 343 Or. 515, 523, 173 P.3d 822 (2007), and State v. Ramirez, 343 Or. 505, 513, 173 P.3d 817 (2007), militated in favor of our exercise of discretion to correct the trial court's failure to merge separate first-degree kidnapping charges. As we explained: 328 "First, the error in this case is grave; the presence of an additional kidnapping conviction on defendant's criminal record misstates the nature and extent of defendant's conduct and could have significant implications with regard to any future calculation of his criminal history. Second, although the state may have an interest in avoiding unnecessary resentencing proceedings, State v. Ramirez, 343 Or. 505, 513, 173 P.3d 817 (2007), it has no interest in convicting a defendant twice for the same crime. Thus, on balance, the competing interests of the parties in this case weigh in favor of exercising our discretion to correct the error. Moreover, we cannot identify any strategic reason that defendant may have had for not objecting to the entry of separate kidnapping convictions; nor can we identify any reason why the ends of justice would not be served by ensuring that defendant's criminal record accurately reflects the crimes for which he has been convicted. Indeed, the state has not suggested any reasons why this court should decline to exercise its discretion to correct the error in this case." Valladares-Juarez, 219 Or.App. at 564-65 (emphasis in original). Those considerations apply with equal force to the trial court's failure to merge defendant's fourth-degree assault convictions in this case. Convictions for fourth-degree assault reversed and remanded with instructions to enter judgment of conviction for one count of felony fourth-degree assault reflecting that defendant was convicted on both theories; remanded for resentencing; otherwise affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615048/	18 Kan. App. 2d 61 (1993) 847 P.2d 1350 DEBORAH FENNESY, Appellant, v. LBI MANAGEMENT, INC., et al., Defendants, and REDMAN BUILDING PRODUCTS, INC., Appellee. No. 67,869 Court of Appeals of Kansas. Opinion filed March 5, 1993. James F. Freeman, III, of Moore & Bucher, P.C., of Kansas City, Missouri, for the appellant. Richard T. Merker and Bradley S. Russell, of Wallace, Saunders, Austin, Brown and Enoch, Chartered, of Overland Park, for the appellee Redman Building Products, Inc. Before BRISCOE, C.J., JAMES J. SMITH, District Judge, assigned, and E. NEWTON VICKERS, District Judge Retired, assigned. BRISCOE, C.J.: Deborah Fennesy appeals the dismissal of her claims against Redman Building Products, Inc., d/b/a AlenCo, Inc. An unknown assailant broke into Fennesy's apartment through the apartment's sliding glass door and attacked Fennesy while she was sleeping. Fennesy sued multiple defendants and sought recovery under multiple theories. In a second amended petition, Fennesy named Redman as the manufacturer of the door and alleged her injuries were caused by Redman placing an unreasonably dangerous and defective door into the stream of commerce (count 16), by Redman's negligence in the design, testing, manufacturing, and sale of the door (count 17), and by Redman's representation that the door was "forced entry resistant" (count 18). While not delineated as such, all of the claims alleged by Fennesy are included within a "product liability claim" as defined by K.S.A. 1992 Supp. 60-3302(c). The district court granted Redman's motion to dismiss, finding Fennesy's claim against Redman was barred by the statute of limitations. The court concluded a two-year statute of limitations 63 was applicable to Fennesy's claim. In its journal entry of dismissal, the court adopted as its rationale the arguments contained in Redman's memoranda in support of its motion to dismiss. The amended petition which first named Redman was filed after the two-year statute of limitations had run. Redman argued, and the court agreed, that the claim against Redman did not relate back to a timely filed claim against Parker-Hannifin Corporation, f/k/a AlenCo, Inc. The court amended its order of dismissal to include the language required by K.S.A. 1992 Supp. 60-254(b) to certify the judgment for immediate appeal. Fennesy contends the court erred in dismissing her claim against Redman as untimely filed. She relies on K.S.A. 1992 Supp. 60-203 and K.S.A. 60-215(c) to argue her second amended petition adding Redman, d/b/a AlenCo, Inc., as a defendant relates back to the date of the filing of her first amended petition which named Parker-Hannifin, f/k/a AlenCo, Inc. Fennesy was injured on October 11, 1988. The original petition is not in the record on appeal, but both parties state it was filed on June 12, 1990. According to Fennesy, the door manufacturer's identity was difficult to ascertain, but eventually she learned the door was manufactured by "AlenCo," a Texas corporation. Fennesy amended her petition on October 9, 1990, to add Parker-Hannifin Corporation, f/k/a/ AlenCo, Inc., as a party defendant and to include claims against Parker-Hannifin as the alleged door manufacturer. In count 16, Fennesy alleged a claim against "defendant Parker-Hannifin Corporation, f/k/a AlenCo, Inc., (hereinafter referred to as `AlenCo')." After describing the corporate relationship between Parker-Hannifin and AlenCo, Fennesy made reference in counts 16, 17, and 18 only to "AlenCo" when enumerating specific claims concerning the manufacture, design, and marketing of the door. After counts 16, 17 and 18, Fennesy prayed for judgment against AlenCo. On October 22, 1990, Parker-Hannifin was served with the first amended petition. The two-year statute of limitations had run on October 11, 1990. Pursuant to 60-203(a), the petition filed against Parker-Hannifin was timely because service was obtained within 90 days of filing the petition. Fennesy later discovered she had named the wrong "AlenCo" and that Redman, d/b/a AlenCo, Inc., was the manufacturer of 64 the door in question. On December 21, 1990, she served Redman with a summons and a copy of the first amended petition which named Parker-Hannifin, f/k/a AlenCo, Inc. Fennesy's motion seeking the court's permission to file a second amended petition and dismiss Parker-Hannifin as a defendant was granted on April 18, 1991. On May 7, 1991, Fennesy filed her second amended petition naming Redman as the door manufacturer. A summary of the relevant events is as follows: 10/11/88 injury occurred 6/12/90 original petition filed against all defendants, except door manufacturer 10/9/90 first amended petition filed naming Parker-Hannifin Corp., f/k/a AlenCo, Inc. 10/11/90 two-year statute of limitations expires 10/22/90 Parker-Hannifin served 12/21/90 Redman "served" with summons and copy of first amended petition 3/8/91 Fennesy files motion for permission to file second amended petition naming Redman 4/18/91 order filed granting permission to file second amended petition 5/7/91 second amended petition filed naming Redman The chronology of events providing the basis for the district court's dismissal are not in dispute. Only the court's statutory interpretation of 60-203 and 60-215(c) as applied to these events is disputed. The interpretation of a statute presents a question of law. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). When determining questions of law, this court is afforded unlimited review and is not bound by the decision of the district court. See Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Before addressing whether Fennesy's second amended petition relates back to the date of filing her first amended petition, we must first determine which statute of limitations applies to Fennesy's claims. The district court applied a two-year statute of limitations. Fennesy argues the three-year statute of limitations, K.S.A. 60-512, applies to the implied warranty claims which she contends are alleged in count 18 of the second amended petition. 65 Fennesy relies upon Tamarac Dev. Co. v. Delamater, Freund & Assocs., 234 Kan. 618, 675 P.2d 361 (1984), to argue her implied warranty claim is a contractual claim governed by the three-year statute of limitations. In Tamarac, a housing developer contracted with an engineering/architectural firm for various services. The developer alleged the firm breached an oral contract to supervise grading construction and to check the grades upon completion to insure their accuracy. After the grading was completed, it was discovered too much dirt had been removed, creating drainage problems. The developer was forced to expend a considerable amount of money to remedy the problems. The sole issue in Tamarac was whether the developer's claim sounded in tort or in contract. Although Tamarac does address the difference between a tort and contract action, it is not persuasive authority for concluding Fennesy's implied warranty claim against Redman is a contract action because Tamarac is not a product liability case. Fennesy's claims against Redman, including her claim for breach of implied warranty, are all included within the definition of a "product liability claim" in the Kansas Product Liability Act (KPLA). K.S.A. 1992 Supp. 60-3302(c) provides: "`Product liability claim' includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage or labeling of the relevant product. It includes, but is not limited to, any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment or nondisclosure, whether negligent or innocent, or under any other substantive legal theory." Under 60-3302(c), the provisions of the KPLA apply to actions based on strict liability in tort as well as negligence, breach of express or implied warranty, and breach of or failure to discharge a duty to warn or instruct. Savina v. Sterling Drug Inc., 247 Kan. 105, 126, 795 P.2d 915 (1990). The KPLA applies to product liability claims involving damage to property, personal physical injuries, and attendant mental anguish or emotional harm. K.S.A. 1992 Supp. 60-3302(d). As alleged, all of Fennesy's claims and damages are covered by the KPLA. 66 The KPLA was adopted in 1981 (L. 1981, ch. 231). As we noted in Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 845 P.2d 65 (1993), when the KPLA was enacted, the Kansas Legislature used the Model Uniform Product Liability Act (MUPLA) as a reference, but did not adopt the MUPLA in its entirety. The MUPLA, developed by the United States Department of Commerce, was published, with commentary, at 44 Fed. Reg. 62,714 et seq. (1979). The purpose of both the MUPLA and the KPLA is to merge all legal theories of product liability into one single product liability claim. Chamberlain v. Schmutz Mfg. Co., Inc., 532 F. Supp. 588, 590 (D. Kan. 1982), citing 60-3302(c). The KPLA has been described as a "substantive and procedural overhaul of product liability law in Kansas." 532 F. Supp. at 591. To determine the statute of limitations applicable to a product liability claim, we must look to the KPLA. The MUPLA § 110(C) contained a provision for a statute of limitation that was not included in the KPLA: "No claim under [the MUPLA] may be brought more than two (2) years from the time the claimant discovered, or in the exercise of due diligence should have discovered, the harm and the cause thereof." 44 Fed. Reg. at 62,732. Instead of that provision, the Kansas Legislature provided: "[N]othing contained in subsections (a) and (b) above shall modify the application of K.S.A. 60-513, and amendments thereto." K.S.A. 1992 Supp. 60-3303(c). K.S.A. 1992 Supp. 60-3303(c) makes specific reference to 60-513 and does not mention 60-512. The KPLA provides a two-year statute of limitations for a product liability claim, unless exceptions stated or referenced within the Act apply. We conclude a two-year statute of limitations applies to Fennesy's implied warranty claim against Redman. Having concluded a two-year statute of limitations applies to Fennesy's claim against Redman, in order to avoid dismissal as untimely filed, Fennesy must prevail on her argument that her second amended petition relates back to the date of the filing her first amended petition. She relies upon the interplay between 60-203 and 60-215(c) in contending her second amended petition naming Redman was timely filed. K.S.A. 1992 Supp. 60-203(a) provides: 67 "A civil action is commenced at the time of: (1) Filing a petition with the clerk of the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by provision (1)." (Emphasis added.) K.S.A. 60-215(c) provides: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he would not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him." (Emphasis added.) It is not disputed that the second amended petition naming Redman as a party defendant arose out of the same conduct, transactions, or occurrences set forth in the first amended petition. The parties dispute, however, whether Redman received the requisite notice and whether that notice was received "within the period provided by law for commencing the action." We agree Redman was not properly served on December 21, 1990. Fennesy had not yet received the court's permission to file a second amended petition naming Redman when Redman was served with a summons and a copy of the first amended petition. However, 60-215(c) refers to notice, not valid service of process. In Marr v. Geiger Ready-Mix Co., 209 Kan. 40, 47, 495 P.2d 1399 (1972), the court noted this distinction: "It should be emphasized that at no point has the question of proper service of summons been called into play. This is because informal notice is sufficient under Federal Rule No. 15 (c), as amended, to bring into operation the relation back of the amendment. The rule is the same under 60-215 (c), as amended, in the Kansas Code of Civil Procedure." Pursuant to 60-215(c), within the time period prescribed for commencing an action against it, Redman (1) must have received notice that an action had been instituted against it so that it 68 would not be prejudiced in maintaining a defense; and (2) must have known or should have known that, but for the mistaken identity, the action would have been brought against it. Whether Redman received notice sufficient to satisfy 60-215(c)(1) and (2) remains a factual question unexplored by the district court. These questions may become moot if we conclude the notice received by Redman on December 21, 1990, was not received "within the period provided by law for commencing the action." Only a handful of Kansas cases have addressed or interpreted 60-215 since its 1969 evolution into its present form. Two of these cases, Marr, 209 Kan. 40, and Anderson v. United Cab Co., 8 [an. App.2d 694, 666 P.2d 735, rev. denied 234 Kan. 1076 (1983), are significant. In Marr, the court recognized the 1969 amendments to 60-215(c) allowed for the relation back of petition amendments changing the identify of a defendant. The Marr decision and the 1969 amendments to 60-215(c) effectively invalidated prior decisions that held petition amendments to add or change a party did not relate back. Redman relied on two of these pre-statutory-amendment decisions, Schmidt v. Nauman, 202 Kan. 131, 446 P.2d 828 (1968), and Skeen v. Sisters of St. Joseph, 194 Kan. 212, 398 P.2d 587 (1965), in its reply to Fennesy's suggestions in opposition to Redman's motion to dismiss. In Anderson, this court examined the interrelationship between 60-215(c) and 60-203. The Anderson action arose after an automobile accident on November 24, 1976. A petition was filed on November 24, 1978, the last possible day under 60-513. Defendant was served three days after expiration of the statute of limitations, although the petition did not state defendant's proper name. An agreed order was later approved allowing plaintiffs to amend their case caption to add "Inc." to "United Cab Co." As noted in Marr, 209 Kan. at 44-46, and Anderson, 8 Kan. App.2d at 696, such a minor change is still covered by 60-215. The key issue in Anderson, as in the present case, involved interpretation of the 60-215(c) phrase "within the period provided by law for commencing the action." In Anderson, 8 Kan. App.2d at 696, we noted the court in Ingram v. Kumar, 585 F.2d 566, 570-72 (2d Cir.1978), "found that, although on its face it seems to indicate the applicable statute of limitations period, such 69 a literal interpretation is unjustified in jurisdictions where timely service of process can be effected (K.S.A. 60-203) after the statute of limitations has run." See Hunt v. Broce Const., Inc., 674 F.2d 834, 836-37 (10th Cir.1982). We also noted in Anderson that "the error in the name was a slight one since defendant's status as a corporation was identified although the corporate designation `Inc.' was not used." 8 Kan. App. 2d at 698. However, it was further noted in Anderson that the Supreme Court does not restrict relation back to only those cases involving minor misnaming of a defendant. 8 Kan. App. 2d at 696-97 (citing Marr, 209 Kan. at 46). In Anderson, we held that when "an amendment is sought to change the name of a defendant, the phrase `period provided by law for commencing the action,' as used in K.S.A. 60-215(c), includes both the time set out in the applicable statute of limitations and the 90-day period allowed for effective service of process to relate back to the date of the petition." 8 Kan. App. 2d at 698. One could argue that, under 60-203, the 90- or 120-day period should only be added when determining whether a petition has been timely served, rather than added to the end of the limitation period to effectively extend the period for timely filing by 90 or 120 days. Under this argument, the 90 or 120 days would only extend beyond the limitation if the petition is filed less than 90 or 120 days prior to expiration of the statute of limitations. We note, however, the language in Anderson has been interpreted liberally to effectively extend the limitation period for filing by 90 or 120 days. "If service within 90 or 120 days of the end of the statutory period satisfies the policies of the statute of limitations, then informal notice of commencement during that period should be sufficient to permit an amendment adding a new party to relate back, if the other requirements of K.S.A. 60-215(c) are met. The phrase `within the period provided by law for commencing the action against him' may be construed to include the statutory period plus 90 or 120 days." 2 Vernon's Kansas C. Civ. Proc. § 60-215(c), Author's Comments, p. 22 (1992 Supp.). Therefore, under Anderson, assuming Redman received notice sufficient to satisfy 60-215(c)(1) and (2) by receipt of the summons and first amended petition on December 21, 1990, the notice to Redman on that date would result in timely commencement of an action against Redman. Redman received notice within the 70 two-year statute of limitations plus the 90-day period provided in 60-203(a), which would allow the amendment to relate back at least to the date of the first amended petition, which was filed before the two-year statute of limitations expired. A recent United States Supreme Court decision arguably dictates a different result. In Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 1, 106 S. Ct. 2369 (1986), the Court examined Federal Rule of Civil Procedure 15(c). The federal rule at that time was substantively identical to the current Kansas rule. Unlike Anderson, the Court strictly interpreted the phrase "within the period provided by law for commencing the action" so that an intended defendant is required to have received notice before expiration of the statute of limitations without extension. 477 U.S. at 30-31. Specifically, the Court stated: "We are not inclined ... to temper the plain meaning of the language [of Rule 15(c)] by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint. Rule 4 deals only with process. Rule 3 concerns the `commencement' of a civil action. Under Rule 15(c), the emphasis is upon `the period provided by law for commencing the action against' the defendant. An action is commenced by the filing of a complaint." Schiavone, 477 U.S. at 30. At the time Schiavone was decided, Federal Rule of Civil Procedure 3 stated: "A civil action is commenced by filing a complaint with the court." Federal Rule of Civil Procedure 4 provided: "If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion." Under the Schiavone rule, the addition of Redman would not relate back because Redman did not receive any notice before expiration of the two-year statute of limitations for product liability actions. The question presented here is whether the Schiavone rationale is viable when the language of 60-215(c) and 60-203 is considered. No published Kansas appellate court opinion has addressed the Schiavone decision in the context of these Kansas statutes. *71 When the Schiavone rationale is applied in the context of 60-203 and 60-215(c), a different result from that reached in Schiavone is required. In Schiavone, the Court refused to consider the extension period found in Federal Rule 4. Instead, it interpreted Federal Rule 15(c) by strictly applying the definition of "commencement" as found in Federal Rule 3. The Kansas statutes include within the definition of "commencement" an extended period to achieve service. K.S.A. 60-203. If we follow the rationale of Schiavone, 60-203 would require our inclusion of the period for service within our definition of "commencement." Therefore, we conclude our decision in Anderson remains good law after Schiavone. When determining the "period provided by law for commencing the action" as contained in 60-215(c), the period includes both the time set out in the applicable statute of limitations and the 90- or 120-day period allowed for effective service of process under 60-203(a). We also note, effective December 1, 1991, Federal Rule 15(c) was amended to change the result required by Schiavone, recognizing the period provided for service under Federal Rule 4. 6A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1498 (1992 Supp.). In the present case, Redman received some type of notice "within the period provided by law for commencing the action" when it received the summons and first amended petition on December 21, 1990. Whether it received notice which would satisfy 60-215(c)(1) and (2) and entitle plaintiff to the relation back provision remains a factual question to be resolved by the district court. Reversed and remanded for further proceedings.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2229103/	883 N.E.2d 1151 (2005) 354 Ill. App.3d 1165 IN RE S.K. No. 1-03-3397. Appellate Court of Illinois, First District. November 12, 2004. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873356/	241 S.W.3d 420 (2007) Billy BAKER, Appellant, v. G.J. GREWE, INC., et al., Respondent. No. ED 89755. Missouri Court of Appeals, Eastern District, Division One. December 18, 2007. Alan Scott Mandel, St. Louis, MO, for appellant. John G. Schultz, Kansas City, MO, for Respondent. Before KATHIANNE KNAUP CRANE, P.J. and ROBERT G. DOWD, JR. and KENNETH M. ROMINES, JJ. ORDER PER CURIAM. Billy Baker ("Baker"), appeals from the judgment of the trial court granting summary judgment in favor of G.J. Grewe, Inc. ("Grewe, Inc.") and Thirty & 141 Properties, Inc. ("Thirty & 141") (collectively "Defendants"). Baker argues the trial court erred in granting summary judgment in favor of Defendants because there were genuine issues of material fact in dispute and Defendants were not entitled to judgment as a matter of law. We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2384335/	875 S.W.2d 380 (1994) Edward Lee YAKLIN, Appellant, v. GLUSING, SHARPE & KRUEGER a Partnership, et al., Appellees. No. 13-92-531-CV. Court of Appeals of Texas, Corpus Christi. March 24, 1994. 382 Robert N. Carnahan, Corpus Christi, for appellant. Thomas F. Nye, David H. Crago, Brin & Brin, Gaston M. Broyles, Jr., Broyles & Pratt, Deborah R. Sundermann, Corpus Christi, for appellees. Before KENNEDY, DORSEY and GILBERTO HINOJOSA, JJ. OPINION DORSEY, Justice. This is an appeal from summary judgments granted in favor of the defendants, the Estate of Nelson Sharpe, deceased,[1] and James Krueger, in a legal malpractice case. Edward Lee Yaklin sued Sharpe and Krueger, individually, and the firm of Glusing, Sharpe and Krueger for legal malpractice and violations of the Deceptive Trade Practices Act (DTPA).[2] After summary judgments were granted for Sharpe and Krueger, Yaklin non-suited the law firm. Yaklin contests the propriety of those summary judgments by one point of error. We reverse the summary judgment in favor of Sharpe and affirm as to Krueger. Yaklin's action against the defendants is based on Sharpe's alleged mishandling of the refinancing of Yaklin's business that resulted in changing his separate property into community property belonging to him and his wife, Cynthia. Krueger later represented Cynthia Yaklin in divorce proceedings against him. Yaklin contends that he was damaged in the divorce action because Sharpe's drafting of the refinancing documents altered the separate property character of his assets. Yaklin also claimed that Krueger, as Sharpe's partner in the law firm of Glusing, Sharpe, and Krueger, was disqualified from handling Cynthia's divorce action against him. Both Sharpe and Krueger moved for summary judgment. Summary judgment was granted on Sharpe's motion January 9, 1992, and on Krueger's motion August 4, 1992. Thereafter, the partnership was non-suited and the orders became final and appealable. Appellant had a used car business, Eddie's Used Cars in Kingsville, and he financed many of the cars sold there. In September 1988, he married Cynthia Yaklin, he changed banks handling the financing of his inventory to Kleberg First National Bank in February 1989, and authorized his wife to approve titles, accept drafts, and sign loan documents. The bank requested and received a promissory note, deed of trust and security interest from appellant and his wife on his business property. The lawyer preparing the various documents was Nelson Sharpe, who had been the bank's attorney for over 20 years. Yaklin's action against each appellee is based on Sharpe's alleged negligence in preparing documents for him, changing separate property into community, to Yaklin's damage during his divorce. There are two bases for Krueger's liability: his partnership with Sharpe resulting in his liability for Sharpe's professional negligence, and his conflict of 383 interest in representing Cynthia Yaklin in her divorce against appellant when Sharpe had represented Yaklin in his refinancing transaction. Sharpe's Summary Judgment Sharpe's motion for summary judgment attempted to negate the existence of an attorney client-relationship with Yaklin and the existence of a partnership with Krueger. Sharpe presented the following affidavits in support of his motion: Francis C. Sharpe, coadministrator of the estate of Nelson Sharpe, who denied the existence of a partnership with Krueger; Scott Dobbs, the President of First National Bank of Kingsville, who described the banking transaction and the relationship between Sharpe and the bank; and Carolyn Hoffman, the manager of the title company that handled the closing of Yaklin's refinancing with the bank, who described the procedure for refinancing, the nature of the transaction, and recited that it was customary for the borrower to pay the bank's attorney's fees. Yaklin's response included his own affidavit and the affidavits of three attorneys from the Corpus Christi area. Yaklin's affidavit stated that he had been doing business selling used cars as Eddie's Used Cars for 14 years as a sole proprietor; than beginning in 1986, he used Mr. Nelson Sharpe as his personal attorney, retaining him for representation in a paternity action that had been filed against him. He married Cynthia in September 1988. In the latter part of 1988, he decided to move his banking business from another bank to Kleberg First National Bank. He wanted his wife to have the ability to accept drafts for him and approve titles. He went to Kleberg First National Bank, had his credit approved, and was asked by a banker, Mr. Lupe Alvarez, who he wanted to prepare the paperwork. Yaklin responded that Nelson Sharpe was his lawyer, and Alvarez said that Sharpe was fine because he also did work for the bank. Yaklin then went to see Sharpe, who officed upstairs from the bank. Yaklin told Sharpe what needed to be done, and that he wanted Cynthia to be able to approve car titles. Yaklin was later notified the papers were ready, and he went to a title company and signed them on February 7, 1989. Yaklin states in his affidavit that Sharpe had represented him twice previously, in the paternity action and in giving him advice as to the repossession of a car. Yaklin states: "Most certainly in my mind he was my lawyer" and "[a]t no time did he hint or suggest in words or by actions that he was representing the interest of the bank, and not me." The summary judgment granted Sharpe was explicitly premised on the holding that no attorney-client relationship existed. Our review of that judgment is limited to the basis relied on by the trial judge. State Farm Fire & Casualty Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993). The action asserted against Sharpe is legal malpractice, a tort. In order to establish liability, a claimant must establish a duty, a breach of that duty, and damages that result from the breach. The duty implicated is that which an attorney owes a client, and before any duty arises there must first be an attorney-client relationship. The attorney-client relationship is a contractual relationship, whereby the attorney agrees to render professional services for the client. See Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex.App.Texarkana 1989, writ denied). Such a contract may be either express or it may be implied from the actions of the parties. Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265 (Tex.App.Corpus Christi 1991, writ denied). Once the attorney-client relationship is established, numerous duties are owed the client by the lawyer, which, among others, are to use utmost good faith in dealings with the client, to maintain the confidences of the client, and to use reasonable care in rendering professional services to the client. The duties flow from the relationship, and Yaklin, the plaintiff at trial, has the burden of proving the existence of the attorney-client relationship. However, when the defendant moves for a summary judgment because no attorney-client relationship exists, the defendant takes on the burden of proving the non-existence of the relationship as a matter of law. 384 In reviewing a summary judgment certain well established rules apply. A defendant is entitled to summary judgment if he can negate a single essential element of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). We review a summary judgment to determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. Id. The movant has the burden to show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). All evidence favorable to the non-movant will be taken as true and all reasonable inferences must be indulged in favor of the non-movant. Id. In this summary judgment proceeding, the burden is on Sharpe, the movant, to negate the existence of the attorney-client relationship. Sharpe attempted to do so through the affidavits of Hoffman and Dobbs. The Hoffman and Dobbs affidavits describe a transaction which usually involves Sharpe handling the paperwork for the bank, solely on the bank's behalf. They establish that Sharpe had an attorney-client relationship with the bank. As such, however, they do not necessarily negate the possibility of Sharpe representing Yaklin as well in the transaction. See Dillard v. Broyles, 633 S.W.2d 636, 642-43 (Tex.App.Corpus Christi 1982, writ ref'd n.r.e.), cert. denied, 463 U.S. 1208, 103 S. Ct. 3539, 77 L. Ed. 2d 1389 (1983) (dual representation proper under some circumstances). Given the inferences allowed a non-movant's evidence in a summary judgment proceeding, we cannot say that Sharpe was not representing Yaklin as a matter of law. There is a genuine issue of material fact whether there was an attorney-client relationship between Yaklin and Sharpe for this transaction. Point of error one regarding the Sharpe summary judgment is sustained. Krueger's Summary Judgment Krueger's motion for summary judgment was premised on no partnership with Sharpe, that his representation of Cynthia Yaklin was a matter not substantially related to the refinancing in which Sharpe assisted, that Yaklin was estopped to raise the conflict of interest in this proceeding, and that there was no causal link between the alleged malpractice and any damages. His proof consisted of his own affidavit and affidavits from Frances C. Sharpe, Guadalupe Alvarez, vice president of Kleberg First National Bank, Dobbs, and Hoffman. Additionally, Krueger attached excerpts from the trial of the divorce case. The trial court did not indicate the grounds it found justified a summary judgment. Under those circumstances, an order granting a summary judgment may be upheld on any valid basis on which it was requested. Benavides v. Moore, 848 S.W.2d 190, 192 (Tex.App.Corpus Christi, 1992, writ denied). Yaklin alleges that Sharpe's malpractice resulted in changing Yaklin's business from his separate property into community property owned by him and his wife Cynthia. He claims this transformation damaged him at the time of his divorce, because it resulted in a larger community estate and a larger distribution to Cynthia Yaklin than would have otherwise occurred. The transcript of the final hearing on the divorce reveals that appellant and Cynthia stipulated that all realty, including the land on which the car business was located, was appellant's separate property. The parties also stipulated that the notes receivable held by Eddie's Used Cars for cars sold prior to the marriage totaled $867,756.07, and the notes for cars sold during the marriage totaled $2,491,920.64, and that all such receivables were community property. In the divorce decree, Yaklin was awarded his business and all notes receivable, both dated prior to and after September 11, 1988. Cynthia was awarded $238,731.34 and personalty. Yaklin's response to the motion for summary judgment does not address the issue of causation, therefore, we must determine whether the movant met his burden to disprove or negate an element of the nonmovant's claim. Gibbs, 450 S.W.2d at 828. A claim for legal malpractice sounds in tort 385 and requires duty, breach, cause, and harm. See Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989); Stonewall Surplus Lines Ins. Co. v. Drabek, 835 S.W.2d 708, 710 (Tex.App. 1992). Causation is a critical element which if negated by appellee entitles him to summary judgment. In any divorce action, the burden is on the party claiming that property is separate property to come forward with clear and convincing evidence to rebut the community presumption. Tex.Fam.Code Ann. § 5.02 (Vernon 1993). All property acquired during the marriage is presumed to be community property. See Tex.Fam.Code Ann. §§ 5.01, 5.22 (Vernon 1993), and all income, whether from separate or community property, is community property. At the divorce, Yaklin had the burden to prove that any income or notes receivable earned during the marriage to Cynthia was not community property. Yaklin could have attempted to trace his ownership of the business back to before his marriage. Had he been successful, only the profit from the notes receivable would have been presumptively community in character. Rather than attempt that burden, the judgment proof reflects that Yaklin stipulated (through counsel) to the community character of the notes receivable which resulted in the entire proceeds of the notes being community in nature. Such stipulations by counsel in open court are binding on the parties. Gulf Const. Co. v. Self, 676 S.W.2d 624, 630 (Tex.App. Corpus Christi 1984, writ ref'd n.r.e.). In the face of such a stipulation, there was no reason for the trial court to make findings as to the character of the notes receivable. There is no evidence that, but for Sharpe's draftsmanship, the entirety of the notes would have been separate property, or that the trial judge's award to Cynthia was predicated on the separate or community nature of the notes. Because Yaklin made no effort to prove the extent of the separate property character of the business or the notes, he cannot now complain he was damaged by Sharpe's drafting of the refinancing documents. We hold there was no causation as a matter of law between the alleged malpractice and damages to appellant. Krueger's liability to Yaklin could be predicated either on Krueger's partnership with Sharpe and liability through the partnership, or on his separate liability to Yaklin for his own acts, allegedly the conflict of interest when he represented Cynthia against Yaklin during the divorce. During the divorce hearing, in open court, Yaklin, through counsel, stated that he was not raising the issue of conflict of interest. We hold he waived any potential cause of action on the grounds of conflict of interest.[3] Because Krueger negated an essential element of the legal malpractice cause of action against Sharpe and because Yaklin waived his independent claim for conflict of interest against Krueger, summary judgment was proper as to Krueger. We REVERSE the summary judgment granted in favor of Sharpe and REMAND for trial on the merits and AFFIRM the summary judgment in favor of Krueger. NOTES [1] Nelson Sharpe, now deceased, was sued through the coadministrators of his estate, Nelson Sharpe III and Francis C. Sharpe. [2] We do not specifically address the DTPA claims made by appellant below because he has not raised them in his brief. However, it appears that an attorney-client relationship is required for a DTPA action against an attorney. Johnson v. DeLay, 809 S.W.2d 552, 553 (Tex.App.Corpus Christi 1991, no writ). [3] Our finding of waiver of the conflict of interest cause of action makes it unnecessary to address whether there was a substantial relationship between Sharpe's representation of Yaklin in the refinancing and Krueger's representation of Cynthia during the divorce.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1328862/	95 Ga. App. 452 (1957) 98 S.E.2d 40 STANFIELD v. STATE HIGHWAY DEPARTMENT. 36608. Court of Appeals of Georgia. Decided April 2, 1957. *453 Holland & Lea, Preston L. Holland, for plaintiff in error. Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Edwin S. Kemp, Harold R. Banke, contra. FELTON, C. J. 1. In an appeal to the superior court from the award of the appraisers in a condemnation proceeding where there is no evidence that there will be any consequential benefits to that portion of the land not taken, it is error for the court to charge the jury on the question of consequential benefits. Garden Parks, Inc. v. Fulton County, 88 Ga. App. 97 (3) (76 S.E.2d 31). 2. Assuming for the sake of argument that the testimony of the condemnor's witness "as to why, in my opinion, the remaining tract of land will be just as valuable per square foot as the larger tract: When the highway comes by it, it will be more valuable per square foot" is sufficient to show a consequential benefit, such testimony is not sufficient to authorize the jury to find "the amount of enhancement in value or even the percent of increase in the value of the property." Andrus v. State Highway Dept., 93 Ga. App. 827, 829 (3) (93 S.E.2d 174). The court erred in denying the amended motion for new trial. Judgment reversed. Quillian and Nichols, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1128279/	237 Kan. 6 (1985) 697 P.2d 64 UNIFIED SCHOOL DISTRICT No. 490, Butler County, Kansas, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF BUTLER COUNTY, KANSAS; J.W. SIMMONS, ELDON PHILLIPS, and TOM LINOT, as members of said commission and their respective successors in office; BETTY ORR, as county treasurer of Butler County, Kansas, Respondents. No. 57,633 Supreme Court of Kansas. Opinion filed March 28, 1985. Ervin E. Grant, of Grant & Hart, P.A., of El Dorado, argued the cause and was on the brief for the petitioner. Robert J. O'Connor, of Hershberger, Patterson, Jones & Roth, of Wichita, argued the cause and was on the brief for respondents and on the brief amicus curiae for Certain Kansas Counties. Patricia E. Baker, senior legal counsel, and Joseph M. Furjanic, staff legal counsel, were on the brief amicus curiae for Kansas Association of School Boards. James M. Kaup, of Topeka, was on the brief amicus curiae for League of Kansas Municipalities. Steven R. Wiechman, of Topeka, was on the brief amicus curiae for Kansas Association of Counties. The opinion of the court was delivered by HERD, J.: This is an original action in mandamus brought by U.S.D. No. 490, Butler County against the Board of County 7 Commissioners of Butler County. This action is prompted by the refusal of Butler County officials to remit to U.S.D. No. 490 the interest portion of a settlement in United States District Court of the Atchison, Topeka & Santa Fe Railroad Company, et al. v. Harley Duncan, cases Nos. 80-4172, -4173, -4176, -4181 and -1690 (the 4-R Act cases). The county paid the tax portion of the settlement to petitioner but refused to pay the interest. The 4-R Act cases were commenced June 30, 1980. Through consolidation and intervention the five cases involved Santa Fe, Union Pacific, St. Joseph and Grand Island, Rock Island, Missouri-Kansas-Texas, Burlington Northern, Chicago and North-western, Kansas City Southern, The Kansas and Missouri Terminal, Kansas City Terminal, Missouri Pacific, and St. Louis-San Francisco railway companies against the Kansas Department of Revenue, Michael Lennen (subsequently Harley T. Duncan), secretary of revenue, and Phillip W. Martin, director of property valuation. The Kansas counties were not original parties to the suit but 98 counties were joined as parties in the action on the 1979 taxes. They were then dismissed. Later 86 counties were permitted to intervene. The 4-R cases were filed to challenge the assessed valuation of railroad transportation property. It was alleged to be out of ratio with other Kansas commercial and business property. The cases ultimately involved taxes for 1980, 1981, 1982, 1983 and 1984. The trial court found in 1980 commercial and business property was assessed at 12.4% of true value while railroad transportation property was assessed at 30% of true value. The court ordered the assessment of railroad property reduced accordingly. The state defendants and county intervenors introduced evidence that the correct ratio was 24.48% rather than 12.4%. The defendants' and intervenors' evidence influenced the ultimate result. The railroads paid their taxes pursuant to the court's order amending the assessment. For the years 1980 and 1981, the railroads paid 40% of the taxes levied against them, with earned interest paid to the counties. The other 60% was deposited with the clerk of the federal district court for investment until further order of the court. The distribution of this interest is not in controversy. After 1981, the railroads paid their taxes, as reduced by the court, directly to each county and retained the balance 8 upon submission to the court of a verified financial statement showing sufficient net worth to indemnify the state and counties if it was later determined they owed more taxes. Various issues raised at trial were appealed to the Tenth Circuit Court of Appeals. The counties and their attorneys were active participants in both the trial and the appeal of the cases. In fact, the county intervenors paid in excess of $500,000 for legal and expert witness fees. The Tenth Circuit affirmed the district court in part and reversed it in part, remanding the cases for further proceedings. After intensive negotiation by the parties, on October 4, 1984, the trial court was informed the parties had agreed on a settlement placing the railroad assessment ratio for 1980 at 20.93%; for 1981 at 20.68%; for 1982 at 20.40%; for 1983 at 19.5% and for 1984 at 19.25%. Since the railroad property originally had a ratio of 30%, this was a considerable tax savings to them, but when compared to the 12.4% assessment ratio set by the court and upon which the railroads had been paying their taxes since 1980, it required them to pay an additional sum of considerable size. After agreeing on the assessment ratio, it was then necessary to determine the kind and rate of interest on the additional taxes owed but unpaid. The parties eventually agreed the interest should be calculated as simple interest, even though the delay in payment extended beyond one year from the date the taxes were owed. They also agreed the rate should be the treasury bill rate rather than Kansas judgment rate and should be calculated from the date of original delinquency to October 31, 1984. Judge Richard Rogers confirmed the compromise settlement of the parties. The settlement amounted to $23,463,595.33. Interest is $4,036,034.43 of the total. This is the interest in controversy. From the settlement the Butler County Treasurer paid petitioner its proportionate share of unpaid taxes in the amount of $40,365.23. However, the county treasurer refused to pay the interest which had been earned on that amount while the money was retained by the railroads pending the outcome of the litigation. The interest on petitioner's share of the taxes amounted to $8,677.76. Petitioner brings this action seeking an order of this court commanding the county treasurer to pay the school district its share of interest from the settlement. 