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580 F.3d 639 (2009) UNITED STATES of America, Plaintiff-Appellee, v. Leslie ANDERSON, Defendant-Appellant. No. 08-2925. United States Court of Appeals, Seventh Circuit. Argued May 5, 2009. Decided September 3, 2009. *641 Stephen B. Clark, Attorney, Bruce E. Reppert, Attorney (argued), Office of The United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee. Stephanie A. Brennan, Attorney (argued), Kirkland & Ellis LLP, Chicago, IL, for Defendant-Appellant. Before RIPPLE and SYKES, Circuit Judges, and LAWRENCE, District Judge. [*] RIPPLE, Circuit Judge. As a result of his involvement with a fraudulent telemarketing scheme, Leslie Anderson was charged with wire fraud, mail fraud and conspiring to commit an offense against the United States. After a five-day trial, Mr. Anderson moved for a judgment of acquittal. The district court denied the motion, and the jury convicted Mr. Anderson on each of the twenty-four counts charged. At his sentencing hearing, Mr. Anderson raised a number of objections to the sentencing enhancements recommended by the Government, but the district court, with two exceptions, applied the recommended enhancements. As a result, the court determined Mr. Anderson's adjusted offense level to be 42 and his criminal history category to be I. The court departed from the recommended sentencing range, imposing a below-guidelines sentence of 280 months' imprisonment. Mr. Anderson now appeals. He claims that the evidence presented at trial was insufficient to support the jury's verdict; he also raises a number of challenges to his sentence. For the reasons set forth in this opinion, we affirm the judgment of the district court. I BACKGROUND A. On May 17, 2005, Mr. Anderson was charged with several offenses arising out of his involvement with 1492828 Ontario, Inc., a Canadian telemarketing company doing business as First Capital Consumers Group ("First Capital"). Specifically, Mr. Anderson was charged with one count of conspiracy, in violation of 18 U.S.C. § 371, five counts of mail fraud, in violation of 18 U.S.C. § 1341, and eighteen counts of wire fraud, in violation of 18 U.S.C. § 1343. At Mr. Anderson's jury trial, the Government presented the following evidence. 1. The Creation of First Capital Mr. Anderson, a Canadian citizen, became acquainted with David Dalglish through Mr. Anderson's Toronto-based home improvement business. Dalglish helped Mr. Anderson secure a lucrative contract with the city of Toronto, and Mr. Anderson, in return, loaned Dalglish a large sum of money so that Dalglish could open up a telemarketing business with his friend, Lloyd Prudenza. That business ultimately became known as First Capital. By way of background, Dalglish had worked with Prudenza in the past. Specifically, *642 Prudenza ran Consumer Credit Services ("CCS"), a telemarketing business that sold a "credit repair program" to individuals with poor credit histories. R.196 at 82-83. After a CCS telemarketer sold the product to a customer, a "verifier" from Vertech, an affiliate of CCS, would contact the customer, confirm the details of the purchase and obtain the customer's authorization to debit the customer's bank account. Id. at 83-85; R.199 at 145. Dalglish hired Mark Lennox, a former Vertech employee, to work for First Capital. Dalglish informed Mr. Anderson of the hire and explained that Lennox was the "top verifier" at Vertech. R.199 at 145. He also informed Mr. Anderson that he needed additional funds for First Capital. In response, Mr. Anderson contributed an additional $20,000 to the company, this time in the form of an equity investment. In 2001, Lennox, Dalglish and Mr. Anderson met to discuss First Capital's business model. Lennox explained to Dalglish and Mr. Anderson that First Capital would hold itself out as a "credit recovery business" that sold "benefits packages" to consumers. These benefits packages included coupons, brochures, a credit-repair guide and a "stored-value card." The stored-value card bore a MasterCard logo, but it was not a credit card because it had no independent purchasing power. Instead, before making a purchase, a user first was required to credit funds to the stored-value card. The user's purchasing power was limited to the amount of funds he had credited to the card in advance of the purchase. Lennox explained that the stored-value cards were the most important part of First Capital's benefits packages because they allowed First Capital's salespersons to tell its customers that they would receive a MasterCard with their benefits packages. The customers would then assume that they would be receiving credit cards that permitted them to make purchases that could be paid for later, either by a single payment or by a payment plan. According to Lennox, stored-value cards were a relatively new concept in 2001. Therefore, Lennox claimed, "if you said to somebody that it was a bank card and it was a MasterCard, 100 percent would assume that you were talking about a credit vehicle, [and] that this thing had a credit limit to it. And we knew that, so this was a ... huge advantage." R.196 at 93. Lennox also testified that he had informed Mr. Anderson that a stored-value Master-Card would be included in the benefits packages. Lennox knew that Mr. Anderson would be responsible for approving his salary and other compensation, and he hoped that, by using the MasterCard as a "selling point," he could procure a large signing bonus. Id. at 92-95. After that first meeting, Mr. Anderson wrote a letter to the Mill Haven Penal Institution, where Prudenza was serving a sentence for conspiracy to commit fraud, in order to facilitate Prudenza's early release on parole. Prudenza testified that, as part of his application for parole, he was required to "establish a game plan for [his] release." R.198 at 29. Mr. Anderson "provided [him] with a letter of employment to fit that game plan." Id. Shortly after Prudenza's release, he, Dalglish and Mr. Anderson met at Mr. Anderson's office. Prudenza brought his fiancee, Lesley McCloud, to the meeting, but she left after Mr. Anderson complained about her presence. Later, Mr. Anderson explained to Prudenza that "he didn't want women around when we're talking about things that ... are illegal.... Because they would turn around and would rat on the situation." Id. at 32-33. Prudenza testified that, at the meeting, he and Mr. Anderson discussed his incarceration *643 and his criminal offense; he claimed that Mr. Anderson "knew ... what [he had] been in jail for," and explained that his telemarketing experience and criminal conviction were an "enticement to bringing [him] aboard." R.199 at 49, 50. Prudenza further testified that everyone at the meeting, including Mr. Anderson, understood that they did not have, and could not obtain, authorization to sell any type of MasterCard. He noted that, at the meeting, Mr. Anderson reviewed a sample "sales script" [1] and described the script as a "good gaff" [2] and a "good con." R.198 at 35, 39. In addition, Prudenza claimed that he discussed the possibility of police intervention with Mr. Anderson, telling him that they had to do things "in a certain way to avoid being caught right away." Id. at 37-38. Later, after First Capital had begun preliminary operations, Lennox, Dalglish, Prudenza and Mr. Anderson met to discuss the sales scripts for telemarketers and verifiers. Lennox testified that he went over the scripts while Mr. Anderson was present. He testified that the scripts were intended to deceive First Capital's customers by convincing them that they would receive a credit card from a major bank in exchange for a fee. 2. First Capital's Business Operations First Capital hired hundreds of telemarketing sales representatives who placed telephone calls from Toronto to United States residents with poor credit histories. [3] The representatives, using First Capital's sales scripts, would suggest that First Capital could help its customers obtain credit cards in exchange for a fee. When a customer accepted First Capital's offer, a verifier would make a second call to the customer in order to obtain the customer's bank account information and the customer's permission to make an electronic funds transfer from the customer's bank account. The second call was recorded. After receiving the customer's authorization and account information, the verifier would cause funds to be transferred out of the customer's bank account through an automated clearing house ("ACH"). First Capital used three ACHs during the course of its operationACH Direct, United Capturedyne Technologies ("UCT") and Check Recovery Systems ("CRS"). Mr. Anderson helped Dalglish and Prudenza establish a business relationship with ACH Direct. R.197 at 21-22; R.200 at 64-65. The relationship between First Capital and ACH Direct was short-lived, however, because ACH Direct received a large number of complaints from dissatisfied First Capital customers. From November 2001 through the summer of 2002, First Capital processed its electronic transfers through UCT. Like ACH Direct, UCT received a number of complaints and ceased providing services for First Capital. After First Capital's relationship with UCT ended, First Capital's managers and assistant managersincluding Mr. Anderson, Dalglish, Prudenza and Lennoxmet to discuss their problems with ACH Direct and UCT and to attempt to find a new processor. [4] First Capital then turned to CRS for ACH processing; that company also received *644 numerous complaints from customers who had received no product, who had not received the product they were promised or who could not contact First Capital. R.197 at 40-42. These complaints were summarized in call logs that were later sent to First Capital. At the height of its operations, First Capital had 250 employees. Lennox estimated that First Capital placed at least 10,000 telemarketing calls each week, resulting in about 500 successful sales per week. Over the course of its operation, First Capital defrauded approximately 40,000 victims out of more than $8 million. 3. Mr. Anderson's Role in First Capital The Government presented evidence that Mr. Anderson held a position of authority in First Capital. Specifically, it introduced evidence of a September 2001 meeting at Toronto Dominion Bank, where Mr. Anderson introduced Dalglish to Gary Shaswell, the bank manager. Together, they set up a business account for First Capital. During that meeting, Dalglish submitted a copy of First Capital's articles of incorporation; Mr. Anderson's name was listed on the articles as a director of the company. Dalglish also told Shaswell that Mr. Anderson was the president of the company. Although Mr. Anderson later claimed to have been surprised by Dalglish's statement and denied agreeing to serve as First Capital's president, he did not object to or correct any of Dalglish's representations to Shaswell. During the meeting, Mr. Anderson signed a number of documents which named him as a principal of the corporation, president of First Capital and a signatory on First Capital's account. R.199 at 152-55; R.200 at 34-41. The Government also presented evidence that, in addition to being listed as president and principal, Mr. Anderson was considered a partner in First Capital; Mr. Anderson, Dalglish and Prudenza agreed that, after Mr. Anderson's initial loan to the company was repaid, they would divide First Capital's remaining profits between themselves. Prudenza testified that, during one meeting, he, Dalglish and Mr. Anderson each received a $400,000 share of First Capital's $1.2 million profit. [5] Prudenza testified that Mr. Anderson's role in First Capital was primarily financial, as opposed to managerial. Mr. Anderson provided the startup funds for First Capital and handled First Capital's finances. He signed invoices and authorized payments for leads lists and benefits packages. R.197 at 35-39. In addition, several documents recording wire transfers made on First Capital's behalf bore Mr. Anderson's signature, although Mr. Anderson did not recall signing the documents. R.199 at 157. Mr. Anderson's contributions to First Capital were not solely financial, however. For example, Mr. Anderson regularly met with Prudenza to discuss First Capital's operations, and he attended at least two managers' meetings where First Capital's sales pitch, verification problems and sales issues were discussed. Mr. Anderson also admitted that he had performed work on First Capital's offices, leased vehicles to First Capital and provided cell phones to Dalglish, Prudenza and two others. R.199 at 166; R.200 at 4-5. Furthermore, in August or September 2002, Mr. Anderson was left in charge of First Capital and oversaw all of the company's operations while Prudenza and Dalglish were vacationing in Italy. During that time period, *645 Mr. Anderson signed payroll checks and authorized wire transactions for leads-list purchases. The Government also introduced evidence pertaining to whether Mr. Anderson knew of the illegal nature of First Capital's activities. For example, Prudenza testified that Mr. Anderson took an active interest in First Capital's sales and "knew overall of what was going on" at First Capital. R.198 at 49-51, 54. According to Prudenza, Mr. Anderson knew that First Capital was misleading its customers: Prudenza testified that, after the sales scripts were discussed during his first meeting with Mr. Anderson, Mr. Anderson asked, "Are Americans that stupid?" R.198 at 37. Prudenza also stated that he had informed Mr. Anderson of the complaints from the ACH companies and that he specifically had informed Mr. Anderson that First Capital had received complaints from customers who either had not received their credit repair packages or had not received what they had been promised. In addition, Stephen Simpson, one of Mr. Anderson's employees, testified that Mr. Anderson showed him a $400,000 check dated September 20, 2002. According to Simpson, Mr. Anderson "kissed [the check], put it in his pocket and he said, `Thank God for stupid Americans.' " R.199 at 87. B. At the conclusion of the trial, Mr. Anderson filed a motion for a judgment of acquittal. The district court denied the motion. The jury found Mr. Anderson guilty on each of the counts charged against him. At Mr. Anderson's sentencing hearing, the district court determined that Mr. Anderson's base offense level was 7 and his criminal history category was I. The court then applied the following sentencing enhancements: A twenty-level enhancement because the total loss resulting from the fraud was $8,273,893.50; [6] a six-level increase because the fraud involved more than 250 victims; a two-level enhancement because the fraud targeted vulnerable victims; a two-level enhancement because a substantial part of the offense was committed outside the United States; a three-level enhancement based on Mr. Anderson's status as a manager or supervisor of the scheme; [7] and a two-level enhancement for obstruction of justice. [8] As a result, Mr. Anderson's adjusted offense level was 42, and the Guidelines recommended a sentencing range of 360 months to life imprisonment. The court imposed a below-guidelines sentence of 280 months' imprisonment. II DISCUSSION Mr. Anderson appeals both his conviction and his sentence. He first contends that the Government failed to present sufficient evidence to prove that he possessed the knowledge or intent necessary to be guilty of the charged crimes. He also challenges the sentence imposed by the district court, arguing that the court improperly applied various sentencing enhancements and contending that the sentence imposed by the district court was unreasonable. We address each of these arguments in turn. A. Mr. Anderson first challenges the sufficiency of the evidence presented at trial, claiming that the Government failed to *646 prove certain essential elements of the charged crimes. Mr. Anderson notes that, to support his conviction for mail and wire fraud, the Government was required to demonstrate that he knowingly participated in a fraudulent scheme with the specific intent to deceive or cheat the scheme's victims. See United States v. Radziszewski, 474 F.3d 480 , 484-85 (7th Cir.2007). Similarly, he points out that, to support his conspiracy conviction, the Government was required to prove that he knew of the essential nature and scope of the charged conspiracy and that he intended to participate in it. See United States v. Bruun, 809 F.2d 397 , 410 (7th Cir.1987). [9] Mr. Anderson contends that the evidence presented at trial failed to establish that he possessed either the knowledge or the intent necessary to be guilty of the charged crimes. In support of this contention, he attacks the credibility of Lennox and Prudenza and claims that their testimony was not sufficiently specific to support a finding that he knowingly and intentionally participated in the fraudulent scheme. Mr. Anderson also claims that his own testimony demonstrates that he lacked any criminal intent. At trial, Mr. Anderson claimed that he never read or discussed the sales scripts, that he was unaware that First Capital would offer stored-value cards, and that, by virtue of his passive role in First Capital, he was unaware of the fraudulent nature of First Capital's activities. He characterizes himself as a mere pawn in Dalglish and Prudenza's scheme, and he asserts that, had he known that First Capital was an illegal scam, he would have had nothing to do with it. When reviewing a challenge to the sufficiency of the evidence, "we will only reverse a defendant's conviction if, viewing all evidence in the light most favorable to the government, no rational trier of fact could have found the defendant guilty of the charges beyond a reasonable doubt." Radziszewski, 474 F.3d at 484 (citation omitted). In raising such a challenge, Mr. Anderson faces a heavy burden; we shall not reverse his conviction unless there is no evidence from which a jury could have found him guilty of the charged offenses. See United States v. Silva, 781 F.2d 106 , 108 (7th Cir.1986). In an attempt to satisfy this burden, Mr. Anderson contends that the jury should have disregarded the testimony of Lennox and Prudenza and instead should have credited his own version of the facts. This contention cannot succeed. "We repeatedly have refused to question the credibility of witnesses" when reviewing sufficiency-of-the-evidence challenges. United States v. Roberts, 534 F.3d 560 , 569 (7th Cir. 2008). It is the province of the jury to assess the credibility of witnesses, and we shall reverse such credibility determinations "only under exceptional circumstances, such as where it was physically impossible for the witness to observe that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all." Radziszewski, 474 F.3d at 485 (citations and quotation marks omitted). Mr. Anderson has pointed to no exceptional circumstances here, and the jury was therefore entitled to credit the testimony of Lennox and Prudenza. We believe that the evidence presented at trial was sufficient to support the jury's *647 verdict. The Government presented evidence that supports the conclusion that Mr. Anderson knew that First Capital was engaged in fraudulent activity. For example, Prudenza testified that he met with Mr. Anderson on a weekly basis to discuss First Capital's operations. He further testified that Mr. Anderson knew that First Capital was misleading its customers. Also, according to Prudenza, Mr. Anderson expressly acknowledged the illegal and fraudulent nature of the scheme. [10] The Government also presented circumstantial evidence that Mr. Anderson knowingly and intentionally joined the fraudulent activity. According to the testimony elicited at trial, Mr. Anderson was present at several meetings where leads lists, sales scripts and customer complaints were discussed. In addition, Mr. Anderson was the named president of First Capital, held authority over First Capital's finances, and authorized payments for leads lists and benefits packages. Mr. Anderson also established First Capital's business checking account, worked on First Capital's offices, leased vehicles to the company, and provided cell phones to its managers. Furthermore, Mr. Anderson managed First Capital while Prudenza and Dalglish were absent, and he received at least $400,000 from the conspiracy's proceeds. Contrary to Mr. Anderson's assertions, this evidence demonstrates that Mr. Anderson was more than a mere associate of Dalglish, Prudenza and the other participants in the scheme. Rather than simply being present at a few meetings where illegal activities were discussed, cf. United States v. Baker, 499 F.2d 845 , 847 (7th Cir.1974), [11] Mr. Anderson took an active role in First Capital, took steps to advance its activities and received a one-third share of its profits. A reasonable jury could have concluded, based on this evidence, that Mr. Anderson acted with knowledge of First Capital's fraudulent activity and with the specific intent to defraud First Capital's victims. See Radziszewski, 474 F.3d at 485 (noting that documentary evidence showed that funds from the fraudulent scheme were deposited into an account controlled by the defendant and concluding that this and other evidence demonstrated that the defendant was a knowing participant in the scheme). [12] We therefore conclude that evidence *648 presented at trial adequately supports Mr. Anderson's conviction. B. We now turn to Mr. Anderson's challenges to the sentence imposed by the district court. Mr. Anderson challenges the district court's application of a two-level sentencing enhancement for obstruction of justice and a three-level enhancement based on his role in the conspiracy. He further contends that the sentence imposed by the district court was unreasonable. 1. The Obstruction-Of-Justice Enhancement Mr. Anderson asserts that he should not have received a sentencing enhancement under U.S.S.G. § 3C1.1, which provides for a two-level enhancement when a defendant obstructs or attempts to obstruct the investigation, prosecution, or sentencing of the charged crime. Id. He maintains that his testimony at trial amounted to no more than a simple denial of guilt, which, he claims, cannot support the application of the obstruction-of-justice enhancement. We review the factual findings underlying the district court's application of the obstruction enhancement for clear error, and we review de novo whether those findings adequately support the enhancement. United States v. House, 551 F.3d 694 , 697 (7th Cir.2008). As we previously have noted, a district court may impose an obstruction-of-justice enhancement based on its conclusion that a defendant committed perjury at trial. United States v. Williams, 553 F.3d 1073 , 1081 (7th Cir.), cert. denied, U.S. , 129 S. Ct. 2452 , 174 L. Ed. 2d 242 (2009). [13] Thus, if a district court finds that a defendant "gave false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory," the application of an obstruction enhancement is warranted. United States v. Hach, 162 F.3d 937 , 949 (7th Cir.1998) (citations and quotation marks omitted). Before applying the obstruction-of-justice enhancement, the district court gave considerable thought to Mr. Anderson's objection to the enhancement and conducted a review of its trial notes. The court then concluded that although, at first, Mr. Anderson was not apprised fully of the nature of First Capital's activities, he nevertheless learned a great deal about First Capital, assisted the company and agreed to serve as its president. R.183 at 14. The court further concluded that Mr. Anderson "did know what [the] business was and became a part of it," and it specifically "[found] that [Mr. Anderson] did in fact testify falsely at trial." Id. at 15. Given these judicial findings, we cannot accept Mr. Anderson's challenge to this enhancement. The court did not predicate its application of the enhancement on Mr. Anderson's mere denial of guilt. Instead, after comparing Mr. Anderson's testimony with the evidence presented by the Government, the district court determined that Mr. Anderson testified falsely at trial. It therefore concluded that Mr. Anderson willfully obstructed justice by falsely denying any knowledge of the criminal nature of the enterprise. See, e.g., United States v. Godinez, 110 F.3d 448 , 457 (7th Cir.1997) (concluding that the defendant's "denial of any knowledge *649 that there was a cocaine transaction going on" was "not the same as a general denial of guilt" and rejecting the defendant's sentencing challenge). Given the evidence against Mr. Anderson, we cannot say that this conclusion was clearly erroneous. The district court properly identified the false testimony supporting the enhancement and made an independent finding of perjury; having done so, it was permitted to impose the enhancement. See United States v. Banks-Giombetti, 245 F.3d 949 , 954 (7th Cir.2001) (concluding that the district court did not err in applying an obstruction-of-justice enhancement when it "credited the testimony of the [witnesses] over [the defendant's] and found by a preponderance of the evidence that [the defendant's] testimony was both false and material"); United States v. Ofcky, 237 F.3d 904 , 910 (7th Cir.2001) (holding that the district court "met all the standards required for the [obstruction-of-justice] enhancement" when it weighed the conflicting testimony and concluded that the defendant committed perjury). 2. The Manager-Or-Supervisor Enhancement Mr. Anderson also challenges the district court's application of a sentencing enhancement pursuant to U.S.S.G. § 3B1.1(b), which authorizes a three-level enhancement when a defendant acted as a manager or supervisor of a criminal activity. We review the district court's finding that Mr. Anderson exercised a managerial or supervisory role in the offense for clear error. United States v. Sainz-Preciado, 566 F.3d 708 , 714 (7th Cir.2009). To qualify for an enhancement under section 3B1.1, a defendant "must have been the organizer, leader, manager, or supervisor of one or more other participants" in the charged criminal activity. [14] U.S.S.G. § 3B1.1 cmt. n. 2. The Guidelines do not define the terms "manager" and "supervisor." The commentary to section 3B1.1, however, does set forth several factors that this court may use to ascertain whether an individual had a supervisory role in an offense. United States v. Howell, 527 F.3d 646 , 649 (7th Cir.2008). [15] Those factors include: (1) the exercise of decision-making authority; (2) the nature of participation in the commission of the offense; (3) the recruitment of accomplices; (4) the claimed right to a larger share of the fruits of the crime; (5) the degree of participation in planning and organizing the offense; (6) the nature and scope of the illegal activity; (7) the degree of control and authority exercised over others. Id. (citing U.S.S.G. § 3B1.1 cmt. n. 4). "No one of these factors is considered a prerequisite to the enhancement, and, at the same time, the factors are not necessarily entitled to equal weight." United States v. Wasz, 450 F.3d 720 , 729 (7th Cir.2006). Although not all of these factors must be present, the enhancement cannot be applied unless the defendant "`exercised some control over others involved in the commission of the offense.' " United States v. Gracia, 272 F.3d 866 , 877 (7th Cir.2001) (quoting United States v. Pagan, 196 F.3d 884 , 892 (7th Cir.1999)). *650 Mr. Anderson claims that the Government presented no evidence that he exercised any influence or control over Prudenza, Dalglish or any other participants in the conspiracy. We disagree. There are many factsseveral of which fit into one or more of the categories enumerated in Note 4that support the district court's finding that Mr. Anderson managed or supervised one or more participants in the conspiracy. First, there is evidence that Mr. Anderson exercised decision-making authority over participants in the scheme: Lennox testified that Mr. Anderson approved his salary and signing bonus, R.196 at 93-95, [16] and Prudenza stated that Mr. Anderson oversaw the whole of First Capital's operations while he and Dalglish were in Italy. [17] Second, the nature of Mr. Anderson's participation in the offense supports the district court's conclusion; because Mr. Anderson controlled the purse strings of First Capital, he likely had either direct or indirect financial control over other participants in the enterprise. Third, Mr. Anderson claimed a one-third share of First Capital's profits. The evidence of Mr. Anderson's decision-making authority over Lennox, his control of the enterprise during Prudenza and Dalglish's absence, his control of First Capital's finances and his receipt of a large share of First Capital's profits supports the district court's conclusion that Mr. Anderson was a manager or supervisor of the criminal enterprise. [18] We therefore conclude that the *651 district court did not clearly err in applying the manager-or-supervisor enhancement. 3. The Reasonableness Of Mr. Anderson's Sentence In his third and final challenge to his sentence, Mr. Anderson claims that the sentence imposed by the district court is unreasonable. We review the substantive reasonableness of a sentence under the abuse-of-discretion standard. United States v. Omole, 523 F.3d 691 , 698 (7th Cir.2008). Where, as here, the district court imposes a below-guidelines sentence, it is presumed that the sentence is not unreasonably high. United States v. Wallace, 531 F.3d 504 , 507 (7th Cir.2008) ("A sentence within the [guidelines] range is presumptively reasonable, and it follows that a sentence below the range also is presumptively not too high." (citations omitted)). Mr. Anderson contends that his sentence was unreasonable for two reasons: First, he asserts that the district court failed to consider his advanced age, his medical history, his limited culpability and his good character when determining his sentence. Second, he asserts that there is an unjustifiable disparity between his sentence and the sentences of his coconspirators. The first of these arguments is unsupported by the record. Before imposing Mr. Anderson's sentence, the district court considered a number of factors, including Mr.Anderson's age, physical condition and education level, Congress' determination that telemarketing fraud warrants "a stiff penalty due to the nature of the crime and the numbers of people affected," the scope of the conspiracy, the vulnerability of its victims, and the actions taken by the coconspirators to avoid detection. R.183 at 53-56. It specifically indicated, moreover, that it was departing from the recommended sentencing range based on its assessment of Mr. Anderson's age, his physical condition and, most significantly, its conclusion that Mr. Anderson "was to a certain extent duped by the conspiracy." Id. at 56. Thus, the court adequately explained the sentence it imposed, and it sufficiently addressed Mr. Anderson's claim that, in light of his age, medical condition and relative culpability, a below-guidelines sentence was warranted. Cf. United States v. Kincannon, 567 F.3d 893 , 901 (7th Cir.2009) (deeming the imposition of a thirty-year sentence "presumptively reasonable" where the district court considered the defendant's claim for leniency in light of his advanced age, but declined to impose a below-guidelines sentence in light of other countervailing factors). Mr. Anderson's second challenge to the reasonableness of his sentence also must fail. Mr. Anderson claims that his sentence should be vacated in light of the disparity between his sentence and the sentences of his codefendants, which, he submits, is unjustified. We previously have concluded, however, that an asserted discrepancy between the sentences of two codefendants is an insufficient basis for challenging a sentence. Omole, 523 F.3d at 700 ("This court refuses to view the *652 discrepancy between sentences of codefendants as a basis for challenging a sentence."). We shall not disturb a sentence based on a claim of an unjustifiable disparity between the sentences of codefendants unless the defendant can show that the sentence imposed "creates a disparity between the length of [his] sentence and all other similar sentences imposed nationwide. " Id. (citation and quotation marks omitted). Mr. Anderson has failed to demonstrate that there is an unwarranted disparity between his sentence and the sentences of defendants with similar records who have been convicted of similar crimes. See United States v. Boscarino, 437 F.3d 634 , 638 (7th Cir.2006). Mr. Anderson has not pointed to any cases where a similarly situated defendant received a sentence that was significantly lower than his own. In his brief, Mr. Anderson points to a number of cases that, he claims, involved defendants convicted of similar crimes who received sentences disproportionately shorter than his own. See Appellant's Br. 43-45. However, the disparity in sentencing reflects legitimate factual differences between Mr. Anderson's case and those on which he relies. Of the cases cited by Mr. Anderson, only three involve telemarketing fraud. Of those three telemarketing fraud cases, two involve defendants who were sentenced under a guidelines provision that is no longer in force. [19] Furthermore, it is not clear that any of the telemarketing cases cited by Mr. Anderson involved more than 250 victims, nor does it appear that any of those cases involved crimes in which a substantial part of the offense was committed outside of the United States. Those facts were, however, established in this case, and they had a significant impact on Mr. Anderson's sentencing range; Mr. Anderson received a six-level increase in his offense level because of the number of victims of the offense, see U.S.S.G. § 2B1.1(b)(2)(C), and a two-level increase because a substantial part of the scheme was committed outside the United States, see U.S.S.G. § 2B1.1(b)(9)(B). The factual distinctions between the cases cited by Mr. Anderson and his case, together with the difference in the guidelines provisions and enhancements applicable in those cases, make the cases cited by Mr. Anderson a poor basis for comparison. The difference between Mr. Anderson's sentence and the sentences of the defendants in those cases may have been caused by any one of a number of facts that distinguish Mr. Anderson's case from the others. Thus, we cannot conclude that there is any unwarranted disparity between Mr. Anderson's sentence and the sentences of similarly situated defendants nationwide. [20] *653 Accordingly, we must conclude that Mr. Anderson has failed to establish any unjustified disparity between his sentence and the sentences of similarly-situated defendants. Because Mr. Anderson has not presented any evidence or arguments sufficient to overcome the presumption that his below-guidelines sentence is reasonable, we shall not disturb his sentence on appeal. Conclusion For the reasons set forth in this opinion, we affirm the decision of the district court. AFFIRMED NOTES [*] The Honorable William T. Lawrence, District Judge for the Southern District of Indiana, is sitting by designation. [1] These "sales scripts" were written sales pitches that telemarketers used when soliciting or verifying a sale. The scripts reviewed at the meeting were substantially similar to those later used by First Capital. [2] Prudenza explained that a "gaff" is a scam, con or rip-off. [3] First Capital obtained the contact information for these individuals by purchasing "leads lists" from list brokers in the United States. [4] At that same meeting, Lennox distributed new sales scripts and leads lists. [5] Prudenza indicated that, by this point, Mr. Anderson's initial loan to First Capital had been repaid. R.198 at 59. An earlier check, dated January 18, 2002, represented a partial repayment of that loan. [6] R.183 at 31; see U.S.S.G. § 2B1.1(b)(1)(K). [7] U.S.S.G. § 3B1.1(b). [8] U.S.S.G. § 3C1.1. [9] See also United States v. Campbell, 985 F.2d 341 , 344-45 (7th Cir.1993) (noting that, to prove that a defendant was a member of the conspiracy, "the Government must offer sufficient evidence to demonstrate that the defendant knew of the conspiracy and that he intended to join and associate himself with its criminal design and purpose" (citation omitted)). [10] See R.198 at 32 (noting that Mr. Anderson "didn't want women around when we're talking about doing things that ... are illegal"); Id. at 35 (describing the sales script as a "good con"); see also id. at 37 (testifying that, after discussing the sales scripts, Mr. Anderson asked "Are Americans that stupid?"); R.199 at 87 (testimony of Stephen Simpson) (stating that Mr. Anderson displayed a $400,000 check, kissed it and said "Thank God for stupid Americans"). [11] In United States v. Baker, 499 F.2d 845 , 849 (7th Cir.1974), we concluded that defendant Vela's act of driving two individuals to the site of a drug sale and his presence during two conversations where the purchase of drugs was discussed could not support his conspiracy conviction. Significantly, we noted that, although Vela was present during the two conversations, he "engaged only in `small talk' and did not participate in the conversation on drug dealing." Id. at 847. Thus, the facts of that case differ from the facts presented here; as we have already indicated, the testimony presented at trial demonstrates that Mr. Anderson actively participated in the meetings and conversations where First Capital's operations were discussed. [12] See also United States v. Silva, 781 F.2d 106 , 109 (7th Cir.1986) (holding that the defendant's false report that his vehicle had been stolen, his false representation that he had driven the vehicle on a certain date, and the fact that he insured the vehicle for $23,000, even though he owed only $6,000, were sufficient to demonstrate that the defendant intended to further the conspiracy); United States v. Garcia, 562 F.2d 411 , 414 (7th Cir.1977) (concluding that a jury could infer that the defendant participated in the conspiracy where the defendant was found in possession of proceeds from a drug transaction after he put a drug purchaser in contact with his brother, who dealt drugs). [13] See U.S.S.G. § 3C1.1 cmt. n.4 ("Note 4") (listing "committing, suborning, or attempting to suborn perjury" as an "example[] of the type[] of conduct to which [the obstruction] adjustment applies"). [14] For the purposes of that section, a "`participant' is a person who is criminally responsible for the commission of the offense," although the person need not have been convicted. U.S.S.G. § 3B1.1 cmt. n. 1. [15] Although the factors enumerated in the commentary were designed to assist courts in distinguishing leaders from managers, we also have "found that they are ... relevant in ascertaining whether an individual had a supervisory role at all." United States v. Howell, 527 F.3d 646 , 649 (7th Cir.2008) (citation omitted). [16] This testimony supports the district court's conclusion in two ways: First, it demonstrates that Mr. Anderson had the authority to decide how much compensation Lennox, a non-partner participant in the conspiracy, would receive for his role in the scheme. Second, it suggests that Mr. Anderson was Lennox's boss, rather than his equal, thus supporting the court's conclusion that Mr. Anderson supervised at least one participant. See United States v. Polichemi, 219 F.3d 698 , 712 (7th Cir.2000) ("Although the court did not find this fact explicitly, its discussion of Neal's relationship to Edward Russey and Larry Oesterman indicates that it found the necessary supervision. Neal was president of Konex Marketing, and Russey and Oesterman were salesmen for the company. As such, Neal was their boss, not their equal."). Although Lennox was initially listed in the criminal complaint, see R.1 at 1, it appears that he was granted immunity in exchange for his cooperation. See R.196 at 23; R.197 at 61-67; R.200 at 119. Nevertheless, the fact that Lennox was not ultimately prosecuted or convicted does not preclude the finding that he was a "participant" in the offense for the purposes of U.S.S.G. § 3B1.1. As the commentary to that provision notes, "[a] `participant' is a person who is criminally responsible for the commission of the offense, but need not have been convicted. " U.S.S.G. § 3B1.1 cmt. n. 1 (emphasis added). Moreover, we have previously accepted the argument that an individual who testified under a grant of immunity may be considered a "participant" in an offense. See United States v. Jackson, 95 F.3d 500 , 511 (7th Cir. 1996). In Jackson, we affirmed the district court's denial of a reduction under U.S.S.G. § 3B1.2 (mitigating role in the offense), which defines "participant" in accordance with the commentary to U.S.S.G. § 3B1.1. See U.S.S.G. § 3B1.2 cmt. n. 1. In that case, the Government argued that several telemarketers other than the indicted defendants should be considered criminally responsible "participants" in the scheme. Jackson, 95 F.3d at 511. Specifically, the Government noted that "two of the ... employees who testified were granted immunity," and that "the apparent nature of the fraud from the script itself ... strongly suggest[ed] that other telemarketers could have been indicted and prosecuted" had the Government sought to do so. Id. The defendant did not reply to that argument, which we found "convincing." Id. [17] We have considered control over an enterprise, even on a temporary basis, to be a fact supporting the application of an enhancement under U.S.S.G. § 3B1.1. See United States v. Sheikh, 367 F.3d 683 , 688 (7th Cir.2004) (noting that the defendant "exclusively ran the store and directed Yousef's activities for a period of time during which the fraud continued"). [18] See Sheikh, 367 F.3d at 688 (concluding that the court did not clearly err by deeming the defendant a supervisor when the defendant "made countless deposits of illegally obtained food stamps, obtained a large portion of the proceeds from the fraud as compared to other participants ... exclusively ran the store and directed Yousef's activities for a period of time during which the fraud continued, and terminated the services of the bookkeeping firm when it pointed out accounting irregularities"); United States v. Gracia, 272 F.3d 866 , 877 (7th Cir.2001) (concluding that the district court did not err in applying a section 3B1.1 enhancement where the defendant, among other things, "provided or directed large sums of money far greater than the $50 or $75 paid to the minor participants and received a correspondingly far larger share"). [19] Two of the telemarketing fraud cases cited by Mr. Anderson involve defendants who were sentenced under an earlier guidelines provision pertaining to offenses involving fraudulent conduct. See U.S.S.G. § 2F1.1, deleted by consolidation with U.S.S.G. § 2B1.1 (effective Nov. 1, 2001). Under that section, the applicable base offense level for individuals convicted of fraud was set at 6; where the loss from the fraudulent conduct exceeded $5,000,000 but was less than $10,000,000, the base offense level was enhanced by only 14. See U.S.S.G. §§ 2F1.1(a), (b)(1)(0) (2000). Mr. Anderson, however, was sentenced under U.S.S.G. § 2B1.1; under the terms of that provision, his base offense level was set at 7, and he received a 20-level enhancement because the loss caused by the fraud exceeded $7,000,000. U.S.S.G. §§ 2B1.1(a)(1), (b)(1)(K). Thus, any difference between Mr. Anderson's sentence and the sentences of those individuals sentenced under section 2F1.1 may be explained by the difference in the base offense levels and enhancements set forth in the applicable guidelines provisions. [20] Furthermore, to the extent that Mr. Anderson's sentence differs from his codefendants' sentences, that difference may be explained by his codefendants' willingness to plead guilty, their cooperation with the Government, and the imposition of a two-level obstruction-of-justice enhancement in Mr. Anderson's case. United States v. Boscarino, 437 F.3d 634 , 638 (7th Cir.2006) (concluding that the difference between the codefendants' sentences did not amount to an unwarranted disparity, because it was "justified by legitimate considerations, such as rewards for cooperation").
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opinion_html_with_citations
| 6,995 |
2013-10-30 04:59:00.74181+00
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010combined
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f
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f
| 1,204,129 |
Ripple and Sykes, Circuit Judges, and Lawrence, District Judge
| null |
LU
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f
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Published
| 30 |
United States v. Anderson
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Anderson
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UNITED STATES of America, Plaintiff-Appellee, v. Leslie ANDERSON, Defendant-Appellant
| null | null |
<parties id="b687-8">
UNITED STATES of America, Plaintiff-Appellee, v. Leslie ANDERSON, Defendant-Appellant.
</parties><br><docketnumber id="b687-11">
No. 08-2925.
</docketnumber><br><court id="b687-12">
United States Court of Appeals, Seventh Circuit.
</court><br><otherdate id="b687-13">
Argued May 5, 2009.
</otherdate><br><decisiondate id="b687-14">
Decided Sept. 3, 2009.
</decisiondate><br><attorneys id="b689-5">
<span citation-index="1" class="star-pagination" label="641">
*641
</span>
Stephen B. Clark, Attorney, Bruce E. Reppert, Attorney (argued), Office of The United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
</attorneys><br><attorneys id="b689-6">
Stephanie A. Brennan, Attorney (argued), Kirkland & Ellis LLP, Chicago, IL, for Defendant-Appellant.
</attorneys><br><judges id="b689-7">
Before RIPPLE and SYKES, Circuit Judges, and LAWRENCE, District Judge.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</judges><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b689-10">
The Honorable William T. Lawrence, District Judge for the Southern District of Indiana, is sitting by designation.
</p>
</div></div>
| null | null | null | null | null | null | 790,933 |
08-2925
| 0 |
ca7
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F
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Seventh Circuit
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Court of Appeals for the Seventh Circuit
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8,574,876 |
Ferguson, Judge (dissenting): I dissent for the reasons set forth in my separate opinion in United States v Johnson, 19 USCMA 464, 42 CMR 66 (1970).