9 Is mandamus a proper remedy? Neither party questions the appropriateness of mandamus in this case. This court has held: "Mandamus in the Supreme Court is a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of public business, notwithstanding the fact there also exists an adequate remedy at law." Board of Sedgwick County Comm'rs v. Noone, 235 Kan. 777, Syl. ¶ 1, 682 P.2d 1303 (1984). There is no question that this issue affects many counties in the state and many counties are waiting to make a determination based upon this action. Therefore we hold mandamus is proper. The next issue is whether payment of interest to the petitioner on withheld taxes is provided for by statute. Petitioner argues the general rule is that in the absence of a statute to the contrary, interest follows principal. Hence, the taxing subdivisions are entitled to the interest as well as the principal. See New Orleans v. Fisher, 180 U.S. 185, 45 L. Ed. 485, 21 S. Ct. 347 (1901). The question then is whether there are statutes to the contrary. There are three statutes which the parties rely upon in this case. These statutes are K.S.A. 1984 Supp. 12-1678a and K.S.A. 79-2004 and 79-2004a. K.S.A. 1984 Supp. 12-1678a states undistributed taxes of any taxing subdivision may be invested by the board of county commissioners and retained by the county treasurer. The County argues the settlement constituted taxes and that through negotiation it obtained interest on the delayed payment of taxes as if the principal were invested pending the outcome of the litigation. It claims the taxes were therefore "constructively" invested by the county commissioners and the interest belongs to them. Initially, there is no question that the money was not invested by the county commissioners. Proof of that lies in the fact that K.S.A. 1984 Supp. 12-1678a provides the ways a county may invest such money by reference to K.S.A. 1984 Supp. 12-1675 and 12-1676. Both of these statutes are very explicit. Permitting a taxpayer to retain his taxes under a type of indemnification agreement obviously is not an investment of the taxes in a technical sense. It is, however, a method of obtaining interest on the unpaid taxes and provides the same result as an investment by a county. Amicus League of Kansas Municipalities argues K.S.A. 12-1678a is not applicable because these were not taxes. Rather, the 10 League argues, it was a court-approved negotiated settlement similar to a judgment including prejudgment interest. This argument ignores the obvious: the payment of the principal was made up of taxes owed by the railroads to the counties. Amicus Association of School Boards, however, argues that while it may be taxes, it was not "undistributed" taxes and that the statute clearly implies the only undistributed taxes which can be invested are those taxes collected but undistributed after the county treasurer distributes the taxes collected for each taxing subdivision. In this case, not only had the taxes from the railroad property due the school districts never been distributed, but also the taxes had not been collected. Hence, the facts do not completely fit the statutes. The Association of School Boards further argues the statutes imply the county commissioners cannot invest taxes that have been collected for other subdivisions. For support Association of School Boards cites K.S.A. 1984 Supp. 12-1675 which states the ways subdivisions may invest public monies. The Association misconstrues this statute. This statute pertains to surplus in the hands of a taxing subdivision after distribution to it by the county. Here, the taxes had not been distributed. Thus, this statute is not authority for the subdivision's right to the interest in controversy. The parties next discuss the applicability of K.S.A. 79-2004 and 2004a to this case. K.S.A. 79-2004 provides for the accrual of interest on delinquent real property taxes from the delinquency date for such tax payment until the payment is made or until the real estate is sold at foreclosure. K.S.A. 79-2004a is a companion statute providing for accrual of interest on delinquent personal property taxes. Both statutes provide "all interest herein provided for shall be credited to the county general fund." Hence, the counties argue, the statute specifically states interest earned on delinquent taxes shall be paid to the county general fund. Amicus Kansas League of Municipalities counters by arguing the payment here could not constitute delinquent taxes since it was the railroad which commenced the litigation. The League reasons that the railroad would not have started litigation to determine it owed more taxes. The taxing subdivisions also argue, as they did under K.S.A. 1984 Supp. 12-1678a, that the 11 payment was a settlement of a lawsuit, not a payment of taxes. However, again, there is no question the settlement constituted taxes. As amicus Kansas Association of Counties argues, the character of interest on back taxes does not change because a taxpayer who is delinquent files a suit to determine the validity of the taxes. In Atchison, T. & S.F. Ry. Co. v. Lennen, 531 F. Supp. 220 (1981), the court deemed the amount in controversy to be delinquent 1980 taxes noting that even though litigation was instituted, the taxes were still delinquent. Amicus Kansas Association of Counties further argues K.S.A. 1984 Supp. 12-1678a(d) and K.S.A. 79-2004(b) specifically allow counties to enter into agreements providing for the distribution of interest earnings. Hence, Association of Counties argues if it were not the legislature's intent that the interest belong to the counties, it would not be necessary to grant counties the authority to enter into agreements for the distribution of interest to the taxing subdivisions. An examination of K.S.A. 1984 Supp. 12-1678a, and K.S.A. 79-2004 and -2004a discloses the legislative scheme for managing interest earned on undistributed tax funds and interest on delinquent taxes. In each, the legislature authorized the county to keep the interest. We find there are logical reasons for such a legislative decision. The county is the local taxing unit. Cities, townships, school districts, hospital districts, cemetery districts, and all other local units of government are taxing subdivisions of the county. Each of the subdivisions prepares its budget, then calculates the levy needed to produce the budgeted amount on the assessed values provided it by the county. After the subdivision budgets are submitted to the county, they are all compiled into one budget by the county and the final total levy determined by the county. The county is charged with the responsibility for collecting the taxes, banking the receipts and accounting for them. The distribution of taxes to taxing subdivisions is the county's job. The duty to collect delinquent taxes falls on the county. Actions to sell property for unpaid taxes are the county's obligation. Tax foreclosure actions are county actions. The administration of the ad valorem taxing system in Kansas is performed by the counties. Hence, authorizing the counties to receive the interest from invested taxes and from delinquent taxes is logical. Past efforts by subdivisions to obtain 12 legislation requiring counties to share interest on idle funds have failed. In this case the railroad taxes became delinquent, not through oversight or obstinance, but because the taxpayers had correctly concluded their taxes were unlawfully high in relation to other taxpayers. The court first determined the railroads were being overtaxed by 60%. The railroads paid in the 40% of their taxes determined to be owed. They retained the remainder. On appeal it was determined at the urging of state defendants and intervenor counties that the value of other business and commercial personal property should also be used in comparing the railroads' assessment. Since personal property is reappraised annually, as compared to real estate which is reappraised infrequently and thus is out of ratio, it was apparent to the parties upon remand that the railroad assessment would increase from the 12.4%. Evidence was taken and the parties commenced negotiation with the realization the amount of taxes previously paid was not adequate. The difference between the taxes paid and the taxes owed constituted delinquent taxes. The final determination of the additional taxes owed for 1980, 1981, 1982, 1983 and 1984 by the railroads was accomplished by compromise and settlement among the parties as was the determination of the kind and amount of interest. In addition to the legislative scheme entitling the counties to interest on withheld taxes, there are compelling equitable reasons which justify such a holding. The local governmental responsibility for intervention in the lawsuit properly fell on the counties. The counties expended a large amount of money in their efforts to prevent the railroad ratios from being placed too low. They were successful. The counties deserve the benefits of their investment. The agreed-upon interest derived from the delinquency provides a partial recovery. Since such interest is applied as a credit on next year's budget and reduces the levy for every county taxpayer, the benefit is shared by all who expended the funds in the lawsuit. We hold Butler County is entitled to retain the interest received from the settlement of the 4-R Act cases. The petition for mandamus is denied.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/4516790/	EDWARD A. RILEY, II, and ) NATALIE D. RILEY, ) ) Plaintiffs-Respondents, ) ) v. ) No. SD36099 ) Filed: March 16, 2020 RANDALL ZOLL and ) LANDALL ZOLL, ) ) Defendants-Appellants. ) APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable John C. Spielman, Special Judge APPEAL DISMISSED Randall and Landall Zoll (the Zolls) appeal from a judgment entered against them in an unlawful detainer action. The trial court decided that Edward and Natalie Riley (hereinafter referred to individually by their given names and collectively as the Rileys) were entitled to immediate possession of farmland leased to the Zolls because the Zolls had breached the lease. On appeal, the Zolls argue that the trial court committed several errors in granting relief to the Rileys in their unlawful detainer action. We do not reach the merits of those arguments because we have determined that this appeal is moot. Pursuant to a written agreement, the Zolls leased 106 acres of farmland from January 1, 2011 through December 31, 2019 from the Morrells. Ownership of the land subject to the lease was later transferred to the Rileys. On November 29, 2018, Edward filed an unlawful detainer petition against the Zolls. The petition alleged that the Zolls breached the lease by subletting the farmland to another entity without the landlord’s written consent. The case was tried on March 11, 2019. Prior to the presentation of evidence, Natalie was added as a plaintiff. On April 15, 2019, the trial court entered judgment in favor of the Rileys and against the Zolls. The court found that the Zolls had breached the lease and that the Rileys were “entitled to immediate possession of said real estate.” On appeal, the Zolls’ four points focus only on alleged trial court errors in awarding immediate possession of the farmland to the Rileys based upon their unlawful detainer petition. A threshold question in the appellate review of a controversy, however, is whether the matter has become moot due to subsequent events. See State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). “In deciding whether a case is moot, an appellate court is allowed to consider matters outside the record.” Id.; Medlin v. RLC., Inc., 194 S.W.3d 926, 930 (Mo. App. 2006). An appeal is moot when a decision on the merits would not have any practical effect upon any then-existing controversy. D.C.M. v. Pemiscot Cty. Juvenile Office, 578 S.W.3d 776, 780 (Mo. banc 2019); In re Smith, 351 S.W.3d 25, 26 (Mo. App. 2011). In the respondents’ brief, the Rileys argue that this appeal is moot for two reasons. We will examine each argument in turn. First, the Rileys’ brief states that, after the judgment was entered, the Zolls vacated the farmland, removed their irrigation pump, planted no crops and tendered no rent for 2 2019. These statements are supported by Edward’s affidavit, which was included in the appendix to the Rileys’ brief. The Zolls have not, by reply brief or otherwise, challenged the accuracy of these statements. Moreover, our own examination of the record in the underlying unlawful detainer action does not reveal that the Rileys utilized any legal process to involuntarily remove the Zolls from the farmland. It is well settled that a party may be estopped from taking an appeal by performing acts after rendition of the judgment which are clearly inconsistent with the right of appeal. See, e.g., Stevens Family Trust v. Huthsing, 81 S.W.3d 664, 667 (Mo. App. 2002). Any voluntary act by a party which expressly or impliedly recognizes the validity of the judgment may create such an estoppel. Id. We agree with the Rileys that the Zolls’ decision to surrender possession of the farmland was a voluntary acquiescence in the judgment that rendered this appeal moot. See Southern Missouri Dist. Council of the Assemblies of God, Inc. v. Kirk, 334 S.W.3d 599, 602 (Mo. App. 2011). Second, the unlawful detainer action only decided that the Rileys were entitled to immediate possession of the farmland.1 Any right the Zolls had to possess that land ended when the lease expired by its own terms on December 31, 2019. Accordingly, our review of the trial court’s judgment – which only decided who was entitled to immediate possession of the farmland in April 2019 – would have no practical effect upon an existing controversy. See STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219 (Mo. App. 2012) (after the 1 Unlawful detainer has historically been employed as a swift and efficient remedy to restore an owner to possession of real property. See Wells Fargo Bank, N.A. v. Smith, 392 S.W.3d 446, 453-54 (Mo. banc 2013). The immediate right of possession is the principal issue decided in such an action. See Walker v. Anderson, 182 S.W.3d 266, 268- 69 (Mo. App. 2006); S.L. Motel Enters., Inc. v. E. Ocean, Inc., 751 S.W.2d 114, 117 (Mo. App. 1988). 3 leases at issue naturally expired by their terms, no live controversy remained and the appeal had to be dismissed). For all of these reasons, the Zolls’ appeal is dismissed. JEFFREY W. BATES, C.J. – OPINION AUTHOR DANIEL E. SCOTT, P.J. – CONCUR MARY W. SHEFFIELD, J. – CONCUR 4	01-03-2023	03-16-2020
https://www.courtlistener.com/api/rest/v3/opinions/4516793/	v. JiiiG 7 4AL 03/16/2020 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0058 Supreme Court Cause No. DA 20-0058 IN RE THE MARRIAGE OF: NANCY CAROL CHASE, Petitioner-Appellee, FILED and MAR 1 6 2020 Bowen Greenwood MARK STEVEN CHASE, Clerk of Suprerne Court State of Montana Respondent-Appellant. ORDER FOR EXTENSION OF TIME TO FILE APPELLANT'S OPENING BRIEF ON APPEAL FROM THE MONTANA THIRTEENTH JUDICIAL DISTRICT YELLOWSTONE COUNTY,HONORABLE PRESIDING MATTHEW J. WALD DISTRICT COURT CAUSE NO.DR 17-41 Appearances: For Petitioner/Appellee: For Respondent/Appellee: Jill Deanne LaRance Linda L. Harris LaRance & Syth, P.C. Harris Law Firm, P.C. PO Box 1456 Old Chamber Building, Suite 100 Billings MT. 59103-1456 Billings, MT. 59101-1260 Telephone:(406)254-9663 Telephone and Facsimile:(406)259-4402 Facsimile:(406)254-9725 Email: [email protected] Email: [email protected] Appellant, Mark Steven Chase,has filed a Motion For Extension OfTime to File Appellant's Opening Brief. Said Motion states good cause for the extension ofrequested and states further that counsel for Appellee does not object to the extension requested. IT IS HEREBY ORDERED Appellant's Motion For Extension OfTime to File Appellant's Opening Brief is GRANTED. Appellant shall file his opening brief on or before April 13, 2020. Copies of this Order shall be provided to all parties ofrecord. / ( -1-- DATED this / of March, 2020.	01-03-2023	03-16-2020
https://www.courtlistener.com/api/rest/v3/opinions/2592654/	57 N.Y.2d 892 (1982) In the Matter of Mohawk Finishing Products, Inc., Respondent, v. State Division of Human Rights et al., Appellants. Court of Appeals of the State of New York. Argued September 1, 1982. Decided October 19, 1982. Sara Toll East and Ann Thacher Anderson for State Division of Human Rights, appellant. Dennis B. Schlenker for Michele Cushing, appellant. William E. Moore for respondent. Judges JASEN, JONES and WACHTLER concur; Chief Judge COOKE concurs in result in a separate memorandum; Judge FUCHSBERG dissents and votes to reverse and remit the matter in an opinion; Judge MEYER dissents and votes to reverse and reinstate the determination of the State Human Rights Appeal Board in another opinion; Judge GABRIELLI taking no part. 893MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. It is not necessary for us on this appeal to decide what is the applicable standard for determining whether an employer has discriminated against an employee under our State statute because the employee opposed a practice 894 forbidden under the Human Rights Law (Executive Law, § 296, subd 1, par [e]; subd 3-a, par [c]; subd 7) i.e., whether it is the standard invoked by the Federal courts under the Federal legislation (that charges of retaliatory discrimination may be sustained if there is a finding that the employee believed that the employer had engaged in a forbidden practice and that there was a reasonable basis for such belief), or the rule applied in the Appellate Division in this case under our State statute (that such charges may be sustained only if it is later determined that the practice in question was indeed statutorily forbidden). In this case, already once remitted to the appeal board "for the purpose of clarifying its findings of fact and decision" (70 AD2d 1016), neither the commissioner nor the board made a finding that there was a reasonable basis for complainant's belief that the employer's practices were forbidden. The only finding was that complainant "believed" that the practices were in violation of the statutory proscription. The board and complainant chose to proceed on the basis of this finding alone. It is not, however, a sufficient finding under the Federal standard. We could now make a factual determination that there was a reasonable basis for complainant's belief only if we were to do so as a matter of law, but the record before us justifies no such determination. The Appellate Division standard was not met inasmuch as it was determined that the practices of which the employee complained did not in fact violate the Human Rights Law. Accordingly, inasmuch as the board has met neither the Federal nor the Appellate Division standard in this case, there is no sufficient basis for the determination that this employer discriminated against complainant because she opposed practices forbidden by the Human Rights Law, and there is no need to determine which is the applicable standard. Chief Judge COOKE (concurring). The underlying issue should be addressed. Accordingly, I vote for affirmance for the reasons stated in the memorandum of the Appellate Division (83 AD2d 970). 895FUCHSBERG, J. (dissenting). On this appeal, both parties and the amicus curiae[1] have exhaustively briefed and argued the issue of the appropriate standard for invocation of the antiretaliation provision of the Human Rights Law (Executive Law, § 296, subd 1, par [e]).[2] Meeting this question head on, I believe we now should hold that the statute makes it unlawful for an employer to discriminate against employees who oppose employment practices they reasonably believe to be discriminatory, and this though the practices in fact later are found to have been lawful. So deciding, the present case should be remitted to the State Division of Human Rights for a specific finding as to whether there was a reasonable basis for the employee's belief that her employer was engaging in sex discrimination. I respectfully suggest that it is neither fair nor wise for us to avoid reaching the underlying question, since the wording of the prior remittal by the Appellate Division to the board was cast in terms which did not focus on the legal question at the heart of this case. The court's failure to do so, however jurisprudentially explained, sacrifices the claimant's substantive rights to an intrajudicial procedural snare. Worse, I submit, it ill serves the strong anti-discriminatory policies the Human Rights Law was designed to advance (Executive Law, § 300). The events which led to this proceeding had their beginning when Michele Cushing, who then had been a satisfactory member of Mohawk Finishing Products Corporation's office staff for some six years, in response to a management request for employee questions or comments prepared and 896 presented a petition in which she and other female employees complained of what they perceived to be sex discrimination in hiring and work benefit practices. The central concern of their communication was that, of the 32 women and 8 men who constituted the office force, all the men were on salary but all except one of the women were on a less well-compensated hourly basis. Be that as it may, as the State Division of Human Rights was to find in a factual determination, which in due course the Human Rights Appeal Board sustained as supported by substantial evidence, within a day after the petition was delivered Ms. Cushing was "terminated because she opposed practices which she believed to be discriminatory"; on this basis it granted her relief, including compensatory damages for her loss of wages. This award the division made though, at the same time, it further found no evidence that the disparity in the terms of employment of the male and female office employees was gender based. On reviewing the board's order of affirmance, a divided Appellate Division, declaring the order "inconsistent and confusing" in that the appeal board found "the employer * * * did not discriminate against its female office workers" while the statute forbade termination for opposing "practices forbidden by the Human Rights Law", annulled the determination and remitted the matter to the board "for the purpose of clarifying its findings of fact and decision" (70 AD2d 1016, app dsmd 48 N.Y.2d 1027,[3] mot for lv to app den 49 N.Y.2d 702). On this remand, the appeal board merely reaffirmed its position that the division's determination had been supported by substantial evidence. Thereupon, the Appellate Division opined that only the second clause of section 296 (subd 1, par [e]), i.e., the one covering retaliation for actually having "filed a complaint, testified or assisted in any proceeding", absolutely protects any individual (83 AD2d 970). It is notable that the Appellate Division, neither in remanding nor in its ultimate decision, expressly indicated that it had given any consideration to the fact that the administrative decision may very well have been based on 897 a statutory construction under which, so long as a person who opposes a forbidden practice acts, even if mistakenly, in good faith and with a reasonable belief that the practice involved is unlawful, "absolute protection" is provided by the first clause as well. After all, it is the Human Rights Division to whose enforcement the Legislature committed the section. And the power of an agency so circumstanced to play an interpretative role, though not unlimited, is, of course, now an established principle of administrative law (Matter of Burger King v State Tax Comm., 51 N.Y.2d 614, 620; Ostrer v Schenck, 41 N.Y.2d 782, 786; Matter of Howard v Wyman, 28 N.Y.2d 434, mot for rearg den 29 N.Y.2d 749). Such an interpretation would hardly have been an esoteric one. Rather, it would have been especially apt since, in construing the comparable language of the antiretaliation provision of the Civil Rights Act of 1964 (US Code, tit 42, § 2000e-3, subd [a]),[4] the model which guided New York's draftsmen, Federal courts consistently have found that a "reasonable belief" reading of the first clause is in harmony with its purpose (e.g., Payne v McLemore's Wholesale & Retail Stores, 654 F.2d 1130, cert den 455 US 1000; Berg v La Crosse Cooler Co., 612 F.2d 1041; Sias v City Demonstration Agency, 588 F.2d 692; Hearth v Metropolitan Tr. Comm., 436 F Supp 685, 688; see, also, Albermarle Paper Co. v Moody, 422 US 405, 421). Moreover, that such a holding may have been at the root of the administrative ruling, and so understood by the board, can have come as no surprise. Even if only implicit, it was obvious, at least after the board's second affirmance. For the Appellate Division's second order, the one before us now, was accompanied by an opinion which, distinguishing between the first and second clauses of the section and venturing the prediction that the court's holding would not "frustrate the purposes behind the Human Rights Law" by "forc[ing] those employees who feel victimized by unlawful discrimination to act at their peril" (83 AD2d, p 971), in 898 effect, though not in so many words, goes on to meet the substantive issue we are now called upon to review. Indeed, realistically read, the Appellate Division's decision clearly reflects a doctrinal difference with the position the Human Rights Division urges upon us. Returning, therefore, to the substantive issue, it is difficult to quarrel with the proposition that a narrow and overly literal interpretation of the clause at issue would put an employee who makes informal objection to what appears to be discriminatory treatment at the risk that, if it turned out that the situation was misjudged, a reprisal would follow. The resulting chill on the making of complaints, no matter the genuineness of the beliefs which prompted their presentation, seems self-evident. And, surely, by restricting the statutory safeguard to cases in which a formal administrative complaint has been lodged, resolution by conference, mediation or other personal interplay is more likely to be discouraged than not. All this would be totally at odds with the manifest remedial nature of the Human Rights Law. Accordingly, bearing in mind that whatever it may or may not have intended to do implicitly, the Human Rights Division made no explicit finding with regard to the genuineness and reasonableness of the complainant's belief that discrimination existed, I would reverse the order of the Appellate Division and remit to the State Division of Human Rights for express determination of the reasonableness question. MEYER, J. (dissenting). Although the commissioner's finding, affirmed by the board, that complainant "believed she was opposing discriminatory practices by Respondent" does not include the word "reasonably" as a modifier of "believed", the reasonableness of her belief is implicit from the findings, likewise affirmed, that a number of female employees other than complainant signed the petition she prepared and that all but one of 32 female employees received lower hourly rate pay and fewer fringe benefits than did the eight male and one female employees in salaried positions (cf. Sias v City Demonstration Agency, 588 F.2d 692, 695-696). So to conclude is not to engage in forbidden fact finding on our part, but to recognize what 899 logic, though not the commissioner's words, compel. I would, therefore, reach the issue and like Judge FUCHSBERG adopt the Federal standard. Accordingly, I also dissent and vote to reverse but, having concluded that reasonableness has, indeed, already been found, I would reinstate the board's determination rather than remit. Order affirmed, with costs, in a memorandum. NOTES [1] The amicus, The Equal Employment Opportunity Commission, is the Federal agency charged with the administration, interpretation and enforcement of the Federal laws prohibiting employment discrimination, including title VII of the Civil Rights Act of 1964, as amended (US Code, tit 42, § 2000e et seq.), the progenitor of our own Human Rights Law. [2] Section 296 (subd 1, par [e]) of the Executive Law makes it an unlawful practice "to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under [the Human Rights Law] or because he has filed a complaint, testified or assisted in any proceeding under this article". In addition to section 296 (subd 1, par [e]), which involves opposition to employment discrimination, other sections of the Human Rights Law have identical antiretaliation provisions, viz., section 296 (subd 3-a, par [c]) (age discrimination in employment) and subdivision 7 of section 296 (discrimination in housing accommodations). [3] Our dismissal was for lack of finality. [4] Section 704 (subd [a]) of title VII (78 US Stat 257; US Code, tit 42, § 2000e-3, subd [a]) provides, "It shall be an unlawful employment practice for an employer to discriminate * * because [the employee] has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title".	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1329159/	498 S.E.2d 204 (1998) STATE of North Carolina v. Jimmy Lee ALLRED. No. COA97-522. Court of Appeals of North Carolina. April 7, 1998. 205 Attorney General Michael F. Easley by Assistant Attorney General Julia R. Hoke, Research Triangle Park, for the State. Donald E. Gillespie, Jr., Greensboro, for defendant-appellant. GREENE, Judge. Jimmy Lee Allred (Defendant) appeals from a conviction for assault with a deadly weapon. On 31 October 1995, an altercation occurred between three inmates of the Guilford County Jail. Christopher Van King (King) testified for the State that he and Defendant began to argue because King and another inmate were talking near the television in the "day room," an area containing two picnic tables, a television, telephones, and a commode. King stated that inmates can leave the day room to "get snacks," and that after he and Defendant argued, Defendant and Robert Foust (Foust) left the day room. King stated that when they returned, Defendant had a "shank," a knife made from "some type of metal razor inserted in a pen, plastic part of a pen." At that point, King testified that "Foust swung at me and knocked my glasses off. As I swung back, [Defendant] stabbed me in the left shoulder [and] the back." King stated that, just before the officers arrived to break up the fight, Defendant flushed the shank down the commode in the day room. Foust testified for the State, offering the following description of the item used by Defendant to stab King: Q: And what did [Defendant] use to stab [King]? [Foust]: A pen. All I saw him use was a pen. Q: And what did you see about that pen? [Foust]: All I see, it was a pen. All pens are sharp. I just seen a pen. Whether it was a piece of metal or a piece of anything on it, I didn't see. I seen a ink pen. Foust continued to state, throughout his testimony, that "all I seen was a pen." The officer who investigated the incident, Jerry L. Ford (Officer Ford), testified that King stated that he was stabbed by Defendant with a shank, which he described as: [A] typical pen, a Bic pen or whatever, and they would use a lighter to melt one end of the pen, and once the plastic begins to get softeneda lot of times the inmates have razors to shave with and sometimes the officers don't get `em back, so when they have one of the razors extra, by the pen being melted, he would just slide that they would just slide the piece of razor blade to the soft portion of the pen and once the pen got hardened, that's when the blade was stiffening and it wouldn't be able to come out and theyand [King] told me that's how they made the homemade shank out of the pen. King told Officer Ford that this was the type of weapon used by Defendant to stab him. Officer Ford described King's wound as "not a wound that was just basically used by a pen, ... it wasn't just circular. It ... had an indention to where it was something flat and then it went outward, whereas a pen, you would have, like, a puncture wound and that was the difference between the two." Both of King's wounds were about one-eighth to one-quarter of an inch wide and less than an inch long. King was taken to the infirmary after the altercation, where both wounds were cleaned and bandaged. Neither wound required stitches. Defendant did not testify. Rodney Crite (Crite), a defense witness, testified that King and Defendant argued, and then Foust swung at King to start the physical altercation. When asked if Defendant stabbed King with a shank, Crite responded: "I can't say that if it was a shank or what." William H. Anderson, another defense witness, testified that King "advanced on [Defendant]" to start the fight. Both defense witnesses testified either that they did not "see" or could not "recall" a shank. Defendant was indicted for "us[ing] a homemade knife called a shank, a deadly 206 weapon, to assault and inflict serious injury upon [King] by stabbing the victim in the shoulder area causing a stab wound which required medical treatment." At the close of all the evidence, Defendant requested jury instructions on self-defense and on the lesser included offense of simple assault. The trial court denied both requests. During its charge to the jury, the trial court described the weapon used by Defendant to stab King as "the shank, the homemade knife or the pen with the razor in it." Defendant objected to this description, but had trouble articulating a basis for this objection, and the trial court did not change the jury charge. The jury acquitted Defendant of assault with a deadly weapon inflicting serious injury, but found him guilty of the lesser included offense of assault with a deadly weapon. The issues are whether: (I) the evidence supported a jury instruction on self-defense; and (II) the evidence supported a jury instruction on the lesser included offense of simple assault. I A defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense. State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). The right of self-defense is only available, however, to "a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so." Id. Furthermore, when confronted with a nonfelonious assault, a party is required to retreat "if there is any way of escape open to him." State v. Brown, 117 N.C.App. 239, 241, 450 S.E.2d 538, 540 (1994) (quoting State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602-03 (1975)), cert. denied, 339 N.C. 616, 454 S.E.2d 259 and 340 N.C. 115, 456 S.E.2d 320 (1995). We consider the facts in the light most favorable to Defendant in determining whether the trial court should have instructed the jury on self-defense. State v. Moore, 111 N.C.App. 649, 654, 432 S.E.2d 887, 889 (1993). In this case, the evidence reveals that Defendant aggressively and willingly entered the fight and did not withdraw. King was fighting with Foust when Defendant stabbed King in the shoulder with the shank. Even assuming that Defendant did not initiate the fight, he is not entitled to a charge on self-defense. All the evidence reveals that King was unarmed. Regardless of who started the altercation, therefore, Defendant was required to retreat from the nonfelonious assault rather than escalate the incident through the use of a weapon. Defendant could have retreated by leaving the day room (as he had done earlier in the evening), or he could have summoned the available officers. The trial court therefore did not err in refusing to instruct the jury on self-defense. II Defendant contends that Foust's testimony contradicted the State's evidence that Defendant stabbed King with a deadly weapon, thereby requiring submission of the lesser included offense of simple assault. We disagree. Instructions on a lesser included offense are required only when there is conflicting evidence as to a crucial element of the offense charged, State v. Johnson, 317 N.C. 417, 436, 347 S.E.2d 7, 18 (1986), and the evidence supports the elements of the lesser included offense, State v. Williams, 314 N.C. 337, 351, 333 S.E.2d 708, 718 (1985). The evidence in this case undisputedly reveals that King received stab wounds during the altercation with Defendant. Foust's testimony did not conflict with the State's evidence that Defendant stabbed King with a shank. Foust testified: "I just seen a pen. Whether it was a piece of metal or a piece of anything on it, I didn't see. I seen a ink pen." (Emphasis added). Foust never testified that Defendant used an unaltered ballpoint pen to stab King; instead, Foust testified that a ballpoint pen was all that he saw. Foust's testimony, read in its entirety, supports rather than contradicts the State's case that Defendant stabbed King with a shank made from a ballpoint pen. The record therefore reveals no conflicting evidence on *207 this element of the State's case which would support submission of the lesser included offense of simple assault. Furthermore, a shank made by attaching a razor blade to a ballpoint pen would properly be denominated a deadly weapon as a matter of law when used to stab another person, because it "is likely to produce death or great bodily harm under the[se] circumstances." State v. Randolph, 228 N.C. 228, 232, 45 S.E.2d 132, 135 (1947). Defendant also contends that the trial court erred in describing the weapon used by Defendant as "the shank, the homemade knife or the pen with the razor in it" during the jury instructions. Having found that the State's evidence as to the weapon used by Defendant to stab King was uncontradicted in the record, we cannot say that this description constitutes an error. No error. JOHN and MARK D. MARTIN, JJ., concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895710/	NO. 07-07-0043-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 11, 2007 ______________________________ IN THE INTEREST OF J.L.W.M., A CHILD _________________________________ FROM THE COUNTY COURT AT LAW #1 OF RANDALL COUNTY; NO. 4234-L1; HONORABLE JAMES W. ANDERSON, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. ABATEMENT AND REMAND Following termination of his parental rights, appellant Johnny Lewis Monk filed a pro se "Motion to Appeal" the trial court's judgment in which he indicates that he is indigent. Subsequently, appellant filed a Declaration of Inability to Pay Costs attesting that he is indigent. We abate the appeal and remand the cause. In Texas, there is a statutory right to counsel for indigent persons who respond in opposition to a parental termination case filed by a governmental entity. Tex. Fam. Code Ann. § 107.031(a)(1) (Vernon Supp. 2006); see also In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Therefore, we abate the appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court is directed to determine if appellant is indigent and whether an attorney ad litem should be appointed to represent him on appeal. Should the trial court determine that appellant is indigent and entitled to an attorney ad litem, the trial court is directed to appoint counsel and provide counsel's name, address, telephone number, and state bar number to the clerk of this court immediately upon such appointment. Any orders issued shall be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before Monday, June 11, 2007. The trial court is directed to hold any hearings it deems necessary to comply with this order. Any such hearings shall be recorded and a supplemental reporter's record containing these hearings shall be filed with the Clerk of this Court on or before June 11, 2007. It is so ordered. Per Curiam s may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel. If new counsel is appointed, the name, address, telephone number, and state bar number of counsel shall be included in the order appointing new counsel. The trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental reporter's record of the hearing shall also be included in the appellate record. The trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by August 15, 2005. Finally, if new counsel is appointed, appellant's brief will be due within 30 days after the deadline for filing of the supplemental clerk's record and the supplemental reporter's record and the State's brief will be due within 30 days thereafter. Tex. R. App. P. 38.6(a) & (b). It is so ordered. Per Curiam Do not publish.	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/491800/	824 F.2d 970 Thibeauxv.Penrod Drilling* NO. 87-4088 United States Court of Appeals,Fifth Circuit. JUL 07, 1987 1 Appeal From: W.D.La. 2 REVERSED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/2895722/	NO. 07-06-0473-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 8, 2007 ______________________________ LEE Y. COCKRELL, GUARDIAN OF THE PERSON AND ESTATE OF ALICE B. INGRUM GRAY, AN INCAPACITATED PERSON, APPELLANT V. GENE O. “BUDDY” COCKRELL, APPELLEES _________________________________ FROM THE 31ST DISTRICT COURT OF GRAY COUNTY; NO. 33,395-A; HONORABLE STEVEN R. EMMERT, JUDGE _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Pending before this Court is Appellant’s Motion to Dismiss in which, Lee Y. Cockrell, Guardian of the Person and Estate of Alice B. Ingrum Gray, an Incapacitated Person, represents that pursuant to a settlement agreement, he no longer wishes to pursue this appeal. Cockrell also represents that all disputes between the parties have been settled and requests dismissal with prejudice. Without passing on the merits of the case, pursuant to Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure, we grant the motion and dismiss the appeal with prejudice. Having dismissed the appeal at Cockrell’s request, no motion for rehearing will be entertained and our mandate will issue forthwith. Patrick A. Pirtle Justice be authorized. However, on October 10, 2005, a fourth extension request was filed by the reporter for an additional 30 days, stating she was getting help with this case and “should” not need any further extensions. Accordingly, we abate this appeal and remand the cause to the 140th District Court of Lubbock 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; when the reporter’s record can reasonably be filed in a manner that does not have the practical effect of depriving the appellant of his right to appeal or delaying the resolution of this appeal. The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk’s record 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 to be developed a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the district court shall then file the supplemental record and reporter’s record transcribing the hearing with the clerk of this court on or before November 10, 2005. Should further time be needed by the trial court to perform these tasks, then same must be requested before November 10, 2005. It is so ordered. Per Curiam Do not publish.	01-03-2023	09-08-2015
https://www.courtlistener.com/api/rest/v3/opinions/2980645/	March 10, 2015 JUDGMENT The Fourteenth Court of Appeals IN THE INTEREST OF K.L.S., A CHILD, NO. 14-14-00428-CV ________________________________ Today the Court heard the parties’ joint motion to vacate the judgment signed by the court below on March 4, 2014. Having considered the motion and found it meritorious, we order the judgment VACATED AND REMAND the cause to the trial court for rendition of judgment in accordance with the parties’ agreement. We further order that each party shall pay its costs by reason of this appeal. We further order that mandate be issued immediately. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/2380855/	40 F. Supp. 2d 55 (1999) NORTH AMERICAN BOXING ORGANIZATION INTERCONTINENTAL, INC., Plaintiff, v. NORTH AMERICAN BOXING ORGANIZATION, INC., et al., Defendants. No. CIV. 98-1766(SEC). United States District Court, D. Puerto Rico. February 22, 1999. 56 José L. Nieto-Mingo, Nieto & Vazquez, San Juan, PR, for Plaintiff. Edilberto Berríos-Dávila, Luis Fernández-Ramírez, San Juan, PR, Andrew W. Horn, Miami, FL, for Defendants. OPINION AND ORDER CASELLAS, District Judge. This case is before the Court on defendants' motion to dismiss pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976) and its progeny (Dockets # 8, 10), which was duly opposed (Docket # 19). For the reasons set forth below, defendants' motion (Dockets # 8, 10) is hereby GRANTED in part and DENIED in part. Factual and Procedural Background Plaintiff, North American Boxing Organization Intercontinental, Inc. (hereinafter "NABO-Intercontinental"), is an Arizona corporation with its principal place of business in Illinois. Named as defendants are North American Boxing Organization, Inc. (hereinafter "NABO-Puerto Rico"), Organización Mundial de Boxeo, Inc. a/k/a World Boxing Organization (hereinafter "WBO-Puerto Rico"), Francisco Valcárcel, Luis Batista Salas, Luis Pérez, XYZ, Inc., John Doe and Jane Roe. NABO-Puerto Rico and WBO-Puerto Rico are corporations organized and existing under the laws of the Commonwealth of Puerto Rico having their principal place of business in Puerto Rico. Named personal defendants are citizens of the Commonwealth of Puerto Rico. Unnamed corporate defendant XYZ, Inc. is allegedly a corporation organized under the laws of a State other than Arizona or Illinois, and having its principal place of business in a State other than Arizona or Illinois. Unnamed personal co-defendants John Doe and Jane Roe are allegedly citizens of a State other than Arizona or Illinois. On October 18, 1996, defendants WBO-Puerto Rico and NABO-Puerto Rico filed suit in the Puerto Rico Court of First Instance, Superior Court, San Juan Part against various individual and corporate defendants. This action was captioned Organización Mundial de Boxeo, Inc., et al. v. John H. Montaño, et al., Civil No. KPE 96-0764(907). On September 29, 1997, WBO-Puerto Rico and NABO-Puerto Rico amended their complaint joining NABO-Intercontinental as co-defendant. In their amended complaint, WBO-Puerto Rico and NABO-Puerto Rico prayed for preliminary and permanent injunctive relief and declaratory judgment based on defendants' (NABO-Intercontinental among them) alleged infringement of the name NABO and some of its variants under the laws of the Commonwealth of Puerto Rico.[1] On June 19, 1998, NABO-Intercontinental filed an answer and counterclaim. The present action was filed by NABO-Intercontinental on July 2, 1998, seeking damages and injunctive relief for unfair competition, trade name, trademark and service mark infringement under the laws of the Commonwealth of Puerto Rico; as well as damages and injunctive relief for false representation and false designation of origin under Section 43(a) of the Lanham Act, as amended, 15 U.S.C. § 1125(a). Jurisdiction is invoked under this provision and under 28 U.S.C. §§ 1331 and 1332. At issue is defendants' alleged unauthorized use of the name and mark North American Boxing Organization and/or NABO. On August 18, 1998, based on the pendency of the state action in which they appear as plaintiffs, defendants moved for dismissal 57 under the principles established in Colorado River and subsequent cases. The Colorado River Doctrine In Colorado River the Supreme Court established a narrow[2] doctrine allowing district courts to stay or dismiss a federal action because of parallel state-court litigation. The Court recognized that while federal courts have a "virtually unflagging obligation" to exercise their jurisdiction, exceptional circumstances premised on "considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation[,]" 424 U.S. at 817-18, 96 S. Ct. 1236 (citations omitted), may sometimes permit the dismissal of a federal action which is duplicative of a pending state proceeding. The Court in Colorado River articulated an "exceptional circumstances" test of four factors which district courts should consider in assessing whether dismissal is appropriate: (1) whether either the federal or the state court has assumed jurisdiction over property, (2) "the inconvenience of the federal forum," (3) "the desirability of avoiding piecemeal litigation," and (4) "the order in which jurisdiction was obtained by the concurrent forums." Id. at 818, 96 S. Ct. 1236 (citations omitted). Regarding the third factor, the First Circuit has stated that "in considering whether the concern for avoiding piecemeal litigation should play a role in ... [a given] case, the district court must look beyond the routine inefficiency that is the inevitable result of parallel proceedings to determine whether there is some exceptional basis for requiring the case to proceed entirely in the ... [state court]." Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 16 (1st Cir.1990) (hereinafter "Villa Marina I"). Duplication, by itself, does not justify surrendering jurisdiction. Elmendorf Gráfica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 52 (1st Cir.1995); Rojas-Hernández v. Puerto Rico Elec. Power Auth., 925 F.2d 492, 496 (1st Cir.1991); Villa Marina I, 915 F.2d at 13, 16. The First Circuit has given "most weight to this factor where piecemeal litigation would severely prejudice one of the parties." Rojas-Hernández, 925 F.2d at 496 (citations omitted). With regard to the fourth factor, the Supreme Court has advised that: This factor, as with the other Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand. Thus, priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). In Moses H. Cone the Supreme Court listed two additional considerations which may be factored in the district court's assessment of the appropriateness of dismissal: (5) whether federal or state law controls (the "source-of-law factor"), and (6) "the probable adequacy of the statecourt proceeding to protect ... [the parties'] rights." Id. at 23-26, 103 S. Ct. 927. Regarding the fifth factor, the Court emphasized that while rarely the presence of state-law issues may tip the balance in favor of surrendering jurisdiction, "the presence of federal issues must always be a major consideration weighing against surrender." Id. at 25, 103 S. Ct. 927. As to the sixth factor, the First Circuit has acknowledged that, generally, the fact that a federal court civil plaintiff has the right to have his case tried by a jury a right not available in the courts of the Commonwealth makes the federal forum more advantageous to plaintiffs. See Villa Marina Yacht Sales v. Hatteras Yachts, (Villa Marina II), 947 F.2d 529, 537 (1st 58 Cir.1991), cert. denied, 503 U.S. 986, 112 S. Ct. 1674, 118 L. Ed. 2d 393 (1992) (hereinafter "Villa Marina II"). Nevertheless, this factor "operates against the surrender of jurisdiction only when the state forum may not be adequate to adjudicate the claims." Rojas-Hernández, 925 F.2d at 496; see also Burns v. Watler, 931 F.2d 140, 147 (1st Cir.1991). Another factor considered by some courts is the motivation for the federal lawsuit, particularly, whether it is vexatious or reactive in nature. See Elmendorf Gráfica, 48 F.3d at 50; Villa Marina II, 947 F.2d at 532; Villa Marina I, 915 F.2d at 15; Fuller Company v. Ramón I. Gil, Inc., 782 F.2d 306, 309-10 (1st Cir.1986); Marcano Arroyo v. K-Mart, Inc., 24 F. Supp. 2d 169, 172 (D.P.R.1998); Fumero-Vidal v. First Fed. Sav. Bank, 788 F. Supp. 1275, 1282 (D.P.R.1992). This factor, though not relied on, was mentioned by the Supreme Court in Moses H. Cone, 460 U.S. at 17 n. 20, 103 S. Ct. 927, as having "considerable merit." The First Circuit has counted motivation as a factor in favor of dismissal in some cases. For example, in Fuller Company, the fact that the federal lawsuit was brought in reaction to an adverse ruling by the state court was assessed in favor of dismissal. See 782 F.2d at 309-10. In Villa Marina II, the district court had found a subsequent federal action to be reactive because it was filed only after the state court had rejected plaintiff's application for a preliminary injunction and after plaintiff's previous federal suit had been dismissed. The circuit court concluded that such facts supported the district court's finding. See 947 F.2d at 533. "No one factor," however, "is necessarily determinative; a carefully considered judgment taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise is required. Only the clearest of justifications will warrant dismissal." Id. at 818-19, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (citations omitted). "[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone, 460 U.S. at 16, 103 S. Ct. 927 (emphasis added). Ultimately, "the decision whether to defer to the state court is necessarily left to the discretion of the district court in the first instance," subject to reversal only for an abuse of that discretion. Id. at 19, 103 S. Ct. 927. "Such discretion must be exercised, however, within the constraints of the `exceptional-circumstances test ....'" Elmendorf Gráfica, 48 F.3d at 50 (quoting Moses H. Cone, 460 U.S. at 19, 103 S. Ct. 927); see also Villa Marina I, 915 F.2d at 13 (stating that the determination on appeal focuses on "whether the district court abused its discretion in finding that `exceptional circumstances' outweighed the court's `virtually unflagging obligation ... to exercise the jurisdiction given [it]'") (citation omitted). Recently, however, the Supreme Court held that while district courts may stay or dismiss an action based on abstention principles where the relief sought is equitable or otherwise discretionary, they may only stay, but not dismiss, a damages action based on those principles. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116 S. Ct. 1712, 1722-28, 135 L. Ed. 2d 1 (1996). After a thorough examination, the Court concluded that: [Our precedents] demonstrate that the power to dismiss ... [based on abstention principles] ... derives from the discretion historically enjoyed by the courts of equity.... Ultimately, what is at stake is a federal court's decision, based on a careful consideration of the federal interests in retaining jurisdiction over the dispute and the competing concern for the "independence of state action," that the State's interests are paramount 59 and that a dispute would best be adjudicated in a state forum. Id. at 1726 (citations omitted). The First Circuit has not taken the Court's words in Quackenbush lightly and has avoided hair-splitting, stating the law as follows: "the Supreme Court held that abstention, under Burford or otherwise, may be appropriate in suits for damages. But the Court further held that in a damages action, the district court may only order a stay pending resolution of state proceedings; it cannot invoke abstention to dismiss the suit altogether." DeMauro v. DeMauro, 115 F.3d 94, 98 (1st Cir.1997) (citations omitted) (emphasis added). "This rule," as the circuit court noted, "may seem rather wooden, given the merger of law and equity, but the Court means what it says ...." Id. DeMauro involved a private civil RICO action, which the court found to be "primarily a damages action," in part due to the uncertainty of whether "equitable relief is even available to private plaintiffs under civil RICO." Id. at 98 (citation omitted). This case, however, involves legal as well as equitable relief. Plaintiff is seeking damages pursuant to the unfair competition provision of the Lanham Act, 15 U.S.C. § 1125(a) and under Commonwealth tort law. It is also seeking preliminary and permanent injunctive relief. The mixed nature of this action precludes the possibility of dismissing this lawsuit altogether, leaving this Court powerless to grant the remedy for which defendants' pray. To order a stay of this action would not be proper either, because of the strong possibility that this forum would have nothing further to adjudicate after the resolution of the state court action. In a situation like this, there is no distinction between a dismissal and a stay. See Moses H. Cone, 460 U.S. at 10, 27-28, 103 S. Ct. 927. However, plaintiff's prayer for a preliminary injunction rests on different ground. Analysis Defendants concede and plaintiff does not dispute that the first two factors whether either court has exercised jurisdiction over property and the inconvenience of this forum are immaterial in this case. The Court will thus direct its analysis to the remaining factors, "giving weight to the heavy presumption favoring the exercise of jurisdiction." Villa Marina I, 915 F.2d at 13. The Desirability of Avoiding Piecemeal Litigation Before addressing this factor, we shall consider plaintiff's contention that its federal action is not duplicative of the state court action. The basis for this contention is that both the parties and the causes of action involved are different in each. The argument is not entirely without merit. To be sure, herein plaintiff, NABO-Intercontinental, is named as a co-defendant (in conjunction with others not parties to this action) in the state court action. Also, plaintiff's state court counterclaim is strictly premised on Commonwealth law, while its federal complaint presents a federal question under the Lanham Act. This last difference aside, the factual allegations of plaintiff's federal complaint are essentially identical to its state court counterclaim. What is essentially at issue in both suits is the rightful ownership and authorized use of the name and mark North American Boxing Organization and/or NABO. Thus, plaintiff's federal lawsuit is duplicative of the state court proceeding. See Villa Marina II, 947 F.2d at 533 (noting that "perfect identity of issues is not a prerequisite for dismissal") (citations omitted); Ramírez v. Skeete, 671 F. Supp. 892, 893 (D.P.R.1987) (while recognizing such differences, stating that "nowhere in Colorado River is identity of the parties or issues required to trigger its doctrine"); Calvert Fire Ins. Co. v. American Mutual Reins. Co., 600 F.2d 1228, 1230 n. 1 (7th Cir.1979) ("A suit is `parallel' when substantially the same parties are contemporaneously litigating 60 substantially the same issues in another forum, thus making it likely that the judgment in one suit will have a res judicata effect in the other suit."). Defendants contend that to exercise jurisdiction over plaintiff's claim allowing parallel lawsuits to continue "would represent an unnecessary duplication of proceedings and a waste of precious court resources." (Docket # 8 at 7.) While this circumstance alone would be insufficient to warrant dismissal, see Villa Marina I, 913 F.2d at 13, its presence, in conjunction with other circumstances discussed below, favors abstention. First, the duplicative nature of this case would result in friction between the federal and state forums. To be sure, a preliminary injunction proceeding against plaintiff is currently pending before the state court. To exercise jurisdiction over plaintiff's request for a preliminary injunction in this forum would only initiate a race between parallel proceedings in which this Court is not eager to participate. Second, there exists the potential for harmful inconsistent determinations. For example, should parallel proceedings for injunction continue, defendants could eventually be enjoined by this court from carrying out activities they would otherwise be permitted to engage in under the state court determination. See González v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991) (noting that the potential for harmful inconsistent determinations would weigh "in favor of adjudication within a single forum"). Third, to hold parallel injunction proceedings would further aggravate the financial burden upon the parties, and result in a waste of judicial resources. Order in Which Jurisdiction Was Obtained It is undisputed that in the present case the state court obtained jurisdiction first; defendants have now been litigating for over two years before the state court. They assert, moreover, that "the local proceeding has advanced to a stage where judgment may be rendered any day[,] whereas this case is in infancy." (Docket # 10 at 4.) In trying to determine as precisely as possible the actual relative progress of both proceedings, the Court will refer to information outside the pleadings relating to the instant motion to dismiss, but which has become part of the record through other filings by the parties. At present, some discovery has been conducted,[3] an order of permanent injunction has been issued as to some of the state court defendants (NABO-Intercontinental not among them),[4] a motion for partial dismissal is pending, and a motion for summary judgment presented by NABO-Intercontinental has been denied. A hearing for preliminary injunction was scheduled by the state court for January 19, 1998. (Docket # 23 at 7.) The parties, however, have not informed the Court whether such hearing was ever held or, if held, what was the outcome. Regarding the progress of this action, some discovery has been conducted (probably less that in the state court case), and a few motions have been filed some of which have been ruled upon. Overall, the state court proceeding is substantially more advanced than this one, so this factor weighs in favor of abstention. Source-of-Law Factor Here, the assertion by plaintiff of some causes of action under Commonwealth law 61 is of little significance. Defendants do not argue that this case presents any complex questions of state law "that would best be resolved by a state court." Villa Marina I, 915 F.2d at 15 (citations and internal quotations omitted). To the contrary, the presence of a federal issue whether NABO-Intercontinental has a cause of action against defendants under the Lanham Act's unfair competition provision, 15 U.S.C. § 1125(a) weighs heavily against the decision to give up jurisdiction. Therefore, this factor weighs against the surrender of jurisdiction. Adequacy of the State Forum to Protect the Parties' Rights Defendants do not mention this factor either in their motion or their brief in support thereof. While the right to a jury trial would normally make this forum more advantageous to plaintiff, this factor is immaterial in this case, because the Court would only be declining jurisdiction over the preliminary injunction, which is a matter entirely for the Court to decide. No jury is involved. Moreover, we find that the state forum would be as adequate as this forum to preside over the injunction proceeding. Accordingly, this factor also tips the balance in favor of abstention. Motivation The thrust of defendants' argument for abstention is that plaintiff's action is reactive and vexatious. As characterized by defendants, plaintiff's suit "is nothing more than a defensive tactical maneuver, based on a contrived federal claim." (Docket # 10 at 5.) The Supreme Court in Moses H. Cone acknowledged that the motivation factor may have considerable significance in applying the Colorado River doctrine. See 460 U.S. at 17 n. 20, 103 S. Ct. 927. Here, plaintiff was joined as a co-defendant in the state court action. Less than three weeks after filing its answer and counterclaim in that action it filed this federal suit. The fact that plaintiff's federal complaint mirrors its state counterclaim bolsters defendants' argument that this suit is "a defensive tactical maneuver, based on a contrived federal claim." (Docket # 10 at 5.)[5] This is probably the most important factor weighing in favor of abstention in the present case. Conclusion We have determined that while the source-of-law factor favors the exercise of jurisdiction. However, the fact that there exists the potential for harmful inconsistent determinations; the fact that the state court proceeding is substantially more advanced than this one; the fact that the state forum would be as adequate as this forum to resolve the preliminary injunction; and the fact that plaintiff's federal action appears to be reactive; all lead us to conclude that this case presents exceptional circumstances that permit this Court to abstain from exercising jurisdiction over plaintiff's prayer for injunctive relief. These factors appear to us to present exceptional circumstances warranting the dismissal of this suit altogether. However, in light of the holdings in Quackenbush and Moses H. Cone, the Court will assume jurisdiction over the remainder of the action. Pursuant to the above, defendants' motion to dismiss (Dockets # 8, # 10) is hereby GRANTED in part and DENIED in part. SO ORDERED. NOTES [1] Plaintiffs also prayed for damages under Commonwealth tort law and requested the return of certain bank account funds that allegedly were illegally withdrawn by some co-defendants. [2] See, e.g., Elmendorf Gráfica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 50 (1st Cir. 1995); Burns v. Watler, 931 F.2d 140, 145 (1st Cir.1991); Fumero-Vidal v. First Fed. Sav. Bank, 788 F. Supp. 1275, 1282 (D.P.R.1992). [3] It should be noted, however, that the extent of such discovery is far from clear. For example, defendants assert that discovery in the state proceeding "should have been completed a long time ago" (Docket # 8 at 7; Docket # 10 at 5.) While some discovery may have been conducted, the expectant undertones of defendants' assertion suggests that not much progress has been accomplished. On its part, plaintiff asserts that while defendants have conducted extensive discovery regarding the other co-defendants in the state court action who are not parties to this suit, NABO-Intercontinental "has been largely unable to conduct any discovery due to Defendants' vigorous opposition to all discovery." (Docket # 19 at 13 (emphasis omitted).) [4] The state court's permanent injunction does not affect plaintiff, since it was entered with the consent of some of the state defendants, except for NABO-Intercontinental. [5] In this connection, it is proper to address defendants' argument that plaintiff could have sought to remove the state court action, but failed to do so. This contention is without merit. Since no federal jurisdiction appeared from the face of the state court complaint, plaintiff could not have relied on a federal law defense to establish jurisdiction. See Louisville & Nashville Railroad v. Mottley, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126 (1908). It would have had to rely on diversity. See 28 U.S.C. § 1441(a). But because at least two of the state court co-defendants reside in Puerto Rico there would have been no complete diversity and the federal subject matter jurisdiction would have been lacking. See Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir.1994).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2229105/	883 N.E.2d 1152 (2005) 354 Ill. App.3d 1166 ALBEE v. SOAT. No. 2-03-1081. Appellate Court of Illinois, Second District. January 19, 2005. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2524179/	950 N.E.2d 1205 (2011) BAKER v. STATE. Not in Source. Supreme Court of Indiana. April 14, 2011. Transfer denied. All Justices concur.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/1042469/	Filed 9/27/13 Marriage of Mumma and Rosenfield CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE In re the Marriage of REBECCA MUMMA and DON ROSENFIELD. REBECCA MUMMA, Appellant, v. A134292 DON ROSENFIELD, (San Francisco County Appellant. Super. Ct. No. FDI-04-757877) Rebecca Mumma appeals from a November 22, 2011, order denying her request for a downward modification of spousal support in favor of Don Rosenfield. She asserts the court erred as a matter of law by refusing to consider her loss of tax deductions after the sale of the marital residence as a factor impacting her ability to pay spousal support. We agree with Mumma, and accordingly, we shall reverse and remand the matter for further proceedings.1 FACTUAL AND PROCEDURAL BACKGROUND2 Mumma and Rosenfield were married on November 29, 1990 and separated in October 2004. On September 19, 2006, the parties entered into a stipulated judgment of 1 In light of our determination, we dismiss as moot Don Rosenfield‟s cross-appeal from so much of the November 22, 2011, order as denied his request for attorney fees. 2 We set forth only those facts necessary to resolve the issue raised on Mumma‟s appeal. 1 dissolution that incorporated a marital settlement agreement (the “MSA”), outlining each party‟s respective property interests and support obligations. The MSA required Mumma to pay support to Rosenfield in the base sum of $2,350 per month. The monthly sum was modifiable under the following circumstances: “The parties agree [Mumma] may seek a downward modification of spousal support upon a showing of changed circumstances. However, under no circumstances shall any court have jurisdiction to modify spousal support upward or in any way increase the amount of spousal support payable by [Mumma] to [Rosenfield]. The parties agree that the sale or transfer of the former family residence. . . shall constitute a change of circumstances sufficient for [Mumma] to request a downward modification of support.” On May 14, 2010, Mumma filed a motion for downward modification of spousal support based on her change in income, which was opposed by Rosenfield. In support of her motion, Mumma informed the court the marital residence was “in escrow and scheduled to close escrow shortly.” The house sale closed on June 1, 2010. A superior court commissioner assigned to the case held a hearing on August 26, 2010, and later presided at a judicial settlement conference on October 7, 2010, after which the parties stipulated that a decision would be rendered on all issues presented by the parties‟ pleadings. In the commissioner‟s written order filed on November 30, 2010, Mumma‟s request for a downward modification of spousal support retroactive to May 2010 was denied because she had failed to demonstrate that a substantial change of circumstances beyond her control had caused a decrease in her ability to pay the current support order. In so ruling, the commissioner commented that Mumma had not provided sufficient documentation regarding her current pay and benefits, and her income and expense declaration “was stale, given the new status of the sale of the house and the old mortgage figures no longer apply.” On December 15, 2010, Mumma filed a motion for reconsideration, which was opposed by Rosenfield. The commissioner denied the motion for reconsideration, but ruled that Mumma could file a new motion. However, the commissioner advised Mumma that she would be required to meet the legal standard for a downward 2 modification based on changed circumstances, and Rosenfield would have an opportunity to inquire into and cross-examine Mumma on the matter. On January 27, 2011, Mumma filed a new motion for downward modification of spousal support. In support of the request, Mumma asked the court to consider numerous changed circumstances, including that since the last order, her work as an independent contractor had ended, she was now a salaried employee on a fixed income, she was no longer able to generate additional income without explicit approval of her employer, and in 2011, she would pay higher taxes and no longer be able to claim income tax deductions for property tax and mortgage interest because of the sale of the house. In a supplemental declaration filed on June 27, 2011, Mumma again contended she was filing the motion based on numerous changed circumstances, including her change in employment and income, and that “[t]he judgment specifically states that the sale of the residence would constitute a change of circumstances. The residence sold between the time she filed in May 2010 and the present. [She] no longer has the tax benefits from home ownership. . . .” On November 22, 2011, Mumma‟s motion for downward modification of spousal support was heard before a superior court judge. After argument, the court denied Mumma‟s motion in a written order, finding as follows: “1. There exist no changed circumstances from the time of the prior hearing on a motion for modification on August 26 to the current hearing on motion for modification that would justify revisiting the issue of spousal support. 2. The sale of the home was not raised by the parties, argued to the Court in pleadings, or appears to have been considered by [the court commissioner] in her order of November 30, 2010. 3. [The commissioner‟s] calculations incorrectly applied the mortgage payments and property tax payments as the house had been sold prior to the August 26 hearing and her November 30, 2010 order. 4. The house had been sold at the time of the litigation and the order and no appeal was made to [the commissioner‟s] November 30 ruling. 5. The Court has no jurisdiction to reconsider issues that were already in existence when [the commissioner‟s] order was made following the August 26, 2010 hearing.” 3 DISCUSSION We agree with Mumma that the November 22, 2011 order must be reversed because the court should have considered the impact of the loss of tax deductions after the house sale as a factor in determining her ability to pay spousal support. At the time Mumma‟s original motion was filed in May 2010, the house had not been sold, and she did not amend her motion papers after the sale. The commissioner‟s November 30, 2010 order resolved only those issues raised in Mumma‟s motion papers, and did not consider or rule on the impact of the loss of tax deductions after the house sale as a factor in determining her ability to pay spousal support. Consequently, there was no bar to Mumma‟s later request for a downward modification of spousal support and the court erred in finding that it lacked jurisdiction to consider the matter. As explained by the court in Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, “ „The scope of litigation is framed by the [pleading] at the time it is [first] filed.‟ [Citation.] [¶] Res judicata is not a bar to claims that arise after the initial [pleading] is filed. . . . The general rule that a judgment is conclusive as to matters that could have been litigated „does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [citations].‟ ” (Id. at p. 155.) While it may have been more efficient if Mumma asked the court to consider the impact of the loss of tax deductions after the house had been sold, under res judicata principles, she was not required to do so as part of her May 2010 motion. (Ibid. [no requirement to amend a pleading to add newly acquired claims]; see Brown v. Brown (1915) 170 Cal. 1, 6; Kettelle v. Kettelle (1930) 110 Cal. App. 310, 312.) However, we deny Mumma‟s request that the matter be remanded to the court for the limited purpose of a calculation of the dollar amount by which her spousal support obligation should be reduced. We cannot conclude, as a matter of law, that Mumma‟s loss of tax deductions as a consequence of the house sale, standing alone, is sufficient to require a downward modification of spousal support. Accordingly, on remand, the court is directed to determine whether Mumma is entitled to a downward modification of 4 spousal support based on all relevant factors. Our decision should not be read and we express no opinion on how the court should exercise its discretion in deciding the matter. DISPOSITION The November 22, 2011, order is reversed and the matter is remanded to the superior court for further proceedings consistent with this opinion. Don Rosenfield‟s cross-appeal is dismissed as moot. Each party shall bear their own costs on appeal. _________________________ Jenkins, J. We concur: _________________________ McGuiness, P. J. _________________________ Pollak, J. 5	01-03-2023	09-27-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873423/	752 N.W.2d 31 (2008) WILLIAMS v. STATE. No. 06-2036. Court of Appeals of Iowa. February 13, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/8326455/	Brassard, Raymond J., J. The plaintiff Linda Johansson (“Johansson”) filed a complaint with the Superior Court pursuant to G.L.c. 30A, §14(7), seeking judicial review of the decision of the Full Commission of the Massachusetts Commission Against Discrimination (the “Full Commission”). The matter is before the court on Johansson’s motion for judgment on the pleadings. For the reasons set forth below, the motion is DENIED and the Full Commission’s decision is AFFIRMED. BACKGROUND I. Relevant Facts Johansson began her employment with the Massachusetts Department of Correction (the “DOC”) as a Correction Counselor/Caseworker at MCI-Concord in 1984. In 1989, Johansson suffered a work-related injury to her neck and back, and thereafter, went on industrial accident disability leave. In April of 1990, while still on leave, Johansson began to receive anonymous, threatening, and sexually explicit phone calls. The caller was later identified as a former inmate at MCI-Concord who had been assigned to Johansson during his incarceration and who was currently on parole. The former inmate was arrested and returned to MCI-Concord. Beginning on May 19, 1990, Johans-son made repeated requests to the DOC to hold the inmate in isolation or to transfer him to another facility. The inmate was transferred in December 1990 after his case was adjudicated. On June 19, 1990, an Independent Medical Examiner (“IME”) assessed Johansson’s neck and back injury and cleared her to return to work. The Superintendent of MCI-Concord notified Johansson that she was expected to return to work no later than July 24, 1990. Johansson, however, told the Deputy Superintendent of MCI-Concord that she intended to file for industrial accident leave based on severe anxiety suffered as a result of the threatening telephone calls. At various times during July of 1990 Johansson communicated with officials at MCI-Concord that she was unable to return to work. Johansson’s psychiatrist diagnosed her as suffering from Post-Traumatic Stress Disorder (“PTSD”). In a letter dated July 20, 1990, Johansson’s psychiatrist stated that she “is totally disabled from work at present, and may be permanently unable to work in the prison system or 192with criminals.” On August 3, 1990, Johansson filed a claim for disability based on psychological injuries suffered as a result of the inmate’s threats. In September of 1990, a Civil Service examination was scheduled for the position of Correction Counselor I, the position that Johansson held as a provisional Civil Service employee. The Department of Personnel Administration required all provisional employees in the Counselor I position to pass the examination and a certification interview in order to maintain their Civil Service status. Johansson requested permission to meet the Civil Service requirements in a neutral setting. The DOC allowed Johansson to take the Civil Service examination at the DOC’s Central Office in Boston in Februaiy of 1991. During this period, Johansson’s psychiatrist sent various letters dated September 14, 1990, October 19, 1990, and March 15, 1991 reiterating that she was totally disabled and could not return to work. On October 12, 1990, Johansson filed another claim for disability alleging that she had suffered mental stress and injury resulting in total disability. On May 6, 1991, an IME found Johansson to be disabled and unable to resume her duties. The IME noted that while Johansson appeared to be motivated to resume a productive life, “more time and treatment is required, before she can take significant steps in that direction.” Johansson also continued to communicate to the DOC that she could no longer work with inmates or in a correctional setting. In a letter to the DOC dated September 30, 1991, Johansson wrote that she could “no longer tolerate either mentally, physically, or emotionally any contact with the [DOC].” In a letter dated November 1, 1991, Johansson informed the DOC that: It would be impossible for me to return to work at the [DOC] due to these circumstances that have destroyed my life. I have been deemed totally disabled by the physicians and psychologists presently treating me ... I have been suffering from this situation since April of 1990, and there has been no respite or relief in sight . . . My medical and psychological problems continue to render me totally disabled from performing any work position ... I cannot be expected to return to work within the [DOC] at this time, nor possibly at any time in the near future. On November 8, 1991, Johansson met with a DOC official to request that the Civil Service certification interview be conducted in a non-prison setting. Johansson alleges that during this meeting she also requested a reassignment from MCI-Concord to the Central Office in Boston should she be able to return to work. In a letter also dated November 8, 1991, Johansson’s psychiatrist wrote that he “strongly recommended to [Johansson] that she not return to the Concord prison for any reason whatsoever. This would be very harmful to her and worsen her condition.” The DOC required Johansson to appear for the certification interview at MCI-Lancaster on November 21, 1991. On November 12, 1991, one of Johansson’s physicians stated that she was totally disabled due to her neck and back injury, which was exacerbated by stress. On November 19, 1991, an IME performed a physical evaluation of Johansson to determine the status of her neck and back injury. The IME physically cleared Johansson to return to work. However, the IME noted that Johansson was “feeling suicidal” and planned to speak with her personal psychiatrist to suggest hospitalization. The IME also observed that Johansson was “terrified of return to the prison atmosphere” and believed that she was “severely impaired” by her psychological injury. On November 22, 1991, an IME performed a “comprehensive psychiatric evaluation” on Johansson and reported that she could resume her duties as a Correction Counselor I with the restriction that she not work in the same institution as the inmate convicted of making the threatening phone calls against her.2 The IME stated that Johansson’s symptoms did not reach the severity of PTSD and that she had fully recovered from the April 1990 incident.3 By letter dated December 5, 1991, Johansson requested the accommodation that any further Civil Service requirements be conducted in a neutral setting. Johansson stated that she was complying with the Civil Service requirements to “preserve my rights at this time.” On Februaiy 19, 1992, Johansson’s psychiatrist reiterated that she was suffering from PTSD and that her symptoms were still severe. He stated that Johans-son was pessimistic “about having any future worthwhile life.” By letter dated February 26, 1992, another of Johansson’s medical providers wrote to contest the November 22, 1991 IME report. The letter stated Johansson was exhibiting symptoms of PTSD and that the IME report “seems to contradict all that I know about [Johansson] and her victimization . . . and I have [been] seeing her for 2 years.” By memo dated May 4, 1992, the Superintendent of MCI-Concord requested Johansson be transferred to an alternate facility.’ The memo stated, “In November of 1991, [Johansson] was examined both physically and psychiatrically [sic] to determine her fitness for return to her duties. Two separate examinations revealed that she did not have physical or psychiatric symptoms that would disable her from performing her usual duties as a Correction Counselor with the [DOC].” On June 2, 1992, the DOC sent Johansson a letter stating that she had been appointed Temporary Correction Counselor I at MCI-Concord effective November 27, 1991. 