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opinion_xml_harvard
| 26 |
2022-11-23 15:14:22.261161+00
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040dissent
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t
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f
| 8,597,231 |
Darden, Ferguson, Quinn
| null |
U
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f
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Published
| 0 |
United States v. Young
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Young
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UNITED STATES v. WILLIAM A. YOUNG, Fireman Recruit, U. S. Navy
| null | null | null | null | null | null | null | null | null | 65,859,903 |
No. 22,677
| 0 |
cma
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MA
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f
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United States Court of Military Appeals
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United States Court of Military Appeals
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1,510,755 |
856 S.W.2d 429 (1993) Richard Lee BEAVERS, Appellant, v. The STATE of Texas, Appellee. No. 70712. Court of Criminal Appeals of Texas, En Banc. April 7, 1993. Rehearing Denied May 12, 1993. Richard Frankoff, Brian Wice, Houston, for appellant. John B. Holmes, Jr., Dist. Atty., and Alan Curry and Danise Crawford, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State. Before the court en banc. *430 OPINION McCORMICK, Presiding Judge. In this automatic, direct appeal from appellant's capital murder conviction and death sentence, appellant's counsel raises three points of error. V.T.C.A., Penal Code, Section 19.03(a)(2); Article 37.071(b), V.A.C.C.P. Appellant also raises four pro se points of error. We will affirm. Appellant does not challenge the sufficiency of the evidence to support his conviction or the jury's affirmative answers to the special issues. Briefly stated, the evidence from the guilt-innocence stage, viewed in the light most favorable to the verdict, supports findings beyond a reasonable doubt that at 9:00 p.m. on August 18, 1986, appellant pulled a firearm on a husband and wife in their apartment after they let him in to use the telephone. [1] Appellant said he needed money for drugs. After taking some money and other property from the apartment, appellant forced the husband and wife to drive him in their car to several automated teller bank machines where he emptied their bank accounts. He then forced them to drive to a restaurant, where the husband worked as an assistant manager, and persuaded the husband to get the money from the safe while appellant waited in the car with a gun pointed at the wife. Throughout the entire ordeal appellant told the husband and wife he would not hurt them. He eventually took them out to a field and made them kneel down. He suddenly and fatally shot the husband while the wife watched. Appellant then took the wife to several different locations and sexually assaulted her at least once. He eventually shot the wife and left her in a field. She recovered from her physical injuries and testified against appellant at his trial. [2] Appellant's first point of error asserts his death sentence violates the Eighth and Fourteenth Amendments to the United States Constitution as applied to him because the special issues at the punishment phase prevented the jury from considering and applying appellant's mitigating evidence. Appellant bases this claim on Penry v. Lynaugh, 492 U.S. 302 , 109 S. Ct. 2934 , 106 L. Ed. 2d 256 (1989). The record reflects the trial court refused to submit the following charge that appellant requested: "Under the Constitution of the State of Texas and the United States Constitution, you are instructed that you must consider all the evidence in the case, including any aggravating factors and evidence that mitigates against the imposition of the death penalty. That is, you must consider all evidence which has any bearing on the two special issues before you, but you must also consider any mitigating evidence or extenuating circumstances that might lead you to believe that the death penalty would not be appropriate. "Therefore, if you find beyond a reasonable doubt that the answer to each special issue is "yes," but believe from all the evidence, including both aggravating and mitigating factors, that the death penalty is not appropriate in this case, you are instructed not to answer the special issues." At the punishment phase, the State reoffered the evidence it introduced at the guilt-innocence stage, and presented, among other things, evidence of appellant's extensive criminal history dating back to when he was a juvenile. Appellant presented a 1975 presentence investigative report (PSI) that was prepared in Virginia in connection with an offense he committed there as a juvenile. This report indicated appellant had a long-term substance abuse problem. Appellant began using drugs and alcohol at about age 10. The PSI indicated appellant blamed most of his substance abuse problem on his alcoholic father, who began to give appellant alcohol when appellant *431 was very young. The PSI further indicated appellant "was known" as an habitual liar. Based on appellant's drug problem and his tendencies toward violence, the PSI indicated appellant was a serious threat to his community without intensive treatment in a controlled environment. Appellant also presented a January 12, 1976, letter from a Dr. Molchon who treated appellant at a psychiatric hospital in Virginia in the fall of 1975. Dr. Molchon's letter discussed appellant's long history of antisocial behavior "manifested by drug use, poor school adjustment, multiple behavioral problems plus repeated legal offenses." This letter indicated that while hospitalized, appellant's mental status rapidly improved, and when discharged, appellant "showed no further evidence of thought disorder or organic brain syndrome." Appellant was discharged from the hospital "with a diagnosis of psychosis with drug intoxication, resolved, and antisocial personality." Dr. Molchon's letter concluded that appellant's prognosis for improvement with treatment was poor, and, to be successful, any treatment would have to occur in a highly structured setting over a long time. Appellant also presented the testimony of Donna Broussard "an intervention specialist in a field dedicated to substance abuse." She interviewed appellant several times while he was in jail on the present charges. She testified appellant's upbringing and his drug abuse explained most of his criminal behavior. Based on her conversations with appellant, she testified it became obvious to her that appellant's family was a typical chemically dependent, dysfunctional family. [3] Broussard further testified to a "great deal of abuse" in appellant's home: "Q. Now, regarding still the family unit that we are describing, can you tell us whether or not in your interviews of either spousal abuse or child abuse? "A. From the information I received there was a great deal of abuse both toward the wife and toward the children. Whether that was physical or emotional is unclear, but it was related as being both." She also testified appellant's aggressiveness increased with his continuous use of drugs at increased levels. She testified the probability of appellant continuing to use drugs was 100%. Broussard also testified drug abuse retards a person's ability to make "good decisions." She said appellant's emotional development had been impaired by his drug abuse; appellant was a "13 year-old child in a 33 year-old body." Broussard also testified that someone with appellant's history of drug abuse could suffer "blackouts" from ingesting too many drugs and alcohol meaning that person would not remember his behavior during the blackout. She testified appellant probably had suffered blackouts many times. She also testified to appellant's religious conversion in jail. On cross-examination, she testified appellant was not mentally retarded and he knew the difference between right and wrong. Appellant also presented the testimony of Dr. Degner, a medical doctor specializing in the area of drug abuse. He testified appellant had a severe drug abuse problem. He also testified that someone who continuously used drugs from the age of 10 would have the maturity level of a 10 year-old even when that person reached 30 years of age. Dr. Degner testified to his opinion, based on his interviews with appellant and other factors, that appellant had blackouts on many occasions including the day of the offense. "Q. In your interviews and your studies of the PSI and with [appellant] did you form an opinion as to whether or not [appellant] had blackouts? *432 "A. Yes, he has had blackouts, many. "Q. Did you form an opinion as to whether or not he had had a blackout on August 18, 1986? "A. Is that the date of the crime? "Q. Offense. "A. Yes. He told me of not really remembering anything from around noon and that's fuzzy. He is not real sure around 10:00 o'clock, but somewhere around noon he has essentially no recall until he found himself around 8:00 [p.m.]. Again, that's fuzzy. That's a rough time. He is not sure there either, at the door of this apartment trying to put his key in his old apartment door." Dr. Degner also testified that someone who is having a blackout can appear to another person to be functioning normally. Dr. Degner testified it was unlikely appellant could have committed a deliberate act on the day of the offense because appellant had drifted into an eight-hour blackout after ingesting drugs that morning. "A. I just believe with what [appellant] told me he had taken starting early in the morning and then the types of drugs he ingested still early in the morning, 7:00, 7:30, 8:00 o'clock, and then drifting into an eight-hour blackout, I think that's very, very likely that he was operating, you know, in an impaired state. Now, how impaired I really don't know, but I think the chances of having, you know, his wits about him, all of his judgment, all of his ability to consider consequences and things like that would be highly impaired. "Q. Do you believe that a person who had ingested, hypothetically, all these drugs over this period of time could be able to do a deliberate act, a conscious, willful act, knowing the full consequences of the act? "A. I think that's unlikely." On cross-examination, Dr. Degner confirmed appellant told him that he had a blackout from 12:00 noon until 8:00 p.m. on the day of the offense, and he had some memory of events after that. "Q. Doctor, I want to clear up something. You said [appellant] had a blackout from 12:00 noon until 8:00 that night or p.m.? "A. Yes, that was what he told me. "Q. On the day of the offense? "A. Yes. "Q. And did he have memory of the events after that? "A. Yes, he had some." Dr. Degner also testified appellant was articulate and understood the concepts they discussed. He testified appellant was not like a mentally retarded person who has the mental function of a 6-year-old. On redirect, Dr. Degner testified appellant understood the difference between right and wrong when he was sober; however, he was not sure whether appellant understood that difference when he was intoxicated. Dr. Degner also testified appellant's prognosis for improvement with treatment was poor. Father Brinkman, a priest, testified that someone with appellant's background would be impaired in making certain kinds of moral decisions. However, Father Brinkman was unable to express an opinion on appellant's ability to make moral choices at the time of the offense. Walker, a jailer at the Harris County jail where appellant was incarcerated before trial, also testified. He said appellant was well-behaved. A state cannot preclude a jury from considering "relevant mitigating evidence" offered by a defendant as the basis for a sentence less than death. See Eddings v. Oklahoma, 455 U.S. 104 , 102 S. Ct. 869 , 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586 , 98 S. Ct. 2954 , 57 L. Ed. 2d 973 (1978); see also Graham v. Collins, U.S. , , 113 S. Ct. 892 , 901-902, 122 L. Ed. 2d 260 (1993) (reh'g denied March 1, 1993); Penry, 492 U.S. at 316-18, 109 S. Ct. at 2946 . Here, appellant relies on evidence of his drug abuse and addiction that retarded his emotional development and ability to make "good decisions," and of his voluntary *433 intoxication on the day of the offense that caused him to have a blackout. Appellant also relies on evidence of possible childhood abuse in the home, and the possibility he came from a dysfunctional family. He also relies on evidence of his religious conversion and good behavior in jail. Here, however, there is no evidence appellant was having a blackout when he committed the offense. [4] We also have held evidence, like that here, "regarding [a defendant's] drug abuse and addiction [and] his intoxication at the time of the offense" requires no separate Penry instruction. See Lane v. State, 822 S.W.2d 35 , 39 (Tex. Cr.App.1991), cert. denied, U.S. , 112 S. Ct. 1968 , 118 L. Ed. 2d 568 (1992). In addition, the thrust of appellant's evidence was that he was incapable of committing a deliberate act at the time of the offense. The jury could have given full mitigating effect to that evidence in answering special issue one. See Lackey v. State, 819 S.W.2d 111 , 134-36 (Tex.Cr.App.1989); Graham, U.S. , , 113 S.Ct. at 902-903. The evidence of appellant's immaturity and inability to make "good decisions" due to his drug abuse, unlike the evidence of mental retardation in Penry, does not make appellant less morally culpable for his adult behavior "according to contemporary moral values as shared by a significant segment of our society." See Draughon v. State, 831 S.W.2d 331 , 339 (Tex.Cr. App.1992) cert. filed (October 5, 1992); Lackey, 819 S.W.2d at 134-35; see also Penry, 492 U.S. at 318-20, 109 S. Ct. at 2947 . Therefore, this evidence required no separate Penry instruction. Broussard's testimony of possible childhood abuse and the possibility appellant came from a dysfunctional family, unlike the evidence of a history of harsh childhood abuse in Penry, raised no issue of whether appellant suffered from a history of childhood abuse or whether his commission of the crime was attributable to childhood abuse. Therefore, this evidence required no separate Penry instruction. See Lackey, 819 S.W.2d at 134-35. Finally, the jury could have given full mitigating effect in answering special issue two to appellant's evidence of "positive character traits" regarding his religious conversion and good behavior in jail. See Goss v. State, 826 S.W.2d 162 , 167 (Tex.Cr.App.1992), cert. filed (September 14, 1992); Boyd v. State, 811 S.W.2d 105 , 111-12 (Tex.Cr.App.1991), cert. denied, U.S. , 112 S. Ct. 448 , 116 L. Ed. 2d 466 (1991); see also Graham, U.S. , 113 S.Ct. at 902. Therefore, appellant's evidence of "positive character traits" required no separate Penry instruction. Appellant's first point of error is overruled. Appellant's second point of error claims the trial court erred in submitting a charge to the jury pursuant to the version of Article 37.071(d), (e) and (g), V.A.C.C.P., applicable to appellant's case. [5] The trial court refused to submit the following charge appellant requested at the punishment phase: "You are instructed that you may not answer any issue `yes' unless you unanimously agree beyond a reasonable doubt. You may not answer any issue `no' unless ten or more you (sic) have a reasonable doubt thereof. The State has the burden of proof to show beyond a reasonable doubt that the answer is `yes.'" Pursuant to former Article 37.071, subsections (d), (e) and (g), the trial court instructed the jury as follows: "You are further instructed that if any juror, after considering the evidence and *434 these instructions, has a reasonable doubt as to whether the answer to a Special Issue should be answered `Yes,' then such juror should vote `No' to that Special Issue in the jury's deliberations. "If ten (10) jurors or more vote `No' to that Special Issue, and only if ten (10) jurors or more vote `No,' then the answer of the jury shall be `No' to that issue; and the Foreperson will so record the jury's answer by signing his or her name to the finding reflecting such answer on the form provided for that purpose. "You are further instructed that if the jury returns an affirmative finding on each of the issues submitted, this Court shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted, the Court shall sentence the defendant to confinement in the Texas department Corrections for Life." Appellant argues he timely requested a jury charge which would have permitted the jurors to refuse to answer a special issue if they were unable to do so. He then argues the trial court's instruction was coercive in that it suggested to the jury that the issues must be answered either "yes" or "no." He concludes by arguing: "[A]gain in light of Penry v. Lynaugh , the jury was not permitted to exercise its `reasoned moral response' to the circumstances of this appellant and the case." Appellant, in effect, argues he was entitled to a charge instructing the jury it could abstain from answering the special issues. However, the jury was charged in accordance with the statute, and appellant makes no constitutional challenges to the statute. In addition, we recently have rejected appellant's argument and similar arguments on constitutional grounds. See Hathorne v. State, 848 S.W.2d 101 , 124-125 (Tex.Cr.App.1992) (reh'g denied January 27, 1993), no cert. history; Draughon, 831 S.W.2d at 338 (abstention is not a jury option). To the extent appellant argues the court's charge prevented the jury from considering relevant mitigating evidence, we disagree, and appellant has not demonstrated how the charge prevented the jury from considering relevant mitigating evidence. Tex.R.App.Pro. 74(f). Appellant's second point of error is overruled. Appellant's third point of error asserts the trial court erred in not allowing him to retrospectively exercise an unused peremptory strike on juror Prilop after she had been exposed to prejudicial pretrial publicity. The record reflects appellant had one unused peremptory strike at the close of voir dire. Prilop previously had been accepted by the State and the defense during voir dire. Before the panel was sworn and empaneled as a jury, appellant filed a motion for mistrial because the venire had been exposed to articles about the case appearing in two local newspapers. The trial court held a hearing at which each member of the venire was questioned individually. The trial court denied appellant's motion for a mistrial and appellant's request to use his unused peremptory strike on Prilop. The State argues no error occurred because appellant's request to retrospectively use a peremptory strike is not authorized in a capital case. See Grijalva v. State, 614 S.W.2d 420 , 424-25 (Tex.Cr.App.1980); Article 35.13, V.A.C.C.P. Appellant responds by arguing that Article 35.13 was unconstitutionally applied to him because it permitted a juror, who was unable to render a fair and impartial verdict, to sit on appellant's jury. Appellant further argues, "[W]hile [Prilop's] examination by the parties did not necessarily show grounds for removal for cause, appellant's counsel was understandably concerned about her ability to render a fair and impartial verdict." In support of his claim that Prilop had become unable to render a fair and impartial verdict, appellant relies on the following portion of the record during his initial questioning of Prilop at the hearing on appellant's motion for mistrial. "Q. You haven't heard anything other than that or read anything other than that one particular thing? "A. Yeah, there was something in the paper this morning. *435 "Q. Based upon that information, just what you have just told me, would you feel comfortable if you were in [appellant's] shoes to have a juror of your caliber sitting with that knowledge in the back of your mind? "A. Probably not." Appellant claims Prilop admitted she would feel uncomfortable if she were in appellant's place. The foregoing portion of the record does not necessarily support this claim. Even if it did, getting Prilop to admit that she would feel uncomfortable if she were in appellant's place, does not establish she had become a biased juror. Moreover, based on later questioning by the trial court, it was entitled to find the pretrial publicity had not affected Prilop's ability to be a fair and impartial juror. See, e.g., Article 35.16(a)(10), V.A.C.C.P. "Q. Is there anything in your mind changed since you were sworn in as a juror in this case at the time that you were accepted by the State and the defense and sworn in, is there anything in your frame of mind changed? "A. No. "Q. Do you have any preconceived notions of guilt or innocence at this point? "A. No. "Q. Can you be fair and impartial? "A. I think so, yes. "Q. Well, wait a minute. You think so? "A. Yes. "Q. Does that mean you can? "A. Yes. "Q. Can you sit through this trial and listen to the evidence and judge this case based upon the evidence and the testimony and upon that testimony and evidence alone and nothing else? Can you do that? "A. Yes. "Q. Can you take an oath, and you have taken an oath, to follow the law that I give you, whatever that law may be? "A. Yes. "Q. You know we discussed the law? "A. Yes. "Q. As far as that burden of proof is you understand what that is? "A. On the State. "Q. Okay. And can you follow the law? "A. Yes. "Q. Is there any reason in your mind that you can think of why you cannot serve and be a fair and impartial juror and a true verdict render according to the law and the evidence in this case? Is there any reason why you can't do that? "A. No." This record shows appellant's constitutional right to a fair and impartial jury was adequately protected. The trial court did not err in refusing appellant's request to retrospectively use his unused peremptory strike on Prilop. Appellant's third point of error is overruled. Appellant's pro se points of error one through three make various constitutional challenges to Article 37.071, V.A.C.C.P. His fourth pro se point of error, in effect, claims his trial counsel was ineffective for failing to preserve his Penry claim. Having addressed the merits of appellant's Penry claim, this point of error is moot. Appellant's pro se points of error one through three lack merit. See Graham, U.S. at , 113 S.Ct. at 902; Penry, 492 U.S. at 315-17, 109 S. Ct. at 2945-46 ; Jurek v. Texas, 428 U.S. 262 , 96 S. Ct. 2950 , 49 L. Ed. 2d 929 (1976). Appellant's pro se points of error one through four are overruled. The judgment is affirmed. OVERSTREET, J., concurs in the result. MALONEY, J., concurs in point of error No. 1, and otherwise joins. CLINTON, J., dissents. BAIRD, J., concurring. Appellant presented evidence that his emotional development had been impaired as a result of his continuous drug use. According to the testimony of Dr. Degner, *436 appellant had the maturity level of a ten year-old child. Intervention specialist Broussard described appellant as a "thirteen year-old child in a 33 year-old body." Appellant contends evidence of his retarded emotional development constitutes "Penry evidence," [1] and that the jury could not give effect to that evidence within the capital sentencing scheme of Tex.Code Crim. Proc.Ann. art. 37.071. In support of this argument, appellant relies solely upon the United States Constitution and does not seek relief under the Texas Constitution. The majority concludes the evidence did not require a "separate Penry instruction." Majority opinion pg. 433. For the following reasons I join the majority opinion. In Graham v. Collins, U.S. , 113 S. Ct. 892 , 122 L. Ed. 2d 260 (1993), the Supreme Court construed Jurek v. Texas, 428 U.S. 262 , 96 S. Ct. 2950 , 49 L. Ed. 2d 929 (1976), "as holding that the circumstance of youth is given constitutionally adequate consideration" within the punishment issues of art. 37.071. Graham, U.S. at , 113 S.Ct. at 902. Therefore, in light of Graham, the majority correctly concludes appellant's evidence of emotional youth did not require a separate instruction under the Eighth Amendment as interpreted in Penry. Although, appellant is presently foreclosed from obtaining relief under the Eighth Amendment, it is not clear what direction the Supreme Court will take on the issue of youth as a mitigating circumstance in a capital context. Hopefully, that question will be resolved when the Supreme Court decides Johnson v. State, 773 S.W.2d 322 (Tex.Cr.App.1989), aff'd on reh'g (No. 69,750 delivered May 27, 1992), cert. granted, U.S. , 113 S. Ct. 1148 , 122 L. Ed. 2d 499 (1993). [2] Therefore, absent a separate claim under the Texas Constitution, we are bound to follow the Supreme Court's determination that youth can be given adequate Eighth Amendment consideration within the punishment issues under art. 37.071, until the Supreme Court alters its prior holdings. With these comments, I join the majority opinion. NOTES [1] The husband and wife and appellant were casually acquainted; appellant either lived or recently had lived in the same apartment complex as the husband and wife. [2] The record reflects that appellant's counsel, pursuant to appellant's instructions, did not cross-examine the wife at trial. [3] On cross-examination, Broussard testified she did not interview any of appellant's family members. The 1975 PSI report indicated appellant has four brothers. Three of the brothers had no history of legal or substance abuse problems. One of the brothers smoked marijuana, but had no arrest record. [4] The only testimony we find concerning whether appellant was having a blackout at the time of the offense is Dr. Degner's. However, Dr. Degner testified on both direct and cross-examination, based on appellant's own admissions to him, that appellant's blackout had ended by 8:00 p.m. on the day of the offense, and he had some memory of events after that. It is undisputed appellant first entered the apartment of the complainant and his wife at 9:00 p.m. Therefore, we find no evidence that appellant was having a blackout at the time of the offense, so we find it unnecessary to decide whether such circumstances in a case like this would require a separate Penry instruction. See Lackey v. State, 819 S.W.2d 111 , 136 (Tex.Cr.App.1989). [5] See Acts 1985, 69th Leg., ch. 44 § 2, eff. Sept. 1, 1985. [1] Penry v. Lynaugh, 492 U.S. 302 , 109 S. Ct. 2934 , 106 L. Ed. 2d 256 (1989). [2] The question presented in Johnson is: Did the Texas capital sentencing statute unconstitutionally preclude the jury from giving full mitigating effect to the petitioner's youthful age at the time of the offense?
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opinion_html_with_citations
| 4,292 |
2013-10-30 06:31:35.268934+00
|
010combined
|
f
|
f
| 1,510,755 |
Baird, Clinton, Maloney, McCORMICK, Overstreet
| null |
LU
|
f
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Published
| 7 |
Beavers v. State
|
Beavers
|
Richard Lee BEAVERS, Appellant, v. the STATE of Texas, Appellee
| null | null |
<parties id="b467-3">
Richard Lee BEAVERS, Appellant, v. The STATE of Texas, Appellee.
</parties><br><docketnumber id="b467-5">
No. 70712.
</docketnumber><br><court id="b467-6">
Court of Criminal Appeals of Texas, En Banc.
</court><br><decisiondate id="b467-8">
April 7, 1993.
</decisiondate><br><otherdate id="b467-9">
Rehearing Denied May 12, 1993.
</otherdate><br><attorneys id="b467-30">
Richard Frankoff, Brian Wice, Houston, for appellant.