193On May 4, 1994, Johansson’s psychiatrist advised that her psychological injury was total and permanent. He stated, “[a]s her state has become and remained over the past several years, [Johansson] is markedly limited in her ability to function in public or at reasonable mental tasks.” In finding that her disability was permanent, he noted that “[t]his disorder has not improved in three years of treatment” and “there has been no evidence to suggest any likelihood that this condition will improve over any passage of time, making the condition permanent and irreversible.” On July 13, 1994, Johansson reached a compromised lump sum settlement with the DOC in the amount of $100,000 for the head and neck injury and the psychological injury. Johansson has never returned to work after initially going on disability leave in 1989. II. Procedural History On January 22, 1992, Johansson filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”) alleging that the DOC failed to accommodate her handicap with respect to the taking of the Civil Service examination. On October 8, 1992, Johansson amended her complaint to instead allege that the DOC failed to provide her with an accommodation with respect to the location of the Civil Service certification. On February 24, 1995, Johansson amended her complaint for a second time, this time alleging she was subjected to disparate terms and conditions of employment on the basis of gender. A public hearing on the matter was held in September of 1997. On July 19, 1999, the Hearing Commissioner issued a decision concluding that the DOC violated G.L.c. 151B, §4(16)’s prohibition against handicapped discrimination when it failed to consider the accommodation of a lateral job reassignment until after Johansson filed her complaint with MCAD. The DOC filed a petition for review by the Full Commission. On July 2, 2003, the Full Commission reversed the decision of the Hearing Commissioner concluding that the Hearing Commissioner erred as a matter of law. The Full Commission found that under Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002), Johansson could not bring her claim because she was seeking a new job as an accommodation. Upon judicial review, the Superior Court affirmed the decision of the Full Commission. On March 19, 2007, the Appeals Court reversed the Superior Court’s decision and found that the Full Commission erred as a matter of law when it failed to determine whether the DOC’s duty to engage Johansson in an interactive dialogue had been triggered before concluding that the DOC had no obligation to create a new job in accordance with Russell. The Appeals Court further concluded that the Full Commission decision did not provide a sufficient basis for determining whether Johansson had proved her prima facie case of handicap discrimination. Consequently, it remanded the matter to the Full Commission for more complete findings. On May 28, 2010, the Full Commission found that the record lacked substantial evidence to support a conclusion that the affirmative obligation to engage in an interactive process was triggered by the events in the case. Furthermore, the Full Commission concluded that: (1) Johansson failed to establish a prima facie case of handicapped discrimination under G.L.c. 15 IB, §4(16) because she was not a qualified handicapped person; and (2) she failed to overcome the apparent contradiction between her receipt of disability benefits and her claim that she was discriminated against by the DOC’s failure to provide an accommodation. On June 28, 2010, Johansson filed a complaint in the Superior Court seeking judicial review of the Full Commission’s decision pursuant to G.L.c. 30A, §14. Johansson now moves for judgment on the pleadings arguing that the decision was not based on substantial evidence and was in error of law. DISCUSSION Pursuant to G.L.c. 30A, §14(7), this court may affirm, reverse, remand, or modify an agency decision if “the substantial rights of any party may have been prejudiced” because the agency decision is based on an error of law, on an unlawful procedure, is arbitrary and capricious, is unwarranted by facts found by the agency, or is unsupported by substantial evidence. See G.L.c. 30A, § 14(7). The burden of showing that the agency’s decision is invalid is on the party challenging the decision. Merisme v. Board of Appeal on Motor Vehicle Lab. Policies & Bonds, 27 Mass.App.Ct. 470, 474 (1989). In reviewing the agency’s decision, the court must give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G.L.c. 30A, §14(7). The court may not substitute its judgment for that of the agency. See Southern Worcester County Reg. Voc. Sch. Dist. v. Labor Relations Comm’n, 377 Mass. 897, 903 (1979). Further, the “court may not displace an administrative board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Labor Relations Comm’n v. University Hosp., Inc., 359 Mass. 516, 521 (1971). I. The Full Commission did not err in finding that the DOC’s duty to engage in the interactive process was not triggered by the events in this case. To state a prima facie case of handicapped discrimination under G.L.c. 151B, §4(16) based uponafailure to accommodate, a plaintiff must show: (1) “she is a 194handicapped person within the meaning of the statute”; (2) she is qualified to perform the essential functions of the job with or without reasonable accommodation (i.e. a qualified handicapped person); (3) “she requested a reasonable accommodation”; and (4) “she was prevented from performing her job because her employer failed to reasonably accommodate the limitations associated with her handicap.” See Mazeikus v. Northwest Airlines, Inc., 22 Mass.Discrim.L.Rptr. 63, 68 (2000). An employee’s request for an accommodation triggers an affirmative duty on the part of the employer to engage in an interactive process in an attempt to offer an accommodation. See Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 457 (2002). According to the MCAD Guidelines, this affirmative duty is also triggered when: (1) the employer is aware of the employee’s disability; and (2) the employer observes that the employee is having a difficult time on the job. See Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap §VII(A) [hereinafter MCAD Guidelines].4 If the employee is not a qualified handicapped person, the employer does not have a duty to engage in the interactive process because the issue of accommodation is moot. See Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 125 (2010) (“Since at the time his employment was terminated the plaintiff was unable to perform one of the essential duties [of his position], with or without a reasonable accommodation, he was not a qualified handicapped person pursuant to G.L.c. 151B, §4(16), and the [employer] had no obligation to engage in dialogue concerning a nonexistent possibility of accommodation”). The Hearing Commissioner found that the duty on the part of the DOC to engage in an interactive process concerning the accommodation of Johansson was triggered both because Johansson requested an accommodation and because' Johansson had provided sufficient information to the DOC to put it on notice that she needed an accommodation for PTSD. The Full Commission reversed the decision of the Hearing Commissioner finding that the duly to engage in an interactive process was not triggered because Johansson never requested an accommodation and nothing triggered the duty absent a request.5 Johansson argues that the substantial weight of the evidence supports an opposite conclusion. This is not the case. A. The Full Commission could properly conclude that Johansson did not request an accommodation. Several pieces of evidence, relied on by the Full Commission, support the conclusion that Johansson did not request an accommodation or communicate a desire to return to the workplace. First, Johansson’s alleged request came shortly after she sent the DOC two letters expressing the fact that she was totally disabled. One letter specifically noted that “[i]t would be impossible for me to return to work at the [DOC].” Second, none of Johansson’s personal medical providers ever asserted that her condition had so improved that she could return to work. Indeed, Johansson’s psychiatrist consistently maintained that she was totally disabled. Third, throughout her testimony concerning the alleged accommodation request, Johansson repeatedly described the request as something that could be done in the future if she could recover from her disability. Specifically, when testifying about the November 8, 1991 meeting, Johansson stated “I was explaining the disability that I had and my hopes that I would recover at some point in time, and that I would have a job to return to, and if I could not work in a prison setting per se, there would be some option afforded to me . . .” (emphasis added).6 At no point did Johansson describe the possible transfer as a present request or indicate that she had recovered such that she could presently return to work at the Central Office. Johansson argues that the medical information sent after her alleged request confirms that she was capable of returning to work and that she made a request for an accommodation. She points to the November 8, 1991 letter from her doctor stating that “she should not return to Concord” as it could “worsen her condition” and requesting other means of accommodating her. Johansson also relies on the November 19, 1991, and November 22, 1991 IME reports, which she suggests cleared her for work. Johansson further urges that the May 4, 1992 DOC memo recommending that she be transferred from MCI-Concord and the June 2, 1992 letter stating that she had been appointed Temporary Correction Counselor I at MCI-Concord support the conclusion that she requested an accommod ation. These documents, however, do not show that Johansson was capable of returning to work or that she requested an accommodation. The November 8, 1991 letter from her psychiatrist was written specifically for Johansson’s request to have her certification interview conducted in a non-prison setting and was not referencing her ability to return to work. Moreover, the November 19, 1991 IME report only dealt with Johansson’s physical ability to return to work and, in fact, noted that her psychological injury was severely impairing. Additionally, the November 22, 1991 IME report is not a clear indication of her accommodation request given that her medical providers consistently maintained that she was totally disabled and unable to return to work. The report came shortly after the two letters from Johansson to the DOC stating that she was unable to return to work and the IME report ofNovember 19, 1991 that declared that Johansson was suicidal and discussed the possibility of forced 195hospitalization. Importantly, at no time after the IME report was issued did Johansson or any of her medical providers confirm the IME’s findings. While Johansson’s psychiatrist wrote a letter in support of her request to conduct the Civil Service certification interview in a neutral setting, he made no representation to the DOC that Johansson could return to work with an accommodation. Lastly, during the public hearing a DOC official testified that the May 4, 1992 memo was only meant to resolve Johansson’s industrial accident claim and was not based on a transfer request. The DOC official further testified that the June 2, 1992 letter was merely to advise Johansson of her new Civil Service status after she had completed the necessary requirements and was not a request for her to return to work. This is corroborated by the fact that the DOC never officially requested Johansson to return to work or provided her with a return date. B. The Full Commission could appropriately find that the DOC had no duty to initiate an interactive process absent a request. The Full Commission also properly concluded that, even absent a request, no duty to initiate an interactive process was triggered by the DOC’s knowledge of Johansson’s disability. See Russell, 437 Mass. at 457 (“It is the employee’s initial request for an accommodation which triggers the employer’s obligation to participate in the interactive process of determining one”). First, as the Full Commission observed, Johansson’s total disability leave made it unclear whether she had a present interest to return to work or a present ability to return absent a request. Cf. id. at 452-54, 457.7 Second, all the medical information provided to the DOC, except for the November 22, 1991 IME report, indicated that she could not resume her usual duties even with restrictions. See Sullivan v. Raytheon Co., 262 F.3d 41, 48 (1st Cir. 2001) (“Because [the plaintiff] has presented no evidence to indicate that he was capable of returning to work [in his position], even with a reasonable accommodation, [the defendant] was not required to engage with him in an interactive process”). An employer is not required to accommodate a need that it does not know exists. See Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against Discrimination, 441 Mass. 632, 649 n.21 (2004). Because the vast majority of medical information and Johansson’s own statements maintained that she was incapable of returning to the workplace, no duty to engage in an interactive process was triggered. See DeCaro v. Hasbro, Inc., 580 F.3d 55, 63 (1st Cir.2009) (“an employer’s duty to accommodate does not arise unless (at a bare minimum) the employee is able to perform the essential functions of his job with an accommodation”). II. The Full Commission did not err in finding that Johansson failed to resolve the apparent contradiction between her receipt of total disability benefits and her claims that the DOC discriminated against her for failing to consider a reasonable accommodation. The Full Commission further found that, even if Johansson had requested an accommodation, she still could not have prevailed because she failed to rebut the contradictions áiising from her assertions of total disability in connection with her disability benefits and her claim that she was discriminated against by the DOC’s failure to provide an accommodation. The Full Commission’s determination is not against the substantial weight of the evidence and is free from error of law. The receipt ofbenefits based on an assertion of total disability does not automatically estop a claim of handicapped discrimination under G.L.c. 15 IB, §4(16). Russell 437 Mass. at 452. However, the plaintiff must be able to either: (1) “raise a question of fact through other evidence of her ability” to perform the essential functions of her job with or without an accommodation; or (2) offer an “explanation of how her disability claims and employment discrimination claims are consistent, sufficient to warrant a reasonable juror’s conclusion that the plaintiff could perform the essential functions of the job.” See id. In Russell for example, the court concluded that a plaintiff had met this burden because she communicated to her employer that she wanted to return to work and obtained a medical release clearing her to return to work. See id. at 452-53. Here, Johansson failed to show that her receipt of total disability benefits and her claim for disability discrimination are not mutually exclusive. Unlike the plaintiff in Russell, Johansson never communicated a willingness or an ability to return to work. In her testimony before the Hearing Commissioner, Johans-son stated that in the November 8, 1991 meeting where she allegedly requested an accommodation that she made the request in the hopes that she “would recover at some point.” Johansson testified “I was not sure as of 1991 if I would ever be able to return to anything.” Further, none of Johansson’s medical providers ever cleared her to work and almost all of their documentation stated that she was totally disabled. The only piece of evidence suggesting that Johans-son had sufficiently recovered from her psychological injuiy to return to work in any capacity was the November 22, 1991 IME report, which was later reversed. Neither Johansson nor her medical providers ever confirmed the IME report. In fact, at least one of Johansson’s medical providers specifically rejected the IME’s findings. Moreover, the IME who examined Johansson with regards to her back and neck injury on November 19, 1991 stated that he believed that she was “severely impaired” by her psychological injury 196and was suicidal. Finally, on May 4, 1994, Johansson’s psychiatrist opined “[t]his disorder has not improved in three years of treatment” and “there has been no evidence to suggest any likelihood that this condition will improve over any passage of time, making the condition permanent and irreversible,” suggesting that Johansson had remained totally disabled during the entire period in question. III. The Full Commission did not err in finding that Johansson failed to make out a prima facie case of handicapped discrimination because she could not show that she was a qualified handicapped person. The Hearing Commissioner found Johansson was a qualified handicapped person under G.L.c. 151B, §4(16) because the DOC considered her able to perform the essential functions of her job.8 The Full Commission rejected this conclusion. It determined that Johansson was not capable of performing the essential functions of her job because she could not carry out duties that required inmate contact. The finding of the Full Commission was not against the substantial weight of the evidence or based on an error of law. As stated in section IA of this memorandum of decision, to state a claim for handicapped discrimination under G.L.c. 151B, §4(16), the plaintiff must show that she was a qualified handicapped person. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). A qualified handicapped person is someone who is able to perform the essential functions of the job with or without reasonable accommodation. See id. at 822. The MCAD Guidelines define essential functions as “those functions which must necessarily be performed by an employee in order to accomplish the principal objectives of the job. Put another way, the ‘essential functions’ are those that are not incidental or tangential to the job in question.” MCAD Guidelines §II(B). Determining whether a duty is essential is fact specific. See Cargill v. Harvard University, 60 Mass.App.Ct. 585, 596-97 (2004). The determination should be “based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved.” Id. at 597 (quoting Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 384 (1993)). The Full Commission found inmate contact was an essential function of the Correction Counselor I position. In support of this finding, it cited Johansson’s testimony that throughout her employment she maintained an inmate caseload, which required her to receive reports from the probation board and superior court concerning inmates, perform warrant checks, meet with inmates for reviews, prepare classification reports on inmates, and sit as a member of the disciplinary board two or three times a month. The Full Commission also cited the job description for the Correction Counselor I position. Some of the general duties of the position were listed as: assessing the needs and appropriate placement of inmates, devising program plans to address inmate needs, preparation of inmate classification reports, and conducting intakes of incoming inmates. In addition, a number of the specific duties included: interviewing inmates, developing program plans for inmates, and to be present in the inmate chow hall to address and respond to inmate questions and concerns. In further support of its finding that inmate contact was an essential function, the Full Commission pointed to the skill set required for the position. These skills included: good oral and written communication skills, ability to deal effectively with inmates, good interviewing skills, working knowledge of applied correctional practices as related to the care and custody of inmates, the ability to assess inmate needs and to identify immediate behavioral and/or management problems, and the ability to develop detailed program plans based upon inmate needs and security concerns. Lastly, the Full Commission relied on the testimony of Richard Spofford (“Spofford”) whose tenure as a Correction Counselor I at MCI-Concord overlapped Johansson’s for a time. Spofford testified that the position required inmate contact and that he was generally responsible for inmate custody and care. He also suggested that, for him, the clerical nature of the position was less important than dealing with inmates. Johansson argues that the “bulk” of the functions of the Correction Counselor I position were clerical/administrative in nature and did not require inmate contact. However, even assuming that the “bulk” of Johansson’s duties were clerical, that does not mean inmate contact was nonessential. See Cox, 414 Mass. at 387 (affirming the decision of a Superior Court judge who found even though a function rarely occurred it “is not unforeseeable that this skill would be necessary during an emergency, or even from time to time” and therefore the function was essential). Further, the determination of whether a function is essential is “intensely fact-based, requiring individualized inquiry and . . . appropriate findings of fact." Godfrey, 457 Mass. at 121 (quoting Cargill, 60 Mass.App.Ct. at 587-88) (internal citations omitted). Here, the Full Commission relied on the job description outlining various functions that required inmate contact, Johansson’s testimony admitting that the position required at least some inmate contact, and Spofford’s testimony that the position required him to be responsible for inmate custody and care.9 This was a sufficient basis for which to form a conclusion that the essential functions of Johansson’s job included and required direct contact with inmates. Johansson also contends that working with inmates is not an essential function of her former position because there are employees with the same Civil Service job title, Correction Counselor I, at the DOC’s 197Central Office who do not have inmate contact. This argument, however, fails to take into account the differences in the positions despite their similar titles. General Laws c. 151B, §4(16) states that the plaintiff must be “capable of performing the essential functions of the position involved with reasonable accommodation.” (Emphasis added.) There is no requirement “that an employer provide a ‘reasonable accommodation’ in the form of a reassignment to new or different position.” Gauthier v. Sunhealth Specialty Servs., Inc., 555 F.Sup.2d 227, 240 (D.Mass. 2008); see Russell 437 Mass. at 454 (finding that G.L.c. 151B, §4(16), does not require an employer to create a new position when an employee is not capable of performing the duties of her former position). As stated above, determining an essential function of a position is based upon more than statements in the job description and job title. See Cargill 60 Mass.App.Ct. at 596-97. Despite their similar titles, the duties of the two positions are dissimilar and they are best characterized as entirely different positions. The position at the Central Office, unlike the position at MCI-Concord, is clearly more clerical in nature as the employee works with the Commissioner and the Department heads, not inmates. The difference between the two positions is highlighted by the fact that Johansson had to interview for the Central Office position when she applied for it previously in 1989. Lastly, Johansson argues that she is a qualified handicapped person because the DOC “regarded” her as such. Johansson does not cite to any authority in support of the proposition that being “regarded” as a qualified handicapped person is enough to satisfy the prima facie standard. General Laws c. 151B, §1(17) defines handicapped as “(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment.” (Emphasis added.) The statute, however, defines qualified handicapped person as “a handicapped person who is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.” G.L.c. 151B, §1(16). ORDER For the foregoing reasons, Johansson’s motion for judgment on the pleadings is DENIED and it is therefore ORDERED that judgment enter AFFIRMING the decision of the Massachusetts Commission Against Discrimination. In June of 1992, the same IME re-examined Johansson and came to the opposite conclusion, finding that Johansson was unable to work in any capacity. The IME further stated: “It may be best if the patient could be assigned to work initially at the central office of the [DOC] so that she would not immediately be dealing with inmates and that after a transitional period she could then be reassigned to work in a corrections institution.” The MCAD Guidelines are persuasive and are to be used for interpretive assistance but are not binding. See Leach v. Commissioner of the Massachusetts Rehab. Comm'n, 63 Mass.App.Ct. 563, 567 (2005) (stating that there are situations where an employee’s request for an accommodation is not required, such as where the condition makes it obvious that an accommodation is needed). But see Mammone v. President and Fellows of Harvard Coll., 446 Mass. 657, 669 n.25 (2006) (“despite the dissent’s suggestion that employers should be required to raise affirmatively the issue of a reasonable accommodation with a handicapped employee who does not request such accommodation ... our case law does not support this position”). The Full Commission specifically made the following findings: (1) Johansson never communicated an interest in returning to work that was other than hopeful repatriation at some unspecified time in the future; and (2) the November 22, 1991 IME report did not trigger an affirmative obligation to engage in an interactive dialogue because Johansson’s statements and the statements of her medical providers all strongly contradicted the report, rendering any dialogue futile. It also: (1) rejected the Hearing Commissioner’s conclusion that Johansson spoke through various medical reports that were in the DOC’s possession; (2) rejected the favorable inference drawn by the Hearing Commissioner from Johansson’s completion of her Civil Service requirements, finding that it only showed a hopeful desire to return to work in the future rather than a present intent to return to work; and (3) noted that Johansson’s original complaint and subsequent amendments supported its conclusion because they did not allege any failure by the DOC to provide her with a lateral job transfer accommodation. Johansson testified that the November 8, 1991 meeting was brief and that its purpose was related to the Civil Service requirements. Johansson stated that she quickly “broached the subject of returning at some point, I didn’t know when ...” In addition, Johansson stated “I was not sure as of 1991 if I would ever be able to return to anything, and I wanted to preserve the possibility that if by some miracle I would get well and I could Junction again, I wanted the option to have my department say to me, you’re fine, you’re better, come back ...” (emphasis added). While Russell does not directly stand for this proposition, it does offer some support. See 437 Mass. at 452-53, 454, 457. For example, in determining whether the receipt of disability benefits estopped a claim for handicapped discrimination, the court focused on how the plaintiff had expressed her desire to return to work and obtained medical clearance to return. See id. at 452-53. Also, in discussing accommodations, the court noted that the “plaintiff never requested to return to her former position... nor did she indicate that she would be able to perform the essential functions of that position with accommodation.” Id. at 454. Lastly, when discussing how an employee’s request for an accommodation triggers the duty to engage in the interactive process, the court again noted that the plaintiff gave no indication that she was able to perform the duties of her position with or without an accommodation. See id. at 457. The Hearing Commissioner based this determination on the following factors: (1) the Superintendent of MCI-Concord notified Johansson on July 10, 1990 that she had been cleared to return to work; (2) Johansson completed the Civil Service requirements; (3) on November 22, 1991 an IME cleared Johansson to return to work with the restriction that she not work in the same facility as the inmate who threatened her; (4) on May 4, 1992 the Superintendent of MCI-Concord requested Johansson to be transferred to another facility; and (5) the Superintendent of MCI-Concord informed *198Johansson on June 2, 1992 that she had been appointed Temporary Correction Counselor I at MCI-Concord. The Hearing Commissioner did not make any findings of fact with regards to whether inmate contact was an essential function.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/999884/	UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-6997 ROBERT MILLS, Petitioner - Appellant, versus UNITED STATES OF AMERICA; BLEDSOE, Warden, Respondents - Appellees. Appeal from the United States District Court for the Northern Dis- trict of West Virginia, at Clarksburg. Irene M. Keeley, District Judge. (CA-99-93-1) Submitted: September 30, 1999 Decided: October 8, 1999 Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Robert Mills, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Robert Mills appeals the district court’s order denying relief on his 28 U.S.C. § 2241 (1994) petition. We have reviewed the rec- ord and the district court’s opinion and find no reversible error. Accordingly, we deny leave to proceed in forma pauperis and dismiss on the reasoning of the district court. See Mills v. United States, No. CA-99-93-1 (N.D.W. Va. July 7, 1999). The motion to expedite is denied. We dispense with oral argument because the facts and legal contentions are adequately presented in the mate- rials before the court and argument would not aid the decisional process. DISMISSED 2	01-03-2023	07-04-2013
https://www.courtlistener.com/api/rest/v3/opinions/1873377/	396 F. Supp. 792 (1975) George E. ECCLES and William Eccles, Plaintiffs, v. UNITED STATES of America, Defendant. Civ. No. A2-74-109. United States District Court, D. North Dakota, Northeastern Division. June 20, 1975. 793 Jerome J. Mack, Murray, Mack, Moosbrugger & Leonard, P. C., Grand Forks, N. D., for plaintiffs. Harold O. Bullis, U. S. Atty., Fargo, N. D., for defendant. MEMORANDUM AND ORDER BENSON, Chief Judge. This action arises from the construction of a sewage lagoon by the Defendant, United States, on property owned by Defendant, which is used and maintained by the United States Air Force for its Grand Forks Air Force Base. The action alleges that Plaintiffs' property, situated adjacent to, or nearby, the lagoon, has been damaged from flooding and/or seepage upon Plaintiffs' land, thus making it unfit for cultivation. Count A seeks damages under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680; Count B raises an inverse condemnation claim; Count C raises a nuisance claim, which is akin to the inverse condemnation claim; and Count D seeks damages under a theory that Defendant has breached an implied contract in law allegedly existing between the parties. Plaintiffs' claims relate to the SW ¼, the NW ¼ and the NE ¼ of Section 29, Township 152 North, Range 52 West of the Fifth Prime Meridian, Grand Forks County, North Dakota. The lagoon was constructed sometime prior to 1968. Plaintiffs claim $6,000.00, under the Federal Tort Claims Act, for aggregate damages to the SW ¼ of Section 29 for 1968, 1969, 1970 and 1971, alleging seepage from the lagoon damaged the productivity of that quarter of land in those years. In 1971, Defendant acquired the quarter to expand the sewage lagoon, and having previously acquired the SE ¼ of Section 29, now owns the South ½ of the section. An administrative claim for the alleged damages to the SW ¼ was filed against the United States Air Force by plaintiffs on November 2, 1971, which was formally and fully denied on August 25, 1972. Plaintiffs also claim the NE ¼ of Section 29 was damaged by seepage and ask $3,975.00 aggregate damages for the years 1971, 1972, 1973, and 1974. Plaintiffs further ask damages in the amount of $2,100.00 which they allege occurred on the NE ¼ and the NW ¼ of Section 29 in 1971, resulting from a break in the lagoon dike. Plaintiffs further ask for $200.00 for damages to twenty rods of iron fence inundated when the dike broke, and for $600.00 for pollution to a man-made watering pond. Plaintiffs claim future damages of $15,000.00, and total damages in the amount of $37,875.00. Defendant has moved for a Rule 12(b) dismissal claiming that the Court lacks jurisdiction on several grounds. 794 1. It is claimed that the acts of negligence claimed under the Federal Tort Claims Act fall within the discretionary function exception of that Act, 28 U.S.C. § 2680(a). 2. The Court has previously dismissed an action involving the same parcels, brought under the Federal Tort Claims Act, Eccles v. United States, Civil No. 4796, and it is contended that action is res judicata as to the action at bar. 3. Since Plaintiffs have failed to file administrative claims for the alleged damages to either the NE ¼ or NW ¼ of Section 29, it is claimed that Plaintiffs are barred by 28 U.S.C. § 2675(a), which mandates the filing of such claims as a jurisdictional prerequisite. 4. The two year limitation period applicable to the filing of administrative claims, 28 U.S.C. § 2401(b), is raised as a bar to the alleged 1968 damages to the SW ¼, and to the alleged damages to the NE ¼ and the NW ¼ in 1971, and to the NE ¼ in 1972. 5. It is asserted that claims under Count A relating to the SW ¼ are further barred by 28 U.S.C. § 2401(b), because this action was not commenced within six months of the final denial of the Administrative claims. 6. As to Counts B, C and D, it is asserted that insofar as Plaintiffs' action requests damages in excess of $10,000.00, this Court is without jurisdiction, since 28 U.S.C. § 1491 vests the Court of Claims with exclusive jurisdiction for "Tucker Act Takings" in excess of $10,000.00. During oral arguments before the Court on March 14, Plaintiffs conceded Defendant's jurisdictional defenses relating to the Federal Tort Claims Act. This leaves only Plaintiffs' claims under Counts B, C and D. The latter counts deal with "takings" covered by the Tucker Act, 28 U. S.C. § 1491, which is the basic jurisdictional act for the Court of Claims: "The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either 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. . . ." Under the Tucker Act, the United States has consented to suits by parties alleging their property has been "taken" by the United States without the formality of purchase or condemnation. Pursuant to 28 U.S.C. § 1346(a), such claims or actions under $10,000.00 may be brought in the district courts. "(a) the district courts shall have original jurisdiction, concurrent with the Court of Claims, of: . . . . . . (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." Thus, actions or claims involving such takings, where the damages claimed are in excess of $10,000.00, are within the exclusive jurisdiction of the Court of Claims. Since Plaintiffs' claimed damages aggregate $27,875.00, it would appear that the Court is without jurisdiction. Plaintiffs suggested in oral argument that the district court may exercise its discretion and separate Plaintiffs' claims in order to vest itself with jurisdiction. How Plaintiffs proposed to separate the cause of action was not made clear, although Plaintiffs did request leave to amend their complaint to reduce their claim for future damages from $15,000.00 to $9,000.00. It would 795 appear that Plaintiffs are stating that their claim may be separated by tract and between present and future damages. The Court does not have discretion to separate what is essentially one civil action or claim, in order to vest itself with jurisdiction. The question is whether Plaintiffs have stated separate causes of action, each within the $10,000.00 jurisdictional maximum. The Court finds that Plaintiffs have but one action under several counts, which cannot be divided as to tracts or time to vest the Court with jurisdiction. Count B relates to the construction, expansion, operation and maintenance of the lagoon. If this resulted in a taking without compensation it constitutes a continuous and inseparable cause of action, even though Plaintiffs might be able to segregate their past damages by tract and year, and also segregate past damages from future damages. If the existence of the lagoon constitutes a nuisance as alleged under Count C, it is a continuing nuisance affecting all the tracts. Under Count D, there is but one implied contract alleged, and the Court has no discretion to divide Plaintiffs' claim thereon, according to separate breaches thereof, in order to vest itself with jurisdiction. It is significant that Plaintiffs request future damages without segregating the damages between the NE ¼ and NW ¼. It is also noted that the statute giving the federal courts concurrent jurisdiction over such claims as raised in Counts B, C, and D, refers to "[a]ny other civil action or claim against the United States, not exceeding $10,000 in amount . . .." 28 U.S.C. § 1346(a)(2) (emphasis added). The statute thus limits the jurisdiction of the district courts in terms of the damages claimed in the action as a whole. State of Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969), supports the conclusion that the action cannot be split between the tracts: "The District Court correctly decided that the State impermissibly split its claim for damages under the Tucker Act, 28 U.S.C. § 1346(a)(2), in an attempt to limit the amount in controversy to less than $10,000, the jurisdictional limit specified by the Act. The State cannot carve out for suit in the District Court 251.8 irrigable acres, comprising Farm Units 34 and 35, from its 1594 acres within the irrigation district. The State contends that a controversy involving separate parcels of real property creates inherently separate causes of action and that a present controversy exists only as to Farm Units 34 and 35 because the State has not paid the assessments necessary for delivery of water to its other lands. The State's complaint in the District Court, however, alleged that assessments against Farm Units 34 and 35 were paid `for the purpose of resolving all questions about its right to receive water from the Columbia Basin Project for [all 1,594 acres].' The same factual and legal issues pertain to the entire 1,594 acres in determining whether or not they are subject to the 160-acre limitation upon payment of assessments. See Baltimore SS. Co. v. Phillips, 274 U.S. 316, 321, 47 S. Ct. 600, 71 L. Ed. 1069 (1927); Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849 (1st Cir. 1947). If the District Court should, upon remand, determine that the amount in controversy concerning all of the school lands in question is less than $10,000, then, of course, jurisdiction is conferred by the Tucker Act." 417 F.2d at 1320, 1321. Likewise, in Thompson v. United States, 215 F.2d 744 (9th Cir. 1954), it was held that a cause of action could not be 796 split because different interests were invaded. In Thompson, suit was brought by a member of an Indian tribe who claimed that the construction of a dam by the United States would flood and wipe out the tribe's ancient fishing rights, guaranteed by treaty. The Ninth Circuit concluded the Tucker Act did not permit a splitting of a claim or cause of action, stating the Act's terms "must be strictly construed". The court noted that the right granted the Indians was essentially a right to conduct fishing operations. The fact that it was a practical necessity that they have a place to stand, to build huts, and to cure the fish did not give rise to two distinct rights and the attempt of plaintiff to create two rights "amounted to a splitting of single cause, thus . . . rendering the cause one beyond the court's jurisdiction under the Act." Further, to allow Plaintiffs to split their action according to past or future damage, or year-by-year, would encourage forum shopping and would negate 28 U.S.C. § 1491, insofar as claims encompassed thereby usually involve damages of a continuing nature which could be separated into yearly damages to escape Court of Claim's jurisdiction. The Defendant has suggested as an alternative to dismissal, the Court might transfer the case to the Court of Claims pursuant to 28 U.S.C. § 1406(c): "If a case within the exclusive jurisdiction of the Court of Claims is filed in a district court, the district court shall, if it be in the interest of justice, transfer such case to the Court of Claims, where the case shall proceed as if it had been filed in the Court of Claims on the date it was filed in the district court." The Court must determine whether the "interests of justice" dictate such a transfer. The courts have considered the interests of justice as encompassing three factors when an action is brought in the wrong court and transfer to the proper court is sought: (1) Would the applicable statute of limitations otherwise run if the action is not transferred and the time of filing in the proper court computed as of the date of the improper filing? Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 467, 82 S. Ct. 913, 8 L. Ed. 2d 39 (1962); United States v. Pine, 301 F. Supp. 880 (E.D.Wis. 1969). (2) Will the convenience of the parties and witnesses be served? Mosley v. Nationwide Purchasing, Inc., 485 F.2d 418 (Em.App.1973); Medicenters of America, Inc. v. T and V Realty & Equipment Corporation, 371 F. Supp. 1180 (E.D.Va.1974); Schlusselberg v. Werley, 274 F. Supp. 758 (S.D.N.Y.1967). (3) Would the efficient and expeditious administration of justice be furthered, as in those cases where similar actions are pending in the proper court or the parties and witnesses are located near the situs of the court? Texaco, Inc. v. Federal Power Commission, 337 F.2d 253 (10th Cir. 1964); Schlusselberg v. Werly, 274 F. Supp. 758 (S.D.N.Y. 1967). The Supreme Court has indicated that the purpose of the transfer provisions is "removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits". Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S. Ct. 913, 916, 8 L. Ed. 2d 39 (1962). Transfer provisions are not to be used lightly, however. For example, one who seeks a transfer has a "burden to show that the balance [of convenience] is beyond dead center, and strongly favors the transfer sought." Medicenters of America, Inc. v. T and V Realty & Equipment Corp., 371 F. Supp. 1180 (E.D.Va.1974). In short, there must be some showing that *797 a transfer would be in the interests of justice, as required by the statute. M. Dean Kaufman, Inc. v. Warnaco, Inc., 299 F. Supp. 722 (D.Conn.1969); Nizami v. Woods, 263 F. Supp. 124 (S.D.N.Y. 1967). In this case, neither party has moved, or even requested, the transfer of this case to the Court of Claims. Defendant's suggestion is apparently based upon a possibility that certain alleged damages of Plaintiffs will not be preserved if the case is dismissed, since Defendant states that a transfer of the action would enable it to proceed "as if it had been filed in the Court of Claims on the date it was filed in the District Court". It is noted that "[e]very claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues". It appears that only the damages for the SW ¼ of Section 29 for 1968 would be barred by the six year limitation period. But a dismissal of this action would not change the result, since this action was filed December 27, 1974. It is a reasonable inference that any cause for damages to productivity in 1968 accrued prior to December 27, 1968. At any rate, there is no showing that a dismissal will preclude Plaintiffs from an adjudication of their claims on the merits. Additionally, on the grounds that it would be highly inconvenient for them to pursue their action in the Court of Claims, the Plaintiffs objected to the transfer. The Court concludes that a dismissal will leave it to the Plaintiffs if they wish to pursue their claims in the Court of Claims. On the finding by this Court that it is without jurisdiction in the matter, It is ordered that Defendant's Rule 12(b) motion to dismiss Plaintiffs' complaint is granted, and the action is dismissed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2615142/	100 Wash. 2d 263 (1983) 668 P.2d 1278 JOHN H. MACIAS, ET AL, Appellants, v. THE DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. No. 48444-9. The Supreme Court of Washington, En Banc. September 8, 1983. As amended by Order October 5, 1983. 264 William L. Halpin and Fred A. Horning, for appellants. Kenneth O. Eikenberry, Attorney General, and John D. Fairley, Assistant, for respondent. Antonio Salazar and Steve Scott, amici curiae for appellants. [As amended by order of the Supreme Court October 5, 1983.] ROSELLINI, J. Appellants, John Macias, Trinidad Salinas and Frederico Mendoza, challenge the constitutionality of their exclusion from workers' compensation. We hold that the $150 exclusion for seasonal workers contained in RCW 51.12.020(6) is unconstitutional and reverse. Appellants are migrant workers who were injured during the course of their employment. John Macias, a 75-year-old man, sustained serious injury when he fell from a ladder while picking cherries. Trinidad Salinas was injured while climbing down from a truck bed during the hop harvest. Frederico Mendoza likewise was injured while working. Each of these plaintiffs was injured prior to earning $150 from the farmer for whom he was working. Respondent, Department of Labor and Industries (Department), denied appellants' claims relying on the provisions of RCW 51.12.020(6). That statute excludes Any employee, not regularly and continuously employed by the employer in agricultural labor, whose cash remuneration paid by or due from any one employer in that calendar year for agricultural labor is less than one hundred fifty dollars. Employees not regularly and continuously employed in agricultural labor by any one employer but who are employed in agricultural labor on a seasonal basis shall come under the coverage of this title only when their cash remuneration paid or due in that calendar year exceeds one hundred fifty dollars but only 265 as of the occurrence of that event and only as to their work for that employer. Appellants sought review before the Board of Industrial Insurance Appeals (Board), arguing that the statute unconstitutionally denied them equal protection of the law. The hearing examiner ruled that he did not have jurisdiction to determine the constitutional question and affirmed the Department's denial of benefits. Petitions for review filed with the Board were also denied. Appellants next filed suit in the Superior Court for Yakima County seeking a declaratory judgment that RCW 51.12.020(6) was unconstitutional. As appellants also filed an administrative appeal before the court, the actions were consolidated. Following oral argument on a stipulated record, the trial court ruled that the statute did not violate either the claimants' right to equal protection under the fourteenth amendment to the United States Constitution[1] or the Washington Constitution's privileges and immunities clause, article 1, section 12.[2] We granted direct review to resolve these issues of first impression. I The workers' compensation act, RCW Title 51, creates a system of insurance designed to compensate workers for injuries incurred during the course of their employment. Prior to 1971, no agricultural workers were covered by the act. See Wineberg v. Department of Labor & Indus., 57 Wash. 2d 779, 359 P.2d 1046 (1961). During the 1971 First Extraordinary Session, the Washington Legislature enacted 266 legislation which substantially amended the workers' compensation act. See Recent Developments, Workmen's Compensation Washington's Recent Amendments: Universal Mandatory Coverage, Liberalized Benefits, and a Controversial Two-Way Plan Ch. 289, Washington Laws of 1971; Ch. 43, Washington Laws of 1972, 47 Wash. L. Rev. 717 (1972). The original rationale for this exclusion was the widely held belief that farming was generally not a hazardous activity. Since workers' compensation in this state was originally limited to ultrahazardous occupations, coverage for agricultural work was viewed as unnecessary. See Wineberg. Over the years, traditional agricultural employment changed. One commentator, after observing that modern trends in farming negated the reasons for the exclusion, concluded: The trends toward larger farms, specialization of crops, and the mechanization of agriculture place the modern farmworker in much the same situation as the industrial worker. 47 Wash. L. Rev. at 722. Perhaps in response to these changes in agricultural work, the Legislature soon amended the statute to provide coverage. Thus, in 1971, amendments to the workers' compensation act extended coverage to virtually all workers. It contained, however, several exclusions, including the following: Any employee whose cash remuneration paid or payable by the employer in any calendar year for agricultural labor is less than one hundred fifty dollars: PROVIDED, That the exemption contained in this subsection shall expire and have no force or effect on December 31, 1972. (Italics ours.) Laws of 1971, 1st Ex. Sess., ch. 289, § 3(6), p. 1544. Governor Evans vetoed this last sentence, thus making the exclusion permanent. In 1972 the Legislature again amended the statute. At this time the concept of ultrahazardous activity was dropped and the $150 exclusion for agricultural workers 267 took its present form. Appellants' argument begins with the premise, which the Department accepts, that having elected to provide coverage for agricultural workers, the Legislature must do so without discriminating on the basis of race and without infringing upon the workers' constitutional right to travel. Appellants contend that the statute must be subjected either to strict scrutiny, or at least to intermediate, substantial relationship scrutiny. Strict scrutiny is required, they urge, because the statute has a disparate impact on Mexican Americans and Mexican Nationals, and adversely affects such workers' right to travel. Appellants assert that the statute does not withstand either of these two heightened levels of scrutiny. The Department, on the other hand, contends that the statute need only be subjected to, and is valid under, the rational relationship test. Although there may be a disparate impact on a minority ethnic group, since there is no evidence of purposeful discrimination, strict scrutiny is not warranted. Furthermore, any adverse effect on the workers' right to travel is minimal and merely incidental to the primary purpose of the statute. We hold that the statute is an unconstitutional infringement on appellants' right to travel, and reverse. II At the outset of any equal protection analysis, it is necessary to identify the standard of review against which the challenged legislation is to be measured. State v. Smith, 93 Wash. 2d 329, 335, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980). In the past, this task was a relatively simple one, because the courts recognized only two classifications. In Smith, we described those tests as follows: Two tests are used to judicially measure classifications alleged to violate equal protection: the strict scrutiny test and the rational relation test. The former is applied whenever a legislative classification involves a fundamental right or creates a suspect classification. The latter, the rational relation test, despite contrary dicta appearing from time to time in our cases, is used 268 whenever legislation does not infringe upon fundamental rights or create a suspect classification. (Footnote and citations omitted.) Smith, at 335-36. Increasingly, however, commentators have suggested and even insisted that the traditional 2-tier analysis is inadequate to describe the opinions of the United States Supreme Court. See, e.g., Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection, 86 Harv. L. Rev. 1 (1977); Note, Equal Protection: A Closer Look at Closer Scrutiny, 76 Mich. L. Rev. 771 (1978); Blattner, The Supreme Court's "Intermediate" Equal Protection Decisions: Five Imperfect Models of Constitutional Equality, 8 Hastings Const. L.Q. 777 (1981); L. Tribe, American Constitutional Law (1978). Many of these commentators urge that the Court applies greater than rational scrutiny to certain areas of equal protection analysis. Two areas generally receive such heightened scrutiny: those involving quasi-suspect classifications (e.g., gender, Reed v. Reed, 404 U.S. 71, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971)) and those involving important, but not fundamental, interests (e.g., possession of driver license, Bell v. Burson, 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 (1971)). See also L. Tribe, at 1089-92. The constant flux in the development of this legal doctrine has made our court reluctant to follow the United States Supreme Court's lead in using heightened or mid-tier scrutiny. Thus, in Smith, we noted that "[w]e have never adopted and used a higher standard in the absence of a suspect class or fundamental right." Smith, at 336 n. 2. Subsequent to our decision in Smith, the United States Supreme Court decided Plyler v. Doe, 457 U.S. 202, 72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). The Plyler opinion contains language that must resolve all doubt about the existence of a heightened scrutiny test. In striking down a Texas statute which authorized local school districts to deny enrollment to children of illegal aliens, the Court observed: 269 In applying the Equal Protection Clause to most forms of state action, we ... seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose. But ... we have treated as presumptively invidious those classifications that disadvantage a "suspect class," or that impinge upon the exercise of a "fundamental right." With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a substantial interest of the State. (Footnotes omitted. Italics ours.) Plyler, at 216-18. Cf. Martinez v. Bynum, ___ U.S. ___, 75 L. Ed. 2d 879, 103 S. Ct. 1838 (1983). Although Plyler clarifies the existence of a mid-tier equal protection test, it does not suggest the proper parameters of the doctrine. Thus, it provides no guidance as to how, or when, to apply heightened scrutiny. Because we find the present statute subject to strict scrutiny, we find it unnecessary to address the implications of Plyler on our equal protection analysis. III Turning then to the strict scrutiny test, we note first that the appellants base their argument that the statute should be subject to strict scrutiny on two theories. The first argument consists largely of the allegation that the statute impermissibly discriminates on the basis of race. To support this argument, the appellants introduced evidence of the disparate impact that the statute has on Hispanics. Appellants then rely on Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). They quote the following passage: 270 Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Arlington Heights, at 266. Brief of Appellants, at 24. [1] Respondent, relying on Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976), urges that statistics alone will not trigger strict scrutiny, unless there is some evidence of purposeful discrimination or intent. We agree with respondent. The evidence of disparate impact presented by appellants is not sufficient to trigger strict scrutiny. Washington v. Davis, supra, clearly states that disparate impact, standing alone, does not trigger strict scrutiny. Washington, at 242. Furthermore, appellants' reliance on Arlington Heights is misplaced. Immediately following the passage quoted by appellants, the Court observed: But such cases are rare. Absent a pattern as stark as that in Gomillion [v. Lightfoot, 364 U.S. 339 (1960)] or Yick Wo [v. Hopkins, 118 U.S. 356 (1886)], impact alone is not determinative, and the Court must look to other evidence. (Footnotes omitted.) Arlington Heights, at 266. In Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886), the facially neutral classification provided that it was unlawful to operate a laundry without a permit in a wooden building. Yick Wo and 200 other Chinese laundrymen applied for and were denied a permit. All but one of the 80 non-Chinese who applied for such permits received them. Gomillion v. Lightfoot, 364 U.S. 339, 5 L. Ed. 2d 110, 81 S. Ct. 125 (1960) involved the redistricting of the city limits of Tuskegee, Alabama. Prior to the redistricting, the city was square in shape. The redistricting transformed the city into a "strangely irregular twenty-eight-sided figure". Gomillion, at 341. The effect of this redefinition of boundaries was to remove all but four or five of the city's 400 black voters from the city's limits while not removing a 271 single white one. The state action (statute) here simply does not have the same dramatic impact. At best, the appellants allege that 73 percent of the individuals affected are Hispanics. The challenged actions in Yick Wo and Gomillion approached 100 percent. Appellants' reliance on Castaneda v. Partida, 430 U.S. 482, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977) is also misplaced. In Castaneda, the Court allowed statistics to prove a prima facie case of discrimination in the selection of grand jurors when they were combined with a selection procedure susceptible to abuse. No subjective procedure, susceptible to abuse, exists here. Since the appellants present no evidence establishing purposeful discrimination, their first argument for strict scrutiny is rejected. Appellants' evidence does establish, however, a substantial disparate impact upon a racial minority. Although as noted above, the Supreme Court has rejected strict scrutiny for disparate impact cases, its decision in Plyler v. Doe, supra, suggests an intermediate standard may be appropriate. Because we believe strict scrutiny is independently warranted by the effect this statute has upon appellants' fundamental right to travel, we do not resolve the issue of whether the statute would survive an intermediate scrutiny analysis. Appellants' argument that the statute infringes upon their fundamental right to travel starts with the observation that the typical farm worker must move from farm to farm and state to state in order to obtain continual employment. Since the $150 exclusion penalizes them for exercising their "fundamental right to travel", they conclude it is invalid. Appellants cite Eggert v. Seattle, 81 Wash. 2d 840, 505 P.2d 801 (1973), Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969) and Memorial Hosp. v. Maricopa Cy., 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (1974) to support their allegation that the right to travel is a fundamental right subject to strict scrutiny. 272 Respondent, on the other hand, argues that the statute should be evaluated under the rational relationship test. To support this proposition, respondent cites Romero v. Hodgson, 319 F. Supp. 1201 (N.D. Cal. 1970), aff'd mem., 403 U.S. 901, 29 L. Ed. 2d 678, 91 S. Ct. 2215 (1971) and Doe v. Hodgson, 344 F. Supp. 964 (S.D.N.Y. 1972), aff'd with opinion, 478 F.2d 537 (2d Cir.), cert. denied, 414 U.S. 1096, 38 L. Ed. 2d 555, 94 S. Ct. 732 (1973). Respondent's reliance on these cases is misplaced. In Romero, a 3-judge panel upheld state and federal statutes which excluded agricultural labor from the definition of "employment" for the purposes of unemployment compensation. The court applied only a rational relationship test because the plaintiffs had failed to establish a suspect classification or assert a fundamental right. In Doe, a similar challenge was denied because the court found Romero controlled. Although the plaintiffs in Doe generally alleged an interest in the right to travel, they did not establish the existence of a penalty on that right. For the reasons discussed below, we believe the present statute constitutes a penalty on appellants' fundamental right to travel. [2-4] The Court has described the right to travel as a right which "occupies a position fundamental to the concept of our Federal Union." Shapiro, at 630 (quoting United States v. Guest, 383 U.S. 745, 757, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966)). The confines of that right have not been clearly defined, however. Shapiro involved a 1-year waiting requirement for welfare benefits. The Court held that such waiting periods were invalid because they operated to deter the migration of indigents. The Court indicated that the constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land, uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement. Shapiro, at 629. Yet, this right is not absolute. The Court acknowledged the validity of certain restrictions in the following passage: 273 We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel. Shapiro, at 638 n. 21. The Shapiro analysis, however, suggests that the right to travel is very broad and the only restrictions on the concept involve a determination of whether the questioned provision involves a "penalty". Unfortunately, the only definition of penalty available in Shapiro is the broad statement that it is a denial of the basic necessities of life. Shapiro v. Thompson, supra. The subsequent case of Memorial Hosp. v. Maricopa Cy., supra, seems to narrow the concept slightly. There, the Court implied that whatever the nature of the right, a certain "amount of impact" on the right to travel is required before the strict scrutiny/compelling state interest test will be triggered. Again, the Court declined to describe the requisite amount of impact. The Court noted only that Shapiro and Dunn [v. Blumstein, 405 U.S. 330 (1972)] stand for the proposition that a classification which "operates to penalize those persons ... who have exercised their constitutional right of interstate migration," must be justified by a compelling state interest. Oregon v. Mitchell, 400 U.S. 112, 238 (1970) (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.) ... Although any durational residence requirement imposes a potential cost on migration, the Court in Shapiro cautioned that some "waiting-period[s] ... may not be penalties." 394 U.S., at 638 n. 21. In Dunn v. Blumstein, supra, the Court found that the denial of the franchise, "a fundamental political right," Reynolds v. Sims, 377 U.S. 533, 562 (1964), was a penalty requiring application of the compelling-state-interest test. In Shapiro, the Court found denial of the basic "necessities of life" to be a penalty. Nonetheless, the Court has declined to strike down state statutes requiring one year of residence as a condition to lower tuition at state institutions of higher 274 education. Whatever the ultimate parameters of the Shapiro penalty analysis, it is at least clear that medical care is as much "a basic necessity of life" to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. (Footnotes omitted.) Memorial Hosp., at 258-59. We believe the workers' compensation program in question is as basic a necessity to life as the health care at issue in Memorial Hosp. or the welfare payments denied in Shapiro. Here, the workers are engaged in an extremely dangerous occupation. The evidence before the trial court demonstrated that the mean family income for these workers prior to 1978 was $3,834 for seasonal workers and $3,573 for migrants. Ninety percent of this income was from farm work and almost three-fourths of the workers surveyed received no other source of income. Brief of Appellants, app. 2. Consequently, to these workers, the income from farm work is their only resource for funds to purchase food, shelter and medical care. Under these circumstances, we conclude that the statute in question constitutes a penalty on appellants' fundamental right to travel by denying them basic necessities of life. Respondent argues that the exclusion is justified because of the administrative burden and costs which would be imposed upon employers if coverage were provided. Given the most recent data from the Department, it is doubtful whether the cited rationale would survive even a rational relationship test. For instance, in response to legislative inquiries concerning the impact of removing the exclusion from all agricultural workers except berry pickers, the Department replied: Little additional paper work is seen falling on the employer by reason of filling out such reports for employments currently exempt. Of course, the employer would have to keep track of the time worked by each such employee, which he is presumed to do anywise 275 since the exempt status of the worker becomes evident only on termination of employment. (Italics ours.) Fiscal Note, House Bill 257, 48th Legislature (1983), Brief of Amici Curiae, app. 1. Even if we were to assume that the exclusion would result in some nominal administrative costs, such costs would not rise to the level of a compelling state interest, as is required to justify the present infringement upon appellants' fundamental rights. Furthermore, our state constitution privileges and immunities clause, Const. art. 1, § 12, independently supports our conclusion that this provision denies appellants equal protection of the law. We conclude the $150 exclusion is an impermissible infringement on appellants' fundamental right to travel, which denies them equal protection of the law. We therefore reverse. WILLIAMS, C.J., and STAFFORD, UTTER, DORE, and PEARSON, JJ., concur. DIMMICK, J., concurs in the result. NOTES [1] U.S. Const. amend. 14, § 1, provides in pertinent part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [2] Const. art. 1, § 12: "Special privileges and immunities prohibited. No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations."	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2983202/	Order filed, October 02, 2014. In The Fourteenth Court of Appeals ____________ NO. 14-14-00532-CR ____________ ADRIAN HEATH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 359th District Court Montgomery County, Texas Trial Court Cause No. 12-03-02580 CR ORDER The reporter’s record in this case was due September 19, 2014. See Tex. R. App. P. 35.1. The court has not received a request to extend time for filing the record. The record has not been filed with the court. Because the reporter’s record has not been filed timely, we issue the following order. We order Darlene Forville, the official court reporter, to file the record in this appeal within 30 days of the date of this order. PER CURIAM	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1873379/	752 N.W.2d 452 (2008) STATE v. PITZ. No. 06-0795. Court of Appeals of Iowa. May 14, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2607860/	686 P.2d 925 (1984) Elizabeth STACKIEWICZ, Appellant and Cross-Respondent, v. NISSAN MOTOR CORPORATION IN U.S.A., a California corporation, Respondent and Cross-Appellant and Carson City Investors, a Nevada corporation, d/b/a Carson City Datsun AMC Jeep, Respondent. No. 14084. Supreme Court of Nevada. August 7, 1984. Rehearing Denied October 4, 1984. 926 Smith & Gamble, Ltd., and David R. Gamble, Carson City, Leonard Sacks, Northridge, Cal., for appellant and cross-respondent. Lionel, Sawyer & Collins, and Steve Morris and David Frederick, Las Vegas, Eugene J. Wait, Reno, for respondent and cross-appellant Nissan Motor Corp. in U.S.A. Cromer, Barker, Michaelson, Gillock & Rawlings, Reno, for respondent Carson City Investors. Kent R. Robison, Reno, for Nevada Trial Lawyers' Ass'n amicus curiae. Robert E. Cartwright, San Francisco, Cal., for Ass'n of Trial Lawyers of America amicus curiae. OPINION MOWBRAY, Justice. Appellant Elizabeth Stackiewicz brought this action to recover damages for injuries she sustained while driving a Datsun B210 automobile, distributed and sold by respondents Nissan Motor Corporation in U.S.A. and Carson City Investors. At the conclusion of Elizabeth's case in chief, the District Judge granted the motion of the dealer, Carson City Investors, to dismiss all causes of action against the dealer. The court further granted respondent Nissan's motion to dismiss Elizabeth's causes of action against Nissan predicated on negligence and misrepresentation, and reserved ruling on the strict liability cause of action until the end of the trial. Nissan then presented its defense. At the conclusion of the case the jury found in favor of Elizabeth and awarded her $3,775,000 in damages. Nissan filed motions for judgment notwithstanding the verdict and for a new trial. The trial court granted Nissan's motion for a judgment n.o.v., and further ruled that in the event the judgment notwithstanding the verdict was reversed on appeal, a new trial would be ordered unless Elizabeth accepted a remittitur reducing the verdict by $1,559,013. The plaintiff appealed the order of judgment n.o.v., the dismissal of the dealer, and the order of remittitur. The defendants, on cross-appeal, argue that they were entitled to an unconditional order for a new trial on the basis of juror misconduct. THE FACTS The Datsun was purchased new from the dealer, Carson City Investors and was operated normally in Carson City and the surrounding area. Nothing unusual was observed in the operation of the vehicle from the date of purchase to the date of the accident about two months later. At the time of the accident the vehicle had been driven approximately 2,400 miles. The vehicle was given a 1,000 mile service check by the respondent dealer prior to the accident and no significant-complaints were made to the dealer concerning its mechanical operation. The only unusual matter that Elizabeth noted concerning the Datsun was a clicking in the steering column. On the day of the accident, Elizabeth, her mother, Veronica Wright, and Kimberly Seames, a friend, departed Carson City in the Datsun for Reno. Elizabeth was driving. Mrs. Wright was in the passenger seat, and Kimberly Seames was seated in the middle of the rear seat. They were proceeding north on Highway 395, a limited access divided highway. The weather was clear and dry. There was no significant wind. Highway 395 northbound had two 12 foot lanes, a 3 foot shoulder on the west and a 10 foot shoulder on the east in the area of the accident. There was a 60 foot median west of the highway which divided the northbound and southbound lanes. Elizabeth was in the right-hand lane, behind another vehicle, when she proceeded to pass that car on the left. She was traveling at 50-55 miles per hour. After Elizabeth passed the car, her own vehicle kept turning to the left. She attempted to turn the car back to the right. The steering wheel locked and would not turn. The 927 testimony was that all four wheels of the car were still on the pavement at that time. Elizabeth's mother told her to turn the car back on the road. Elizabeth told her mother she could not turn the car and Mrs. Wright reached over to help her. The steering wheel would not turn. The car then hit a highway marker and rolled over and down the median, ending in an upright position. Immediately after the accident the occupants of the car told persons at the scene that something had gone wrong with the steering. The investigating police officer, Nevada Highway Patrolman Conely, testified that when he first talked with Mrs. Wright, Kimberly Seames and Elizabeth at the hospital on the day of the accident, they all stated that the steering wheel would not respond and that this malfunction occurred before the vehicle left the highway. Elizabeth's counsel retained various experts who were unable to find a defect in the steering mechanism. Professor Lindley Manning, an expert called by Elizabeth, testified that defects are difficult to locate but that the existence of a defect should not be eliminated because it had not been found. Professor Manning testified that the brakes on the vehicle were applied at a point which would place the vehicle entirely on the road at the time of their application. It was his opinion that the locking of the steering wheel caused the vehicle to go off the road. THE JUDGMENT NOTWITHSTANDING THE VERDICT This Court held in Dudley v. Prima, 84 Nev. 549, 445 P.2d 31 (1968), "the power to grant such motions [for j.n.o.v.] should be cautiously exercised." Id. at 551, 445 P.2d at 32. "In determining whether to render a judgment non obstante veredicto, the court is not justified in trespassing on the province of the jury to be the judge of all questions of fact in the case, and the party favored by the verdict is entitled to have the testimony read in the light most advantageous to him, and to be given the benefit of every inference of fact fairly deducible therefrom. Accordingly, an application for such judgment will be refused where there is evidence tending to support the verdict, or where there is a conflict of evidence, so that the jury could properly decide, either way... ." Id. at 551, 445 P.2d at 32, quoting Ries v. Sanders, 34 F.R.D. 468, 470 (N.D.Miss. 1964). See also Jacobson v. Manfredi, 100 Nev. 226, 679 P.2d 251 (1984); Cleveland v. Bally Distributing Co., 96 Nev. 552, 612 P.2d 684 (1980). Applying this standard in the case at bar we find that the trial court erred in granting the judgment n.o.v. Nissan's principal argument, which the trial court accepted in granting the j.n.o.v., was that the plaintiff failed to introduce sufficient evidence to show that the accident was caused by a defect existing when the product was marketed, which defect would support a finding that the product was subject to strict tort liability. Nissan contends that the plaintiff was required to produce direct evidence of a specific product defect, and was further required to negate any alternative causes of the accident. We do not agree that such a restriction may be placed, as a matter of law, upon the form of proof that is required to establish a defective product. In 1966 this Court adopted the doctrine of strict tort liability against the manufacturer and distributor of a bottled beverage. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). We set forth the rationale for this rule as follows: [P]ublic policy demands that one who places upon the market a bottled beverage in a condition dangerous for use must be held strictly liable to the ultimate user for injuries resulting from such use, although the seller has exercised all reasonable care, and the user has not entered into a contractual relation with him. Perhaps the supporting policy reasons are best expressed by William L. Prosser in his article, "The Fall of the Citadel," 50 Minn.L.Rev. 791, 799 928 (1966): "The public interest in human safety requires the maximum possible protection for the user of the product and those best able to afford it are the suppliers of the chattel. By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising and otherwise, they do everything they can to induce that belief... ." Id. at 441-442, 420 P.2d at 857. We further quoted with approval Justice Traynor's observation that "Even if there is no negligence ... public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market." Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436, 440 (1944) (concurring). Rather than proof of negligence, or privity, we held that the plaintiff's case in strict liability would simply consist of proof "that his injury was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant." 82 Nev. at 443, 420 P.2d at 858. In Ginnis v. Mapes Hotel Corporation, 86 Nev. 408, 470 P.2d 135 (1970), we extended our ruling in Shoshone to the designers and manufacturers of all types of products. We further determined that a plaintiff established a sufficient case for the jury that a product was defective by showing that "it failed to perform in the manner reasonably to be expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community." Id. at 413, 470 P.2d at 138. Such a condition is, in the words of the Restatement (Second) of Torts, Section 402A(1) (1965), "unreasonably dangerous." See also Ward v. Ford Motor Co., 99 Nev. 47, 657 P.2d 95 (1983). Thus we have held that proof of an unexpected, dangerous malfunction may suffice to establish a prima facie case for the plaintiff of the existence of a product defect. The origins of this approach in the implied warranty branch of the antecedents of strict liability is illustrated in the following language found in Lindsay v. McDonnell Douglas Aircraft Corporation, 460 F.2d 631, 639 (8th Cir.1972), which adopted the doctrine of strict liability in tort in federal maritime law: "Proof of the specific defect in construction or design causing a mechanical malfunction is not an essential element in establishing breach of warranty. `When machinery "malfunctions," it obviously lacks fitness regardless of the cause of the malfunction. Under the theory of warranty, the "sin" is the lack of fitness as evidenced by the malfunction itself rather than some specific dereliction by the manufacturer in constructing or designing the machinery.' Greco v. Bucciconi Engineering Co., [283 F. Supp. 978, 982 (W.D.Pa. 1967), aff'd, 407 F.2d 87 (3d Cir.1969)]." Quoting MacDougall v. Ford Motor Company, 214 Pa.Super. 384, 257 A.2d 676, 679 (1969). It has been held that "`a specific defect in the product is not an essential element in establishing a cause of action,'" since "`in the field of products liability the focus is on the product and not necessarily on its component parts.'" Kileen v. General Motors Corp., 36 Conn. Super. Ct. 347, 421 A.2d 874, 875 (1980). When there is evidence of some dangerous condition, the "factfinder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect." Id. 421 A.2d at 876. In Tweedy v. Wright Ford Sales, Inc., 64 Ill. 2d 570, 2 Ill. Dec. 282, 357 N.E.2d 449 (1976), which the district judge cited but declined to follow in the instant case, the defendant manufacturer alleged that the plaintiff had not made a sufficient case for the jury, when the plaintiff had offered evidence of a brake malfunction at the time of the accident. The automobile in question was approximately six months old and had been driven approximately 7,500 miles without any brake problems. Plaintiff's daughter testified that she had experienced 929 a temporary brake failure. Plaintiff testified that the brakes went out completely several hours later on the same day while the car was being driven carefully at a reasonable rate of speed, on dry roads and in good weather. Plaintiff did not offer any expert testimony concerning the presence of a specific defect, while defendant's expert testified that there was no defect. The Illinois Supreme Court affirmed judgment for plaintiff, holding that both a defect and its existence when it left the manufacturer were established by proof that the product failed to perform in the manner reasonably to be expected in light of its nature and intended function, in the absence of abnormal use or reasonable secondary causes. The failure of the brakes to function in the manner reasonably to be expected, in itself and without more, established the defect. In the leading and oft-cited case of Greco v. Bucciconi Engineering Co., supra, 407 F.2d 87 (3d Cir.1969), affirming 283 F. Supp. 978 (W.D.Pa. 1967), the plaintiff was injured when a magnetic steel piler malfunctioned while being used as it was intended to be used. The defendants, the manufacturer and seller of the piler, contended that plaintiff failed to sustain his burden of showing the existence of a defect at the time of sale. The only evidence of a defect was that the machine malfunctioned, and was a relatively new machine, having been in operation about six months prior to the accident. The Court of Appeals, applying Pennsylvania law, held that a defective condition is established, "within the meaning of [Restatement (Second) of Torts] Section 402A by proving that the product functioned improperly in the absence of abnormal use and reasonable secondary causes," 407 F.2d at 89-90. Although defendants contended that an electrical problem in the control panel, which defendants neither manufactured nor supplied, caused the malfunction, the Court of Appeals held that the jury could nevertheless properly have inferred that the malfunction was caused by a defect in defendants' product. Id. at 91 n. 7. Other courts have had occasion to apply these principles to the malfunctioning of the steering or control mechanism of a car. In Vanek v. Kirby, 253 Or. 494, 450 P.2d 778, rehearing denied, 253 Or. 494, 454 P.2d 647 (1969), plaintiff was unable to allege a specific defect in his pleading, but alleged that while riding as a passenger in a new Ford automobile he became injured when the vehicle became "uncontrollable in normal operation" and left the highway. Id. 450 P.2d at 780. The court held that proof of these allegations would support a recovery and therefore the complaint stated a cause of action. Dennis v. Ford Motor Co., 332 F. Supp. 901 (W.D.Pa. 1971), aff'd, 471 F.2d 733 (3d Cir.1973), also involved evidence similar to that at bar in that plaintiff's employee was driving a new (2-day old) tractor-trailer combination which left the highway, causing loss of the property. The driver testified that he felt the right front wheel give way and he then lost steering control. Construing the law under Restatement (Second) of Torts, Section 402A, the District Court said that the evidence was sufficient to establish that the accident was caused by a malfunction of the steering mechanism. 332 F. Supp. at 903. The court held that "evidence of a malfunction of a vehicle is sufficient to establish liability without proof of the specific defect causing the malfunction." Id. On the facts presented in this case, we conclude that evidence of a steering malfunction which resulted in the driver losing control of the vehicle might properly be accepted by the trier of fact as sufficient circumstantial proof of a defect, or an unreasonably dangerous condition, without direct proof of the mechanical cause of the malfunction.[1] 930 In this case, Elizabeth testified that the four tires were on the pavement when the steering wheel froze. She further testified that the four tires were on the pavement when her mother tried to turn the steering wheel back to the right. Finally, Elizabeth testified that the steering wheel would not turn to the right. Veronica Wright testified that when she noticed the car was veering gradually to the left, the four tires were on the pavement. She heard no gravel striking the underside of the car. When asked to describe how the steering wheel felt, Mrs. Wright said: Like it does in my car when the steering is locked. There was just no give at all. If I could grab the steering wheel and go like that (indicating), I was trying to get the car to come back to the right. There was no response whatsoever. The passenger, Kimberly Seames, also testified regarding the sequence of events. She recalled first hearing Elizabeth's voice, in frightened tones, saying something to the effect of "Mom, the steering won't work." She also testified that the four tires were on the pavement when Elizabeth and her mother were trying to steer the car back to the right. When asked if she had formed any opinion as to the cause of the car's movement to the left, she replied: Not in any definite opinion. I felt like the steering locked, and they weren't able to move it to the right and so the car kept going off the road. Professor Manning testified that it was his opinion that the brakes were applied when the vehicle was on the road and that the locking of the steering wheel caused the Datsun to go off the pavement. We agree with the Supreme Court of Oregon that when the plaintiff has presented circumstantial evidence that a defect caused the accident in question, the credibility of such evidence is an issue to be left to the jury. "If the jury believes plaintiffs' evidence, the defendants, as is true in any case when the jury initially believes the plaintiffs' evidence, must come forward and convince the jury that the plaintiffs' evidence is incorrect, or the inferences to be drawn from plaintiffs' evidence do not lead to the conclusion that a defect in the vehicle was the cause of the damage." Brownell v. White Motor Corporation, supra, 490 P.2d at 186. Defendants are not entitled to short-circuit the normal adversary process by convincing the court, rather than the jury, of the virtue of their position. In commenting upon the trial court's proper role in considering a 41(b) motion, this Court has held: There may well be merit to defendant's theory of the case, but the function of the trial judge is not to determine the respective merits... . It is not for him to weigh or compare or balance the inferences in favor of the one party and against the other. Conflicting inferences from known facts are for jury determination. Roche v. Schartz, 82 Nev. 409, 412-13, 419 P.2d 779, 781 (1966). Applying these principles to the evidence presented in the case at bar, we conclude that the jury's verdict was permissible, and that the district judge erred when he overturned the jury's verdict. THE NEW TRIAL/JUROR MISCONDUCT Nissan argues in its cross-appeal that the district court abused its discretion in failing to issue an unconditional order for a new trial, on the basis of alleged juror misconduct, including an allegation that a juror made independent inquiry regarding 931 a possible cause of the accident. As to particular instances of overt conduct by certain jurors, the district court found that even if those acts constituted misconduct, no prejudice resulted to Nissan. The question of prejudice is "ultimately a question of fact. `It is for the trial court to determine in the first instance ... and its judgment thereon will not be overturned unless abuse of discretion is manifest.'" Barker v. State, 95 Nev. 309, 313, 594 P.2d 719, 721-722 (1979). The record supports the trial court's determination, and we accordingly do not find an abuse of discretion. Nissan also submitted affidavits by several jurors stating that during their deliberations the effect of income taxes upon the award was mentioned. Mere mention of such factors is not misconduct. See Cornejo v. Probst, 6 Kan. App. 2d 529, 630 P.2d 1202 (1981); cf. Holden v. Porter, 405 F.2d 878 (10th Cir.1969) (mention of insurance coverage not misconduct). The district judge did not err in denying the motion for a new trial predicated upon alleged juror misconduct. DAMAGES In his order of remittitur the district judge found Elizabeth's medical and special damages to be $656,973. This amount was not remitted. The balance of the verdict, $3,118,027, represented the jury's award to Elizabeth for past and future physical and mental pain and suffering. The district judge reduced this part of the verdict by half, $1,559,013, reaching a new verdict of $2,215,986. After the accident, Elizabeth was treated by Cameron Lindberg, an orthopedic surgeon. Dr. Lindberg testified that when Elizabeth was brought to the hospital by ambulance on the day of the accident, she had no movement in her lower extremities and was suffering from severe back and shoulder pain. X-rays revealed that Elizabeth's ninth thoracic vertebra was crushed, that her tenth thoracic vertebra was also fractured and that her spinal cord was severed. In addition, Elizabeth suffered a fractured clavicle. Dr. Lindberg testified that as a result of her injuries, Elizabeth was rendered a "paraplegic at the level of T9," meaning she had no muscle or sensory function of any significant degree below the waist. She cannot function without a wheelchair. Dr. Lindberg further testified that, because of her disability, Elizabeth is likely to be employed only under very special circumstances, and that it is not a realistic expectation that she will enter the usual work force. Before her injury, plaintiff intended to become a psychologist. Dr. Walter J. Treanor, who specializes in rehabilitation, also treated Elizabeth. Dr. Treanor testified that, as a result of her injuries, Elizabeth is a paraplegic, that she has lost the use of her legs. He also testified that Elizabeth would be able to perform sedentary employment, but will have problems with access. Dr. Treanor also testified that Elizabeth will incur future medical expenses. These future medical expenses were considered by Dennis Goslin, a professor of mathematics, in determining the extent of plaintiff's economic loss. According to Mr. Goslin, Elizabeth's life expectancy as of the time of the trial was 57.2 years. Using this life expectancy, Goslin testified that the present value of Elizabeth's future medical expenses is $136,410. When this amount is added to the loss attributable to Elizabeth's restricted employment opportunities, the present value of Elizabeth's total economic losses ranges from approximately $325,000 to $640,000. In addition, Elizabeth had incurred medical expenses of $79,623 from the date of the accident to the date of trial. There was no dispute concerning the extent of Elizabeth's injuries and the amount of her economic losses. The standard of review of an order granting a motion for a new trial unless the plaintiff accepts a remittitur of the verdict is set forth in Harris v. Zee, 87 Nev. 309, 311-312, 486 P.2d 490, 491-492 (1971): When the trial judge orders a remittitur damnum and we are asked to review his 932 action, the test is whether he abused his discretionary power. [Citation omitted.] This is an elusive standard. We must accord deference to the point of view of the trial judge since he had the opportunity to weigh evidence and evaluate the credibility of witnesses an opportunity foreclosed to this court. To this extent the appeal is weighted in favor of the order entered, and when there is a material conflict of evidence as to the extent of damage, a challenge to the trial court's exercise of discretion is substantially repelled. However, this is not so when the evidence regarding damage is not in conflict. The order to remit immediately becomes suspect unless the amount awarded by the jury standing alone, is so excessive as to suggest the intrusion of passion and prejudice upon its deliberations. (Emphasis added.) We have long held that "[i]n actions for damages in which the law provides no legal rule of measurement it is the special province of the jury to determine the amount that ought to be allowed," so that a court "is not justified in reversing the case or granting a new trial on the ground that the verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice or corruption in the jury." Forrester v. Southern Pacific Co., 36 Nev. 247, 295-296, 134 P. 753, 768 (1913), quoted in Southern Pacific Co. v. Watkins, 83 Nev. 471, 495, 435 P.2d 498, 513-514 (1967). Similarly in Brownfield v. Woolworth Co., 69 Nev. 294, 296, 248 P.2d 1078, 1079-1081, reh. den., 69 Nev. 297, 251 P.2d 589 (1952), we noted that "[t]he elements of pain and suffering are wholly subjective. It can hardly be denied that, because of their very nature, a determination of their monetary compensation falls peculiarly within the province of the jury... . We may not invade the province of the fact-finder by arbitrarily substituting a monetary judgment in a specific sum felt to be more suitable." In reversing a district court's order granting a new trial on the issue of damages, we recently noted that the mere fact that a verdict is large is not in itself "`conclusive that it is the result of passion or prejudice.'" Beccard v. Nevada National Bank, 99 Nev. 63, 66 n. 3, 657 P.2d 1154, 1156 n. 3 (1983), quoting Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824, 828 (1962). Similarly, in Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 646 P.2d 553 (1982), although we found the award "unusually high," we did not find it so "flagrantly improper" as to suggest jury passion, prejudice or corruption. In General Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366, 371 (1972), this Court refused to set aside an award of $3,000,000 when the evidence of special damages went uncontroverted at trial. We refused to "substitute our opinion of damages for that of the jury," when the award, in view of the extent of personal injuries to the victim, did not "shock our judicial conscience." Here, the evidence established that at the time of trial, the 22 year old plaintiff was a permanent paraplegic, with a life expectancy of 57.2 years. Her legs are paralyzed; she cannot move without a wheelchair, she has no feelings below her waist; she has lost normal control over her bowel and sexual functions. In view of this permanent disabling injury suffered by plaintiff, the extent of which is not in conflict, an award of approximately $3,100,000 for pain and suffering is not so excessive as to suggest the intrusion of passion and prejudice upon the jury's deliberations. See General Electric Co. v. Bush, supra; Wry v. Dial, 18 Ariz. App. 503, 503 P.2d 979 (1972). The jury's award of damages was proper. The district court's order of remittitur was error. THE DEALER With regard to the appellant's claim of error in the district court's dismissal of the dealer, respondent Carson City Investors, we note that appellant has chosen to deal summarily with the issue, citing only secondary authority. Respondents have similarly failed to address the issue. In view of the strong suggestion that, under the circumstances of this case appellant is not 933 actually aggrieved by the dismissal of the dealer so long as judgment will be available from the distributor, we decline to consider this claim of error. Smith v. Timm, 96 Nev. 197, 606 P.2d 530 (1980). CONCLUSION The judgment notwithstanding the verdict is reversed. The jury verdict on the issues of liability and damages is reinstated. The court's orders denying an unconditional new trial and dismissing Carson City Investors are affirmed.[2] MANOUKIAN, C.J., and SPRINGER, STEFFEN and GUNDERSON, JJ., concur. NOTES [1] Other cases holding to similar effect include: Knight v. Otis Elevator Company, 596 F.2d 84 (3d Cir.1979) (Pa.law); Stewart v. Ford Motor Co., 553 F.2d 130 (D.C. Cir.1977); Price v. Admiral Corp., 527 F.2d 412 (5th Cir.1976) (Miss.law); Franks v. National Dairy Products Corporation, 414 F.2d 682 (5th Cir.1969) (Tex.law); Stewart v. Budget Rent-A-Car Corporation, 52 Haw. 71, 470 P.2d 240 (1970); Farmer v. International Harvester Company, 97 Idaho 742, 553 P.2d 1306 (1976); Brownell v. White Motor Corp., 260 Or. 251, 490 P.2d 184 (1971). See also P. Rheingold, "Proof of Defect in Product Liability Cases," 38 Tenn.L.Rev. 325, 329 (1971); Comment, "Products Liability and the Problem of Proof," 21 Stan.L.Rev. 1777 (1969); 2 L. Frumer & M. Friedman, Products Liability, Sections 16A[4][e][ii], and 16A[4][f][i] at 3B-120.3 (1984 ed.). [2] In view of our opinion validating the jury's verdict as to both liability and damages, it is manifestly clear that Elizabeth shall not be subjected to a choice between acceptance of a remittitur or new trial as originally ordered by the district court.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/461754/	779 F.2d 37 Beckerv.Govt of Brazil 85-6069 United States Court of Appeals,Second Circuit. 10/7/85 1 E.D.N.Y. AFFIRMED	01-03-2023	08-23-2011