</attorneys><br><attorneys id="b467-31">
John B. Holmes, Jr., Dist. Atty., and Alan Curry and Danise Crawford, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
</attorneys>
| null | null | null | null | null | null | 1,045,536 |
70712
| 0 |
texcrimapp
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SA
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t
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Court of Criminal Appeals of Texas
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Court of Criminal Appeals of Texas
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2,651,583 |
January 29 2014 DA 12-0632 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 337A STATE OF MONTANA, Plaintiff and Appellee, v. KANDICE TELLEGEN, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 12-063B Honorable Katherine R. Curtis, Presiding Judge COUNSEL OF RECORD: For Appellant: Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender; Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General; Helena, Montana Ed Corrigan, Flathead County Attorney, Alison Howard, Travis Ahner, Deputy County Attorneys; Kalispell, Montana Submitted on Briefs: September 26, 2013 Decided: November 12, 2013 Amended: January 29, 2014 Filed: Clerk Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Judge Katherine Curtis of the Eleventh Judicial District Court, Flathead County, presided over the trial of Kandice Tellegen (Tellegen) for theft and accountability to burglary. The jury returned a verdict of guilty on both counts. Tellegen appeals from numerous alleged errors at trial. ¶2 We address the following issues on appeal: Issue One: Did the District Court err by instructing the jury on the theory of accountability when the State had not directly charged an accountability based offense? Issue Two: Did Tellegen’s counsel render ineffective assistance by offering a “conduct-based” definition of “purposely?” Issue Three: Did Tellegen’s counsel render ineffective assistance by failing to object to her theft conviction on the grounds that it violated Montana’s statutory restriction on multiple charges? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On January 13, 2012, Tellegen and her friends Ashley Ekern (Ashley), Aaron Zelenik (Aaron), and Jeff Weldele (Jeff) spent the afternoon together. The group eventually decided that Jeff and Aaron would go and “scout a house” while Ashley and Tellegen waited at a fishing access near Kila, Montana. Ashley and Tellegen soon went looking for Jeff and Aaron, and spotted their car parked near an unknown house. Tellegen parked the car around back and approached the house. Jeff and Aaron then opened the garage door and told Tellegen to pull her car into the garage. Once inside, accounts differ as to whether Tellegen participated in loading the cars with items from the home. 2 ¶4 The State filed an information charging Tellegen with accountability for burglary. The State later withdrew that charge and amended the information to charge Tellegen with burglary, conspiracy to commit burglary, and theft. After the presentation of evidence, the District Court and attorneys settled instructions. The State sought an accountability instruction for the burglary charge, which the District Court granted over Tellegen’s objection. The District Court settled on an instruction defining the word “purposely” as a conduct-based mental state instead of a result-based mental state. Tellegen’s attorney did not object to this instruction. Finally, the court’s instructions defined theft as a predicate offense to burglary. The jury convicted Tellegen of both burglary and theft. STANDARDS OF REVIEW ¶5 We review jury instructions for abuse of discretion. State v. Lacey, 2012 MT 52 , ¶ 15, 364 Mont. 291 , 272 P.3d 1288 . In considering whether a district court has correctly instructed the jury in a criminal case, we determine whether the instructions taken as a whole fully and fairly instructed the jury on the law applicable to the case. State v. Hocter, 2011 MT 251 , ¶ 14, 362 Mont. 215 , 262 P.3d 1089 . Claims of ineffective assistance of counsel present mixed issues of law and fact which we review de novo. State v. Clary, 2012 MT 26 , ¶ 12, 364 Mont. 53 , 270 P.3d 88 . DISCUSSION ¶6 Did the District Court err by instructing the jury on the theory of accountability when the State had not directly charged an accountability based offense? ¶7 The State’s first information filed against Tellegen charged her with accountability for 3 burglary. The State then amended the charges to burglary, conspiracy to commit burglary, and theft, but eliminated the accountability for burglary charge. When the District Court began discussing jury instructions at the close of evidence, the State sought an instruction on the theory of accountability for burglary. The District Court admitted this instruction, citing to Tower, 267 Mont. at 68 , 881 P.2d at 1320. Tellegen now asks us to revisit our holding in Tower, arguing that she was deprived of due process because she was not informed of the nature of the State’s accusations against her. I. Tower’s Holding is Correct as a Matter of Law. ¶8 We decline to revisit Tower’s holding that accountability is not a separate charge requiring express notice from the prosecution. The Sixth Amendment requires that the State inform a criminal defendant of the nature and cause of the accusation against her. U.S. Const. amend. VI. To this end, Montana law requires that charging documents give “a plain, concise, and definite statement of the offense charged, including the name of the offense, whether the offense is a misdemeanor or felony, the name of the person charged, and the time and place of the offense as definitely as can be determined.” Section 46-11- 401(1), MCA. ¶9 We have consistently reaffirmed our holding in Tower that accountability is not a separate or different offense from the one charged, but rather, is “merely a conduit by which to find a person criminally liable for the acts of another.” State v. Maetche, 2008 MT 184 , ¶ 16, 343 Mont. 464 , 185 P.3d 980 ; State v. Abe, 1998 MT 206 , ¶ 31, 290 Mont. 393 , 965 P.2d 882 ; State v. Tower, 267 Mont. 63 , 68, 881 P.2d 1317 , 1320 (1994); In re B.D.C., 211 4 Mont. 216 , 220-21, 687 P.2d 655 , 657 (1984). In Tower, we held that this established legal principle allows defendants to predict that the State may pursue an accountability theory for a crime charged. Tower, 267 Mont. at 68 , 881 P.2d at 1320. This desire for stability and predictability is the same interest fulfilled in adhering to stare decisis. State v. Kirkbride, 2008 MT 178 , ¶ 13, 343 Mont. 409 , 185 P.3d 340 ; State v. Gatts, 279 Mont. 42 , 51, 928 P.2d 114 , 119 (1996). In reaffirming Tower’s holding, we provide further stability and predictability to an already well-established principle of Montana law. II. Tower’s Holding Applies to This Case. ¶10 Tellegen’s case is indistinguishable from Tower. The amended information charged Tellegen with burglary and later the State pursued an accountability instruction for burglary. As the District Court noted, this is exactly the situation contemplated in Tower. (“I think the cases clearly apply to this case, and I think it’s the law in the state, and I think I need to give [the accountability instruction].”) Since accountability is not a separate offense from the charge of burglary, Tellegen was effectively put on notice of the accountability theory when she was first charged with burglary. ¶11 Tellegen’s case is also similar to Tower in that she had notice of the nature of the State’s allegations based on the State’s case against her before and during trial. State v. Murphy, 174 Mont. 307 , 311-12, 570 P.2d 1103 , 1105 (1977); Tower, 267 Mont. at 68 , 881 P.2d at 1320. The State originally charged Tellegen with accountability for burglary, and only withdrew that charge to replace it with burglary and conspiracy to commit burglary. The first charge should have given Tellegen notice that the State suspected her involvement 5 in aiding or abetting the burglary. ¶12 Moreover, the facts of Tellegen’s case should have put her on notice that the State could pursue an accountability theory. In State v. Medrano, 285 Mont. 69 , 74-75, 945 P.2d 937 , 940 (1997), two defendants hit and kicked a victim, but co-defendants disputed which of the impacts resulted in serious bodily injury to the victim’s spleen. We held that Medrano had notice of the State’s accountability theory because the defendants had been accused of acting in concert and were charged individually and jointly for the victim’s injuries. Medrano, 285 Mont. at 74-75 , 945 P.2d at 940. Tellegen was charged for her participation in a burglary committed by her and other defendants, and other defendants testified that she had participated in the crime by driving the car into the garage and assisting them in loading it with items. Nothing in the facts of the case or in the State’s charges can be interpreted to accuse Tellegen of acting alone, yet she now claims surprise at the State’s accusation that she assisted others in committing the crime. The circumstances surrounding the trial put Tellegen on notice that the State would pursue an accountability theory. ¶13 Finally, Tellegen mistakenly relies on State v. Spotted Eagle, 2010 MT 222 , 358 Mont. 22 , 243 P.3d 402 . In that case, the State initially charged Spotted Eagle with causing bodily injury to his partner, but later sought to instruct the jury under a different subsection of the same statute, requiring a finding of “reasonable apprehension of bodily injury.” Spotted Eagle, ¶¶ 7-11. Spotted Eagle’s entire trial concerned his causing bodily injury, and he was only aware of the “apprehension” element once all evidence had been presented. Spotted Eagle, ¶ 14. This shift constituted a substantive change in the essential elements of 6 the charge against him and we subsequently held that the instruction was a separate and distinct charge. Spotted Eagle, ¶¶ 11-13. ¶14 Spotted Eagle is distinguishable from Montana case law on accountability. Accountability is not a separate or different offense from the one charged, it is merely a theory to establish criminal liability for the charged offense. Maetche, ¶ 16; Tower, 267 Mont. at 68 , 881 P.2d at 1320. Because accountability is not different or separate from the offense charged, its addition does not constitute a substantive shift in the charge. Spotted Eagle is therefore inapposite to the present case. Ineffective Assistance of Counsel Claims ¶15 To determine whether an individual has received ineffective assistance of counsel, we use the two-part test set forth in Strickland v. Washington, 466 U.S. 668 , 687, 104 S. Ct. 2052 , 2064 (1984); State v. Miner, 2012 MT 20 , ¶ 11, 364 Mont. 1 , 271 P.3d 56 . Under this test, the defendant must demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced the defendant. Miner, ¶ 11. If an insufficient showing is made regarding one prong of the test, there is no need to address the other prong. Dawson v. State, 2000 MT 219 , ¶ 21, 301 Mont. 135 , 10 P.3d 49 . ¶16 Under Strickland’s first prong, we examine whether counsel’s conduct fell below an objective standard of reasonableness considering prevailing professional norms, and in the context of all circumstances. Whitlow v. State, 2008 MT 140 , ¶ 14, 343 Mont. 90 , 183 P.3d 861 . Under Strickland’s second prong, we examine whether there is a reasonable probability that counsel’s lack of reasonable professional conduct renders the trial result unreliable or the 7 proceedings fundamentally unfair. Miner, ¶ 12. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Strickland, 466 U.S. at 687 , 104 S. Ct. at 2069. ¶17 Did Tellegen’s counsel render ineffective assistance by offering a “conduct-based” definition of “purposely?” ¶18 Tellegen’s attorney submitted an instruction defining “purposely” as a mental state wherein “it is the person’s conscious objective to engage in conduct of that nature.” The prosecution sought to convict Tellegen under Montana’s accountability statute, which requires that a person acts “with the purpose to promote or facilitate . . . commission of the offense.” Section 45-2-302, MCA. Tellegen argues that the instruction on “purposely” incorrectly defined it as a conduct-based mental state when the instruction for accountability calls for a result-based mental state. ¶19 In State v. Andress, 2013 MT 12 , 368 Mont. 248 , P.3d, we considered an ineffective assistance of counsel claim where the defendant’s attorney submitted instructions defining “purposely” as a conduct-based rather than result-based mental state. We found that the jury could have easily found Andress guilty under either standard, and therefore, he did not suffer prejudice from the erroneous instruction. Andress, ¶¶ 25-29. ¶20 In the instant case, a jury could easily find Tellegen guilty with a result-based mental state. Therefore, like in Andress, the instruction resulted in no prejudice to her position at trial. Tellegen testified that she and a friend arranged to wait at a fishing access while Jeff and Aaron “were going to go scout a house.” After a long wait, Tellegen and her friend went 8 looking for Jeff and Aaron, eventually spotting their car in front of a house. Tellegen knew that “something was up,” so she pulled her car behind the house and waited for Jeff and Aaron. Eventually, Jeff and Aaron opened the garage door and told her to bring the car into the garage. At this point, Tellegen testified that she knew she was participating in a crime. (“A: And so we went back up, we grabbed the car, we pull it in. And I’m starting to get really paranoid at that point . . . . Q: Did you know what they were doing? A: I figured it out by then.”) Tellegen claims that once in the house, she never assisted in stealing items, “[b]ut then again I didn’t stop it, like I should have.” Tellegen’s co-defendants, however, testified that Tellegen participated in loading the cars with items from the home. ¶21 A jury could easily find Tellegen guilty under either mental state based on the testimony presented at trial. The instruction held that burglary is committed when a person unlawfully enters a structure and commits an offense therein. Section 45-6-204, MCA. Accountability exists when a person aids, abets, agrees, or attempts to aid with the purpose to promote or facilitate the commission of an offense either before or during its commission. Section 45-2-302, MCA. Applying a result-based mental state, the jury would need to find that Tellegen acted with the purpose to promote or facilitate the unlawful entry into an occupied structure and an offense was committed therein. That fact is clear from the record; Tellegen was aware that her friends were “scouting a house” when she waited at the fishing access, she knew “something was up” when she spotted her accomplices’ car and pulled behind the house, and when she drove her car into the home’s garage she “figured it out by then” that a burglary was underway. These facts provide ample evidence for a jury to 9 conclude that Tellegen knew her actions would assist an unlawful entry wherein a theft occurred. Because a jury could have easily convicted Tellegen under either mental state instruction, her attorney’s failure to object to the instruction caused no prejudice to her position at trial. ¶22 Did Tellegen’s counsel render ineffective assistance by failing to object to her theft conviction on the grounds that it violated Montana’s statutory restriction on multiple charges? ¶23 Montana law prohibits convicting a defendant on multiple offenses when one offense is included in the other. Section 46-11-410(2)(a), MCA. The prohibition on double jeopardy bars both multiple prosecutions and multiple punishments for the same offense. State v. Guillame, 1999 MT 29 , ¶¶ 8, 19, 293 Mont. 224 , 975 P.2d 312 . In State v. Russell, 2008 MT 417 , 347 Mont. 301 , 198 P.3d 271 , we considered a conviction for felony homicide and aggravated assault wherein aggravated assault was the predicate offense for the felony homicide charge. We held that the predicate offense was necessarily included in the greater offense of felony homicide. Russell, ¶¶ 23-24. The felony homicide statute allowed the State to charge Russell in a way that avoided the multiple charge problem, but the State’s charges and jury instructions clearly identified aggravated assault as the predicate offense to felony homicide. Russell, ¶¶ 23, 26-29. ¶24 Montana’s burglary statute provides that a person commits the offense when she knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein. Section 45-6-204(1)(a), MCA. The Legislature amended the statute in 2009, adding that burglary is also committed when the person knowingly or purposely 10 commits any other offense within that structure. Section 45-6-204(1)(b). This alternative definition of burglary requires the State to prove that another offense took place once inside the dwelling, but relieves the State of proving the defendant’s purpose at the time she unlawfully entered the dwelling. ¶25 The State charged Tellegen with burglary and later instructed the jury using language from § 45-6-204(1)(b), MCA. The instruction incorporated the theft charge into its language; “[T]he State must prove the following elements: One, that the Defendant knowingly entered and remained unlawfully in an occupied structure, and . . . that the Defendant purposely or knowingly committed the offense of theft therein.” Tellegen was then convicted of both burglary and the predicate offense of theft. Theft was charged as a predicate offense to burglary, so Tellegen’s conviction for both crimes constitutes a direct violation of the statutory restriction on multiple charges in § 46-11-410(2)(a), MCA. The State could have easily charged Tellegen with theft and burglary under § 45-6-204(1)(a), MCA, as that form of burglary requires no proof of a predicate offense. Like in Russell, however, we are bound by “the State’s choice in framing the charges.” Russell, ¶ 27. Because theft was charged as a predicate offense to this type of burglary, Tellegen’s theft conviction should have been vacated on statutory grounds. ¶26 Counsel’s failure to make a valid objection based on the statutory prohibition on multiple charges constitutes deficient performance under the first prong of Strickland. State v. Becker, 2005 MT 75 , ¶ 20, 326 Mont. 364 , 110 P.3d 1 . Failure to make a valid objection to vacate a conviction prejudices the Defendant by affecting the outcome of the case, even if 11 the conviction is set to run concurrently with valid convictions in the case. State v. Williams, 2010 MT 58 , ¶¶ 27-30, 355 Mont. 354 , 228 P.3d 1127 ; Ball v. United States, 470 U.S. 856 , 864-65, 105 S. Ct. 1668 , 1673 (1985) (“The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence.”) Tellegen’s attorney failed to object to the theft conviction, for which Tellegen was sentenced to a concurrent prison term and charged additional fees, costs, and fines. The absence of objection and the subsequent sentence satisfy both prongs of Strickland. CONCLUSION ¶27 Tellegen’s conviction for theft is reversed and remanded to the District Court for recalculation of conviction-based fees, costs, and fines. Tellegen’s conviction and sentence for accountability to burglary are affirmed. /S/ MICHAEL E WHEAT We concur: /S/ JIM RICE /S/ PATRICIA COTTER /S/ LAURIE McKINNON 12
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2014-01-29 18:05:23.897135+00
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| 2,651,583 | null |
Direct Appeal
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| 10 |
State v. Tellegen
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Tellegen
| null | null | null | null | null | null | null | null | null | null | 99,243 |
12-0632
| 1 |
mont
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S
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t
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Montana Supreme Court
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Montana Supreme Court
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9,667,108 |
LAMBERT, Justice, dissenting. As Justice Wintersheimer ably demonstrates in his dissenting opinion, the claims of error relied upon by the majority for reversal were not preserved. Moreover, I believe the majority has gone too far in overruling Commonwealth v. Craig, Ky., 783 S.W.2d 387 (1990), a decision with the ink barely dry, and reinstating our earlier decision in Commonwealth v. Rose, Ky., 725 S.W.2d 588 (1987). In this case, the majority seems to have abandoned settled rules of preservation and gone well beyond the point necessary for decision. Whether one agrees or disagrees, Commonwealth v. Craig was a considered decision of this Court in January of 1990 and it could hardly be said that experience has demonstrated clear error or obsolescence, the grounds typically relied upon for overruling earlier decisions.
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opinion_xml_harvard
| 130 |
2023-08-24 01:35:40.233354+00
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040dissent
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f
|
f
| 1,670,474 |
Combs, Lambert, Leibson, Reynolds, Spain, Stephens, Wintersheimer
| null |
LU
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Published
| 23 |
Dyer v. Commonwealth
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Dyer
|
David Allen DYER, Appellant, v. COMMONWEALTH of Kentucky, Appellee
| null | null |
<parties id="b661-9">
David Allen DYER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
</parties><br><docketnumber id="b661-12">
No. 90-SC-248-MR.
</docketnumber><br><court id="b661-13">
Supreme Court of Kentucky.
</court><br><decisiondate id="b661-14">
Sept. 26, 1991.
</decisiondate><br><attorneys id="b662-10">
<span citation-index="1" class="star-pagination" label="648">
*648
</span>
J. Kirk Griggs, II, Lexington, for appellant.
</attorneys><br><attorneys id="b662-11">
Frederic J. Cowan, Atty. Gen., Lana Grandon, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
</attorneys>
| null | null | null | null | null | null | 1,258,840 |
90-SC-248-MR
| 0 |
ky
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S
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Kentucky Supreme Court
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Kentucky Supreme Court
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839,254 |
750 N.W.2d 177 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Anthony JONES, Defendant-Appellant. Docket No. 132002. COA No. 267276. Supreme Court of Michigan. June 23, 2008. On order of the Court, the application for leave to appeal the July 10, 2006 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). MARILYN J. KELLY, J., would grant leave to appeal for the reasons set forth in her dissenting statement in People v. Houlihan, 480 Mich. 1165 , 746 N.W.2d 879 (2008).
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opinion_html_with_citations
| 103 |
2013-03-01 21:46:23.176345+00
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010combined
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f
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f
| 839,254 |
Marilyn J. Kelly
| null |
LC
|
f
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Published
| 1 |
People v. Jones
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Jones
| null | null | null | null | null | null | null | null | null | null | 2,439,863 |
132002
| 0 |
mich
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S
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t
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Michigan Supreme Court
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Michigan Supreme Court
|
5,200,680 |
Motion denied, with ten dollar's costs. Present —Woodward, Jenks, Hooker, Rich and Miller, JJ.