https://www.courtlistener.com/api/rest/v3/opinions/3350499/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT#213 In the eighth count of the amended complaint, the plaintiff alleges that the building inspectors, Teodisio and Nickelsberg, were negligent in the performance of their official duties. In the ninth count, the plaintiff alleges that Paupini, the zoning enforcement officer, was negligent in the performance of his official duties. The plaintiff makes similar allegations against Witek, the city engineer, in the tenth count. The issuance of building permits and certificates of occupancy is a governmental function performed for the benefit of the public. Steiger v. Townof Old Lyme, 12 Conn. L. Rptr. 171, 186-88 (February 25, 1994, Austin, J.); Prestia v. Zajac, 7 Conn. L. Rptr. 354, 355 (September 15, 1992, Spada, J.). The enforcement of zoning regulations is a governmental function performed for the benefit of the public.Maier v. Tracy, 7 Conn. L. Rptr. 292 (August 25, 1992, Fuller, J.). See also Evon v. Andrews, 211 Conn. 501, 506 (1986) (the enforcement of health, housing and fire codes is discretionary as a matter of law). Because the acts complained of are governmental in nature and were performed for the direct benefit of the public, these municipal defendants are immune from liability pursuant to the doctrine of governmental immunity. Accordingly, the municipal defendants' motion for summary judgment is granted as to the eighth, ninth and tenth counts of the amended complaint. In the thirteenth count, the plaintiff asserts a CUTPA claim against the City based on the negligent acts and omissions of its officials as alleged in the eighth, ninth and tenth counts. CUTPA does not apply to municipalities and local public agencies.Connelly v. Housing Authority, 213 Conn. 354, 363 (1990); Stratfordv. Siciliano, 9 Conn. L. Rptr. 507, 508 (August 6, 1993, Leheny, J.); French v. Wallingford Board of Education, 3 Conn. L. Rptr. 59 (February 20, 1990, Berdon, J.). Because the plaintiff cannot assert a CUTPA claim against the City, there can be no genuine issue of material fact which would prevent the court from disposing of the plaintiff's claim on a motion for summary judgment. CT Page 11390 Accordingly, the municipal defendants' motion for summary judgment; is granted as to the thirteenth count of the amended complaint. The municipal defendants' motion for summary judgment is denied as to the eleventh count. While the plaintiff has failed to allege that it complied with the notice requirement contained in General Statutes § 7-465, the municipal defendants have failed to produce any evidence which demonstrates that they did not receive notice from the plaintiff. Thus, a genuine issue of material fact exists with respect to the notice issue. Ordered accordingly FORD, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/3350502/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The petitioner brings this petition for a writ of habeas corpus alleging that his criminal trial attorney, Miguel Rodriguez, was ineffective in assisting him in that he (1) advised him that there was no basis for a self-defense claim; (2) failed to advise him that the plea agreement was for ten (10) years execution suspended after eight (8) years when he understood the plea agreement to be ten (10) years execution suspended after five (5) years; and (3) pressured him to plead; and in the second count that he didn't understand that, in pleading guilty in the Alford Doctrine, he would receive a sentence of up to eight (8) years. The petitioner called himself and his trial attorney as witnesses. The petitioner testified that he shot the victim because he had heard that the victim set fire to the home where petitioner and his wife and children lived. The fire happened at 2:00 a.m. and was put out by the neighbors except that a two car detached garage collapsed because of it. The petitioner had arrived home about 8:00 a.m. after the fire department and police had already left. He went across the street after taking his gun with him and confronted the victim whom he then shot. He remembered having given the same version to the police and signing the paper. He testified that his native language is Spanish and that the police spoke to him in English, a language that he has difficulty understanding. He stated that his lawyer CT Page 2569 told him that he did not have a defense and if he went to trial that he would lose. He believed and relied on his attorney but thought he would get a sentence of five (5) years and he first realized that he received an eight (8) year sentence when he got to the correction center. He doesn't remember whether an interpreter was present for his plea but believes he answered the judge's questions in English and he couldn't understand the interpreter at his sentencing because she spoke too fast. If he knew the sentence was for eight (8) years he would have proceeded to trial. His attorney did not advise him that he could appeal. Mr. Rodriguez testified that he spoke to the petitioner in Spanish and learned that he had spent the whole evening with the live-in girlfriend of the victim at a hotel. When he returned home and determined that the victim had set his house on fire, he took his gun and went across the street and shot him. He spoke to the victim and to his girlfriend verifying the facts as given by the petitioner as to the shooting. He learned from the state that the petitioner's statement to the police was in English and signed and gave a copy to the petitioner. He determined that the victim was unarmed and told the petitioner that if he went to trial he would lose. He remembered that Judge Damiani thoroughly canvassed the petitioner and that the petitioner never told him that he wanted to go to trial. he had previous to the plea gone over the charges as to the minimum and maximum with the petitioner in Spanish. He didn't tell him that he had a right to appeal because he was satisfied with the plea. Both the transcript of the plea, Respondent's Exhibit A, and of the sentencing, Respondent's Exhibit B, indicate that an interpreter was present. The petitioner went to plea on assault in the first degree, 53a-59 (a)(5), and being armed with a firearm in the Commission of a Class B felony, 53-202k, the maximum penalty of which was described as twenty-five (25) years of which five (5) years cannot be suspended or reduced. SeeRespondent's Exhibit A. A successful petitioner must show that there is reasonable probability that but for counsel's unprofessional errors, the result of the proceedings would have been different. Copas v.Commissioner, 234 Conn. 139 (1995); Strickland v. Washington,466 U.S. 668, 694. The petitioner has failed to prove how the result would be different. He admitted to the police his involvement. Self-defense is not warranted for one who carries a gun against an unarmed victim and is the initial aggressor. State v.CT Page 2570Prioleau, 235 Conn. 274, 292. Mitigation is not available for one who causes physical injury particularly when he began the chain of provocation. The petitioner has failed to show counsel's representation fell below an objective standard of reasonableness. Aillon v. Meachum, 217 Conn. 352, 359. The petitioner was faced with a maximum sentence of twenty-five (25) years, five (5) of which could not be suspended or reduced. The petitioner, although he now claims that he was unaware, not only had the availability of a Spanish-speaking attorney but a thorough canvas with a Spanish interpreter present. The petitioner may have been disappointed that the sentence imposed was not reduced from the cap of eight years offered but he voiced no dissatisfaction to either the court or his counsel. Since the petitioner has failed to prove a ground for withdrawal of his plea pursuant to P.B. 39-19, State v. Casado, 42 Conn. App. 371,376, cert. denied, 239 Conn. 920, there is no merit to a claim for appeal. For the above reasons the petition is denied. Thomas H. Corrigan Judge Trial Referee.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/1873406/	752 N.W.2d 31 (2008) WILSON v. RUSSELL. No. 06-1188. Court of Appeals of Iowa. February 13, 2008. Decision without published opinion. Affirmed.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2895491/	NO. 07-07-0122-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JUNE 26, 2007 ______________________________ MARK ANTHONY CASTANEDA, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B15951-0503; HONORABLE ED SELF, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ON ABATEMENT AND REMAND Appellant Mark Anthony Castaneda, acting pro se, filed a statement with the trial court indicating his desire to appeal from the trial court’s action, by which he was adjudicated guilty of theft and received a sentence including two years incarceration in a state jail. The statement also indicates appellant’s desire for counsel. The clerk’s record has been filed, and contains the trial court’s certification that appellant has a right of appeal.1 Tex. R. App. P. 25.2.(d). The reporter’s record has not been filed, and the 1 That right is subject to the limitations on appeals following an adjudication of guilt after deferral. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006). reporter has filed a request for extension stating that no record has been requested. Tex. R. App. P. 34.6(b). The clerk’s record contains documentation indicating that appellant waived his right to counsel at the adjudication proceeding. However, the written waiver of counsel contained in the record pertains to a related proceeding in county court, and we are unable from the record now on file to determine whether appellant’s waiver of counsel applies to this appeal. See Tex. Code Crim. Proc. Ann. arts. 1.051(d) (indigent defendant entitled to appointed counsel on appeal), 1.051(h) (defendant may withdraw waiver of right to counsel) (Vernon 2005). Accordingly, we now abate this appeal and remand the cause to the 242nd District Court of Hale County for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to determine the following: 1. whether appellant desires to prosecute the appeal; 2. whether appellant is indigent; and 3. whether the appellant is entitled to appointed counsel. Should it be determined appellant wishes to prosecute the appeal, is indigent, and is entitled to an appointed attorney, the trial court shall appoint counsel. If counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in an order appointing counsel. The trial court shall issue such findings of fact and conclusions of law, and such other orders, as it finds appropriate regarding the aforementioned issues and cause any such findings, conclusions, and orders to be 2 included in a supplemental clerk’s record. A supplemental record of the hearing, if any, shall also be prepared. The supplemental clerk’s record and supplemental reporter’s record, if any, shall be filed with the Clerk of this Court on or before July 26, 2007. It is so ordered. Per Curiam 3	01-03-2023	09-07-2015
https://www.courtlistener.com/api/rest/v3/opinions/1873427/	316 S.W.3d 181 (2010) Leonard PHILLIPS, Appellant, v. AMERICAN ELASTOMER PRODUCTS, L.L.C., Appellee. No. 14-09-00164-CV. Court of Appeals of Texas, Houston (14th Dist.). June 17, 2010. 183 Cory Daniel Itkin, Kurt B. Arnold, Houston, for appellant. Nicholas E. Zito, Jack McKinley, Houston, for appellee. Panel consists of Chief Justice HEDGES and Justices SEYMORE and BROWN. 184 OPINION ADELE HEDGES, Chief Justice. Appellant, Leonard Phillips, appeals from two summary judgments rendered against him in his personal injury suit against appellee, American Elastomer Products, L.L.C. ("AEP"). After sustaining a work-related injury, Phillips filed suit against AEP for negligence, gross negligence, and intentional torts. AEP filed two summary judgment motions, contending that (1) Phillips's negligence claims were barred by the borrowed servant doctrine and the Texas Workers' Compensation Act ("TWCA"), and (2) there was insufficient summary judgment evidence to support the intentional tort claims. The summary judgments were granted, and Phillips filed the instant appeal. In two issues, Phillips contends that the trial court improperly granted summary judgment because (1) AEP failed to establish as a matter of law that Phillips was not a borrowed servant, and (2) the summary judgment evidence was sufficient to raise genuine issues of material fact on the intentional tort claims. We affirm. I. BACKGROUND This personal injury case arises from a back injury Phillips sustained as a result of an autoclave explosion at AEP's rubber manufacturing plant in Houston. About a year prior to the explosion, AEP was in the process of transporting new equipment to its Houston plant. To make room for the new equipment, AEP placed some of its older equipment outside the plant building. One of the pieces of equipment AEP decided to store outside was the autoclave in question. The autoclavea vessel used to heat rubberwas taken out of commission and placed just outside the plant building. For the following year, the autoclave remained out of commission and was not inspected or maintained while out of service. About a year later, space inside the plant building became available, and AEP decided to move the autoclave back into the plant building and bring it back into service. AEP's maintenance managers started a series of tests on the vessel to assure its safe re-commission. During the preliminary tests, the autoclave failed and exploded on March 8, 2007. Many people were injured, one fatally. When the autoclave exploded, Phillips was operating a press machine nearby. Phillips came to work at AEP through a staffing agency, Staffing United ("Staffing"). Phillips was interviewed by Staffing, and AEP trained Philips at the plant. Upon hearing the explosion and feeling its concussion, Phillips attempted to flee the plant building. As he ran, he tripped and injured his back. Phillips claimed that he suffered from herniated discs and was later diagnosed with post-traumatic stress disorder. Phillips reported his back injury to Staffing. Staffing did not contest Phillips's request for workers' compensation, and the workers' compensation insurance carrier paid Phillips statutory benefits.[1] Thereafter, Phillips filed suit against AEP, initially asserting negligence, gross negligence, and premises liability. AEP moved for summary judgment, claiming that the negligence claims were barred under the exclusivity provision of the TWCA because Phillips was a borrowed servant. Phillips amended his petition, adding intentional infliction of emotional distress ("IIED"). AEP moved for summary 185 judgment on the IIED claim on both no-evidence and traditional grounds. Phillips amended his petition once again, removing the IIED claim and adding intentional assault and battery claims. The trial court granted the first summary judgment addressing the negligence claims. AEP then moved for summary judgment on the remaining intentional tort claims, arguing that there was insufficient evidence on the assault, battery, and IIED claims.[2] Upon objection, the trial courtin two separate ordersstruck most of Phillips's summary judgment evidence because the documents were either untimely filed or contained inadmissible hearsay. Phillips did not challenge the evidentiary rulings. The trial court granted AEP's no-evidence and traditional summary judgments on the intentional tort claims, and this appeal ensued. On appeal, Phillips raises two issues. In his first issue, in which he challenges the first summary judgment dismissing his negligence claims, Phillips contends that because he was not a borrowed servant, his common-law negligence claims were not subject to the TWCA's exclusivity provision. In his second issue, challenging AEP's second summary judgment on his intentional assault claims, Phillips contends he produced sufficient summary judgment evidence on the element of intent. II. STANDARDS OF REVIEW While AEP clearly moved for summary judgment under rules 166a(c) and 166a(i)traditional and no-evidence groundson Phillips's intentional tort claims, AEP did not specify whether it was making a traditional motion for summary judgment or a no-evidence motion on the negligence claims. Compare Tex. R. Civ. P. 166a(c), with Tex. R. Civ. P. 166a(i). Because the two forms of summary judgment are distinct and invoke different standards of review, we must make an initial determination regarding which type of summary judgment was filed on the negligence claims before we can reach the merits of the trial court's ruling on these particular claims. When a motion does not clearly and unambiguously state that it is being filed under rule 166a(i), the nonmovant has no notice that the movant is seeking a noevidence summary judgment. Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Accordingly, we construe such summary judgment motion as a traditional motion under rule 166a(c). See id. (concluding that when a motion for summary judgment fails to unambiguously state it is filed under rule 166a(i), and does not strictly comply with the requirements of that rule, the motion will be construed as a traditional motion for summary judgment); see also Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417, 419-20 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Because AEP's first summary judgment motionaddressing Phillips's negligence claimsis not clear on which basis it seeks summary judgment relief, we construe the motion as a traditional motion. Notwithstanding, the record reflects that AEP moved for summary judgment in its second motionaddressing the intentional tort claimson both no-evidence and traditional summary judgment grounds. We review a trial court's summary judgment de novo. Valence Operating Co. v. 186 Dorsett, 164 S.W.3d 656, 661 (Tex.2005). A defendant who seeks a traditional summary judgment under rule 166a(c) must demonstrate that the plaintiff has no cause of action as a matter of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003); Cullins v. Foster, 171 S.W.3d 521, 530 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A traditional summary judgment is proper when the defendant either negates at least one element of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Cullins, 171 S.W.3d at 530. When the defendant has carried its summary judgment burden, the burden shifts to the nonmovant to raise a material fact issue precluding summary judgment. Virginia Indonesia Co. v. Harris County Appraisal Dist., 910 S.W.2d 905, 907 (Tex.1995). In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference, and we resolve any doubts in the nonmovant's favor. Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 549 (Tex.1985). Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex.App.-Houston [14th Dist.] 2007, no pet.). We sustain a no-evidence summary judgment when (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Chapman, 118 S.W.3d at 751; Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 474 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Less than a scintilla of evidence exists when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, and in legal effect is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions as to the existence of the vital fact. Id. III. NEGLIGENCE CLAIMS: BORROWED SERVANT DOCTRINE In the trial court, Phillips asserted three negligence claims against AEP: (1) negligence and gross negligence for failure to maintain a safe workplace, failure to warn of a dangerous workplace, and failure to inspect premises for latent defects; and (2) premises liability for failing to warn Phillips, an invitee, of a condition on the plant premises that posed an unreasonable risk of harm. AEP sought traditional summary judgment on these negligence claims, arguing that the claims were barred under the exclusivity provision of the TWCA and the borrowed servant doctrine. A. TWCA's Exclusivity Provision Under the TWCA, a subscriber employer is protected by the Act's exclusive remedy provision, which bars common-law causes of actions by its injured employees. Tex. Labor Code Ann. § 408.001(a) (Vernon 2006). Thus, an employer who pleads and proves TWCA subscriber status is immune from liability for common-law negligence, and the employee's exclusive remedy lies within the TWCA. See id.; see also Exxon Corp. v. 187 Perez, 842 S.W.2d 629, 630-31 (Tex.1992) (per curiam). When there is a question as to whether one is an "employer" under the TWCA, Texas courts turn to the borrowed servant doctrine. Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 595 (Tex.2000); Lockett v. HB Zachry Co., 285 S.W.3d 63, 75 (Tex.App.-Houston [1st Dist.] 2009, no pet.). As applied in workers' compensation cases, the borrowed servant doctrine acts to protect those employers who have the right to control the manner and details of an employee's work. Wingfoot Enter. v. Alvarado, 111 S.W.3d 134, 144 (Tex.2003); Thompson v. Travelers Indem. Co., 789 S.W.2d 277, 278 (Tex.1990); Gibson v. Grocers Supply Co., 866 S.W.2d 757, 760 (Tex. App.-Houston [14th Dist.] 1993, no writ); Marshall v. Toys-R-Us Nytex, Inc., 825 S.W.2d 193, 195-96 (Tex.App.-Houston [14th Dist.] 1992, writ denied). Under the right-of-control test, an injured worker is held to be the employee of the employer who had the right of control over the details of the work at the time of the injury. Pederson v. Apple Corrugated Packaging, Inc., 874 S.W.2d 135, 137 (Tex. App.-Eastland 1994, writ denied); Hughes v. Compaq Computer Corp., No. 14-96-00025-CV, 1996 WL 711233, at 2 (Tex. App.-Houston [14th Dist.] Dec. 12, 1996, writ denied) (not designated for publication). An employer who had the right of control over the employee at the time of the injury is an "employer" for workers' compensation purposes. If the details of the employee's work are controlled by someone other than the employer, then the latter is not protected by the exclusive remedy under the TWCA. To prevail on its affirmative defense of subscriber status, AEP was required to plead and prove: (1) Phillips was a borrowed servant, (2) Phillips was entitled to workers' compensations benefits, and (3) AEP had workers' compensation insurance that covered claims asserted by Phillips. See Perez, 842 S.W.2d at 630-31. On appeal, Phillips challenges only his status as a borrowed servant, i.e., whether AEP had the right of control over the details of his work. He does not challenge the latter two elements. B. Right of Control Over Phillips When, as here, the right of control is not expressed in a written agreement, right of control is inferred from the facts and circumstances of the work. Producers Chemical Co. v. McKay, 366 S.W.2d 220, 226 (Tex.1963); Marshall, 825 S.W.2d at 196. We consider the nature of the work to be performed, the length of the employment, the type of machinery furnished, the acts representing an exercise of actual control, and the right to substitute another operator on a machine. McKay, 366 S.W.2d at 226. The type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Thompson, 789 S.W.2d at 278-79. Phillips cites the following evidence to support his contention that Staffing, not AEP, had the right to control his work: (1) Phillips refused to operate a forklift when requested to do so by AEP because Staffing had instructed him not to operate unfamiliar equipment; (2) Staffing issued his payroll checks, paid his workers' compensation benefits, and hired and fired him; (3) AEP did not furnish all of the tools necessary to perform his work; and (4) AEP did not provide safety training. The trial court struck the evidence supporting the forklift allegations, and Phillips 188 never challenged the trial court's ruling. See Feagins v. Tyler Lincoln-Mercury, Inc., 277 S.W.3d 450, 455 (Tex.App.-Texarkana 2009, no pet.) (refusing to consider affidavit stricken in the trial court and not challenged on appeal); McClure v. Denham, 162 S.W.3d 346, 349 n. 2 (Tex.App.-Fort Worth 2005, no pet.) (noting that appellate court may consider only evidence which is properly before the trial court when reviewing propriety of summary judgment). Because the trial court struck the evidence of forklift operation, and Phillips failed to challenge that ruling, there is no evidence that Phillips refused to perform work for AEP at Staffing's instruction. Furthermore, the fact that Staffing issued payroll checks and paid workers' compensation to Phillips does not necessarily establish that Staffing had the right of control over Phillips's work at AEP's rubber manufacturing plant. See Employers Cas. Co. v. Am. Employers Ins. Co., 397 S.W.2d 292, 296 (Tex.App.-Amarillo 1965, writ ref'd n.r.e.). Likewise, Staffing's hiring and firing of Phillips is not dispositive of the right of control over Phillips's work at AEP's plant. AEP submitted undisputed evidence that Phillips reported to work at AEP, not Staffing. AEP set Phillips's work hours and breaks. AEP's employees trained Phillips on the work to be performed.[3] AEP directed what work Phillips was to perform. AEP also provided the machines, tools, and raw materials for Phillips's work. See Thompson, 789 S.W.2d at 278-79 (reasoning that the type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result). The only feasible attempt by Phillips to dispute AEP's evidence is his allegation that he used his personal toolsa socket set and screwdriverto operate one of the machines. Phillips testified that he "periodically" used his personal tools because the original tools, provided by AEP, would sometimes "come up missing." Phillips made this particular statement in his stricken affidavit and twice in his deposition. AEP successfully moved to strike one of the deposition statements, but did not object to the other statement. Assuming we can review the one deposition statement, such statement is insufficient to demonstrate AEP's lack of control over Phillips's work. The general work to be performed was the operation of industrial equipment to heat rubber. Phillips alleged in the statement that he used the socket set and screwdriver to change the molds on a machine. Phillips acknowledged in his deposition that similar tools were provided by AEP, but "periodically" disappeared. Furthermore, AEP's undisputed evidence reflects that the socket set and screwdriver were not required tools to change the molds or to operate the rubber-hearing machinery. Phillips further challenges AEP's borrowed servant designation because he, Phillips, did not know about the employee-lending agreement between AEP and Staffing. See Guerrero v. Standard Alloys Mfg. Co., 566 S.W.2d 100, 102 (Tex.Civ. App.-Beaumont 1978, writ ref'd n.r.e.) ("[I]n order to establish an employer-employee relationship between an employee and a borrowing employer, the employee 189 must know or be charged with knowledge of the lending agreement."). Putting aside for a moment that Guerrero is not binding authority, its requirement that a borrowed employee must know of a lending agreement runs counter to recent Supreme Court and court of appeals cases examining the borrowed servant doctrine. Texas courts determining whether an individual is borrowed servant have done so exclusively under the right-of-control test. See Alvarado, 111 S.W.3d at 144; Del Indus., 35 S.W.3d at 595 (courts determine whether a company is an employer under the right-of-control test); Thompson, 789 S.W.2d at 278; Gibson, 866 S.W.2d at 760; Marshall, 825 S.W.2d at 195-96. Furthermore, this Court has cautioned against the legal accuracy of Guerrero: The court in Guerrero stated that "in order to establish an employer-employee relationship between an employee and a borrowing employer, the employee must know or be charged with knowledge of the lending agreement." Even if this were a correct statement of law, our disposition of this case would not be affected. The recorded demonstrates [the employee's] awareness that she was loaned [to the defendant company]. Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 580 (Tex.App.Houston [14th Dist.] 2007, pet. denied) (citations omitted) (emphasis added).[4] Applying the right-of-control rule, the record reveals that AEP pleaded and presented sufficient summary judgment evidence that Phillips was a borrowed servant. Furthermore, AEP provided undisputed evidence of its subscriber status in compliance with the TWCA, and Phillips was therefore subject to the Act's exclusivity provision and possessed no common-law right of action. Accordingly, we conclude, as a matter law, appellant's negligence claims are barred under the borrowed servant doctrine and the TWCA's exclusivity provision. The trial court properly granted AEP's traditional summary judgment on Phillips's negligence claims. We overrule Phillips's first issue. IV. INTENTIONAL ASSAULT CLAIM: EVIDENCE OF INTENT Although the exclusive remedy provision of the TWCA bars Phillips's negligence claims, the TWCA does not bar recovery for intentional torts. See Tex. Labor Code Ann. § 408.001(a) (applying exclusivity provision only to accidental injuries); see also Tex. Const. art. I, § 13 (prohibiting statutory exemption from common law liability for intentional injuries). In his second issue, Phillips contends that summary judgment on his assault claim was improper because he presented sufficient evidence on AEP's intent to injure. Phillips bases his intent argument on the proposition that only reckless conduct is needed, not specific intent, to commit assault. Phillips contends that because the criminal and civil definition of assault includes a reckless mental state, he need show only recklessnessthat AEP was aware of, but consciously disregarded, a substantial and unjustifiable risk of harmto recover for assault. While Phillips is correct on the statutory definition of criminal and civil assault, the cases relied upon by Phillips are distinguishable: none of the cases involves the intentional-tort exception to the TWCA. Phillips cites no authority to support his contention that the intentional-tort exception to the TWCA applies where *190 the defendant acted recklessly. See Tex. R.App. P. 38.1(i); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.App.Houston [14th Dist.] 2002, no pet.). Even if we assume that reckless conduct is sufficient to overcome the TWCA's intentional-tort exception, the record before us does not raise a fact issue on intent. Phillips contends that AEP was reckless because: (1) it failed to maintain the autoclave while it was out of commission; and (2) it failed to follow safety requirements in bringing the vessel back into service. Phillips relies on the following evidence to support his reckless-conduct allegations: Doug Efrid's deposition, the OSHA citation, Skinner's affidavit, and James Patterson's deposition. The OSHA citation and Skinner's affidavit were stricken below and those rulings are not challenged on appeal. Because evidence which has been excluded by written order or ruling of the trial court is not part of the summary judgment evidence to be considered, we cannot consider this evidence regarding intent. See Feagins, 277 S.W.3d at 455; see also McClure, 162 S.W.3d at 349 n. 2. With respect to Efrid's and Patterson's depositions, Phillips contends that the testimony shows AEP's recklessness in maintaining the vessel while out of service and in bringing the vessel back into service. Patterson was the plant manager, and Efrid was AEP's maintenance manager. Phillips contends that AEP knew about specific explosion risks associated with high pressure levels and explosions when bringing a vessel back into service. The safety relief valve monitors pressure levels and relieves excess pressure from an autoclave. Phillips contends that because excess pressure is a known risk when reenergizing an autoclave, AEP acted recklessly when it did not inspect the safety relief valve to check if it were working properly. However, Phillips's allegations are not supported by the cited depositions. Even accepting Phillips's bald assertions as evidence, they tend to establish only negligent conduct, not intentional injury. See Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (concluding that the employer must have the specific intent to inflict injury to commit an intentional tort). Efrid testified that he began the testing process to re-commission the vessel. He tested the pressure controllers and verified that they were working properly and checked the pressure levels. Subsequently, the autoclave failed during the tests. Efrid and Patterson both testified that AEP did not intend for the autoclave to fail, did not know it would fail, and did not know that the testing would result in the autoclave's exploding. The evidence is uncontested that, upon re-commissioning the autoclave, AEP did not have a specific intent to inflict the injury. See id. at 407 (holding that an employer's intentional failure to provide a safe workplace does not rise to the level of intentionally injuring its employees unless the employer believes its conduct is substantially certain to cause the injury). Phillips further argues that Patterson conceded AEP's recklessness in his deposition. We disagree. Read in its entirety, the deposition reflects Patterson's agreement with the general idea that employees should adhere to safety requirements when working on industrial equipment. Because the hypothetical scenarios posed to Patterson were not similar to the facts of the instant case, Patterson's deposition did not establish recklessness or intent to injure. The trial court properly granted summary judgment on the intentional tort claim of assault. We overrule appellant's second issue. We affirm the trial court's judgment. NOTES [1] Phillips claims that after the blast, the Occupational Safety and Health Administration ("OSHA") issued five citations to AEP: three citations for having performed a faulty inspection of the autoclave that caused the explosion; and two citations for having failed to provide sufficient protective lathes and grinders and eye protection for AEP's workers. [2] Although Phillips removed his IIED claim in his fifth amended petition, out of caution, AEP moved for summary judgment on the IIED claim, along with Phillips's assault and battery claims. [3] Phillips contends that Todd Brown, one of the workers who trained him, was not an employee of AEP. The evidence Phillips submitted to support this factual allegation was stricken. Further, AEP submitted undisputed evidence that Brown was an employee of AEP at the time Brown trained Phillips. [4] The facts of Guerrero are distinguishable: as detailed above, most of Phillips's work interaction was with AEP. Accordingly, Phillips is charged with knowledge of the oral lending agreement between Staffing and AEP.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/2614951/	69 Wash. App. 209 (1993) 847 P.2d 963 CONCERNED ORGANIZED WOMEN AND PEOPLE OPPOSED TO OFFENSIVE PROPOSALS, INC., Appellant, v. THE CITY OF ARLINGTON, ET AL, Respondents. No. 30217-5-I. The Court of Appeals of Washington, Division One. March 29, 1993. Julian C. Dewell and Law Office of Anderson Hunter, for appellant. Madeleine Brenner and Buck & Gordon; Steven J. Peiffle and Bailey Duskin & Peiffle; Bruce R. Bell and Bell & Ingram, for respondents. FORREST, J. Concerned Organized Women and People Opposed to Offensive Proposals, Inc. (Concerned Women) appeals the trial court's order denying its application for a statutory writ of certiorari and a constitutional writ of certiorari, dismissing its action with prejudice, and awarding Northward Homes, Inc. (Northward) $125 in statutory attorney fees. Concerned Women also appeals the court's denial of its motion for reconsideration claiming the court erred in finding no basis for equitable estoppel against the City of Arlington (the City). 212 On October 2, 1990, Northward applied for a comprehensive plan amendment, rezoning, and preliminary plat approval from the City for Northward's proposed single-family residential development within the City's limits.[1] On February 4, 1991, Northward submitted an application for a shoreline substantial development permit. On August 21, 1991, Northward submitted revised applications that addressed the City's concerns regarding the original applications. The city staff recommended approval of the revised applications on October 16, 1991, and on October 21, 1991, the city council held a public hearing on them. During this hearing, the council heard testimony from various sources, including members of Concerned Women, and voted to approve the applications. The proposed resolution and ordinance were scheduled for review by the City Council at its November 18, 1991, meeting. However, one council member recused himself and therefore a quorum was not present. Review of the resolution and ordinance was rescheduled for December 2, 1991. At least one member of Concerned Women was present at the November 18 council meeting. At its December 2, 1991, meeting, the city council reviewed and signed resolution 421 and ordinance 1015. The resolution approved the comprehensive plan amendment, the rezoning, the preliminary plat, and the shoreline substantial development permit. The ordinance rezoned the subject property from RC 2.5 to R 9600, thereby permitting the proposed development. Again, at least one member of Concerned Women was present at this meeting. Ordinance 1015 was published in The Arlington Times on December 18, 1991. Section 2 of the ordinance provided that it would become effective 5 days from its adoption and publication. Pursuant to RCW 43.21C.080 and WAC 197-11-680(4) and (5), the City prepared a notice of action under the State 213 Environmental Policy Act of 1971 (SEPA) dated December 13, 1991. The notice set forth the time periods within which certain appeals had to be filed. Specifically, the notice read in part as follows: Time limits established by statute or ordinance relating to the underlying action: RCW 58.17.180 30 days from decision for review of approval of preliminary plat RCW 90.58.180 30 days from decision for review of approval of Shoreline Substantial Development Permit WAC 197-11-680(4) 30 days from issuance of this notice for review of SEPA issues On December 16, 1991, copies of the SEPA notice were mailed to property owners within 300 feet of the subject property and to the applicant and all interested persons who had requested notice of proceedings related to the proposed development. Among those interested parties were two representatives of Concerned Women. The notice was posted on December 23, 1991, at city hall, at the post office, and on the property. The notice was also published in The Arlington Times on December 18 and 25, 1991. On January 10, 1992, Concerned Women filed a petition and application for writ of certiorari, a notice of application for a writ of certiorari, and an order to show cause. On January 14, 1992, it filed an affidavit in support of the petition and application. Concerned Women sought both a statutory writ of certiorari pursuant to RCW 7.16.030 et seq. and a constitutional writ pursuant to Const. art. 4, § 6.[2] Northward and the City filed motions to dismiss Concerned Women's petition. On February 4, 1992, the court orally decided that Concerned Women's petition for a statutory writ of certiorari was not timely and that Concerned Women was not entitled to a constitutional writ. On February 7, 1992, the court entered an order denying Concerned 214 Women's applications and dismissed its action with prejudice. Concerned Women filed a motion for reconsideration on February 18, 1992. In addition to the arguments raised in previous pleadings, Concerned Women contended that the City was estopped to assert that Concerned Women did not timely file its applications. The motion was denied. Concerned Women appeals both the dismissal of its action and the denial of its motion for reconsideration. STATEMENT OF THE ISSUES 1. Did the trial court err by denying Concerned Women's petition for a statutory writ of certiorari on the ground that the petition was untimely? 2. Did the trial court err by finding no basis upon which equitable estoppel could be asserted against the City? 3. Did the trial court err by denying Concerned Women's petition for a constitutional writ of certiorari? 4. Is Northward entitled to attorney fees on appeal under RAP 18.9 on the ground that the appeal is frivolous? I Timeliness of Appeal The trial court ruled that the time for application for a writ of certiorari to review the actions here in question was 30 days by analogy to the time for appeal from the approval of the preliminary plat, RCW 58.17.180, and that the time commenced with the council action on December 2, 1981, and, accordingly, the application was untimely and should be dismissed. We agree. [1, 2] We initially consider the 1983 amendment adding RCW 43.21C.075, addressing the relationship between SEPA appeals and appeals from underlying governmental action. The amendment unequivocally ties a SEPA appeal to the underlying governmental action.[3] It provides that SEPA considerations shall be applied to the underlying governmental 215 action[4] and that appeals shall be commenced within the time limits of the governmental action involved.[5] The amendment specifically provided it did not modify time periods provided by statutes or ordinances.[6] In Waterford Place Condominium Ass'n v. Seattle, 58 Wash. App. 39, 791 P.2d 908, review denied, 115 Wash. 2d 1019 (1990), this court carefully reviewed the history and application of RCW 43.21C.075, and held that while the appeal must be initiated within the time limit for the underlying governmental action, thereafter, an appellant had 30 days to add any claims of SEPA violations.[7] As applied to the facts before us, this means that an appeal from the approval of the preliminary plat not having been commenced within the 30 days prescribed by the statute, RCW 58.17.180, the right to raise SEPA issues to invalidate the plat also would be barred. The issues before us arise from the fact that there is no prescribed time limit for appealing from the change in the comprehensive plan and the adoption of the rezone, and the further fact that, surprisingly, RCW 43.21C.075 does not explicitly address the situation where there is no such local time limit. It is well established that in the absence of such specific time limit, the court supplies a limit by analogy to other 216 similar proceedings.[8] Here, the compelling analogy is the 30-day limit prescribed for appeals from decisions approving preliminary plats set forth in RCW 58.17.180. In this case, the City was dealing with one single project and all four of the actions taken on December 2, 1991, were part of a package to approve that project. Having one time limit applicable to a preliminary plat approval and another time limit applicable to another part of the same governmental decision would be highly undesirable, yet this court has no authority to alter the 30-day time limit prescribed in RCW 58.17.180. Further, in more general terms, the nature of a rezone for a project and an amendment to the comprehensive plan to authorize the project are substantively very similar to the approval of a preliminary plat and no reason appears for a procedural difference in the appeal time.[9] RCW 64.40.020 and .030, which provide for a civil action for damages for certain improper land use decisions, establish a 30-day statute of limitations from the date all administrative remedies have been exhausted. Also, in another land use matter, a challenge to the threshold determination that an environmental impact statement is required must be made within 30 days of that determination.[10] These are likewise persuasive analogies. In Bothell v. King Cy.,[11] the County adopted the land use ordinance and published a SEPA notice which established a 217 90-day period pursuant to RCW 43.21C.080 within which actions under SEPA had to be commenced. The parties did not challenge the 90-day period and the court accepted it as the appropriate appeal period under SEPA. On appeal, this court held the 90-day appeal period was applicable by analogy to appeals from the adoption of the ordinance. Because the appeal was filed within 90 days of the adoption of the ordinance, this court held that the action was timely.[12] The 90-day appeal period in RCW 43.21C.080 applicable in Bothell is "(i) for projects to be performed by a governmental agency or to be performed under government contract, or (ii) for thermal power plant projects[.]" RCW 43.21C.080(2)(a). Clearly, the governmental action challenged in this case does not fall within either of these categories. Consequently, the general 30-day appeal period in RCW 43.21C.080(2)(a) would apply in this case. Under the court's reasoning in Bothell, then, a 30-day appeal period would be the appropriate period to apply by analogy. Such a 30-day period is consistent with the 30-day period for appeals from preliminary plats and supportive of a general 30-day rule for appeals from land use decisions. The fact that we rely in part on the 30-day period for SEPA appeals does not mean that the SEPA starting date, which is the date of publication of the SEPA notice, would be applicable to this appeal. Such a result would be directly contrary to the specific provisions of RCW 43.21C.075(5) that appeals must be commenced within local time limits, although SEPA issues may be added to a perfected appeal from the local land use decision for a period of 30 days from publication of the SEPA notice. Waterford Place. Concerned Women does not suggest any alternative to the 30-day time period adopted by the trial court and, indeed, does not seriously challenge 30 days as an appropriate time limit. Uniformity and clarity as to the time for appeal is in the interest of all participants in governmental land use decisions. We are satisfied that the 30-day limit of RCW 58.17.180 is appropriate 218 and should apply by analogy to all such decisions where a different time is not prescribed by local ordinance or state statute. [3] Concerned Women's principal contention is that the 30-day time limit should commence, not with the city council's action of December 2, including the adoption of the rezone ordinance, but from the effective date of the ordinance, December 23, 1991. We disagree. While it is correct that the ordinance takes effect as of December 23, no authority is cited holding that the effective date of the ordinance is the "triggering event" which starts the running of an appeal period for an appeal of the governmental action. The use of the ordinance's effective date has been rejected in DiGiovanni v. Tukwila[13] and Birch Bay Trailer Sales, Inc. v. Whatcom Cy.[14] However, those cases are not dispositive because there was a specified appeal period also involved.[15] In Bothell, although not an issue in the case, the court assumed that the triggering event which started the running of the appeal period was the date of action by the King County Council and not the effective date of the rezone ordinance.[16] One plain difficulty in this case with the choice of the effective date of the ordinance as the triggering event is that either the issues as to the preliminary plat would not be before the court, an obviously undesirable result, or the court would be disregarding the express provisions of RCW 58.17.180. A further undesirable consequence would be that there would be no guide in those cases where there was a change to the comprehensive plan or other land use decision that did not require a rezone. The court in DiGiovanni v. Tukwila, 54 219 Wn. App. 627, 630, 774 P.2d 1244 (1989), review denied, 114 Wash. 2d 1001 (1990) noted: "[n]ot all council actions take the form of an ordinance, particularly in zoning matters.... Application of a different rule when the action is in the form of an ordinance would add unnecessary confusion." Another awkward consequence would be that merely by delaying publication, the City could delay the project, and, as is well known, in development projects time is often of the essence and delay is often fatal. We agree with the policy goals expressed in Deschenes v. King Cy.[17] and DiGiovanni: to promote certainty and finality in land use decisions while giving the opponents a reasonable time to take their concerns to the courts. It is hard to seriously argue that 30 days is an unreasonably short time, and indeed many ordinances provide a shorter appeal period from land use decisions. The same considerations that support a uniform 30-day period for appeals from land use decisions also support a uniform "triggering event". The council's decision is public and the interested parties are usually present at the meeting at which the decision is made. Thus, the appropriate triggering event for all decisions made at the meeting, including a decision to rezone, is the date of the meeting itself even if subsequent publication of an ordinance may be required. II Equitable Estoppel Concerned Women urges that the City is estopped to deny the timeliness of its filing by reason of the effective date of the ordinance and by reason of the notice of governmental action.[18] Having been raised for the first time in a motion for 220 reconsideration, this court ordinarily will not address the issue.[19] However, to avoid the appearance of being overly technical, we will briefly point out that the contention is without merit. [4] Application of equitable estoppel against a municipal corporation is not favored and in order to establish equitable estoppel, "every particular must be proven by the plaintiff with clear, cogent and convincing evidence." Chemical Bank v. WPPSS, 102 Wash. 2d 874, 905, 691 P.2d 524 (1984), cert. denied, 471 U.S. 1065, 1075 (1985). Equitable estoppel will be applied to a political subdivision "when necessary to prevent a manifest injustice, and the exercise of governmental powers will not thereby be impaired." Shafer v. State, 83 Wash. 2d 618, 622, 521 P.2d 736 (1974). Estoppel has three elements: (1) an admission, statement, or act inconsistent with the claim afterwards asserted, (2) action by the other party on the faith of such admission, statement, or act, and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act. Farnam v. CRISTA Ministries, 116 Wash. 2d 659, 678-79, 807 P.2d 830 (1991) (quoting Saunders v. Lloyd's of London, 113 Wash. 2d 330, 340, 779 P.2d 249 (1989) (quoting McDaniels v. Carlson, 108 Wash. 2d 299, 308, 738 P.2d 254 (1987))). Requirements one and two are not met here. Neither the SEPA notice,[20] nor the effective date of the ordinance purported to give a date for appeal from the governmental action inconsistent with the City's and Northward's position on appeal. Indeed, having been explicitly told in the notice that the appeal from the preliminary plat must be within 30 days from date of approval, there is no basis for reliance on other dates. The reference to "30 days from issuance of this notice" is specifically limited to SEPA issues of which there are none here present. Nor did Concerned Women comply 221 with the 30-day deadline for the Shoreline permit appeal. There is no basis for equitable estoppel against the City even if the theory had been urged at the appropriate time. III Constitutional Writ of Certiorari [5-7] A superior court has the inherent authority to entertain a writ of review pursuant to Const. art. 4, § 6. Exercise of this inherent power is discretionary.[21] "A refusal to grant a constitutional writ is reviewed under an abuse of discretion standard." Birch Bay Trailer Sales, Inc. v. Whatcom Cy., 65 Wash. App. 739, 745 n. 6, 829 P.2d 1109, review denied, 119 Wash. 2d 1023 (1992). The trial court may refuse to exercise its inherent power of review as long as the court gives tenable reasons in support of its discretionary decision.[22] Review by constitutional writ of certiorari "is rarely granted where a petitioner has failed to take advantage of another avenue of review without an adequate excuse." Bridle Trails Comm'ty Club v. Bellevue, 45 Wash. App. 248, 254, 724 P.2d 1110 (1986).[23] Concerned Women's failure to use the available statutory writ of certiorari based on a misunderstanding of the applicable law clearly does not compel a trial court to exercise its discretion to grant the writ. If a mere misunderstanding as to applicable time limits was the basis for issuing a constitutional writ, the purposes of finality would be undermined and projects would be in jeopardy for an undetermined period of time even after the applicable time limit has passed. The court did not abuse its discretion in denying the request for a constitutional writ. *222 IV Request for Attorney Fees [8, 9] Northward's claim for attorney fees is without merit. In light of the uncertainty as to the appropriate appeal period for the application for writ of certiorari, it cannot be said that Concerned Women's appeal presented no debatable issues and was therefore frivolous. All doubts as to whether an appeal is frivolous should be resolved in favor of the appellant.[24] While Concerned Women's disregard of the rules with respect to the time for filing its brief and its request for an extension of time are not condoned, they do not justify an award of attorney fees. Affirmed. KENNEDY and AGID, JJ., concur. Reconsideration denied May 7, 1993. Review denied at 122 Wash. 2d 1014 (1993). NOTES [1] The development was to be located on property owned by Douglas and Louise Connelly. The Connellys have not filed a brief and instead have filed a statement supporting the briefs filed by the City and Northward. Robert Kraski was the Mayor of Arlington at the time the suit was filed and also has not filed a brief. [2] The issuance of the shoreline substantial development permit is not at issue here. The Shorelines Hearings Board decided that Concerned Women's appeal was untimely and Concerned Women did not appeal that decision. [3] "The State Environmental Policy Act is not intended to create a cause of action unrelated to a specific governmental action." RCW 43.21C.075(1). [4] "Appeals under this chapter shall be of the governmental action together with its accompanying environmental determinations." RCW 43.21C.075(2)(a). [5] "Appeals of environmental determinations made (or lacking) under this chapter shall be commenced within the time required to appeal the governmental action which is subject to environmental review." RCW 43.21C.075(2)(b). [6] "Some statutes and ordinances contain time periods for challenging governmental actions which are subject to review under this chapter, such as various local land use approvals (the `underlying governmental action'). This section does not modify any such time periods." RCW 43.21C.075(5). [7] "Reading RCW 43.21C.075, sections (2)(a) together with (2)(b) and (5)(a), we interpret the statute to mandate that, while all appeals of underlying governmental actions must be filed within the local time limits prescribed (here, 15 days), the appellant has up to 30 days to amend or supplement its claim to include SEPA issues." Waterford Place Condominium Ass'n v. Seattle, 58 Wash. App. 39, 46, 791 P.2d 908, review denied, 115 Wash. 2d 1019 (1990). [8] Akada v. Park 12-01 Corp., 103 Wash. 2d 717, 695 P.2d 994 (1985); Bothell v. King Cy., 45 Wash. App. 4, 723 P.2d 547 (1986). [9] Since a rezone is a quasi-judicial action, some cases have considered a 14-day limit for appeals from district court decisions to be a possible analogy. In view of the striking difference between the factual setting of a land use decision and a district court lawsuit, we find the analogy unpersuasive. In any event, the rule is if there are two possible analogies, the longer in time shall be adopted. Akada v. Park 12-01 Corp., 103 Wn.2d at 719. Indeed, insofar as court proceedings are an analogy, we would find the 30-day limit for appeals of superior court decisions to be more appropriate. [10] Miller v. Port Angeles, 38 Wash. App. 904, 908, 691 P.2d 229 (1984) (citing RCW 43.21C.080 as the governing statute), review denied, 103 Wash. 2d 1024 (1985). [11] 45 Wash. App. 4, 723 P.2d 547 (1986). [12] Bothell, 45 Wn. App. at 11. [13] 54 Wash. App. 627, 774 P.2d 1244 (1989), review denied, 114 Wash. 2d 1001 (1990). [14] 65 Wash. App. 739, 829 P.2d 1109, review denied, 119 Wash. 2d 1023 (1992). [15] There is a certain irony in Concerned Women's effort to use the effective date of the rezone ordinance as the triggering date since the fact that rezones are sometimes quasi judicial in nature is what originally led some courts to consider a 14-day appeal period under which analogy this appeal would be too late. See, e.g., Bothell v. King Cy., 45 Wn. App. at 11. [16] Bothell, 45 Wn. App. at 11 n. 8 ("It was certainly not unreasonable under the facts of this case to file the action 31 days after the ordinance was adopted."). (Italics ours.) [17] 83 Wash. 2d 714, 521 P.2d 1181 (1974). [18] "Time limits established by statute or ordinance relating to the underlying action: "RCW 58.17.180 30 days from decision for review of approval of preliminary plat "RCW 90.58.180 30 days from decision for review of approval of Shoreline Substantial Development Permit "WAC 197-11-680(4) 30 days from issuance of this notice for review of SEPA issues". [19] Wesche v. Martin, 64 Wash. App. 1, 822 P.2d 812 (1992); Jet Boats, Inc. v. Puget Sound Nat'l Bank, 44 Wash. App. 32, 721 P.2d 18, review denied, 106 Wash. 2d 1017 (1986). [20] See pages 212-13. [21] Birch Bay Trailer Sales, Inc. v. Whatcom Cy., 65 Wash. App. 739, 745, 829 P.2d 1109, review denied, 119 Wash. 2d 1023 (1992). [22] Bridle Trails Comm'ty Club v. Bellevue, 45 Wash. App. 248, 252, 724 P.2d 1110 (1986). [23] See also Birch Bay, 65 Wn. App. at 745-46 (exercise of this inherent constitutional authority "will not ordinarily occur if either a statutory writ or a direct appeal is available, unless the appellant can show good cause for not using those methods"); Odegaard v. Everett Sch. Dist. 2, 55 Wash. App. 685, 691, 780 P.2d 260 (1989) (quoting Bridle Trails). [24] McCoy v. Dairyland Ins. Co., 60 Wash. App. 882, 886, 808 P.2d 180 (1991).	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3350503/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION The plaintiff wife commenced this action for the dissolution of the parties' marriage, on the ground of irretrievable breakdown, by complaint returnable to this court June 16, 1995. She also sought custody and support of their minor children, alimony, and other relief as on file. The defendant husband admitted the allegations of the complaint and filed a counterclaim in which he sought a dissolution on the same grounds. He also sought custody and support of the minor children, alimony, and other relief as on file. At trial, both parties testified and were represented by counsel. They submitted financial affidavits and written proposed orders. The plaintiff submitted a child support guidelines worksheet. Some documents were introduced into evidence. The parties agreed on the record to joint legal custody of CT Page 1635 their minor children, primary residence with mother and certain rights of visitation with father. The court ordered the parties to participate in the Parenting Education Program. See General Statutes § 46b-69b. The parties waived oral argument and the filing of briefs, and the court continued the case until February 13, 1996, which date was extended to February 29, 1996, for the parties to file a stipulation as to the valuation of the plaintiff's mother's life estate (or the plaintiff's remainder interest) in the marital dwelling, and as to the filing of joint income tax returns for the 1995 year. The parties agreed that the husband would pay to the wife the sum of $175 per week as his contribution to family maintenance, until further order of the court, which agreement the court accepted. From the evidence, I find as follows. The parties were married October 31, 1982, in Pawcatuck, Connecticut. The wife's birth name was Lassell. The wife has resided continuously in this state for more than one year before the date of the complaint. Two minor children were born issue of the marriage, whose names and dates of birth are: Jack Joseph Samataro, Jr., January 26, 1983; and, Chelsea Naomi Samataro, February 21, 1992. No other minor children were born to the wife since the date of the marriage. All statutory stays have expired, neither party or the children are recipients of public assistance, and the court has jurisdiction. The wife is 29 years of age, a high school graduate with one year of college, and in good health. She has worked for the past eight years in a carpet business owned by her family. She is president of the company and manages the business; her responsibilities include sales and bookkeeping. She disclaims any ownership interest in it. She earns $450 per week gross, $355 per week net. She has health insurance benefits associated with her job. She has worked throughout the marriage, except for a break after the birth of her second child. The husband is 30 years of age, a high school graduate, with electrician training, and in good health. He is a licensed master electrician and is employed in a business owned by his father and a partner. Although the husband is the vice president of the company, he has no ownership interest in it. He has worked as an electrician throughout his career. He presently earns $600 per CT Page 1636 week gross, $4501 per week net. He has health insurance which covers the children and is fully paid by the employer. As an additional perquisite of his employment, he is allowed unrestricted use of a company vehicle; the company! pays for gasoline, insurance, taxes, etc. The parties married very young. Their marriage of over 13 years began to deteriorate some years ago. The couple argued and failed to communicate. They slept separately and their sharing of intimacy and sexual relations became infrequent. They separated in April 1995. The husband began a relationship with another woman. The couple halfheartedly attempted reconciliations twice. Although the marriage was not doing well, the husband's extramarital relationship gave it the kiss of death. The marriage has now irretrievably broken down, and a greater share of the responsibility for its destruction must lie with him. The parties have accumulated modest assets during the marriage. The major asset, a remainder interest in the jointly owned family home at 314 Liberty Street, Pawcatuck, Connecticut, was purchased by them from the wife's mother in 1990 for $125,000 by purchase money mortgage. The home includes a `mother-in-law' apartment, which the mother resides in; she has retained a life estate in the apartment,2 and presumably the land. The deed reserving the life estate also contained the following provision: "The grantees shall make no mortgage or conveyance of these premises without the written consent of the grantor". The parties are responsible for the real estate taxes on the dwelling and land and the utility bill for the apartment, as there is a single meter. The wife's mother is 63 and has a present life expectancy of 20 years. The value of the dwelling is $175,000, less the mortgage balance of $109,000, which leaves an equity of $66,000 for the property, without deduction for the life estate. The value of the life estate3 if it only applied to the apartment, is difficult to approximate. If it applied to the property as a whole, the value of the life estate would be $93,000,4 leaving $82,000 for the remainder interest which is less than the mortgage balance outstanding. If the apartment approximated 35 percent of the total dwelling area, then the value of the life estate derived by proration would be $32,550. This leaves $142,450 for the remainder interest, and an equity of $33,450. The parties submitted an appraisal and stipulation posttrial relating to the valuation of the life use. The court does not CT Page 1637 find the appraiser's opinion persuasive. Complicating the valuation process further is the restriction on alienation above referred to, which would render the property unmarketable without the consent of the plaintiff's mother. Moreover, the deed reserving the life estate requires the holder of the remainder interest to pay all of the real estate taxes attributable to the property as a whole, together with the utility bills for the apartment. Considering all of these factors, and the totality of circumstances, it would appear that the present equity in the remainder interest in the premises may be incapable of valuation, as being unmarketable. Hence, it only has value to the parties. The other assets reported by the parties on their financial affidavits are as follows: the wife, a 1993 Honda automobile valued at $11,000 with a loan of $2,500, leaving equity of $8,500; bank accounts of $300; and an IRA of $300. The husband reports the Honda at the same value; and two bank accounts with no balances. Neither party reported the values of their household furniture and furnishings on their financial affidavits; however, they testified to values of "between $6,000-$10,000". Against these assets, the husband discloses no ', liabilities on his financial affidavit, although he testified he has a credit card bill of $150; the wife discloses a $2,490 debt to her parents. Against these assets, the husband discloses no liabilities on his financial affidavit, although he testified he has a credit card bill of $150; the wife discloses a $2,490 debt to her parents. I find that the tangible personal property has already been substantially and equitably divided by the parties, and on the the state of the evidence, it is impossible to determine the values of the items of personal property, nor would it serve any useful purpose to do so. I also find from the evidence that the husband's monetary contributions to the marital estate, at least for 1993 and 1994, apart from the home, exceeded those of the wife, since his earnings were greater than hers. The equity in the house, in excess of the paydown, approximately $16,000, of the mother's mortgage, having been derived from the wife's mother, must be CT Page 1638 counted as part of the wife's contribution to the acquisition and appreciation in value of the marital assets. There is insufficient evidence to make a determination about the parties' respective nonmonetary contributions. The following additional findings are made. The parties were the beneficiaries of numerous gifts from the wife's mother, including appliances and furniture, which gifts are likely to continue to the wife. The husband has had greater earnings and earning capacity than the wife. Thus, these factors indicate they have approximately equal opportunity to acquire capital assets and income in the future. This is especially so when the existence of the vested remainder interest in the family dwelling is factored into the equation. The wife pays below market fees for her full-time employment-related day care to a day care provider in which the husband's father has an ownership interest. It is uncertain whether she will have the benefit of this low rate after the dissolution. I find that these costs are reasonable, that day care is necessary at this time for her to maintain employment and that the payment of the day care costs leaves insufficient funds for the other needs of the children. The presumptive child support obligation recommended by the application of the Child and Support and Arrearage Guidelines (guidelines) is $165 per week for the parties' two minor children. The husband argues for a downward departure from the guidelines and assets that two deviation criteria are applicable. The first, a division of assets, the second, the shared custodial arrangements the parties have agreed upon. I am not persuaded by either claim. With the exception of the family car, the tangible personal property has been equitably divided. The husband has a vehicle furnished to him by his employer; the wife obviously has need of a vehicle to transport herself and the children. The value of the remainder interest in the home, as previously stated, is problematical; I cannot find that the division of assets as proposed by the defendant will not result in a lesser economic benefit to the children. See Guidelines, § 46b-215a-3 (b)(5). The shared custody arrangement provides that the children are with father every other weekend, from Friday evening to Sunday evening, and every Tuesday evening to Wednesday morning (with CT Page 1639 Chelsea, only). This arrangement, when followed, allows one child to spend about 18 percent of her time with the father; the other child, 14 percent, exclusive of holidays, summer and school vacations. I cannot find, under the circumstances of this case, that this time is substantial, as the Guidelines Commission contemplated in the 1991 Guidelines, when the Commission stated: "(8) Custody Arrangements: . . . In the case of shared custody, the Commission finds that where the dependent child spends substantial time in the care of each parent, this factor should be considered a reason for deviation from the guidelines." The 1994 Commission debated whether to define `substantial 'by the use of 35 percent or 25 percent as the threshold percentage of shared custody, but decided to leave that issue to the court ' s discretion. See Mulholland v. Mulholland, Superior Court, Judicial District of Hartford at Hartford, Docket No. 362120 (Barall, J., June 13, 1994). The defendant has not met his burden of showing that the time he spends with the children, under the circumstances of this case, is sufficiently `substantial' to be able to invoke the application of the shared custody deviation criterion. Moreover, his gross and net income computations do not include the value of his in-kind compensation in the form of the company vehicle provided him. This compensation has been totally ignored, and should not have been. See Guidelines, § 46b-215a-1 (11) (xii). Considering the totality of the circumstances, I see no reason to depart from the Guidelines. I have considered all of the factors in General Statutes §§ 46b-81, 46b-82 and 46b-84 in the light of the evidence in the making of the financial awards hereinafter set forth. I have also considered the taxable complications and consequences of such awards. Accordingly, judgment may enter dissolving the parties ' marriage on the ground of irretrievable breakdown. The following orders are also entered. (1) Joint legal custody of the minor children is awarded to the parents, they are to reside with mother; rights of access to father every other weekend from Friday, 5 p. m. to Sunday, 5 p. m.; every Tuesday, 5 p. m. to Wednesday, 7 a.m. (Chelsea only) and such other holidays, school and summer vacations as they may CT Page 1640 agree upon. The Parenting Education Program is ordered. See General Statutes § 46b-69b. (2) The husband shall pay to the wife as child support the sum of $165 per week to be secured by contingent wage garnishment. If the garnishment becomes effective, payments shall be made directly to the wife. In addition, he shall pay to the wife one half of the day care costs associated with wife's employment, until Chelsea begins first grade. (3) Commencing with the 1996 tax year, the husband shall be entitled to claim one child as a dependency exemption for income tax purposes; the wife, the other. When the oldest child may no longer be claimed, the parties shall alternate the exemption in succeeding years. (4) The husband shall maintain and pay for health insurance available through his employment for the benefit of the minor children. The parties shall share the unreimbursed uncovered health expenses incurred for the children 50/50. An order pursuant to General Statutes § 46b-84d shall enter. (5) All right, title and interest in and to the marital dwelling at 314 Liberty Street, Pawcatuck, Connecticut, is assigned to and vested in the wife, subject to the mortgage, which she shall pay and save the husband harmless. (6) The wife shall take, have and own the following: all tangible personal property now in her possession; her Honda automobile, subject to the loan, which she shall pay and save the husband harmless; her bank accounts and IRA account. (7) The husband shall take, have and own all of the tangible personal property in his possession, and his bank accounts. (8) The wife shall pay the liabilities shown on his financial affidavit; the husband shall pay the credit card debt he disclosed. (9) Each party shall pay his or her own attorney's fees. (10) The wife shall maintain her employment-related life insurance policy with the children as equal irrevocable beneficiaries until the oldest reaches age 18; then the youngest shall be the sole beneficiary until she reaches 18. She shall CT Page 1641 execute and deliver a written authorization to the husband so that he may determine the status of said policy. The husband shall do likewise if life insurance is available to him from his employment. (11) The husband shall pay to the wife the sum of $1 per year as alimony, to terminate upon the death of either party, the wife's remarriage or pursuant to the provisions of General Statutes § 46b-86 (b) or September 1, 1998, whichever first occurs. (12) The parties' posttrial stipulation as to the filing of joint income tax returns for 1995 is approved, and they are ordered to do so and share the refunds, liabilities and costs thereof equally. (13) The wife's birth name of Lassell is restored to her. Teller, J.	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/2614960/	174 Ariz. 72 (1992) 847 P.2d 117 The VILLAS AT HIDDEN LAKES CONDOMINIUMS ASSOCIATION, an Arizona corporation, Plaintiff, Counter-defendant, Appellee, v. GEUPEL CONSTRUCTION COMPANY, INC., and R.G.W. Investment Co., Inc., Defendants, Counter-claimants-Appellants. No. 1 CA-CV 90-263. Court of Appeals of Arizona, Division 1, Department D. November 10, 1992. Reconsideration Denied January 13, 1993. Review Dismissed March 16, 1993. 74 Barry Allen Reiss, P.C. by Barry A. Reiss, Phoenix, for plaintiff, appellee. Jennings, Kepner & Haug by Chad L. Schexnayder, Phoenix, for defendants, appellants. OPINION TOCI, Judge. In this appeal, defendants Geupel Construction Company and R.G.W. Investment Co., Inc. ("Developer") challenge the trial court's grant of summary judgment in favor of plaintiff, The Villas at Hidden Lakes Condominium Association ("Association"). The Association, a group of condominium owners organized under a declaration of horizontal property regime ("Declaration"), claimed the Developer owed the Association for delinquent monthly assessments on units formerly owned by Developer. The Association had enacted a late payment charge on past due assessments and had applied the late payment charge retroactively to the Developer's alleged delinquent assessments. Developer disagreed, asserting that it owed no assessments because it had exercised the right to temporarily withdraw twenty-three units from the project. When Developer did not pay, the Association filed suit. We reverse the granting of summary judgment and remand for proceedings consistent with this opinion. We hold that: (1) because the Developer lawfully withdrew twenty-three units from the original fifty-three unit development, the twenty-three lots in Phase Two were not subject to the monthly assessments and late charges; (2) although the Association possessed the necessary contractual and statutory authority to impose late fees, it exercised its power unreasonably by making the late fees retroactive; and (3) because the affidavit in support of summary judgment did not contain admissible evidence of the Developer's liability for assessments, interest, and late charges, the Association did not establish a prima facie case against the Developer entitling it to summary judgment. FACTUAL AND PROCEDURAL HISTORY Paradise Isle Associates, a joint venture between the defendants Guepel Construction Company, Inc. and R.G.W. Investment Company, Inc., started a condominium project in northeast Phoenix called The Villas at Hidden Lakes. The Developer recorded 75 its declaration of horizontal property regime ("Declaration One") on August 30, 1985. The Developer later reworded Declaration One and recorded an amended Declaration on October 11, 1985 ("Declaration Two"). The Developer formed The Villas at Hidden Lakes Homeowner's [sic] Association under Declaration Two in October of 1985. According to Declaration Two, beginning on May 1, 1986, the Developer would pay to the Association monthly assessments on each of the condominium units it owned. Declaration Two also required Developer to make a reserve payment equal to twice the monthly assessment on each unit it owned within sixty days of the date it sold the first unit. Developer conveyed the first unit on April 22, 1986. On July 24, 1986, after four units had been sold, Developer, acting pursuant to authority granted in Declaration Two, withdrew twenty-three of the original fifty-three units from the project. Developer's position was that it was not required to pay assessments on these twenty-three units until they were rededicated to the project almost five months later. In October of 1987, after the Developer had sold all condominiums but Unit Six, the Association enacted a late payment penalty and imposed a $10 per unit per month late charge on all past due unit assessments, including the twenty-three units the Developer had withdrawn from the project. According to the Association, upon the enactment of the late charge, the Developer automatically owed $2,170 in late charges for past due assessments. In November, when the Developer did not meet the Association's October 1987 demand for payment of delinquent assessments, interest, and late charges, the Association claimed an additional $3,070 in late fees. This sum increased each month until July of 1988, when the Association began to charge a flat, monthly late charge of $3,180. By the time the trial court entered judgment, the late fees totalled $47,160. Most of this sum derived from assessments on the twenty-three units Developer withdrew from the project. The Association sued to recover the unpaid unit assessments, late fees, and interest. In addition, it sought to foreclose a lien on a lot then owned by Developer. Developer counterclaimed, alleging that the lien was invalid and that it did not owe the assessments and late payment fees because it had effectively withdrawn twenty-three of the lots from the project. Alternatively, the Developer asserted that the late fees exceeded the twelve percent interest specified in the Association bylaws for delinquent assessments and were therefore unenforceable. THE SEQUENCING OF THE PROJECT We hold the Developer had the authority to amend the Declaration governing The Villas at Hidden Lakes and that the Developer properly executed and recorded the July 1984 Amendment. Although the Association claimed the Developer should be equitably estopped from enforcing the Amendment, we hold the Association failed to establish a prima facie case of estoppel. Therefore, the trial court erred in granting summary judgment for the Association on this issue. We remand for a determination of whether the Developer is estopped to enforce the Amendment, but we also question the standing of the Association to raise an equitable estoppel claim on behalf of persons who purchased units from Developer. 1. Did the Developer Have Authority to Amend the Declaration? The parties do not dispute that Declaration Two, recorded on October 11, 1985, governs the Villas Development. They also agree that Developer recorded a document on July 24, 1986, to amend this Declaration, and that this document correctly and legally describes The Villas at Hidden Lakes. The Association argues, however, that because the Developer had already sold five units, it did not have authority to "unilaterally" amend the Declaration. This argument is without merit. The issue is not whether Developer had a "unilateral" right to amend, but whether Developer satisfied the provisions for amending the Declaration 76 in the governing Declaration itself. We find that the Developer met these provisions. The Developer owned more than ninety percent of the subdivision at the time it sought to divide the fifty-three unit project into two phases. Article Fourteen, section three of Declaration Two states that "this Declaration may be amended `at any time' by an instrument signed by not less than sixty-seven percent (67%) of the Unit Owners." In addition, Article Six, section two of Declaration Two, entitled the Developer to three votes per unit it owned, while only entitling the five other unit owners to one vote per unit. Thus, the Developer had one hundred forty-four votes versus the five votes of the other unit owners and more than enough votes to amend the Declaration. The Association also argues that the Amendment is invalid because the Developer did not obtain the consent of the mortgage holders to withdraw the units in Phase Two. We disagree. The owners of the units already sold held less than four percent of the votes. Therefore, according to the plain language of Declaration Two, whether these mortgage holders approved or not had no effect on the Developer's right to amend. Finally, the Association claims that the Developer did not have the authority to "unilaterally" change the fractional interest of each homeowner in the common areas of the subdivision from 1/53 to 1/30. Again, we disagree. The Declaration allows an Amendment that may add or subtract from the total property dedicated to the development. This necessarily results in a change in the overall fractional interest of individual owners. Furthermore, Article One, section four (d) of Declaration Two states: "Until or unless changed, each Dwelling shall bear a 1/53 undivided fractional interest in the Common Elements" (emphasis added). Because the Developer had the necessary votes to amend the Declaration to withdraw twenty-three units from the project, it necessarily also had the right to change the fractional interest of the remaining unit owners. 2. Did the Mistake Invalidate the Amendment? The Amendment, recorded on July 24, 1986, incorrectly refers to the recorded docket number of the earlier, revoked Declaration of August 1985 (Declaration One) rather than to the docket number of Declaration Two. The Association contends that even if the Developer had authority to amend the Declaration, the entire recorded Amendment is invalid because it contained this mistake. We disagree. We hold the Amendment is valid because it clearly identifies the property and precisely states its purpose, and the Developer re-recorded the Amendment to correct the erroneous reference to the revoked declaration. The Developer properly executed and acknowledged the July 1986 Amendment. The Amendment stated that it governed specific property, and the Developer attached a full legal description to the document that clearly identified the property. In addition, the Amendment stated its purpose as follows: "WHEREAS, Declarant desires to amend the declaration to provide for a phased development of the Property...." The parties do not dispute that Developer later corrected the mistake by re-recording the Amendment on September 5, 1986. A notation in the margin of the re-recorded document says the re-recording is solely to correct the improper reference to the revoked Declaration. This re-recording defeats the Association's argument that the incorrect docket number makes the entire Amendment invalid. Even if the Developer had not re-recorded the Amendment, the Amendment gave sufficient notice to third parties. Under Arizona law, a recorded document stating its terms and purpose imparts constructive notice. Ariz. Rev. Stat. Ann. ("A.R.S.") § 33-416 (provides that recording is notice to all persons);[1]Carley v. Lee, 58 Ariz. 77 268, 272, 119 P.2d 236, 238 (1941) (document gives constructive notice if it sufficiently informs third persons of the nature and substance of rights claimed under it); Watson Construction v. Amfac, 124 Ariz. 570, 575-76, 606 P.2d 421, 426-27 (1979) (deed of trust missing two pages still sufficient to "apprise third parties of the nature and substance of the right claimed"). We hold that the mistake did not invalidate the Amendment. The language of the recorded amendment was clear as to its nature, title, and purpose, and the legal description of the property to which it applied.[2] Titled as an "Amendment," the document explicitly identified the subdivision and purpose of the document. 3. Was the Amendment Invalid for Not Applying Equally to Every Lot in the Subdivision? The Association argues the Amendment is invalid because it exempts the twenty-three withdrawn units from monthly assessment payments. According to the Association, such unequal treatment of individual units is unlawful unless one hundred percent of the owners approve. We disagree. The Association points to three Arizona cases to support its position: Camelback Del Este Homeowner's Association v. Warner, 156 Ariz. 21, 749 P.2d 930 (App. 1988); Riley v. Boyle, 6 Ariz. App. 523, 434 P.2d 525 (1967); and La Esperanza Townhome Association, Inc. v. Title Security of Arizona, 142 Ariz. 235, 689 P.2d 178 (App. 1984). In each of these cases, the court held the attempted amendments were invalid for failing to treat all units uniformly. These decisions, however, do not establish a general principle that a condominium's governing declaration may never permit amendments that do not apply equally to every unit. Rather, each case construed specific limiting language in the respective declarations. The court, in Camelback Del Este v. Warner, highlighted this distinction: "[U]nless otherwise provided for in the restrictions themselves, any amendment to restrictive covenants, must apply to every lot." 156 Ariz. at 27, 749 P.2d at 936 (emphasis added; citations omitted). In this case, the Declaration has no such limiting language. Unlike Riley, La Esperanza and Camelback, the Amendment does not affect the restrictions or covenants at all; it merely provides for the development of the project in phases. Although the twenty-three units were temporarily withdrawn from the project, the governing declarations did not exempt those units from any covenant or restriction. All the restrictions and covenants would apply when the Developer rededicated the twenty-three units to the development. 4. Was Withdrawal of Phase Two Lots An Improper Termination of the Horizontal Property Regime As to Those Lots? The Association argues that the Declaration requires "approval of all the Owners of the units" in order to terminate the horizontal property regime.[3] It contends withdrawal of the twenty-three units without the approval of the five individual unit owners made this an unauthorized termination. We disagree. The Amendment at issue clearly distinguishes between withdrawing a portion of the property from the project and terminating the horizontal property regime entirely. Although termination of the regime requires one hundred percent owner approval, withdrawal of property requires only sixty-seven percent of the votes of the owners. Because it is a less drastic step, withdrawal 78 simply requires fewer votes for approval than does termination. When interpreting a document, we will construe provisions to harmonize rather than to conflict if sound reasons exist to do so. LeBaron v. Crismon, 100 Ariz. 206, 209, 412 P.2d 705, 707 (1966). Applying this principle, we find the termination and withdrawal provisions are consistent. Therefore, we hold that withdrawal of property in Phase Two without the consent of the five unit owners did not unlawfully terminate the horizontal property regime. 