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opinion_xml_harvard
| 14 |
2022-01-06 15:51:40.212835+00
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020lead
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t
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f
| 5,365,707 | null | null |
U
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f
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Published
| 0 |
White v. Davenport
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White
|
Josiah J. White v. William B. Davenport and Others
| null | null | null | null | null | null | null | null | null | 61,713,800 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
9,645,294 |
OPINION ON MOTION FOR REHEARING SPECTOR, Justice. The Respondents’ motion for rehearing is overruled. The court’s opinion of March 3, 1993 is withdrawn, and the following is substituted therefor. These two causes were submitted together because both involve the authority of the Texas General Land Office to determine contract rights under state mineral leases.1 In each cause, the court of appeals affirmed a summary judgment granting declaratory relief on the ground that the Natural Resources Code does not authorize the General Land Office to adjudicate such contract rights. We conclude that the Texas Legislature, in enacting the relevant provisions of the Natural Resources Code, intended to authorize the General Land Office to interpret and apply contractual provisions in state mineral leases. We further conclude, however, that the relevant code provisions, insofar as they require lessees to prepay disputed amounts before contesting the agency’s determinations in court, are unconstitutional. We therefore affirm the judgments of the court of appeals in favor of the lessees, though on grounds other than those articulated by the courts below. I. The present disputes arise from recent statutory changes affecting the Texas Land Commissioner’s long-standing authority to conduct audits. Since 1919, Texas statutes have provided that the books, accounts, and other records of oil and gas lessees on state lands are subject to “inspection and examination” by certain state *482officers, including the Commissioner of the General Land Office.2 In 1986, the Texas Legislature expanded on that provision by creating new procedures for the assessment, collection and redetermination of oil and gas royalties due to the State.3 See Tex.Nat.Res.Code § 52.135. As revised, the statute requires the Commissioner of the General Land Office to send a lessee an “audit billing notice” whenever the Commissioner determines, after inspection of the lessee’s records, that additional royalties are due. § 52.135(b). Upon receiving the billing notice, the lessee has thirty days in which to either pay the deficiency or request a hearing before the Commissioner for redetermination of the assessment. § 51.135(c). The 1986 act also established a new mechanism for suits to protest deficiency assessments. See Tex.Nat.Res.Code § 52.-137. If a lessee who has received a deficiency assessment chooses to forego a hearing before the Commissioner, or is dissatisfied with an order issued by the Commissioner after a hearing, the lessee must pay the deficiency under protest within thirty days. § 52.137(a). The lessee then has ninety days to bring suit in Travis County to recover the payment. § 52.-137(c). Trial on the disputed issues is de novo, and the substantial evidence rule does not apply. § 52.137(e). All four of the respondents are lessees facing deficiency assessments as a result of audits conducted by the General Land Office. In each case, the deficiency assessment is based largely on a determination that the lease involved is not a “market value” lease, so that royalties cannot be calculated on the basis of gross proceeds. To dispute that determination, each of the Lessees initially requested a hearing under section 52.135(c) of the Texas Natural Resources Code. Before the hearings were concluded, however, each of the Lessees filed suit challenging the authority of the General Land Office to make such a legal determination in the course of conducting an audit. After filing suit, Rutherford Oil Corporation and others4 sought a temporary injunction to prevent the General Land Office from proceeding with the hearings under section 52.135(c). The trial court initially granted the temporary injunction, but later dissolved it. The court of appeals then ordered the trial court to reinstate the injunction, stating that the General Land Office had no authority to adjudicate lease rights. Rutherford Oil Corp. v. General Land Office, 776 S.W.2d 232 (Tex.App.—Austin 1989, no writ) ("Rutherford I”). After Rutherford I, the trial court granted summary judgment for Rutherford on the grounds that sections 52.135 and 52.137 of the Texas Natural Resources Code do not permit the General Land Office to adjudicate contract rights under state mineral leases, and that the administrative hearings which the General Land Office proposed to hold would violate this holding. The trial court also denied the State’s cross-motion for summary judgment. In a separate proceeding in the same trial court, Flag-Redfern Oil Company sought relief similar to that sought by Rutherford. Just as in the Rutherford case, the trial court granted Flag-Red-fern’s motion for summary judgment and correspondingly denied the State’s cross-motion for summary judgment. *483On appeal, the State asserted in both cases that sections 52.135 and 52.137 confer on the General Land Office full authority to interpret lease provisions in the course of conducting audits. The court of appeals rejected that argument in Rutherford II, 802 S.W.2d 65. Reasoning that “[o]nly courts are empowered to determine controverted property rights,” the court of appeals held that the term “audit” in section 52.135 “only contemplates an examination for accounting-type errors resulting in royalty deficiencies.” 802 S.W.2d at 68-69. For that reason, the court of appeals affirmed the summary judgment as to Rutherford. Id. at 69. Additionally, in a separate decision based on the reasoning of Rutherford II, the court of appeals summarily affirmed the trial court’s summary judgment as to Flag-Redfern. 852 S.W.2d 539. II. The State urges that the lower courts’ interpretation of section 52.135 is inconsistent with the legislature’s intent in enacting the 1986 amendments. We agree. Nothing in section 52.135 expressly states that the General Land Office, in examining lessees’ records, is restricted to searching for “accounting-type errors.” On the contrary, the provisions added in 1986 indicate that the legislature fully expected the General Land Office to make legal determinations in the course of conducting its examinations. The new provisions require a lessee requesting a hearing to submit “[a] statement of grounds setting out in detail the lessee’s reasons for disagreement with such assessment and the factual and legal grounds on which the claim is based.” § 52.135(c) (emphasis added). If the legislature had intended the examination and hearing to focus solely on “accounting-type errors,” it would not have required the lessee to raise legal arguments in requesting a hearing. The statute also requires the Commissioner of the General Land Office, upon determining that additional royalties are due, to notify the lessee of the “reasons for such determination.” § 52.135(c). The reasons would require little explanation if the determination were based only on accounting errors. The legislative history of the 1986 amendments supports the view urged by the State. According to the bill analysis that accompanied the amendments in the Senate, the General Land Office had already begun a “systematic audit program” before the 1986 amendments, and had issued deficiency assessments totalling more than $20 million. Suit had been filed, however, challenging the authority of the General Land Office to conduct such audits; so the legislature passed the amendments “to provide for an orderly resolution of the issues relating to these royalties and their payment to the state at the earliest possible date.” Senate Comm. on Finance, Bill Analysis, Tex.H.B. 32, 69th Leg., 3rd C.S. (1986). Thus, one apparent purpose of the 1986 amendments was to confirm a broad role for the Commissioner of the General Land Office in conducting audits and preparing deficiency assessments. Considering the history and purpose and section 52.135, we conclude that the legislature cannot have intended to confine the Commissioner of the General Land Office to reviewing state mineral leases for “accounting-type errors.” Such an interpretation would accord the Commissioner no more authority than his office has had since the 1919 act making lessees’ records subject to inspection and examination. We decline to construe the act in a manner that would effectively thwart the legislature’s purpose in enacting the statute. III. The court of appeals based its reading of section 52.135 mainly on constitutional grounds: a broader interpretation of the Commissioner’s authority would render the statute unconstitutional, the court reasoned, because “[o]nly courts are empowered to determine controverted property rights.” 802 S.W.2d at 68. While we agree that only courts may render binding judgments in lease disputes, we disagree with the court of appeals’ application of that principle to this case. *484The Texas Constitution divides the powers of government into three departments, and expressly provides that “no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others,” except in certain specified instances. Tex. Const. art. II, § 1. Applying this provision, both the Rutherford I court and the Rutherford II court held that the State’s interpretation of section 52.135 would violate the separation of powers insofar as it would allow the General Land Office, an executive agency, to exercise a judicial function. Both courts based this view largely on this court’s decision in Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301 (1921), in which we held that “no power is more properly or certainly attached to the judicial department than that which determines controverted rights to property by means of binding judgments.” 229 S.W. at 304. Both courts also cited two cases involving the Railroad Commission’s authority to adjudicate disputes: Railroad Commission v. City of Austin, 524 S.W.2d 262, 267-68 (Tex.1975), and Magnolia Petroleum Co. v. Railroad Commission, 141 Tex. 96, 170 S.W.2d 189, 191 (1943). Id. The hearings contemplated by section 52.135 are markedly different from those disapproved in the cited cases. In McKnight, an irrigation company had instituted a proceeding before the Board of Water Engineers “for the determination of the relative rights of various claimants to the waters of the Pecos River.” 229 S.W. at 301. The Board itself had no interest in the proceedings; it was actually adjudicating the relative rights of private parties. The same distinction applies to City of Austin and Magnolia Petroleum Co.: both involved adjudications of disputes between private parties. See City of Austin, 524 S.W.2d at 268; Magnolia Petroleum Co., 170 S.W.2d at 191. In the present case, the State is a party to the disputed leases; and as a lessor, the State may reassess its rights under the lease as a matter of course. See Anderson v. Robison, 111 Tex. 402, 406-07, 229 S.W. 459, 460 (1921) (“[W]hen the state becomes a party to a contract with a citizen, the same law applies to it as under like conditions governs the contracts of individuals.”). Section 52.135 merely allows a lessee to participate in the State’s reassessment of its rights. A hearing under section 52.135 is thus no different, in principle, from routine decision-making by any ordinary lessor. To the extent that section 52.135 merely allows the State to reassess its position with regard to state mineral leases, rather than to subject participants to binding judgments, we hold that the statute does not offend article II, section 1 of the Texas Constitution. See Fristoe v. Blum, 92 Tex. 76, 85, 45 S.W. 998, 1002 (1898).5 IV. The Lessees complain, however, that hearings under section 52.135 do result in binding judgments, because judicial review is unavailable until the lessee pays the disputed amount in full. See § 52.137(a). This prepayment requirement, the Lessees assert, violates their constitutional rights of access to the courts.6 We agree. *485Article I, section 13 of the Texas Constitution provides in part that “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” This provision “specifically guarantees all litigants the right to redress their grievances — to use a popular and correct phrase, the right to their day in court.” LeCroy v. Hanlon, 713 S.W.2d 335, 341 (Tex.1986). Because access to the courts is a “substantial right,” id,., we have construed the open courts provision to guarantee access to the courts unimpeded by unreasonable financial barriers. Thus, the legislature cannot impose filing fees to support the state’s general revenue, id. at 342; nor can it require prepayment of administrative penalties as a prerequisite to judicial review. Texas Ass’n of Business v. Texas Air Control Bd., 852 S.W.2d 440 (Tex.1993). The legislative history of section 52.-137(c) indicates that the State’s only interest in the prepayment requirement is its financial interest in immediate access to disputed royalty payments. See House Research Organization, Bill Analysis, Tex. H.B. 32, 69th Leg. (1986) (“The state would gain by having access to the royalty payments immediately, without having to wait two or three years for a lessee to exhaust judicial remedies.”). Of course, a similar financial interest could be asserted in defense of any financial impediment to judicial review, including filing fees like those struck down in LeCroy v. Hanlon, 713 S.W.2d at 342. We conclude that the prepayment requirement of section 52.137, like the filing fees at issue in LeCroy, constitutes an unreasonable interference with access to the courts. Under these circumstances, the open courts provision prohibits the State from conditioning judicial relief on prepayment of the sums in dispute. y. To the extent that the term “adjudication” implies a binding determination, we agree with the courts below that the General Land Office is not authorized to “adjudicate” controverted property rights. But we disagree with the suggestion that the hearings contemplated by the General Land Office under section 52.135 exceed its constitutional and statutory authority. We hold, instead, that section 52.135 of the Texas Natural Resources Code authorizes the Commissioner of the General Land Office to conduct full-scale audits, encompassing legal as well as factual determinations, and to hold hearings for the redetermination of deficiency assessments. A lessee may still challenge the State’s determinations in the manner prescribed in section 52.137. Independent of the prepayment requirement, section 52.137 requires a lessee challenging a deficiency assessment to submit a written protest to the Commissioner of the General Land Office within thirty days. § 52.137(a). The lessee may then bring suit in Travis County within ninety days after the date of the protest or the date of the commissioner’s final order following a hearing, whichever is later. § 52.137(a). A lessee who fore-goes these procedures, and simply refuses to pay a deficiency assessment, risks fore-feiture of its rights under the lease. See § 52.176. These requirements, we hold, do not unreasonably restrict lessees’ right of access to the courts. See Gutierrez v. Lee, 812 S.W.2d 388, 393 (Tex.App.—El Paso 1991, writ denied) (three-month limitations period did not violate the open courts provision). Nor do these requirements convert the agency’s assessment and reassessment process into a binding adjudication for constitutional purposes. See Beyer v. Employees Retirement Sys., 808 S.W.2d 622, 627 (Tex.App.—Austin 1991, writ denied).7 However, because the prepayment require*486ment of section 52.137(a) offends the open courts provision, Tex. Const. art. I, § 13, the lessee need not make a protest payment before bringing suit. For the reasons stated, we affirm the judgments of the court of appeals. . The issue in this case is the same one recognized, though not resolved, in General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569 (Tex.1990). In that case, we dismissed the State’s direct appeal as moot because the plaintiff, OXY, had taken a non-suit. .The original act stated in part: The books and accounts, the receipts and discharges of all lines, tanks, pools and meters, and all contracts and other records pertaining to the production, transportation, sale and marketing of the oil and gas shall at all times be subject to inspection and examination by the Commissioner of the General Land Office, the Attorney General, the Governor, or the representative of either. Act of July 21, 1919, ch. 19, § 6, 1919 Tex.Gen. Laws 51, 53. The current language is nearly identical. See Tex.Nat.Res.Code § 52.135. . Act of Sept. 17, 1986, ch. 5, 1986 Tex.Gen.Laws 4. . Rutherford Oil and Conoco jointly hold two leases, and filed suit together. The trial court subsequently consolidated their suit with a suit filed by Ladd Petroleum. Unless otherwise indicated, references to Rutherford refer to all three lessees. . "It is said that the power conferred upon the commissioner of the land office is judicial; but, in our opinion, the act is no more judicial when performed by the commissioner of the general land office on behalf of the state than it would be if done by an individual vendor or his agent." . The Lessees urged this view, along with a number of other constitutional arguments, as alternative grounds for summary judgment. In both cases, the trial court confined its ruling to the grounds concerning statutory construction. Ordinarily, when a trial court has specified the ground on which it was granting summary judgment, we must remand the cause to allow the trial court to rule on the remaining grounds. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675-77 (Tex.1979); cf. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989) (when summary judgment order does not specify ground for ruling, summary judgment will be affirmed on any meritorious theory advanced). Here, though, the statutory construction issue is intertwined with constitutional issues: the viability of the State’s suggested interpretation depends on whether its determinations under section 52.135 would be binding, which depends in turn on the enforceability of the prepayment requirement. We address the *485constitutional issues here only to the extent necessary to construe the statutes. . "An administrative agency is not a ‘court’ and its contested case proceedings are not lawsuits, no matter that agency adjudications are sometimes referred to loosely as being ‘judicial’ in nature. Agency adjudications do not reflect an exercise of the judicial power assigned to the 'courts' of the State in Tex. Const.Ann. art. V, § 1 (Supp.1991); they are simply executive measures taken in the administration of statutory provisions.”
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opinion_xml_harvard
| 2,935 |
2023-08-22 21:19:57.662328+00
|
020lead
|
f
|
f
| 1,515,342 |
Gonzalez, Spector
| null |
LU
|
f
|
Published
| 31 |
State v. Flag-Redfern Oil Co.
| null |
The STATE of Texas and the General Land Office of the State of Texas, Petitioners, v. FLAG-REDFERN OIL COMPANY, Respondent; The STATE of Texas, the General Land Office of the State of Texas, and Garry Mauro, Petitioners, v. RUTHERFORD OIL CORPORATION, Conoco, Inc., and Ladd Petroleum Corporation, Respondents
| null | null |
<parties id="b514-12">
The STATE of Texas and the General Land Office of the State of Texas, Petitioners, v. FLAG-REDFERN OIL COMPANY, Respondent. The STATE of Texas, the General Land Office of the State of Texas, and Garry Mauro, Petitioners, v. RUTHERFORD OIL CORPORATION, Conoco, Inc., and Ladd Petroleum Corporation, Respondents.
</parties><br><docketnumber id="b514-20">
Nos. D-0872, D-0874.
</docketnumber><br><court id="b514-21">
Supreme Court of Texas.
</court><br><decisiondate id="b514-22">
May 19, 1993.
</decisiondate><br><otherdate id="b514-23">
Concurring Opinion filed by Justice Gonzalez March 3, 1993.
</otherdate><br><attorneys id="b515-13">
<span citation-index="1" class="star-pagination" label="481">
*481
</span>
Jose Manuel Rangel, Liz Bills, Priscilla M. Hubenak, Dan Morales, Will Pryor, Mary F. Keller, and Ed Salazar, Austin, for petitioners.
</attorneys><br><attorneys id="b515-15">
P.M. Schenkkan, David B. McCall, Tom C. McCall, Stephen B. O’Connell, Elizabeth M. Marsh, Patrick F. Thompson, Mary Barrow Nichols and Eva C. Ramos, Austin, and Steven C. Kiser, Midland, for respondents.
</attorneys>
| null | null | null | null | null | null | 1,052,788 |
D-0872, D-0874
| 0 |
tex
|
S
|
t
|
Texas Supreme Court
|
Texas Supreme Court
|
8,141,495 |
Per Curiam. Judgment affirmed with costs. Holden v. Hardy, 169 U. S. 366; Jacobson v. Massachusetts, 197 U. S. 11; Jackson v. Lamphire, 3 Pet. 280. Case below, State v. Cantwell, 179 Missouri, 245.
|
opinion_xml_harvard
| 34 |
2022-09-09 20:12:27.447432+00
|
020lead
|
t
|
f
| 8,179,579 | null | null |
U
|
f
|
Published
| 0 |
Cantwell v. Missouri
|
Cantwell
|
Harry J. Cantwell, in Error v. The State of Missouri
|
<p>In error to the Supreme Court of the State of Missouri.</p>
| null | null | null | null | null | null | null | null | 65,277,164 |
No. 38
| 0 |
scotus
|
F
|
t
|
Supreme Court
|
Supreme Court of the United States
|
7,753,338 |
In re C. W.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, The Family Court For The Parish of East Baton Rouge, No. 128,-807; to the Court of Appeal, First Circuit, No. 2001 CA 0276. Denied.
|
opinion_xml_harvard
| 42 |
2022-07-30 20:23:23.033969+00
|
020lead
|
t
|
f
| 7,812,181 | null | null |
U
|
f
|
Published
| 0 |
State ex rel. Department of Social Services v. C.W.
|
C.W.
|
STATE of Louisiana, Through the DEPARTMENT OF SOCIAL SERVICES, OFS, Support Enforcement Services, in the Interest of P.F., Minor Child of M.F. v. C.W.
| null | null | null | null | null | null | null | null | null | 64,817,500 |
No. 2002-C-1512
| 0 |
la
|
S
|
t
|
Supreme Court of Louisiana
|
Supreme Court of Louisiana
|
2,146,418 |