5. Is the Developer Estopped From Asserting It Does Not Owe Monthly Assessments on the Twenty-Three Units in Phase Two Withdrawn by the Amendment? The Association next contends Developer is estopped from claiming that no assessments were due on the twenty-three withdrawn lots in Phase Two. We hold that the Association did not establish a prima facie case of equitable estoppel, and the trial court erred in granting summary judgment for two reasons. First, the original Declaration gave constructive notice that the owners holding "sixty-seven (67%) of the votes in the association" could consent to withdrawal of units from the development. Second, and more importantly, neither the Association nor the five unit owners presented admissible evidence that they suffered any injury from the withdrawal of the twenty-three lots in Phase Two. Therefore, we remand to the trial court. The doctrine of equitable estoppel is not applicable unless one is injured by justifiably relying upon conduct of another intended to induce such reliance. Heltzel v. Mecham Pontiac, 152 Ariz. 58, 60-61, 730 P.2d 235, 237-38 (1986). In order to sustain the summary judgment on the issue of estoppel, the Association had to show the absence of any factual conflict and the right to judgment as a matter of law. United Bank of Arizona v. Allyn, 167 Ariz. 191, 197, 805 P.2d 1012, 1018 (App. 1991). We conclude the Association did not meet that burden. The Association bases its claim of estoppel on representations made to the first five unit purchasers by Developer's sales agents that Developer would pay the monthly assessment for each unsold lot in the subdivision. The Association argues that withdrawal of the twenty-three lots reduced the Developer's monthly contribution by $1,725. It argues that this reduction had a "deleterious effect upon the care and maintenance of the Subdivision ... particularly the common areas." The Association, however, does not point out how the withdrawal of Phase Two impaired the "care and maintenance of the Subdivision." The Association incurred no obligation to maintain any portion of Phase Two during the time Phase Two was withdrawn. Furthermore, the Developer remained liable during this period for monthly assessments on all units it owned in Phase One. Contrary to the Association's argument, the withdrawal of units in Phase Two did not increase the financial obligation of the owners of units in Phase One to pay for the "care and maintenance" of the common areas in Phase One. Thus, the Association did not establish by affidavit or other competent evidence either justifiable reliance upon the representations made by Developer's agents or injury resulting from withdrawal of the units in Phase Two. THE LATE FEE PENALTY 1. Did the Association Have the Authority to Impose Late Fees? Both Declaration Two and A.R.S. section 33-1242 of the Uniform Condominium Act (UCA) support the Association's right to charge late payment penalties on overdue assessments. Article Five, section one is the only authority in Declaration Two for assessment of late fees.[4] That section states that the 79 assessments, "late payment penalties, if any, together with interest, costs, and reasonable attorney's fees," shall be a lien upon the unit. In addition, Arizona's UCA, A.R.S. section 33-1242, provides: Subject to the provisions of the declaration, the association may: .... 11. Impose charges for late payment of assessments and, after notice and an opportunity to be heard, impose reasonable monetary penalties upon unit owners for violations of the declaration, bylaws and rules of the association. The Developer argues that this section does not give the Association authority to impose late fees in excess of the contractual twelve percent interest rate because the UCA only applies to condominiums created after January 1, 1986. See A.R.S. § 33-1201(A) (establishing effective date of UCA). The Developer points out that the Association filed its governing declaration (Declaration Two) before the effective date of the UCA. The UCA, however, "applies to condominiums created within this state before the effective date of this chapter to the extent the provisions of this chapter are not in conflict with chapter 4.1 of this title ...." A.R.S. § 33-1201(B). Chapter 4.1 (which is former A.R.S. sections 33-551 through 33-561, repealed by the current UCA) contains no language that prevents the assessment of late charges by a condominium homeowner's association. Therefore, the Association had authority under section 33-1242 to impose late fees. The Developer argues, nevertheless, that even if the UCA applies, the Association may not exercise rights authorized by section 33-1242(11) because this section is expressly "[s]ubject to the provisions of the declaration." The Developer never tells us where the Declaration expressly prohibits the imposition of late charges. We have carefully reviewed Declaration Two and find no such prohibition. Thus, we conclude the Association may exercise the powers granted to it in the Declaration and in A.R.S. section 33-1242(11). 2. Was the Developer Personally Liable for Late Fees? Count One of the Association's complaint claimed that Developer was personally liable for late charges on delinquent assessments. The Developer argues Declaration Two excludes late payment penalties from the list of items that may become a personal liability of an owner. The Developer also argues the Association's exclusive remedy is a lien against each lot for the amount of the late charges. Based on our interpretation of Declaration Two, we hold that the Declaration creates a personal obligation for late fees and that a former owner may be personally liable for such charges. Article Five, section one, of Declaration Two, provides in part: Section 1. PERSONAL OBLIGATION OF ASSESSMENTS .... The annual, special and supplemental assessments, late payment penalties, if any, together with interest, costs, and reasonable attorney's fees, shall be a lien upon the Unit as created by the Articles 80 or By-Laws. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such Unit at the time the assessment was levied. (Emphasis added.) Developer argues the exclusion of late payment penalties from the list of items in the second sentence clearly signifies that such payments may not become a personal liability of an owner. We reject this argument. First, the title of this section, "Personal Obligation of Assessments," says that the assessments specified in section one are meant to be the personal obligation of the lot owner. Second, the four kinds of assessments specifically listed in the first sentence are collectively referred to in the second sentence as "each such assessment." Both sentences merely describe the same four assessments in different ways. We hold, therefore, that the words "each such assessment" in the second sentence refer to and include the assessment for late fees listed in the first sentence and personally bind the lot owners. 3. Were the Late Fees Reasonable? Although the Association by Declaration and statute has the power to impose charges for late fees, it cannot abuse its discretion or exercise its power unreasonably. We hold that because the Association had not adopted a schedule of penalties for late payments at the time the Developer's assessments became delinquent, the retroactive imposition of monetary penalties on such assessments was unreasonable. The Association adopted the late charge in October 1987, and applied it to monthly assessments already delinquent. The Association calculated the late charge by multiplying the number of units owned by Developer by the number of months Developer owned each unit. It then multiplied the product of this calculation by the $10 late fee. According to the Association, at the moment it adopted the late charge penalty, Developer was automatically liable for $2,170 in late charges for past delinquencies. Thus, in November, the month following adoption of the late charge, instead of charging a late fee of $520 for fifty-two delinquent assessments,[5] the Association assessed the Developer a late payment penalty of $3,070. The Association claimed a similar sum for each following month in which the pre-October 1986 assessments were unpaid. Fifteen months later, according to the Association, the Developer owed $47,160 in late charges. The Developer contends the Association had no statutory or contractual power to impose late fees in excess of the twelve percent interest specified in the governing bylaws. We disagree. Article Five, section one of the Declaration and A.R.S. section 33-1242(11) clearly give the Association the power to impose charges for late fees and interest. Nevertheless, we find that neither the language of the Declaration authorizing the imposition of "late payment" fees nor the provisions of A.R.S. section 33-1242 empower the Association to assess unreasonable late payment fees. Courts have regularly imposed a reasonableness standard on rules and regulations adopted by condominium homeowners' associations. See, e.g., Makeever v. Lyle, 125 Ariz. 384, 388, 609 P.2d 1084, 1088 (App. 1980) (condominium associations may exercise broad powers "if they are not arbitrary and capricious, bearing no reasonable relationship to the fundamental condominium concept"); Ryan v. Baptiste, 565 S.W.2d 196, 198 (Mo. App. 1978); Rhue v. Cheyenne Homes, Inc., 449 P.2d 361, 363 (Colo. 1969) (refusal of committee to approve house plans must be reasonable and not arbitrary and capricious); see also Chateau Village North Condominium v. Jordan, 643 P.2d 791, 792 (Colo. App. 1982); Unit Owners Ass'n of Buildamerica-1 v. Gillman, 223 Va. 752, 292 S.E.2d 378, 386 (1982) ("[A]mendments to condominium restrictions, rules and regulations should be measured by a standard of reasonableness, and ... courts should refuse to enforce regulations that are found to be unreasonable."); 81 Worthinglen Condominium Owners' Ass'n v. Brown, 57 Ohio App. 3d 73, 76, 566 N.E.2d 1275, 1277 (1989) (If, in the context of surrounding circumstances, the amendment is unreasonable, arbitrary or capricious, it is invalid.). We note that late charges are ordinarily imposed in connection with an installment debt. There, the late payment penalty, usually a flat fee or percentage of the installment due, is set forth in the loan documents. The obligor knows, in advance of the due date, that a late charge in a sum certain will be assessed for each late payment. In an installment debt, the obligor can choose between paying on time or paying late and incurring a specific late charge. Here, however, although the Association always had the power to enact a late payment penalty, it did not do so until October, 1987. Before that date, the Association did not require an owner to make a choice between making a timely monthly assessment payment and incurring a late penalty for failing to make a timely payment. We conclude that an owner who may have acted on the premise that the Association's only penalty for late payment of a monthly assessment was an interest charge of 12%, and who might have timely paid the monthly assessment rather than a late payment penalty, should not be subject to a late payment charge enacted many months after the date of delinquency. For that reason, we hold that, as a matter of law, the Association's imposition of a retroactive late fee was unreasonable, arbitrary, and an abuse of discretion. Thus, the Association cannot use assessments delinquent before October 1987, as the base for post-October late payment calculations. We strike all late fees imposed on assessments delinquent before October 1987, and remand to the trial court for a recalculation of the late fees. SUMMARY JUDGMENT ON COUNT ONE: ASSESSMENTS, RESERVES, INTEREST, LATE FEES AND SALE ESCROW FUNDS The Developer contends that summary judgment on Count One was improper because of the existence of issues of fact. We agree. We hold that the Association did not show by competent evidence a prima facie case entitling it to summary judgment against the Developer for $77,744.95, in unpaid assessments, late fees, interest, and sale escrow funds. 1. Did the Association Establish a Prima Facie Case for Summary Judgment? The initial burden of establishing the elements of summary judgment rests with the moving party. Nelson v. Cannon, 126 Ariz. 381, 385, 616 P.2d 56, 60 (App. 1980). A movant who will bear the burden of proof at trial must show a prima facie case, and only then does the burden shift to the opponent to prove the existence of a dispute. GM Dev. v. Community Am. Mortg., 165 Ariz. 1, 5, 795 P.2d 827, 831 (App. 1990). Where the movant relies on an affidavit to support the motion, the affiant must by personal knowledge show both competency to testify about the matters in the affidavit and state facts that would be admissible evidence. Ariz.R.Civ.P. 56(e); Portonova v. Wilkinson, 128 Ariz. 501, 502, 627 P.2d 232, 233 (1981). See also Ariz.R.Evid. 901(b)(1) (authentication requires "[t]estimony that a matter is what it is claimed to be"). The affidavit of Wallace Neal, submitted by the Association in support of its motion for summary judgment, did not comply with either requirement of Rule 56. It neither set forth facts admissible in evidence nor affirmatively established Neal's competence to testify to the liability of the Developer for the damages claimed by the Association. The Association attached computer-generated exhibits to support its motion for summary judgment. The affidavit states essentially that Neal is the president, and based upon his personal knowledge and information, the Developer owes $77,744.95 for unpaid assessments, late fees, and interest on other units in the development. 82 The summaries and exhibits referred to in the affidavit consist of four computer-generated exhibits that contain no information about their preparation.[6] Although Neal states he made the affidavit on personal knowledge, he does not lay a foundation for either the admission in evidence of the exhibits or the admission of his conclusions based on the exhibits. The affidavit does not say that Neal ever reviewed the exhibits or that he is familiar with the person who prepared them or the manner in which they were prepared. We conclude that Neal's affidavit did not affirmatively show that he was competent to testify to any conclusions derived from the exhibits attached to the affidavit. See Chess v. Pima County, 126 Ariz. 233, 235, 613 P.2d 1289, 1291 (App. 1980) (affidavit does not comply with Rule 56(e) when "it contains conclusions and fails to show that the affiant is competent to testify to the matters stated therein"); Heiner v. City of Mesa, 21 Ariz. App. 58, 62-63, 515 P.2d 355, 359-60 (1973) (affidavit did not comply with Rule 56(e), Ariz.R.Civ.P., because the affiant did not show personal knowledge and competency to testify). Similarly, the affidavit did not recite facts that are admissible evidence. The conclusory facts Neal provided were based on computer-generated exhibits that are inadmissable hearsay. Ariz.R.Evid. 801(a) and (c). The Neal affidavit does not establish that these exhibits fall within the business records exception to the hearsay rule. Ariz.R.Evid. 803(6). Transamerican Ins. Co. v. Trout, 145 Ariz. 355, 360, 701 P.2d 851, 856 (App. 1985) ("The fact that [one keeps] the reports among [one's] own business records does not make the documents `business records' within the contemplation of the rule."). 2. Does the Association Owe Assessments? Because we held the Amendment properly divided the condominium project into two phases for development, we reverse the trial court's ruling that monthly assessments were due on the twenty-three withdrawn units from July 24, 1986, through December 1986. We note, however, that these units were not withdrawn until July 24, 1986, and thus were subject to monthly assessments from May 1, 1986, through July 24, 1986. Upon remand, the trier of fact shall determine what sum, excluding late fees, the Developer owes for monthly assessments and interest on the units in Phase Two during this period. Whether the Developer owed assessments and late fees after October 1987, is also a material issue of fact. We, therefore, reverse the granting of summary judgment on this issue and remand to the trial court to determine whether any assessments or late fees are due after October 1987. 3. Is the Developer Entitled to Credits or Offsets? In addition, the parties dispute the amount of credits or offsets against the late fee penalty to which the Developer is entitled. Because Developer does not owe any assessments for the units in Phase Two during the period those units were withdrawn from the project it is not entitled to offsets or credits for the amounts it paid in insurance, maintenance, and other costs for Phase Two during this same period. 4. Are There Other Issues of Material Fact Precluding Summary Judgment? We find that other disputed issues of fact exist about the escrow and additional charges alleged to be due and owing by Developer. For example, the parties dispute the total amount of assessments Developer has already paid. Developer's affidavits show payments totalling $21,181.73; the Association contends that payments 83 from Developer totalled only $15,385.00. Further, although the Association claims the Developer owes $14,400 from the sales escrow accounts, the Association did not make a prima facie case for summary judgment on that issue. We remand these issues to the trial court. SUMMARY JUDGMENT ON COUNT TWO: THE LOT SIX CLAIMS The trial court granted summary judgment for the Association on Count Two of the complaint and awarded $6,834.00 plus accruing monthly charges of $301.15. These amounts consisted of alleged overdue assessments and late charges relating to Lot Six. The court also ruled that the lien, which the Developer recorded and then re-recorded against Lot Six, was valid and ordered that the sheriff sell the property. Finally, the trial court dismissed the Developer's wrongful lien complaint and counterclaim against the Association and Wallace Neal. 1. Was the Association Entitled to Summary Judgment on Overdue Assessments and Late Charges on Lot Six? We hold the trial court erred by granting summary judgment as to Lot Six. First, the affidavit of Wallace Neal did not establish by competent evidence the Developer's indebtedness for overdue assessments and late charges. Second, the trial court counted the charges on Lot Six twice in calculating damages to the Association. It erroneously included the sum of $6,384.00 awarded under Count Two, in the Count One damage award of $77,744.95. Third, the twenty-three lots in Phase Two that were withdrawn from the project included Lot Six. Thus, under our holding, Developer owed no assessments, late charges, or interest on Lot Six for the period July 24, 1986, through December 1986. We remand to the trial court to determine the indebtedness on Lot Six. 2. Was the Lot Six Lien Valid? The last sections of the judgment dismiss Developer's counterclaim against the Association and its complaint against Wallace Neal. The Association's counterclaim and complaint (referred to later as the "counterclaims") are based on A.R.S. section 33-420, which imposes certain penalties for the recording of an invalid lien against real property. Both counterclaims consist of essentially the same claim against different defendants. Both seek damages based on the alleged improper filing of a lien on Lot Six. The trial court found that the lien was valid and enforceable and did not rule on Developer's section 33-420 argument. On appeal, Developer contends that the trial court erred in finding that the lien was valid because the Association "materially misstated" the amount due in assessments and late fees on Lot Six. We agree with the Developer that a question of fact exists on this issue. Thus, we need not address the Developer's remaining arguments about the validity of the lien. 3. Was There a Valid Tender of the Amounts Due on Lot Six? The Association contends that the Developer was delinquent in its assessments on Lot Six for $1,439.25 as of the date of the October lien. In calculating this amount, the Association included monthly assessments of $75, plus twelve percent interest from May 1986, through October 1987. On October 12, 1987, the Association sent a letter to the Developer demanding payment in the amount of $26,208.87. The letter, however, offered no explanation or itemization of the claim. In a letter to the Association dated November 3, 1987, the Developer claimed that its records showed it was only delinquent on Lot Six assessments from April 1987. The Developer also enclosed a check for $600 to cover that period with a request that the Association waive any interest or penalty. The Association rejected this payment and recorded a lien in the amount of $1,439.25 on November 5, 1987. Because the July 1986 Amendment permitted the development of the project in two phases, Lot Six, as a part of Phase Two, was properly withdrawn from the development. The Developer did not sell the *84 first lot in Phase Two to an individual owner until October of 1986. Because assessments did not begin until sixty days later, Developer did not owe a $75 monthly assessment on Lot Six from August 1986 through December 1986. Developer admits being overdue in assessments on Lot Six from April through November 1987. It argues, however, that it unconditionally tendered a check for $600 to cover those assessments. It further argues that the Association's refusal of the check, even as a partial payment, and the Association's later inclusion of that amount in their lien, resulted in an unlawful inflation of Developer's liability. Developer cites Peterson v. Central Ariz. Light and Power, 56 Ariz. 231, 237, 107 P.2d 205, 208 (1940), for the proposition that the legal effect of Developer's unconditional tender is to relieve it from payment of late fees and charges on Lot Six. The Association contends the $600 check was a conditional tender and acceptance of the $600 would have resulted in a waiver of its right to any payment more than $600. The Association argues it was justified in including the $600 with the calculation of overdue assessments and in continuing to add further interest and late fees because it never accepted the check. Although the Association is correct that to be valid, a tender must be unconditional, Pleasant v. Ariz. Storage and Distributing Co., 34 Ariz. 68, 78, 267 P. 794, 798 (1928), the Association offered no evidence to substantiate its claim that the tender of payment was conditional. Whether the Association has a lien on Lot Six and, if so, the amount of the lien are fact issues. Whether the Developer's tender was unconditional is also a disputed question of fact. We remand these issues to the trial court. Furthermore, we cannot determine as a matter of law whether the Association wrongfully asserted the lien. Thus, we do not reach the question of the Association's possible liability under A.R.S. section 33-420 for filing a groundless lien. If the lien against Lot Six is valid, the question of the Association's liability under section 33-420 becomes moot. If, on the other hand, the lien was groundless when filed, the trier of fact must then determine whether the Association is liable for damages under section 33-420. ATTORNEY'S FEES We determine that summary judgment was improper on both counts of the complaint and reverse the trial court's award of attorney's fees to the Association. The Developer has requested attorney's fees pursuant to Rule 21(c), Arizona Rules of Civil Appellate Procedure. An award of attorney's fees is appropriate even where we have not entered a final judgment. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 393-94, 710 P.2d 1025, 1048-49 (1985). We grant the Developer's request for attorney's fees in this appeal. Pursuant to Rule 21(a), Arizona Rules of Civil Appellate Procedure, Developer has ten days to file its affidavit of costs and attorney's fees with this court. CONCLUSION Based on the foregoing, we reverse the trial court's grant of summary judgment on all counts and remand for proceedings consistent with this opinion. TAYLOR, P.J., and GRANT, J., concur. NOTES [1] A.R.S. § 33-416 states: "The record of a grant, deed or instrument in writing authorized or required to be recorded, which has been duly acknowledged and recorded in the proper county, shall be notice to all persons of the existence of such grant, deed or instrument...." [2] The Amendment states: "This Amendment to Declaration of Horizontal Property Regime Together with Covenants, Conditions and Restrictions for The Villas at Hidden Lake Condominiums is made this 18th day of July, 1986 by Paradise Isle Associates, an Arizona joint venturer (`Declarant')." [3] Declaration Two, Article Ten, section one states: "[T]he Horizontal Property Regime created by the recording of this Declaration may only be terminated with the approval of all of the Owners of the Units." [4] Section 1. PERSONAL OBLIGATION OF ASSESSMENTS. The Declarant, for each Dwelling owned within the Property, hereby covenants, and each Owner, by acceptance of a deed, except as provided for in this Article, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) annual assessments (paid as provided herein) for commonly metered utilities, insurance, maintenance, management, utilities for common areas, and other general expenses including reserves for contingencies, maintenance, repair and replacement, hereafter referred to as "annual assessments;" (2) special assessments for capital improvements; and (3) supplemental assessments. Such assessments are to be established and collected as provided in this Declaration, Articles and By-Laws. The annual, special and supplemental assessments, late payment penalties, if any, together with interest, costs, and reasonable attorney's fees, shall be a lien upon the Unit as created by the Articles or By-Laws. Each such assessment, together with interest, costs, and reasonable attorney's fees, shall also be the personal obligation of the person who was the Owner of such Unit at the time the assessment was levied. The personal obligation for delinquent assessments shall not pass to successors in title unless expressly assumed by them, or unless prior to the transfer of title as evidence by the records of the County Recorder or other appropriate governmental agency, a lien for such assessment shall have been filed or recorded. (Emphasis added.) [5] The Association made no claim for assessments on Unit 33, the first unit sold. [6] The first exhibit is "Monies Owed by [Developer] for Unit # 6" from April 1986 through February 1989. The second is "Assessments Owed by [Developer]" from 1986 through May 1988. The third is "Assessments and Reserves Owed by [Developer]" from the escrow sales of each of the fifty-three lots. The fourth calculates all of the "Money owed and paid by [Developer]" from April 1986 through February 1989.	01-03-2023	10-30-2013
https://www.courtlistener.com/api/rest/v3/opinions/3350500/	[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The parties in this matter were married in San Diego, California on October 7, 1989. At the time of the marriage, the plaintiff's maiden name was Jean Sablan. The court finds that there has been proper service, and that there is jurisdiction based upon the residence of the parties in the state of Connecticut. The court further finds that there are two children issue of the marriage, to wit: Steven Richard Kucinskas born January 26, 1989 and Kevin Raymond Kucinskas born May 10, 1992. Neither party has received state or municipal assistance during the course of the marriage. The marriage of the parties has broken down irretrievably. The marriage is hereby dissolved. The court has considered the Connecticut General Statutes criteria with respect to custody, child support, alimony, and division of property. Pursuant to those considerations and the evidence presented by the parties at trial the court makes the following findings: The plaintiff Jean Kucinskas is thirty-five years of age. Her health is good. Her education is two years of college, without a degree. She is currently employed as an executive assistant for a company named SourceOne in Farmington, Connecticut. She earns approximately $42,000.00 per annum. Her significant employment history after the birth of her children were a temporary job at Bristol Hospital, followed by employment at Specialty Optics in Avon, then at Golden Consulting. At Golden Consulting she earned $52,000.00 per annum but was laid off. The plaintiff has worked to her earning capacity throughout the course of her marriage. The defendant is currently thirty-seven years of age, and also in good health. He has completed four years of college. He owned and operated a video store in California which was sold prior to the parties move to the state of Connecticut. Subsequently, he was employed by the United States Postal Service. His earnings went from a base $30,000.00 to as much as CT Page 12474 $42,000.00 per annum, depending on the circumstances. While working at the Post Office, he purchased a business known as "White Glove Cleaning." That business in part was financed from funds borrowed from the defendant's father. Eventually, the defendant left the Postal Service and continued to run the cleaning business on a full time basis. While engaged in the cleaning business he bought his second business which was known as "Michael's Pizza." The pizza business was not successful and led to what the defendant has claimed is a very substantial loss. Assets of the parties totaling the sum of $48,000.00 were liquidated in order to satisfy the debts of that business. Again, the business was purchased at least in part with monies leant to the defendant by his father. At present, the defendant is a student at an institution called New Horizons which he describes as a computer school. The defendant indicates that his father paid a $13,000.00 tuition, and that his course of study will be of approximately nineteen months duration. He expects to finish his schooling some time in the year 2003. He indicates that he will earn up to $25,000.00 per annum or perhaps as much as $45,000.00 or 50,000.00 per annum if he obtains certain certifications. Currently, the defendant is paying child support based on a finding by this court (Caruso, J.) on April 24, 2002 that the defendant had an earning capacity of $30,000.00 per annum. That finding is found to be appropriate still and shall apply for the purposes of this judgment. The marriage of the parties has been marked by emotional and financial difficulties. The finances of the parties have been linked to the defendant's father who has supplied money at different times for the ventures undertaken by the defendant. The most successful venture seems to have been a video store the parties operated in California. Subsequent to that, the cleaning business and the pizza business were not successful. The defendant claims that the cleaning business failed because of his incarceration resulting from restraining orders and subsequent violations related to this case. The relationship of the parties was complicated by the fact that the plaintiff had an affair during the course of the marriage. Subsequent to the discovery of that affair, there appears to have been some attempts at reconciliation which failed. The defendant's reaction to the affair eventually resulted in bizarre, self destructive and criminal behavior which has had a negative impact upon his relationship with the plaintiff and also his relationship with his children. The defendant's behavior also resulted in his arrest, conviction and incarceration. Both parties share the responsibility for the breakup of their marriage. CT Page 12475 The court enters the following orders: The issue of custody and access of the minor children is deferred until such time as a family relations study is completed. The defendant shall pay child support in the amount of $138.00 per week based upon his earning capacity as previously found. That order is entered without prejudice and is to be modified, if appropriate, upon the entering of a custody and access order with regard to the minor children. Child support shall be paid by immediate wage withholding upon the securing of employment. Until that time, the defendant shall make child support payments directly to the plaintiff by check and/or money order. The plaintiff shall maintain medical insurance for the benefit of the minor children as available through her employment. The parties shall share equally any uninsured, unreimbursed medical or dental expenses for the minor children. The plaintiff may claim both children for purposes of state and federal tax exemptions. Neither party shall pay or receive alimony. The defendant shall quit claim all of his right, title and interest to the marital home located on 200 West Mountain Road, Simsbury, Connecticut. Said home is found to have a value in the amount of $199,000.00. The plaintiff shall make any and all payments for mortgages held by GMAC, and a line of credit held by Sovereign Bank. The outstanding principal balance of those loans is $79,312.00 and $25,256.00 respectively. In addition, she shall be responsible for payment of taxes, insurance and maintenance with respect to said real property. The plaintiff shall give the defendant a note and mortgage in the amount of $30,000.00, without interest, secured by that property. That note and mortgage shall be payable on or before five years from the date of this judgment. The plaintiff may set off from the payment of that sum any unpaid obligation of the defendant' payable to her or for her benefit under the terms of this judgment, including but not limited to child support. The defendant is to hold the plaintiff harmless on the debt due by him to U.S. Foodservice. The plaintiff shall retain her 401k plan as listed on her financial affidavit. Each party shall be responsible for the debts listed on their CT Page 12476 respective financial affidavit. The defendant shall hold the plaintiff harmless for any debt associated with the businesses known as Michael's Pizza and/or White Glove Cleaning. Those debts shall include, but not be limited to debts payable to the defendant's father. Each party is to pay their respective counsel fees. BY THE COURT Antonio C. Robaina, J. CT Page 12477	01-03-2023	07-05-2016
https://www.courtlistener.com/api/rest/v3/opinions/8326456/	Kenton-Walker, Janet, J. The plaintiff, Edward Auger, seeks judicial review of a decision by the Board of Appeal on Motor Vehicle Liability Policies and Bonds (“the Board”), which upheld a decision by the Registrar of Motor Vehicles (“the Registrar”) that revoked the plaintiffs license to operate a motor vehicle in Massachusetts for eight years. 1 The plaintiff argues that the Registrar’s decision was not supported by substantial evidence, unwarranted by the facts, arbitraiy and capricious, an abuse of discretion, or otherwise not in accordance with the law. He requests that the court set aside the decision and order that his license may only be suspended for forty-five days. The matter is now before the court on the plaintiffs Motion for Judgment on the Pleadings.2 For the following reasons, the plaintiffs motion is DENIED and the Board’s decision is AFFIRMED. BACKGROUND A review of the complaint, the motion papers, and the administrative record reveals the following facts. On September 11, 1984, the plaintiff was convicted of operating a motor vehicle while under the influence of an intoxicating liquor (“OUI”). On November 30, 1988, he received a second OUI conviction. On May 3, 2010, he received a third OUI conviction. On May 4, 2010, the Registrar notified the plaintiff that, effective May 3, 2010, his license was revoked and suspended for a period of eight years. The plaintiff appealed this decision to the Board, which granted him a hearing on July 9, 2010. At the hearing, the plaintiff testified that he was fifty-two years old, resided in Worcester, and lived with his girlfriend. He further testified that he had not worked for eight years, supported himself through Social Security Disability Insurance, and was able to meet his routine transportation needs with the help of public transportation. The Board inquired into the plaintiffs alleged hardship. The plaintiff responded that he had multiple health issues and sought a license so that he could drive himself and his girlfriend to medical appointments. The Board also inquired as to the plaintiffs last use of alcohol. The plaintiff responded that he had consumed alcohol as recently as a week before the hearing, and he did not provide the Board with any proof of enrollment in an alcohol program or counseling. The Board determined that plaintiff had failed to meet the burden necessary to modify the suspension, as he had only served three months of the suspension, was not working or seeking employment opportunities, and did not provide documentation showing enrollment in an alcohol program. It further determined that the plaintiff did not qualify for hardship consideration since the plaintiff acknowledged he could use public transportation to get to medical appointments and did not provide documentation of a health issue that would make him eligible for a hardship license. The Board therefore affirmed the Registrar’s decision on September 8, 2010. The plaintiff timely appealed the Board’s decision pursuant to G.L.c. 30A, §14. DISCUSSION Pursuant to G.L.c. 30A, §14(7), a court may set aside or modify an agency’s decision if it determines that “the substantial rights of any party may have been prejudiced” because the decision (a) is in violation of constitutional provisions, (b) is in excess of the agency’s statutory authority or jurisdiction, (c) is based upon an error of law, (d) is made upon unlawful procedure, (e) is unsupported by substantial evidence, (f) is unwarranted by the facts on the record, or (g) is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. In reviewing an agency’s decision, the court must “give due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authorily conferred upon it” by statute. G.L.c. 30A, §14(7); Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420 (1992). Judicial review of an agency’s decision is confined to the administrative record, and a court may not substitute its judgment on questions of fact for that of the agency. G.L.c. 30A, §14(5); Southern Worcester County Reg'l Vocational Sch. Dist. v. Labor Relations Comm’n., 386 Mass. 414, 420-21 (1982). As the party appealing an agency’s decision, the plaintiff has the burden of demonstrating its invalidity. Merisme v. Board of Appeal on Motor Vehicle Liab. Policies and Bonds, 27 Mass.App.Ct. 470, 474 (1989). General Laws c. 90, §24, and its neighboring sections govern the licensing consequences of operating a motor vehicle while under the influence of an intoxicating liquor. With certain exceptions, G.L.c. 90, §24(l)(b), requires the Registrar to revoke the driver’s *199license of any person who has an OUI conviction in violation of G.L.c. 90, §24(l)(a)(l). This subsection does not itself specify how long a license will be revoked. Instead, G.L.c. 90, §24(1) (c), sets forth certain time periods during which the Registrar is prohibited from restoring a person’s license. See Breslin v. Board of Appeal on Motor Vehicle Liab. Policies and Bonds, 70 Mass.App.Ct. 131, 134 (2007). These time periods are determined by the number of previous convictions a person has for an OUI or a “like offense.” G.L.c. 90, §24(l)(c). In the present case, the plaintiffs most recent OUI conviction was his third such offense. The applicable subsection, G.L.c. 90, §24(l)(c)(3), provides that the Registrar is prohibited from restoring a third-time offender’s license “until eight years after the date of conviction.” In his motion, the plaintiff contends that his most recent OUI conviction, for which he alleges to have received a forty-five-day loss of license punishment, should be the “final decision” since both of his previous OUI convictions occurred more than twenty years ago.3 Based on the allegation in his complaint that the Registrar notified him that it was treating his May 3, 2010 OUI conviction as a third offense, coupled with his request that the court order that his license may only be suspended for forty-five days, the court interprets this contention as one referring to G.L.c. 90, §24D. This section sets forth an exception to the mandatory license revocation procedures outlined in G.L.c. 90, §24. Specifically, it provides that any person convicted of operating a motor vehicle under the influence of an intoxicating liquor may be placed on probation, assigned to an alcohol education program, and have his license suspended for a period between forty-five and ninety days. This section applies to first-time offenders as well as offenders with a single prior conviction or assignment to an alcohol education or treatment program for a similar offense that occurred ten or more years earlier, once in their lifetime. See G.L.c. 90, §24D; Commonwealth v. Cahill, 424 Mass. 127, 131 (2004). In the present case, the plaintiff did not have a single prior conviction of operating a motor vehicle while under the influence of an intoxicating liquor more than ten years before receiving his most recent conviction. Instead, he had two OUI convictions, first on September 11, 1984 and then on November 30, 1988, before receiving his third OUI conviction on May 3, 2010. Accordingly, the Board did not err in applying G.L.c. 90, §24, as opposed to G.L.c. 90, §24D, when it affirmed the Registrar’s decision to suspend the plaintiffs license for eight years, effective May 3, 2010.4 The plaintiffs motion will therefore be denied. ORDER For the foregoing reasons, it is hereby ORDERED that the plaintiff Edward Auger’s Motion for Judgment on the Pleadings be and is DENIED, and that the decision by Board of Appeal on Motor Vehicle Liability Policies and Bonds be and is AFFIRMED. The plaintiff erred not naming the Board as a defendant, as it is the Board’s decision that the plaintiff is actually appealing. Nonetheless, the court will treat the plaintiffs complaint as one also brought against the Board, which filed a memorandum in opposition to the plaintiffs Motion for Judgment on the Pleadings, and which noted this error in its submission. The plaintiff filed his complaint on August 5, 2010. On or about December 14, 2010, the plaintiff sent an undated letter to the Massachusetts Attorney General’s office that referred to and disputed the Board’s decision. The court treats this letter as the plaintiffs Motion for Judgment on the Pleadings, as did the Board when it filed its memorandum in opposition. The full sentence reads, “I feel that the decision by the court in Clinton-Leominster should be [the] final decision because all the problems on my record are 20 y[ea]rs or older],] mostly older.” Although the Board also ruled that the plaintiff did not qualify for hardship consideration, there was no evidence in the record that a hardship license decision by the Registrar was before the Board. Applications for a hardship license are to be filed with the Registrar, and the applicant “shall be granted a hearing before the registrar.” G.L.c. 90, §24(l)(c). As with other licensing decisions, a person denied a hardship license can appeal that decision to the Board. G.L.c. 90, §28. However, “]t]he board has no independent statutory power to issue a license.” Breslin, 70 Mass.App.Ct. at 135.	01-03-2023	10-17-2022
https://www.courtlistener.com/api/rest/v3/opinions/2983146/	November 4, 2014 JUDGMENT The Fourteenth Court of Appeals BARBI DENISE BROWN, Appellant NO. 14-13-00831-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 appellant pay all costs expended in the appeal. We further order this decision certified below for observance.	01-03-2023	09-22-2015
https://www.courtlistener.com/api/rest/v3/opinions/1660476/	796 So. 2d 569 (2001) Leon EDWARDS, Appellant, v. STATE of Florida, Appellee. No. 1D00-3792. District Court of Appeal of Florida, First District. September 6, 2001. Rehearing Denied October 17, 2001. Appellant, pro se. *570 Robert A. Butterworth, Attorney General, Tallahassee, for Appellee. PER CURIAM. Because the appellant filed his Rule 3.850 motion before the mandate was issued in the direct appeal of his convictions and sentences, the trial court was without jurisdiction to rule on the motion. See Akel v. State, 737 So. 2d 633 (Fla. 1st DCA 1999); Cabrera v. State, 721 So. 2d 1190, 1191 (Fla. 2d DCA 1998). Accordingly, we vacate the trial court's order denying the Rule 3.850 motion without prejudice to the appellant's right to refile the motion now that his direct appeal is final. BOOTH, BARFIELD and MINER, JJ., CONCUR.	01-03-2023	10-30-2013

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