796 F. Supp. 2d 682 (2011) Brent V. BOYD v. Bert BELL/Pete Rozelle NFL Player Retirement Plan. Civil No. JFM-10-0360. United States District Court, D. Maryland. May 24, 2011. *685 Richard P. Neuworth, Lebau and Neuworth PA, Baltimore, MD, Mark D. Debofsky, Daley Debofsky and Bryant, Chicago, IL, for Brent V. Boyd. Hisham Mutwakil Amin, Washington, DC, for Bert Bell/Pete Rozelle NFL Player Retirement Plan. MEMORANDUM J. FREDERICK MOTZ, District Judge. Plaintiff Brent Boyd ("Boyd") has brought this action against Defendant Bert Bell/Pete Rozelle NFL Player Retirement Plan ("the Plan"), which is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. Pursuant to 29 U.S.C. § 1132(a)(1)(B), Boyd seeks judicial review of the Plan's refusal to reclassify his disability benefits. The parties have filed cross-motions for summary judgment. The issues have been fully briefed, and no hearing is necessary. See Local Rule 105.6. Defendant's Motion for Summary Judgment will be granted, and Plaintiff's *686 Motion will be denied. [1] I. From 1980 to 1986, Boyd, an offensive lineman, played professional football with the Minnesota Vikings of the National Football League ("NFL"). He retired from football prior to the 1987 season. Boyd alleges that in August 1980, during a game against the Miami Dolphins, he was rendered unconscious by a blow to the head. He claims he experienced blindness in his right eye for several minutes after the blow, but he soon reentered the game. According to Boyd, because he regained his vision and appeared to have no lingering effects, Vikings medical staff opted not to send him for further evaluation. (Admin. R., Ex. 45, Boyd Application for Disability Benefits (June 1, 2000) ("2000 Benefits Application"), at BVB0135-36.) Boyd reports that following this event he began to experience headaches, fatigue, and difficulty with concentration and memory. ( Id. at BVB0136-37.) Although this was the only incident in which Boyd recalls losing consciousness while playing football, he states that on other occasions during his NFL career he incurred hits after which "he was dazed." (Admin. R., Ex. 131, Letter from Dr. Ronald Ruff to Barbara Casino (Nov. 1, 2002), at BVB0727.) When he retired, Vikings medical staff declined his request for a brain scan during his exit physical. (2000 Benefits Application, at BVB0136.) Hence, no contemporaneous medical records substantiate Boyd's assertions regarding the 1980 head injury or the subsequent symptoms. The parties agree that Boyd's NFL career qualifies him as a "Vested Inactive Player" entitled to disability benefits under the Plan. The Plan provides two types of benefits for Vested Inactive Players who suffer total and permanent ("T & P") disabilities: "Inactive" T & P benefits and "Football Degenerative" T & P benefits. (Admin. R., Ex. 278, Bert Bell/Pete Rozelle NFL Retirement Plan (Amended & Restated as of Apr. 1, 2009) ("Plan") § 5.1.) Whereas "Inactive" benefits are available to any Vested Inactive Player who suffers a T & P disability ( Id. § 5.1(d)), "Football Degenerative" benefits, which provide greater monthly payments, require that "the disability[] arise[] out of League football activities." ( Id. § 5.1(c).) Initial determinations regarding applications for benefits are made by either the Disability Initial Claims Committee ("the Committee") or the Retirement Board ("the Board"). ( Id. § 5.5(a).) Applicants may appeal adverse decisions to the Board, which serves as the administrator of the Plan. ( Id. §§ 8.2, 11.6(a).) Boyd first applied for disability benefits from the Plan in 1997 based on a knee injury he suffered during a Vikings practice. (Admin. R., Ex. 11, Boyd Application for Disability Benefits (Mar. 9, 1997), at BVB0030-31.) This application was denied because the Board concluded this injury did not prevent him from working. (Admin. R., Ex. 16, Retirement Board Meeting Minutes (Apr. 24, 1997), at *687 BVB0056.) In June 2000, Boyd submitted a new application, asserting that he was disabled as a result of headaches, depression, attention deficit disorder, and other symptoms that Boyd claimed were caused by a head injury he sustained while playing football. (Admin. R., Ex. 45, Application for Disability Benefits (June 1, 2000), at BVB0137-38.) In support of his application, Boyd provided the following materials: (1) a letter from Dr. Dennis Alters, Boyd's treating physician; (2) a letter from Suzanne O'Neal, a licensed marriage and family therapist who treated Boyd; and (3) reports from Drs. Edward Spencer and Daniel Amen, psychiatrists, of the Amen Clinic for Behavioral Medicine. In their letters, Dr. Alters and O'Neal opined that Boyd's symptoms were the result of head trauma he suffered while playing professional football. (Admin. R., Ex. 44, Letter from Suzanne O'Neal (June 1, 2000), at BVB0132; Ex. 46, Letter from Dr. Dennis Alters to Barry Axelrod (June 2, 2000), at BVB0143.) Dr. Spencer's and Dr. Amen's reports stated that single-photon emission computerized tomography ("SPECT") scans of Boyd's brain showed several areas of abnormal activity. Based on these scans, both doctors concluded Boyd suffered head trauma, which had caused attention deficit disorder, depression, and post-concussion syndrome. (Admin. R., Ex. 38, Report of Dr. David Amen, at BVB0093; Ex. 41, Letter from Dr. Edward Spencer to Barry Axilrod [ sic ] (May 26, 2000), at BVB0106-07; Ex. 42, Adult Evaluation Report by Jonathan Halverstadt & Dr. Edward Spencer, at BVB0114-15.) After obtaining reports from two neutral physiciansDr. Branko Radisavljevic, psychiatrist, and Dr. J. Sterling Ford, neurologistconcurring in the view that Boyd was permanently disabled as a result of a brain injury caused by football-related activities ( see Admin. R. Ex. 48, Physician's Report by Dr. J. Sterling Ford (June 5, 2000), at BVB0146-47; Ex. 57, Physician's Report by Dr. Branko Radisavljevic (Sept. 15, 2000), at BVB0173-74), the Board voted to award Boyd Inactive T & P benefits (Admin. R., Ex. 65, Letter from Sarah Gaunt to Barry Axelrod (Jan. 3, 2001), at BVB0209). Before deciding whether to award Football Degenerative benefits, however, the Board sought an additional evaluation by a neutral neurologist. (Admin. R., Ex. 71, Retirement Board Meeting Minutes (Jan. 11, 2001), at BVB0228.) The Plan referred Boyd to Dr. Barry Gordon at the Johns Hopkins Hospital. (Admin. R., Ex. 75, Letter from Sarah Gaunt to Barry Axelrod (Mar. 5, 2001), at BVB0275.) After two days of examination and neuropsychologic testing, Dr. Gordon concluded, "[T]he alleged head injury of August, 1980 could not be organically responsible for all or even a major portion of the neurologic and/or neuropsychologic problems that Mr. Boyd is experiencing now, to a reasonable degree of medical probability." Dr. Gordon surmised Boyd's disability instead was the result of chronic pain, depression, hypertension, or physical deconditioning. (Admin. R., Ex. 87, Letter from Dr. Barry Gordon to Sarah E. Gaunt (Apr. 6, 2001), at BVB0463.) The Board then denied Boyd's request for Football Degenerative T & P benefits because it determined that Dr. Gordon's findings "establish[ed] that Mr. Boyd's disabilities do not arise out of League football activities." (Admin. R., Ex. 99, Letter from Sarah Gaunt to Barry Axelrod (Apr. 30, 2001), at BVB0608.) After Boyd sought judicial review, both the United States District Court for the Southern District of California and the Ninth Circuit found the Board did not abuse its discretion in concluding Boyd's disability was not caused by professional football activities and denying Football Degenerative benefits. See Boyd v. *688 Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173 (9th Cir.2005). In 2008, Boyd requested reclassification of his T & P benefits from Inactive to Football Degenerative. (Admin. R., Ex. 208, Letter from Mark DeBofsky to Sarah Gaunt (July 10, 2008), at BVB0915.) Under Section 5.5(b) of the Plan, reclassification is permitted if a player presents "clear and convincing" evidence "that, because of changed circumstances, the Player satisfies the conditions of eligibility" for a different category of benefits. (Plan § 5.5(b).) Boyd's attorney argued that reclassification was warranted not only because Boyd was "improperly denied" Football Degenerative benefits in 2001, but also because a number of new events had occurred since 2003 establishing that Boyd's disability was, in fact, caused by a head injury incurred while he was playing NFL football. (Admin. R., Ex. 231, Letter from Mark DeBofsky to Alvara Anillos (Nov. 25, 2008), at BVB0962-64.) First, Dr. Radisavljevic reexamined Boyd in 2005 and reiterated his view that Boyd's injury was caused by football. Second, the Social Security Administration ("SSA") found Boyd to be disabled as a result of head trauma. A physician conducting an independent evaluation for the SSA "concluded that Mr. Boyd's `presentation would be consistent with Depressive Disorder ... and Cognitive Disorder ... due to cognitive losses secondary to multiple concussions. '" ( Id. at BVB0964-66 (emphasis in original).) Third, a number of new health care providers, including Ted Young, clinical neuropsychologist; Melissa Bloch, neurologist; Gerard Hershewe, neurologist and neuroophthalmologist; and Donald Farrimond, family practitioner, examined Boyd and determined his condition was caused by post-concussion syndrome or traumatic brain injury. Finally, Dr. Amen compared the SPECT scan performed in 2000 with a scan performed in 2008 and found the changes to be consistent with "cognitive impairment" and "distinct brain trauma." ( Id. at BVB0965.) The Committee considered Boyd's application and, in December 2008, denied his request for reclassification because Boyd failed to establish changed circumstances: The Committee regrets that it was forced to conclude that you have presented absolutely no evidence of any "changed circumstances," and that there are no "changed circumstances" here. All you have done is reargue the causation of the original circumstances. The Committee found, in other words, that Mr. Boyd remains unable to work for the same reasons as before, and he has no changed circumstances. (Admin. R., Ex. 238, Letter from Paul Scott to Mark Debofsky (Dec. 22, 2008), at BVB0988.) Boyd appealed (Admin. R., Ex. 245, Letter from Mark Debofsky to Alvara Anillo (Mar. 27, 2009), at BVB0997), but the Board tabled the appeal at two subsequent meetings for further medical evaluation. (Admin. R., Ex. 265, Retirement Board Meeting Minutes (Nov. 18-19, 2009), at BVB1031; Ex. 270, Letter from Sarah Gaunt to Brent Boyd (Mar. 2, 2010), at BVB 1047.) Boyd, however, refused to undergo additional evaluations, and he filed the present action on February 16, 2010. The Board denied Boyd's appeal on May 13, 2010, citing two reasons. First, it noted Boyd's refusal to undergo the requested medical examination violated the terms of the Plan. (Admin. R., Ex. 272, Letter from Sarah Gaunt to Mark Debofsky (May 20, 2010) ("Reclassification Denial Letter"), at BVB1072-73.) Second, the Board concurred with the Committee that there had been no changed circumstances. The letter informing Boyd of the decision explained: *689 [T]he Retirement Board determined that Mr. Boyd's request for reclassification involves the same circumstances as the initial classification of his T & P benefits. In both proceedings, Mr. Boyd has attempted to establish that his cognitive impairments are the consequence of a head trauma he experienced while playing NFL football. Indeed, Mr. Boyd even submitted reports from the same medical sourceDr. Amenin both proceedings to establish the same proposition: that Mr. Boyd has decreased brain function consistent with head trauma. The other evidence you have submitted addresses essentially the same point.... The Retirement Board concluded that Mr. Boyd has presented no evidence of changed circumstances, and has instead provided additional data and argument on the original circumstances. ( Id. at BVB1072.) II. A. Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., the Supreme Court of the United States explained that in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. 242 , 249, 106 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S. Ct. 2505 . In analyzing whether a genuine issue of material fact exists, the evidence and reasonable inferences from that evidence must be viewed in the light most favorable to the nonmoving party. Id. at 255, 106 S. Ct. 2505 . B. When reviewing a denial of benefits under an ERISA-governed plan, a district court must first determine "whether the relevant plan documents confer discretionary authority on the plan administrator." DuPerry v. Life Ins. Co. of N. Am., 632 F.3d 860 , 869 (4th Cir.2011). Here, the plan documents bestow upon the Board "full and absolute discretion ... to interpret, control, implement, and manage the Plan and the Trust," including "the power to ... [d]efine the terms of the Plan and Trust." (Plan § 8.2.) Because "[the] ERISA benefit plan vests with the plan administrator the discretionary authority," the administrator's contested decision is subject to review only for abuse of discretion. Williams v. Metro. Life Ins. Co., 609 F.3d 622 , 629-30 (4th Cir.2010) (citations omitted). In the ERISA context, "the [abuse-of-discretion] standard equates to reasonableness: [A court] will not disturb an ERISA administrator's discretionary decision if it is reasonable." Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315 , 322 (4th Cir.2008) (citations omitted). "At its immovable core," the abuse-of-discretion standard requires that a court "not reverse merely because it would have come to a different result in the first instance." Id. Thus, here, to be upheld, the Board's decision need only be "`the result of a deliberate, principled reasoning process and ... supported by substantial evidence.'" Id. (quoting Bernstein v. CapitalCare, Inc., 70 F.3d 783 , 788 (4th Cir.1995)). In deciding whether these requirements have been satisfied, the court should examine only "the evidence that was before the plan administrator at the time of the decision." Bernstein, 70 F.3d at 788 (citation omitted). *690 Among the factors the Fourth Circuit has instructed courts to consider in determining whether an administrator has abused its discretion is the administrator's "motives and any conflict of interest it may have." Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335 , 342-43 (4th Cir.2000). In Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 , 128 S. Ct. 2343 , 171 L. Ed. 2d 299 (2008), the Supreme Court clarified the role that this factor should play in the court's analysis. The existence of a conflict does not alter the standard of review the court employs; rather, it is "but one factor among many" that a court should consider in evaluating the administrator's decision. See id. at 116, 128 S. Ct. 2343 . Once a conflict of interest has been identified, "the circumstances of the particular case" determine "the significance of the factor" to the court's review of the decision. Id. at 108, 128 S. Ct. 2343 . Boyd contends that I should find the Board to be conflicted and should consider this conflict in analyzing the reasonableness of the Board's decision. The basis of this conflict, Boyd argues, is the composition of the Board, which is made up of three members appointed by the NFL Players' Association, the players' union, and three members appointed by the NFL Management Council, the association of clubs. ( See Plan § 8.1.) The clubs fund the trust out of which Plan benefits are paid, and their contributions are based on actuarially determined need. ( See id. § 3. 1.) In 2010, the Plan was found to be underfunded. (Admin. R., Ex. 282, Letter from Sarah Gaunt to Plan Participants (July 22, 2010), at BVB001613.) According to Boyd, these facts demonstrate that, at minimum, members appointed by the Management Council have a financial conflict of interest. Boyd further argues that these members are also conflicted because, historically, the NFL publically denied a causal connection between football and permanent brain injuries, so the NFL's representatives on the Board have an incentive to deny that disabilities such as his are caused by head trauma incurred while playing football in order to maintain the NFL's public image. The Supreme Court has found a conflict of interest to exist where the same entity that pays benefits also administers the plan, giving the administrator "a direct financial stake in eligibility determinations." Parsons v. Power Mountain Coal Co., 604 F.3d 177 , 184 (4th Cir.2010); see, e.g., Glenn, 554 U.S. at 108, 128 S. Ct. 2343 . Circuits who have considered the issue after Glenn are divided as to whether a conflict should be found where, as here, the entity acting as the administrator of the plan is made up equally of representatives of the employees, who receive benefits from the plan, and the employer, who funds the plan. The Ninth and Sixth Circuits determined that such a structure did not present a conflict. See Anderson v. Suburban Teamsters of N. Ill. Pension Fund Bd. of Trs., 588 F.3d 641 , 648 (9th Cir.2009); Klein v. Cent. States, Se. & Sw. Areas Health & Welfare Plan, 346 Fed. Appx. 1, 5 (6th Cir.2009) (unpublished). The Second Circuit, in contrast, concluded that this structure did pose a conflict, and the presence of employee representatives should be considered in determining the "` significance or severity '" not the existenceof the conflict. Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d 133 , 138-39 (2d Cir.2010) (emphasis in original). In this District, two post- Glenn courts have held that the Board is not conflicted by virtue of its composition. See, e.g., Stewart v. Bert Bell/Pete Rozelle NFL Retirement Plan, 1:09-cv-02612-WDQ (D.Md. Jan. 13, 2011); Sagapolutele v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, No. 1:08-cv-01870-WMN (D.Md. Oct. 22, 2008). I find the reasoning of *691 these cases to be persuasive, and I too hold that the Board does not suffer from a conflict of interest. Cf. Sagapolutele, No. 1:08-cv-01870-WMN, slip op. at 5-6 (stating that any alleged conflict of three Board members could not be imported to the entire Board because a majority vote was required for benefit determinations). [2] III. Before reaching the merits of the present case, I must consider the Plan's argument that, because the Plan prevailed in Boyd's earlier action in the Ninth Circuit, the doctrines of res judicata and collateral estoppel defeat Boyd's claim. "[U]nder the doctrine of res judicata, a judgment `on the merits' in a prior suit involving the same parties ... bars a second suit based on the same cause of action." Lawlor v. Nat'l Screen Svc. Corp., 349 U.S. 322 , 326, 75 S. Ct. 865 , 99 L. Ed. 1122 (1955). Res judicata is inapplicable here, however, because Boyd is not asserting the same cause of action: He claims the Board abused its discretion in failing to reclassify his benefits, not in awarding him Inactive T & P benefits as an initial matter. Because this cause of action did not arise until after the previous case was resolved, the prior judgment cannot preclude it. See id. at 328, 75 S. Ct. 865 ("While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist."). Moreover, the Fourth Circuit has recognized that a new claim for benefits based upon changed circumstances is not barred by an earlier denial as a matter of res judicata because "[t]he health of a human being is not susceptible to once-in-a-lifetime adjudication." Lisa Lee Mines v. Dir., Office of Workers' Comp. Programs, 86 F.3d 1358 , 1362 (4th Cir.1996) (en banc). [3] Collateral estoppel "precludes relitigation of issues actually litigated and determined in the prior suit." Id. at 326, 75 S. Ct. 865 . Defendant contends that Boyd cannot now argue that head trauma experienced during football caused his disability because the Plan prevailed on this issue in the Southern District of California and the Ninth Circuit. The prior action, however, merely determined that the Board did not abuse its discretion in denying Boyd's benefits on the evidence in the administrative record at that time. The district and circuit courts, properly adopting a deferential standard of review, did not actually decide whether Boyd's disability was or was not caused by footballrelated head trauma, nor did they determine the meaning of the term "changed circumstances" as used in the Plan, as the term was not then at issue. Because the *692 dispositive issues in the present action were not actually litigated or determined in the earlier suit, Boyd is not barred from arguing that the Board abused its discretion in failing to reclassify his benefits on the basis of changed circumstances established by the new evidence he submitted. IV. The Board denied Boyd's request for reclassification because it concluded that he failed to present "clear and convincing evidence" of "changed circumstances." The letter explaining the grounds for the denial made clear that the Board had interpreted "changed circumstances" to require, in the context of the Plan, a change in physical condition, not merely the availability of new evidence regarding causation. For instance, the Board "noted that Mr. Boyd's reclassification claim [was] based on cognitive impairments allegedly caused by head trauma, exactly as before," and it rejected Boyd's reclassification request as "an effort to reopen and relitigate the Retirement Board's 2001 determinations about the causation of his cognitive impairment." (Reclassification Denial Letter, at BVB1072.) Boyd contends that the Board's interpretation of this term is unreasonable and, therefore, an abuse of discretion. "Where a plan administrator has offered a reasonable interpretation of disputed provisions, [a court] may not replace it with an interpretation of [its] own." Booth, 201 F.3d at 344. To be reasonable, the administrator's interpretation must "adhere both to the text of ERISA and the plan." Evans, 514 F.3d at 322. An interpretation will constitute an abuse of discretion if it "is contrary to the clear language of the plan." Lockhart v. United Mine Workers of Am.1974 Pension Trust, 5 F.3d 74 , 78 (4th Cir.1993) (internal quotation marks and citations omitted). Boyd argues that the Board should be required to interpret "changed circumstances" in the same manner that the Fourth Circuit defines the phrase "material change in condition," as it appears in a duplicate-claims regulation promulgated under the Black Lung Benefits Act. Under this approach, to prevail, a claimant need only prove at least one of the elements previously adjudicated against him. See Lisa Lee Mines, 86 F.3d at 1362-63. The Fourth Circuit, however, adopted this approach because it had been selected by the Director of the Office of Workers' Compensation Programs, and the court owed deference to the Director's reasonable interpretation of the regulation. [4] See id. at 1362-63 & n. 2; see also Lovilia Coal Co. v. Harvey, 109 F.3d 445 , 454 (8th Cir.1997) ("Because we find that the Director's interpretation... is reasonable, we join the Third, Fourth and Sixth Circuits in adopting the Director's one-element standard."); Sharondale Corp. v. Ross, 42 F.3d 993 (6th Cir.1994) ("We may not substitute our own construction of the regulation for the Director's unless his is unreasonable."). In selecting this approach, the Third Circuit noted, however, that the Director's chosen *693 interpretation was not the only reasonable one: It acknowledged that a narrower interpretation articulated by the Seventh Circuit would have been permissible had the Director chosen to adopt it. See Labelle Processing Co. v. Swarrow, 72 F.3d 308 , 317 (3d Cir.1995). Here, the entity to which deference is owedthe Boardhas adopted a different, yet reasonable, interpretation. The Board's interpretation does not violate the ordinary meaning of the term "changed circumstances," and it is not contrary to any other provision in the Plan. In addition, Boyd has not shown that, in the past, the Board construed "changed circumstances" in a different manner. Accordingly, the Board did not abuse its discretion in interpreting the terms of the Plan. See Lockhart, 5 F.3d at 78-80. Once "changed circumstances" is interpreted in this manner, it is evident that the Board's decision to deny Boyd's claim for reclassification was supported by substantial evidence. The Board accurately noted that Boyd's new evidence focused only on the issue of causation of his existing disability, not on proving that a distinct, football-related injury had caused him to be totally disabled. [5] In fact, Boyd's evidence indicated that his physical condition had not changed since his prior application. ( See Admin. R., Ex. 160, Report of Dr. Branko Radisavljevic (June 24, 2005), at BVB0825 ("Since my last report the patient's situation did not change significantly.... Mr. Boyd does not offer any new complaints or does not offer that there has been any change in his condition.").) Therefore, the Board did not abuse its discretion when interpreting or applying the Plan's terms. [6] For the foregoing reasons, judgment will be entered in favor of Defendant. NOTES [1] The Plan seeks leave to file a surreply. A party will be permitted to file a surreply when it otherwise "would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F. Supp. 2d 600 , 605 (D.Md.2003), aff'd, 85 Fed.Appx. 960 (4th Cir.2004) (citation omitted). Defendant has had an adequate opportunity in its earlier briefings to address the matters it wishes to discuss in the surreply, the applicability of the doctrine of res judicata and the proper interpretation of "changed circumstances" as used in the Plan. Plaintiff's Reply merely responds to Defendant's prior arguments and does not introduce new issues. Accordingly, the Motion for Leave to File Surreply will be denied. [2] Moreover, even I were to follow the Second Circuit and find that a conflict existed, other structural protections provided by the Plan for instance, the presence of equal union representatives, the use of a trust rather than direct payments by the NFL, and the Board's reliance on independent physicians in making benefit determinationswould drastically diminish the significance of this factor in my analysis. Cf. Glenn, 554 U.S. at 117, 128 S. Ct. 2343 ("[A conflict] should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy."). [3] The Plan contends that I should not rely upon this precedent in the present action because the Fourth Circuit in Lisa Lee Mines was considering a claim for benefits under the Black Lung Benefits Act ("BLBA"), not a plan subject to ERISA. In other ERISA cases, however, the Fourth Circuit has looked to BLBA jurisprudence as persuasive authority. See, e.g., Jani v. Bert Bell/Pete Rozelle NFL Player Ret. Plan, 209 Fed.Appx. 305, 314-15 (4th Cir.2006) (relying on cases involving social security and the BLBA to support the conclusion that an administrator of an ERISA-governed plan abuses its discretion in failing to follow unanimous evidence). [4] Notably, the Fourth Circuit's deference to the Director's interpretation of "material change in circumstances" differentiates this portion of Lisa Lee Mines from the court's determination in that case that a claim for benefits based upon changed circumstances is not barred by an earlier denial as a matter of res judicata. The discussion of res judicata rested upon general principles of the doctrine and therefore its reasoning is equally applicable in the present action. In contrast, the interpretation of "material change in circumstances" involved the construction of a regulation and turned upon the reasonableness of the regulator's chosen interpretation. Of course, no deference is owed to the Director's interpretation of that regulation in determining the appropriate interpretation of the Plan terms at issue here, so, on this issue, Boyd's reliance on Lisa Lee Mines is unavailing. [5] Boyd also argues that "changed circumstances" are present because the NFL has increasingly acknowledged the causal link between football and long-term brain damage. It would be inappropriate for me to consider this argument because the supporting evidence he submitted did not appear on the administrative record. In addition, this would not constitute a change in circumstances under the reasonable interpretation adopted by the Board. [6] Because I find that the Board's denial did not constitute abuse of discretion, I will not consider the Board's contention that Boyd's claim must fail because he refused to undergo a medical examination while his appeal was pending.
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2013-10-30 08:27:30.149221+00
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| 2,146,418 |
J. Frederick Motz
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Boyd v. Bell
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Boyd
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Brent v. BOYD v. Bert BELL/Pete Rozelle NFL Player Retirement Plan
| null | null |
<parties id="b750-13">
Brent V. BOYD v. Bert BELL/Pete Rozelle NFL Player Retirement Plan.
</parties><br><docketnumber id="b750-15">
Civil No. JFM-10-0360.
</docketnumber><br><court id="b750-16">
United States District Court, D. Maryland.
</court><br><decisiondate id="b750-18">
May 24, 2011.
</decisiondate><br><seealso id="b751-12">
<span citation-index="1" class="star-pagination" label="683">
*683
</span>
See also 410 F.3d 1173.
</seealso><br><attorneys id="b753-13">
<span citation-index="1" class="star-pagination" label="685">
*685
</span>
Richard P. Neuworth, Lebau and Neuworth PA, Baltimore, MD, Mark D. Debofsky, Daley Debofsky and Bryant, Chicago, IL, for Brent Y. Boyd.
</attorneys><br><attorneys id="b753-14">
Hisham Mutwakil Amin, Washington, DC, for Bert Bell/Pete Rozelle NFL Player Retirement Plan.
</attorneys>
| null | null | null |
See also 410 F.3d 1173.
| null | null | 153,901 |
Civil JFM-10-0360
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D. Maryland
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District Court, D. Maryland
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1,540,770 |
433 Pa. Super. 146 (1994) 640 A.2d 416 Ann MUSUMECI and Salvatore Musumeci, H/W v. PENN'S LANDING CORPORATION, Port of History Museum, Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation. Ann MUSUMECI and Salvatore Musumeci, Appellants, v. PENN'S LANDING CORP., Port of History Museum, Chandris Fantasy Cruises, Philadelphia Port Corp. International Terminal Operations, Chandris, S.A., and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PENN'S LANDING CORPORATION, Chandris Cruise Line Corporation. Appeal of PENN'S LANDING CORPORATION. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PENN'S LANDING CORPORATION, Chandris Cruise Line Corporation. Loretta Anne MANNINO and Vincent Mannino, H/W v. PENN'S LANDING CORPORATION, Port of History Museum *147 Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation. Superior Court of Pennsylvania. Argued October 19, 1993. Filed March 2, 1994. Reargument Denied May 11, 1994. *150 Matthew P. Harrington, Philadelphia, for Chandris, S.A. and Ajax. James R. Kahn, Philadelphia, for Mannino. Stewart Bernstein, Philadelphia, for Musumeci. Angelo L. Scaricamazza, Jr., Philadelphia, for Penn's Landing. Gino Zonghetti, pro se. Before BECK, TAMILIA and HESTER, JJ. BECK, Judge: The issue we decide, inter alia, is whether delay damages pursuant to Pennsylvania Rule of Civil Procedure 238 are recoverable in a case under the federal maritime law. We hold that Rule 238 damages are not recoverable. This appeal involves the claim of Ann Musumeci for injuries sustained when the ramp used to exit a cruise ship collapsed, and the claim of her husband, Salvatore, for loss of consortium. The defendants, Penn's Landing Corporation, Chandris S.A., and Ajax Navigation Corporation, conceded liability, and the Musumecis' lawsuit was consolidated for trial on the issue of damages only with that of Loretta Anne and Vincent Mannino. [1] After hearing the evidence, a jury returned a verdict in favor of Ann Musumeci, in the amount of $167,000, and made no award to Salvatore on his consortium claim. The jury also awarded Mrs. Mannino $35,000, but denied any recovery to her husband on his consortium claim. The trial court denied post-trial motions filed by all parties, and granted the plaintiffs' petition for delay damages in accordance with Pa.R.Civ.P. 238. The Musumecis raise several issues on appeal: (1) did the trial court err in consolidating the Musumeci and Mannino cases where a prior order of a judge of coordinate jurisdiction *151 denied such consolidation; (2) did the consolidation of the two cases prejudice the Musumecis' case; (3) was a new trial or additur required because Salvatore Musumeci was awarded no damages on his loss of consortium claim; (4) was a new trial or additur required because the award to Ann Musumeci was inadequate; (5) did the trial court err in giving an "adverse inference" charge with respect to the plaintiffs' decision not to call one of their treating physicians to testify; (6) did the trial court err in failing to give an adverse inference charge where the defendants failed to call their orthopedic surgeon who examined Mrs. Musumeci. The Manninos also challenge the consolidation order, and argue that the verdict amounts were inadequate. Defendants filed cross-appeals, arguing that the trial court erred in applying Rule 238 to award delay damages to the plaintiffs in this maritime law case. This action originally involved the separate lawsuits of four different couples, who allegedly sustained injuries on the cruise ship exit ramp. The four cases were consolidated for discovery and trial on liability by the Honorable Nicholas D'Alessandro on March 28, 1990. At the same time, however, Judge D'Alessandro ordered separate trials on the issue of damages. By the time the cases came to trial, two of the four cases had been settled, and the defendants had conceded liability. Only the Mannino and Musumeci cases remained, and the Honorable Alfred J. DiBona ordered that the damage trials be consolidated. [2] In challenging the consolidation order, the appellants argue that Judge DiBona violated the general rule that judges of concurrent jurisdiction should not overrule the decisions of one another. Okkerse v. Howe, 521 Pa. 509 , 556 A.2d 827 (1989). However, there is an exception to the rule which provides that the second judge is authorized to overrule the first if new evidence or newly decided legal authorities compel him or her to do so. Golden v. Dion & *152 Rosenau, 410 Pa.Super. 506, 600 A.2d 568 (1991). In this case, we agree with the trial court's decision to grant the consolidation in view of certain changed circumstances, or "new evidence": the settlement of two of the four cases and the defendants' concession of liability. Nor are we persuaded by the appellants' argument that they were prejudiced by the consolidation, because the jury was confused about the various injuries of the two wife-plaintiffs. As previously noted, Mrs. Musumeci was awarded $167,000 and Mrs. Mannino was awarded $35,000. It is clear from the sizable difference in verdicts that the jury readily distinguished between the two women and their respective damages. Next, the Musumecis claim that the trial court erred in charging the jury that they could draw an adverse inference from the Musumecis' failure to call a treating physician, Dr. Mogil. They also contend that the court erroneously refused to give the adverse inference charge on the defendants' failure to call one of their own doctors, Dr. Lee. The rule for the appropriate use of the adverse inference charge is stated as follows: In Pennsylvania, a party who fails to call a witness whose testimony, presumable [sic], would be favorable to his cause is subject to an "adverse inference" instruction, permitting the jury to infer that the witness' testimony would be unfavorable. However, the rule does not apply where the witness is equally available to both sides. Hinton v. Waste Techniques Corp., 243 Pa.Super. 189, 364 A.2d 724 (1976) ( citing Bentivoglio v. Ralston, 447 Pa. 24 , 288 A.2d 745 (1972)). Applying this rule to this case, we note that the Musumecis' witness Dr. Mogil was not available to the defendants' subpoena, and the plaintiffs' failure to call him to testify properly justified an adverse inference charge. Bentivoglio, supra . On the other hand, because the Musumecis could have subpoenaed defense witness Dr. Lee, the defendants' failure to call him should not be held against them through an adverse *153 inference charge. Id. We therefore affirm the trial court's decision on this issue. The appellants next argue that the jury's verdict against the husband-plaintiffs on their consortium claims was against the weight of the evidence, as their claims were unrefuted. However, we note that the husbands still had the burden of proving the nature and extent of their damages, and that the veracity and credibility of the witnesses is for the jury to determine. Cree v. Horn, 372 Pa.Super. 296, 539 A.2d 446 (1988), alloc. den., 519 Pa. 660 , 546 A.2d 621 (1988). It is obvious that the jury simply did not believe the husband-plaintiffs' evidence as to loss of consortium. Our review of the record does not persuade us that their finding should be vacated. Therefore we affirm the trial court's decision on this issue. The wife-plaintiffs, too, argue that additur should have been granted because their awards were inadequate based on the evidence. A verdict should be set aside as inadequate only when it is so unjust as to "stand forth like a beacon." Elza v. Chovan, 396 Pa. 112 , 118, 152 A.2d 238 , 241 (1959). A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff . . . If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded. Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 , 1215 (1983) (citations omitted). After our review of the record and the briefs, we see no reason to set aside the jury's verdict, or to grant additur. The trial court correctly concluded that there was no evidence that the verdicts resulted from passion, prejudice, partiality or corruption, nor does the verdict "stand *154 forth like a beacon." We therefore affirm the trial court's denial of additur. Finally, we turn to the claim on the cross-appeals that the trial court's award of delay damages pursuant to Pa.R.Civ.P. 238 was improper. Rule 238 provides for an award of pre-judgment interest, except for any period during which the plaintiff has caused delay or after which the defendant has made an adequate written settlement offer. [3] The trial court correctly found that there was no written offer of settlement by the defendants and, if Rule 238 were to apply, delay damages would have been proper. However, the trial court did not address the second argument raised on the cross-appeal [4] : this case was brought under the federal maritime law, and therefore, Rule 238 delay damages are not recoverable. We note that the availability of pre-judgment interest in an action arising under a federal *155 statute is governed by federal law, not the law of the forum state. Thus, in cases arising under the Federal Employers' Liability Act, for example, Rule 238 for the calculation of delay damages does not apply. Poleto v. Consolidated Rail Corp., 826 F.2d 1270 , 1274 (3d Cir.1987); Dale v. Baltimore & Ohio R.R. Co., 520 Pa. 96 , 552 A.2d 1037 (1989). Likewise, when a common law action is brought, whether in state or federal court, to enforce a cause of action cognizable in admiralty, the substantive law to be applied, determining both liability and the amount of damages, is the general maritime law. See Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir.1973). The parties apparently recognized this fact when they discussed the presentation of certain economic evidence: MR. STEARNS (defense counsel): Your Honor, the Supreme Court decided in 1972 . . . that maritime law extended as far as the gangway. These injuries occurred on the gangway. It would appear to be a maritime law case . . . maritime law controls and that the presentation of economic loss testimony has to consider the what [sic] tax liability the plaintiffs had or would have on whatever income is said to be lost . . . MR. BERNSTEIN (plaintiff's counsel): Your Honor, I agree that it's maritime law . . . R. 24b-25b. As to the calculation and award of prejudgment interest in admiralty cases, the decision to make such an award is left to the discretion of the trial court. M & O Marine, Inc. v. Marquette Co., 730 F.2d 133 , 136 (3d Cir.1984). It is within the court's discretion to use Rule 238 to calculate the award of prejudgment interest, when it has decided to make such an award. Id. However, unlike Rule 238, which mandates delay damages where there has been no written settlement offer, prejudgment interest in admiralty cases may be denied where "peculiar circumstances" exist that "would make it inequitable for the losing party to be forced to pay prejudgment interest." Inland Oil & Transport Co. v. Ark-White Towing Co., 696 *156 F.2d 321, 327 (5th Cir.1983). See also Mecom v. Levingston Shipbuilding Co., 622 F.2d 1209 (5th Cir.1980). Generally, "exceptional circumstances" exist where the party requesting interest has (1) unreasonably delayed in prosecuting its claim; (2) made a bad faith estimate of its damages that precluded settlement; or (3) not sustained any actual damages. In re Bankers Trust Co., 658 F.2d 103 , 107 (3d Cir.1981). See also Cooper v. Loper, 923 F.2d 1045 (3d Cir.1991); East Coast Tender Service, Inc. v. Robert T. Winzinger, Inc., 759 F.2d 280 (3d Cir.1985). If the court concludes that such circumstances are present, it has the discretion to deny prejudgment interest. Bankers Trust, supra . Moreover, in jury actions where the award of interest rests in discretion, it is the jury who must exercise it. See, e.g., Robinson, supra ; Carey v. Bahama Cruise Lines, 864 F.2d 201 (1st Cir.1988). However, the jury in this case was not given the opportunity to decide whether prejudgment interest should have been awarded to the plaintiffs, or if "exceptional circumstances" existed to preclude such an award. The plaintiffs had the burden of going forward and bringing before the jury the issue of prejudgment interest. Our review of the record reveals that there was no request by the plaintiffs that the issue of prejudgment interest be given to the jury. Although the plaintiffs recognized that maritime law governed, they neglected to carry their burden of requesting that the question of prejudgment interest be presented to the jury. Maritime law provides a species of "delay damages" and directs that the jury impose prejudgment interest if, after having considered the evidence, they deem it appropriate. We do not find any authority for permitting plaintiffs to elect between maritime law prejudgment interest and Rule 238 delay damages. Cf. Robinson, supra ; Carey, supra . Moreover, because the plaintiffs did not preserve this issue by requesting that the jury be permitted to decide the interest question, we hold that it would be inappropriate to remand *157 this issue to the trial court for further consideration. [5] Robinson, 477 F.2d at 1053. We conclude that it was improper for the trial court to award Rule 238 delay damages in this maritime case, and therefore vacate that portion of the award below. Affirmed in part and reversed in part; judgment entered on jury's initial award of damages to plaintiffs is affirmed, but award of delay damages is vacated. Jurisdiction relinquished. NOTES [1] The two cases involve the same defendants, raise overlapping issues on appeal, and were presented together at oral argument to this court. We therefore resolve both matters in this opinion. [2] Judge DiBona actually requested the Supervising Administrative Judge for Philadelphia County to consolidate the two cases in order to save time and court resources. [3] Rule 238 provides, in pertinent part: (a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff . . . and shall become part of the verdict, decision or award. * * * * * * (b) The period of time for which damages for delay shall be calculated. . . shall exclude the period of time, if any, (1) after which the defendant has made a written offer of (i) settlement in a specified sum with prompt cash payment to the plaintiff, or (ii) a structured settlement underwritten by a financially responsible entity, and continued that offer in effect for at least ninety days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or (2) during which the plaintiff caused delay of the trial. Pa.R.Civ.P. 238. [4] We note that defendants Chandris and Ajax did raise the question of maritime prejudgment interest at the post trial level in their responses to the plaintiffs' Petition for Delay Damages. However, the trial judge did not include a discussion of this argument in his opinion. [5] Nor did the plaintiffs make a request for prejudgment interest under the maritime law in their Petitions for Delay Damages. The Petitions for Delay Damages were based only upon Rule 238.
|
opinion_html_with_citations
| 2,697 |
2013-10-30 06:39:17.47671+00
|
010combined
|
f
|
f
| 1,540,770 |
Beck, Tamilia and Hester
| null |
LU
|
f
|
Published
| 6 |
Musumeci v. Penn's Landing Corp.
|
Musumeci
|
Ann MUSUMECI and Salvatore Musumeci, H/W v. PENN’S LANDING CORPORATION, Port of History Museum, Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation; Ann MUSUMECI and Salvatore Musumeci, Appellants, v. PENN’S LANDING CORP., Port of History Museum, Chandris Fantasy Cruises, Philadelphia Port Corp. International Terminal Operations, Chandris, S.A., and Ajax Navigation; Loretta Anne MANNINO and Vincent Mannino v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation; Loretta Anne MANNINO and Vincent Mannino v. PENN’S LANDING CORPORATION, Chandris Cruise Line Corporation. Appeal of PENN’S LANDING CORPORATION; Loretta Anne Mannino and Vincent Mannino, Appellants, v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation; Loretta Anne Mannino and Vincent Mannino, Appellants, v. PENN’S LANDING CORPORATION, Chandris Cruise Line Corporation; Loretta Anne MANNINO and Vincent Mannino, H/W v. PENN’S LANDING CORPORATION, Port of History Museum Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation
| null | null |
<citation id="b214-3">
640 A.2d 416
</citation><br><parties id="b214-4">
Ann MUSUMECI and Salvatore Musumeci, H/W v. PENN’S LANDING CORPORATION, Port of History Museum, Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation. Ann MUSUMECI and Salvatore Musumeci, Appellants, v. PENN’S LANDING CORP., Port of History Museum, Chandris Fantasy Cruises, Philadelphia Port Corp. International Terminal Operations, Chandris, S.A., and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne MANNINO and Vincent Mannino v. PENN’S LANDING CORPORATION, Chandris Cruise Line Corporation. Appeal of PENN’S LANDING CORPORATION. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PORT OF HISTORY MUSEUM, Chandris Fantasy Cruises, Philadelphia Port Corporation International Terminal Operations, Chandris, S.A. and Ajax Navigation. Loretta Anne Mannino and Vincent Mannino, Appellants, v. PENN’S LANDING CORPORATION, Chandris Cruise Line Corporation. Loretta Anne MANNINO and Vincent Mannino, H/W v. PENN’S LANDING CORPORATION, Port of History Museum
<span citation-index="1" class="star-pagination" label="147">
*147
</span>
Chandris Fantasy Cruises, Chandris, S.A., Ajax Navigation Corporation, Philadelphia Port Corp., and International Terminal Operations. Appeal of CHANDRIS, S.A. and Ajax Navigation Corporation.
</parties><br><court id="b215-5">
Superior Court of Pennsylvania.
</court><br><otherdate id="b215-6">
Argued Oct. 19, 1993.
</otherdate><br><decisiondate id="b215-7">
Filed March 2, 1994.
</decisiondate><br><otherdate id="b215-8">
Reargument Denied May 11, 1994.
</otherdate><br><attorneys id="b218-3">
<span citation-index="1" class="star-pagination" label="150">
*150
</span>
Matthew P. Harrington, Philadelphia, for Chandris, S.A. and Ajax.
</attorneys><br><attorneys id="b218-4">
James R. Kahn, Philadelphia, for Mannino.
</attorneys><br><attorneys id="b218-5">
Stewart Bernstein, Philadelphia, for Musumeei.
</attorneys><br><attorneys id="b218-6">
Angelo L. Scaricamazza, Jr., Philadelphia, for Penn’s Landing.
</attorneys><br><attorneys id="b218-7">
Gino Zonghetti, pro se.
</attorneys><br><judges id="b218-8">
Before BECK, TAMILIA and HESTER, JJ.
</judges>
| null | null | null | null | null | null | 1,095,630 |
03531, 03532, 03556, 03557, 03603
| 0 |
pasuperct
|
SA
|
t
|
Superior Court of Pennsylvania
|
Superior Court of Pennsylvania
|
9,423,719 |
Mr. Justice Douglas, dissenting. The Court states that the constitutional power of Congress to raise and support armies is “broad and sweeping” and that Congress’ power “to classify and conscript manpower for military service is 'beyond question.’ ” This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war.1 That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling. I have discussed in Holmes v. United States, post, p. 936, the nature of the legal issue and it will be seen from my dissenting opinion in that case that this Court has never ruled on *390the question. It is time that we made a ruling. This case should be put down for reargument and heard with Holmes v. United States and with Hart v. United States, post, p. 956, in which the Court today denies certiorari.2 The rule that this Court will not consider issues not raised by the parties is not inflexible and yields in “exceptional cases” (Duignan v. United States, 274 U. S. 195, 200) to the need correctly to decide the case before the court. E. g., Erie R. Co. v. Tompkins, 304 U. S. 64; Terminiello v. Chicago, 337 U. S. 1. In such a case it is not unusual to ask for reargument (Sherman v. United States, 356 U. S. 369, 379, n. 2, Frankfurter, J., concurring) even on a constitutional question not raised by the parties. In Abel v. United States, 362 U. S. 217, the petitioner had conceded that an administrative deportation arrest warrant would be valid for its limited purpose even though not supported by a sworn affidavit stating probable cause; but the Court ordered reargument on the question whether the warrant had been validly issued in petitioner’s case. 362 U. S., at 219, n., par. 1; 359 U. S. 940. In Lustig v. United States, 338 U. S. 74, the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers (see Weeks v. United States, 232 U. S. 383; Byars v. United States, 273 U. S. 28). The Court ordered reargument on the question raised in a then pending case, Wolf v. Colorado, 338 U. S. 25: applicability of the Fourth Amendment to the States. U. S. Sup. Ct. Journal, October Term, 1947, p. 298. In Donaldson v. Read Magazine, 333 U. S. 178, the only issue presented, *391according to both parties, was whether the record contained sufficient evidence of fraud to uphold an order of the Postmaster General. Reargument was ordered on the constitutional issue of abridgment of First Amendment freedoms. 333 U. S., at 181-182; Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U. S. 95, 96, reargument was ordered on the question of unconstitutional vagueness of a criminal statute, an issue not raised by the parties but suggested at oral argument by Justice Jackson. Journal, October Term, 1947, p. 87. These precedents demonstrate the appropriateness of restoring the instant case to the calendar for reargument on the question of the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United States. Neither of the decisions cited by the majority for the proposition that Congress’ power to conscript men into the armed services is “ ‘beyond question’ ” concerns peacetime conscription. As I have shown in my dissenting opinion in Holmes v. United States, post, p. 936, the Selective Draft Law Cases, 245 U. S. 366, decided in 1918, upheld the constitutionality of a conscription act passed by Congress more than a month after war had been declared on the German Empire and which was then being enforced in time of war. Lichter v. United States, 334 U. S. 742, concerned the constitutionality of the Renegotiation Act, another wartime measure, enacted by Congress over the period of 1942-1945 [id., at 745, n. 1) and applied in that case to excessive war profits made in 1942-1943 {id., at 753). War had been declared, of course, in 1941 (55 Stat, 795). The Court referred to Congress’ power to raise armies in discussing the “background” (334 U. S., at 753) of the Renegotiation Act, which it upheld as a valid exercise of the War Power. Today the Court also denies stays in Shiffman v. Selective Service Board No. 5, and Zigmond v. Selective Service Board No. 16, post, p. 930, where punitive delinquency regulations are invoked against registrants, decisions that present a related question.
|
opinion_xml_harvard
| 803 |
2023-08-02 23:08:53.040374+00
|
040dissent
|
f
|
f
| 107,701 |
Douglas, Harlan, Marshall, Warren
| null |
LRU
|
f
|
Published
| 2,274 |
United States v. O'Brien
|
O'Brien
|
United States v. O’brien
| null | null |
<parties id="b413-3">
UNITED STATES
<em>
v.
</em>
O’BRIEN.
</parties><br><docketnumber id="b413-5">
No. 232.
</docketnumber><otherdate id="ASC">
Argued January 24, 1968.
</otherdate><decisiondate id="ANP">
Decided May 27, 1968.
<a class="footnote" href="#fn*" id="fn*_ref">
*
</a>
</decisiondate><br><attorneys id="b415-4">
<span citation-index="1" class="star-pagination" label="369">
*369
</span>
<em>
Solicitor General Griswold
</em>
argued the cause for the United States. With him on the brief were
<em>
Assistant Attorney General Vinson, Francis X. Beytagh, Jr., Beatrice Rosenberg,
</em>
and
<em>
Jerome M. Feit.
</em>
</attorneys><br><attorneys id="b415-5">
<em>
Marvin M. Karpatkin
</em>
argued the cause for respondent in No. 232 and petitioner in No. 233. With him on the brief were
<em>
Howard S. Whiteside, Melvin L. Wulf,
</em>
and
<em>
Rhoda H. Karpatkin.
</em>
</attorneys><div class="footnotes"><div class="footnote" id="fn*" label="*">
<a class="footnote" href="#fn*_ref">
*
</a>
<p id="b413-13">
Together with No. 233,
<em>
O’Brien
</em>
v.
<em>
United States,
</em>
also on certiorari to the same court.
</p>
</div></div>
| null | null | null | null | null | null | 1,439,853 |
232
| 0 |
scotus
|
F
|
t
|
Supreme Court
|
Supreme Court of the United States
|
719,785 |
86 F.3d 788 UNITED STATES of America, Appellee, v. Michael D. WHITELAW, Appellant. UNITED STATES of America, Appellee, v. Steven MERRITT, Appellant. Nos. 95-3553WM, 95-3650WM. United States Court of Appeals, Eighth Circuit. Submitted April 9, 1996. Decided June 12, 1996. David H. Johnson, argued, Kansas City, MO, for appellant Whitelaw. John E. Cash, argued, Kansas City, MO (Willard B. Bunch, on the brief), for appellant Merritt. William L. Meiners, Asst. U.S. Atty., Kansas City, MO, argued, for appellee. Before FAGG, JOHN R. GIBSON, and BOWMAN, Circuit Judges. FAGG, Circuit Judge. 1 Michael D. Whitelaw and Steven Merritt appeal their drug-related convictions. We affirm. 2 Whitelaw and Merritt contend the district court improperly admitted a substance into evidence that was seized when they were arrested and later analyzed as cocaine because the Government failed to establish a proper chain of custody. We cannot agree. Whitelaw and Merritt do not quarrel with the arresting officer's testimony explaining how he seized, sealed, marked, and stored the packaged substance in a police evidence locker. Likewise, they do not quarrel with the chemist's testimony about how he took the same marked and sealed bag from the crime laboratory vault, tested the substance inside, repackaged the substance and the original bag in another sealed plastic container, and then returned the sealed container to the laboratory vault until trial. Nor do they quarrel with the chemist's courtroom identification of the sealed container and all of its contents, or the arresting officer's testimony the bag he placed in the evidence locker was the same bag that was now inside the chemist's sealed container. 3 According to Whitelaw and Merritt, the chain of custody is fatally flawed because the Government failed to track the bagged substance from the evidence locker to the crime laboratory. Thus, they argue the custodial evidence does not show the chemist tested the substance seized by the arresting officer. Their argument is foreclosed by our contrary holdings in United States v. Pressley, 978 F.2d 1026 , 1028-29 (8th Cir.1992) and United States v. Glaze, 643 F.2d 549 , 552 (8th Cir.1981) (per curiam). Although the Government could have easily avoided the problem raised in this appeal by merely producing the persons who handled the bag during the gap in the Government's custodial chain, we cannot say the district court abused its discretion in admitting the cocaine over Whitelaw and Merritt's objection. Like the district court, we are satisfied that in all reasonable probability the substance seized by the arresting officer, tested by the chemist, and admitted into evidence is one and the same. See Pressley, 978 F.2d at 1028-29. Indeed, Merritt testified the substance seized by the arresting officer was cocaine, and neither Whitelaw nor Merritt claim the substance was tampered with, altered, or handled in bad faith by the Government. See United States v. Miller, 994 F.2d 441 , 443-44 (8th Cir.1993). 4 Whitelaw also contends the evidence is insufficient to support the jury's verdict on his drug-related firearm charge. Although we do not ordinarily consider pro se briefs when a party is represented by counsel, see United States v. Marx, 991 F.2d 1369 , 1375 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 618 , 126 L.Ed.2d 582 (1993), our review of the record shows overwhelming evidence of Whitelaw's guilt. 5 We thus affirm Whitelaw's and Merritt's convictions.
|
opinion_html_with_citations
| 556 |
2012-04-17 07:47:31+00
|
010combined
|
f
|
f
| 719,785 |
Bowman, Fagg, Gibson, John
| null |
RU
|
f
|
Published
| 2 |
United States v. Michael D. Whitelaw, United States of America v. Steven Merritt
| null |
UNITED STATES of America, Appellee, v. Michael D. WHITELAW, Appellant; UNITED STATES of America, Appellee, v. Steven MERRITT, Appellant
| null | null |
<parties data-order="0" data-type="parties" id="b868-3">
UNITED STATES of America, Appellee, v. Michael D. WHITELAW, Appellant. UNITED STATES of America, Appellee, v. Steven MERRITT, Appellant.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b868-7">
Nos. 95-3553WM, 95-3650WM.
</docketnumber><br><court data-order="2" data-type="court" id="b868-8">
United States Court of Appeals, Eighth Circuit.
</court><br><otherdate data-order="3" data-type="otherdate" id="b868-9">
Submitted April 9, 1996.
</otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b868-10">
Decided June 12, 1996.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b868-15">
David H. Johnson, argued, Kansas City, MO, for appellant Whitelaw.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b868-16">
John E. Cash, argued, Kansas City, MO (Willard B. Bunch, on the brief), for appellant Merritt.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b868-17">
William L. Meiners, Asst. U.S. Atty., Kansas City, MO, argued, for appellee.
</attorneys><br><p data-order="8" data-type="judges" id="b868-18">
Before FAGG, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
</p>
| null | null | null | null | null | null | 608,800 |
95-3553WM, 95-3650WM
| 1 |
ca8
|
F
|
t
|
Eighth Circuit
|
Court of Appeals for the Eighth Circuit
|
1,191,909 |
979 P.2d 464 (1999) 96 Wash.App. 255 DÉJÀ VU-EVERETT-FEDERAL WAY, INC., a Washington corporation, Appellant*Cross-Respondent, v. CITY OF FEDERAL WAY, Respondent*Cross-Appellant. No. 41818-1-I. Court of Appeals of Washington, Division 1. June 28, 1999. Reconsideration Denied August 2, 1999. *465 Jack Ross Burns, Law Offices of Jack R. Burns PS, Bellevue, for Appellant. Stephen Alan Smith, Robert, Bertelson, Mitchell, Preston, Gates & Ellis, Seattle, for Respondent. BECKER, J. A Federal Way ordinance requires erotic dancers in adult cabarets to stay at least four feet away from patrons. A four-foot rule does not violate either the state or federal constitution. Earlier decisions clearly preclude Déjà Vu's present challenge to the Federal Way ordinance. The action is frivolous. FACTS Déjà Vu is in the adult entertainment business. It operates adult cabarets in several locations in King County. In 1994 Déjà Vu (Bellevue) along with several other owners of adult cabarets filed suit in King County Superior Court to have certain ordinances declared unconstitutional. One provision at issue required dancers to maintain a minimum distance of four feet from patrons. In April of 1995, after a six-day trial, the superior court upheld the four-foot minimum distance requirement under both the federal and state constitutions. Inspired by Bellevue's successful defense of its four-foot rule, the City of Federal Way promptly enacted a similar ordinance. The section at issue in this appeal provides: No employee or entertainer mingling with patrons shall conduct any dance, performance or exhibition in or about the non-stage area of the adult entertainment establishment unless that dance, performance or exhibition is performed at a torso-to-torso distance of no less than four feet from the patron or patrons for whom dance, performance or exhibition is performed. The Federal Way ordinance immediately became the target of a suit filed in federal court by Déjà Vu-Everett-Federal Way, Inc., the only adult entertainment establishment in Federal Way. Federal District Court Judge Thomas Zilly granted Federal Way's motion for summary judgment dismissal in January 1996, giving collateral estoppel effect to the superior court decision on the Bellevue ordinance. As an additional basis for dismissing the claim, Judge Zilly ruled that the Federal Way ordinance is a valid "time, place, or manner" regulation under the federal constitution. Judge Zilly refrained from ruling on Déjà Vu's claim that the ordinance violated the state constitution. He dismissed the state constitutional claim solely on the basis of collateral estoppel. Déjà Vu did not appeal Judge Zilly's ruling. Meanwhile, the litigation on the Bellevue ordinance reached the Washington State Supreme Court. In May 1997, the Washington State Supreme Court affirmed the King County Superior Court's decision that the *466 Bellevue four-foot rule was constitutional under both the state and federal constitutions. Ino Ino, Inc., v. City of Bellevue, 132 Wash.2d 103, 937 P.2d 154 (1997), cert. denied, U.S. , 118 S. Ct. 856 , 139 L. Ed. 2d 755 (1998). In June 1997, Déjà Vu began the present action in King County Superior Court. This suit again sought relief from Federal Way's ordinance, this time solely on state constitutional grounds. Federal Way moved for summary judgment, asserting the preclusive effect of Ino Ino and Judge Zilly's decision. The superior court granted the motion and dismissed the suit. The court denied Federal Way's request for attorney fees for having to defend a frivolous action. Déjà Vu appeals from the order of dismissal. Federal Way cross-appeals the denial of its motion for attorney fees. COLLATERAL ESTOPPEL Federal Way contends that the collateral estoppel effect of the Supreme Court's decision in Ino Ino completely bars Déjà Vu, a plaintiff in that action, from relitigating the constitutionality of a four-foot limit. We agree. The doctrine of collateral estoppel bars relitigation of an issue if (1) the issue presented is identical to the issue presented in a prior suit; (2) there was a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party, or in privity with a party, to the former litigation; and (4) no injustice will result from applying the doctrine. Garcia v. Wilson, 63 Wash.App. 516, 518, 820 P.2d 964 (1991). Déjà Vu claims to be pursuing a new cause of action expressly recognized in Ino Ino. Déjà Vu contends a court can, under Ino Ino, declare a four-foot distance limit invalid under the state constitution if presented with evidence proving that the limit inevitably causes business failure. In Ino Ino the Court decided that enhanced protection under the state constitution is not warranted for challenges to time, place and manner restrictions in the context of sexually explicit dance. The appropriate analysis of such a claim is found in federal constitutional law. Ino Ino, 132 Wash.2d at 122, 937 P.2d 154 . A four-foot rule is a time, place, or manner restriction, not a prior restraint, Ino Ino, 132 Wash.2d at 127, 937 P.2d 154 , and under federal constitutional law it is not unduly burdensome. "The provision furthers an important or substantial governmental interest because it facilitates the detection of public sexual contact and discourages contact from occurring in the first place." Ino Ino, 132 Wash.2d at 128, 937 P.2d 154 . After stating these basic principles, the Ino Ino court explained more specifically why the four-foot limit is not unduly restrictive. In a paragraph that is central to Déjà Vu's present appeal, the court rejected the arguments of the cabaret owners: However, Respondents argue that the four-foot rule is so restrictive, as to deny dancers a reasonable means of earning a living and cause the imminent failure of all adult cabarets in Bellevue. If such a failure was inevitable, then the distance requirement would be unconstitutional. In Gomillion v. Lightfoot, 364 U.S. 339 , 340-41, 81 S. Ct. 125 , 5 L. Ed. 2d 110 (1960), the Supreme Court sustained a complaint which, if true, established that newly drawn municipal boundaries would have the "inevitable effect" of depriving a racial group of their constitutional right to vote. The stated purpose of the legislation in Gomillion was irrelevant because inevitably its provisions violated a constitutional right. Id.; see also [ United States v. ] O'Brien, 391 U.S. [367,] at 385, [ 88 S. Ct. 1673 , 20 L. Ed. 2d 672 , reh'g denied, 393 U.S. 900 [ 89 S. Ct. 63 , 21 L. Ed. 2d 188 ] (1968)] (finding that the destruction of Selective Service certificates was not necessarily expressive, and thus a statute prohibiting this activity did not inevitably violate a constitutional right). In this case, Respondents presented evidence showing only that financial failure was possible, and thus failed to show an "inevitable effect" such as that in Gomillion. Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d at 130-31, 937 P.2d 154 . Déjà Vu seizes upon the second sentence of the above paragraph from Ino Ino: "If *467 [failure of adult cabarets] was inevitable, then the distance requirement would be unconstitutional." Déjà Vu isolates this sentence and insists it is a holding. According to Déjà Vu, it means that the four-foot rule, although upheld as constitutional in the facial challenge to the Bellevue ordinance, may still be challenged in successive suits with varying outcomes from jurisdiction to jurisdiction and from time to time depending on the actual impact of the restriction on the cabaret business in each community. Déjà Vu submits the declaration of its comptroller, Paul Bern, documenting dramatic decreases in revenue after the Federal Way club complied with the four-foot limit for 19 months. According to Déjà Vu, this "actual economic evidence" distinguishes its claim from the facial challenge to the Bellevue ordinance litigated in Ino Ino, and requires a trial to determine whether economic failure of adult cabarets is an "inevitable effect" of the ordinance in Federal Way. The meaning of the sentence, "If such a failure was inevitable, then the distance requirement would be unconstitutional", was debated by another appellate panel in DCR, Inc. v. Pierce County, 92 Wash.App. 660, 964 P.2d 380 (1998). The DCR court considered the constitutionality of a 10-foot rule enacted by Pierce County. The dissent argued that the sentence is a holding by the Supreme Court, and that it mandates a fact-finding hearing to determine whether the distance limit will inevitably close the business. DCR, Inc., 92 Wash.App. 660, 690-91, 964 P.2d 380 (1998) (Armstrong, J. dissenting). The majority decided to regard the sentence as unsound dicta and refused to follow it, considering federal law to be "paramount". DCR, Inc., 92 Wash.App. at 680, 683, 964 P.2d 380 . We do not regard the sentence as a holding and indeed, it is not even dicta. Read in context, it is simply the Supreme Court's characterization of the argument of the respondents. After stating the respondents' argument, the Supreme Court went on to reject it. The Supreme Court did not intend to leave the door open for lower courts to strike down a dancer-to-patron distance limit whenever an adult cabaret is able to prove adverse economic effects. In the immediately preceding pages of the Ino Ino opinion, the Supreme Court had just finished aligning itself with federal jurisprudence that has consistently rejected economic impact arguments unless the challenged regulation intrinsically operates as an absolute bar to the market. Under the federal constitution, the scope of permissible economic analysis is whether the regulation permits entry or participation in the market for the expressive medium. Colacurcio v. City of Kent, 163 F.3d 545 , 557, n. 13 (9th Cir.1998). The four-foot limit satisfies this test because it does not bar market entry and does not restrict the amount of payment erotic dancers may receive. Ino Ino, 132 Wash.2d at 131, 937 P.2d 154 . With its decision in Ino Ino, the Supreme Court joined the federal courts in holding that a four-foot limit is constitutional even if it turns out that every adult cabaret has to close down for lack of business. The theory that Ino Ino created a new cause of action is spurious. Déjà Vu was a plaintiff in Ino Ino. In its quest to have a court declare the distance limits to be violative of the Washington State Constitution, Déjà Vu has had a full trial on the merits and full appellate review. Ino Ino was a final judgment on the merits of that issue. No injustice will result from applying collateral estoppel against Déjà Vu. Accordingly, we hold the trial court erred in allowing Déjà Vu to renew the argument. Ino Ino is the last word on "time, place, or manner" analysis of the four-foot limit under the Washington State Constitution. Further discussion of that issue is precluded. The trial court should have dismissed Déjà Vu's suit on the basis of collateral estoppel. RES JUDICATA Below, Federal Way alternatively argued that Judge Zilly's unappealed dismissal of Déjà Vu's earlier challenge to Federal Way's four-foot rule is res judicata barring the present cause of action. The purpose of the doctrine of res judicata or claim preclusion is to avoid relitigation of a claim or cause of action. Loveridge v. Fred Meyer, Inc., 72 Wash.App. 720, 724, 864 P.2d 417 (1993). In determining the *468 preclusive effect of Judge Zilly's order dismissing Déjà Vu's first suit against Federal Way, this court applies federal law. Loveridge v. Fred Meyer, Inc., 72 Wash.App. at 724-25, 864 P.2d 417 . Déjà Vu is barred from presenting in the present action all grounds of recovery that could have been presented in its federal court action, whether they were or not, if the federal court action was a suit between the same parties on the same cause of action, and concluded in a final judgment on the merits. International Union of Operating Engineers v. Karr, 994 F.2d 1426 , 1429 (9th Cir.1993) Both of Déjà Vu's suits against Federal Way involved the same parties. To determine whether they involved the same cause of action, four criteria are considered: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199 , 1201-02 (9th Cir.1982). The fourth criteria is the most important. Costantini, 681 F.2d at 1202. Déjà Vu's present litigation arises out of the same nucleus of facts as its suit in federal court: it challenges the same ordinance. The evidence presented to each court was substantially the same. The two suits involve infringement of the same state constitutional right. Allowing Déjà Vu to proliferate successive challenges to Federal Way's ordinance with the possibility of varying outcomes will impair Federal Way's established right to enforce the ordinance. Déjà Vu contends there was no final judgment on the merits in federal district court because Judge Zilly did not address the constitutionality of the ordinance under the Washington State Constitution. Déjà Vu ignores Judge Zilly's ruling that all claims, including the state constitutional claims, were barred by the collateral estoppel effect of the King County Superior Court decision in Ino Ino. Any dismissal other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. F.R.C.P 41(b). See Dicken v. Ashcroft, 972 F.2d 231 , 233 n. 5 (8th Cir.1992) (summary judgment is a final judgment on the merits for purposes of res judicata). In short, Judge Zilly's unappealed order of summary judgment dismissal operates as res judicata in the present suit. This is an additional reason why the superior court erred in conducting its own analysis of the four-foot rule. The court should have dismissed Déjà Vu's suit on the basis of res judicata. In reviewing an order of summary judgment, this court may affirm the order on any theory within the pleadings and the proof. LaMon v. Butler, 112 Wash.2d 193, 200-01, 770 P.2d 1027 , cert. denied, 493 U.S. 814 , 110 S. Ct. 61 , 107 L. Ed. 2d 29 (1989). Although the trial court unnecessarily engaged in a substantive analysis of Déjà Vu's "inevitable effects" theory, it reached the same result as if it had applied collateral estoppel and res judicata. We affirm the judgment of dismissal. ATTORNEY FEES The trial court denied Federal Way's motion for attorney fees under RCW 4.84.185 and CR 11. Federal Way cross-appeals, claiming the court abused its discretion because Déjà Vu's claim is frivolous. We grant the City's cross-appeal. A trial court's decision to grant or deny attorney fees will not be disturbed in the absence of an abuse of discretion. Discretion may be abused, however, if based on untenable grounds. Layne v. Hyde, 54 Wash.App. 125, 135, 773 P.2d 83 (1989). The court below rejected the City's request for attorney fees after deciding that Déjà Vu's "inevitable effects" claim was at least arguable under the state constitution. This was not a tenable basis for the ruling. Ino Ino and Judge Zilly's decision both precluded such argument. Considering the entire record and resolving all doubts in favor of Déjà Vu, we find the present action is not supported by any rational argument based on the law or the *469 facts. See Layne v. Hyde, 54 Wash.App. at 135, 773 P.2d 83 . It is frivolous to argue that our Supreme Court intended to breathe life into further challenges. Relitigation of the four-foot rule is a waste of time. We remand for an award of attorney fees in favor of Federal Way for having to defend this suit below and on appeal. The judgment of dismissal is affirmed. The order denying Federal Way's request for attorney fees is reversed. BAKER, J., and KENNEDY, C.J., concur.
|
opinion_html_with_citations
| 2,636 |
2013-10-30 04:50:29.660135+00
|
010combined
|
f
|
f
| 1,191,909 |
Becker
| null |
LU
|
f
|
Published
| 3 |
Déjà Vu-Everett-Federal Way, Inc. v. City of Federal Way
| null |
Déjà Vu-Everett-Federal Way, Inc., Appellant, v. the City of Federal Way, Respondent
| null | null |
<docketnumber id="b289-6">
[No. 41818-1-I.
</docketnumber><court id="AFE">
Division One.
</court><decisiondate id="ATj">
June 28, 1999.]
</decisiondate><br><parties id="b289-7">
Déjà Vu-Everett-Federal Way, Inc.,
<em>
Appellant,
</em>
v. The City of Federal Way,
<em>
Respondent.
</em>
</parties><br><attorneys id="b290-8">
<span citation-index="1" class="star-pagination" label="256">
*256
</span>
<em>
Jack Ross Burns
</em>
of
<em>
Law Offices of Jack R. Burns, RS.,
</em>
for appellant.
</attorneys><br><attorneys id="b290-9">
<em>
Stephen Alan Smith
</em>
and
<em>
Robert Bertelson Mitchell
</em>
of
<em>
Preston, Gates & Ellis,
</em>
for respondent.
</attorneys>
| null | null | null | null | null | null | 2,539,515 |
41818-1-I
| 0 |
washctapp
|
SA
|
t
|
Court of Appeals of Washington
|
Court of Appeals of Washington
|
5,229,863 |
Judgment and order unanimously affirmed, with costs, on the opinion of Mr. Justice Borst at Trial Term. The following is the opinion of Mr. Justice Borst: Borst, J.: I am of the opinion that the evidence in this case in connection with section 18 of the Labor Law,* which would seem to apply, was sufficient to make the defendant’s negligence a question for the jury. (McConnell v. Morse Iron Works, 102 App. Div. 324; Cummings v. Kenny, 97 id. 114; Kelly v. National Starch Co., 142 id. 286.) *488The provision of the Labor Law referred to does not preclude the defendant, however, from invoking the contributory negligence, if any there was, of plaintiff’s intestate. (Gombert v. McKay, 201 N. Y. 27.) Now as to the contributory negligence of plaintiff’s intestate. The case was submitted to the jury on the theory that on this question plaintiff had the burden of proof and this must, therefore, undoubtedly be the law of the case on this motion. This burden, however, it would seem under the provisions of the Labor Law (§ 202a)* as it now stands, was on the defendant. Treating the case, therefore, on the theory on which it was tried, I think the intestate’s negligence was a jury question. The jury were authorized to find that the spurs on the foot of ladders used about defendant’s premises became dull by usage and were sharpened from time to time; that this was no part of the duties of the intestate. This was a duty, however, imposed by law upon the defendant and especially so by virtue of the section of the Labor Law cited. The spurs on the ladder in question were dull and the jury had the right to find from the evidence that had they not been so they would have sunk into the floor under the weight of plaintiff’s intestate and not have slipped and the accident would thereby not have occurred. Evidence was given by one of defendant’s employees to the effect that some weeks prior to the day of the accident ladders, including the ladder in question, had been used by plaintiff’s intestate and the witness; that the witness had forced the spurs into the floor in the intestate’s presence by hitting-them with a hammer. The truthfulness and force of this evidence was for the jury. Plaintiff’s intestate might well have assumed that the spurs on the ladder in question had been sharpened between the time that witness referred to and the day of the accident when he came to use it. It does not appear that plaintiff’s intestate knew that the spurs on the ladder were dull. The direction to the intestate to perform the work in which he was engaged came from his foreman, who testifies: “I went in the powerhouse. Shovan was there. I said to *489him, 'Middy, when you have time, or when you haven’t got much to do, take and connect up the radiator that is in the toilet room off of the assembly room with a 2% inch pipe that we recently ran down through there from the heating coil in the northwest corner of the building. There is no particular hurry about it, but do it when you have time to do it. Your pipe is here on the floor.’ The pipe was lying on the floor right beside him when I was speaking. The ladder stands up by the heating coil in the northwest end of the building.” The ladder was in place and the intestate was to go up that and make the connection. He had a pail of paint in his hand which was to be used on the joints of the pipes which he was to connect. He was near the top of the ladder when it slipped and the fall came which resulted in his death. In view of the attention which he must necessarily have given to his work, the materials he was to take and use, and in view of the instructions given to him by the foreman to go up that ladder to do the work, it was at least for the jury to say whether he should have in mind, distracted as his attention might have been, that the defendant had failed to sharpen the spurs on the ladder. (Kettle v. Turl, 162 N. Y. 255; Delaney v. City of Mount Vernon, 89 App. Div. 209.) The motions for a nonsuit and the new trial should, therefore, be denied. See Consol. Laws, chap. 31 (Laws of 1909, chap. 36), § 18, as amd. by Laws of 1911. chap. 693.— [Rep. Added by Laws of 1910, chap. 352.—[Rep.
|
opinion_xml_harvard
| 776 |
2022-01-06 16:53:44.824898+00
|
020lead
|
t
|
f
| 5,393,129 |
Borst
| null |
U
|
f
|
Published
| 0 |
Shovan v. Lozier Motor Co.
|
Shovan
|
Ida Shovan, as Administratrix, etc., of Middy Shovan v. Lozier Motor Company
|
<p>Appeal by the defendant, the Lozier Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 19th day of July, 1913, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of July, 1913, denying the defendant’s motion for a new trial made upon the minutes.</p>
| null | null |
<p>Master and servant—negligence — death by slipping of ladder — evidence raising question for jury.</p> <p>Action against a master to recover for the death of a servant who, by the direction of a foreman, mounted a ladder which slipped and killed him. There was evidence that the spurs on the foot of the ladder were blunt and liable to slip. Evidence examined, and held, sufficient under section 18 of the Labor Law to make the defendant’s negligence and the contributory negligence of the decedent questions for the jury.</p> <p>Said provisions of the Labor Law do not preclude the defendant from invoking the contributory negligence of the decedent.</p>
| null | null | null | null | null | 61,741,415 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
4,841,644 |
Aff. Cir. Ct. (Miami-Dade)
|
opinion_xml_harvard
| 4 |
2021-08-23 11:26:17.325126+00
|
020lead
|
t
|
f
| 5,028,089 | null | null |
U
|
f
|
Published
| 0 |
Mukamal v. Cole, Scott & Kissane, P.A.
|
Mukamal
|
Mukamal v. Cole, Scott & Kissane, P.A.
| null | null | null | null | null | null | null | null | null | 60,268,963 |
3D16-143
| 0 |
fladistctapp
|
SA
|
t
|
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
7,037,778 |
Frazer, J. There was no error in sustaining demurrers to the second and third paragraphs of the answer. They were only argumentative denials of the title of the plaintiff' as averred in the complaint, and no injury to the appellants could result from the rulings upon those demurrers, inasmuch as the same evidence was admissible* under the general denial, which was in. Indeed, the same question, an interesting one, is supposed by counsel on both sides to arise upon the evidence, and is argued with great care and ability. It is one upon which the highest courts of different states are at variance, and upon which, as. now advised,; after considerable investigation, it is apprehended that thisjr court would be equally divided. It turns out, however, that the question is not in this record. There was a motion for a new trial and an exception to the overruling thereof, but no time was asked or given to prepare a bill of exceptions, and none was tendered until the next subsequent term of the *586court, when a bill containing the evidence was filed. It cannot be regarded. T. M. Brown, for appellants. J. J. Cheney and E. L. Watson for appellee. The judgment is affirmed, with'costs.
|
opinion_xml_harvard
| 205 |
2022-07-24 06:47:14.354741+00
|
020lead
|
t
|
f
| 7,130,385 |
Frazer
| null |
U
|
f
|
Published
| 0 |
Vandoren v. Kimes
|
Vandoren
|
Vandoren and Another v. Kimes
|
<p>APPEAL from the Randolph Common Pleas.</p> <p>Suit by Ann V. Kimes against Vandoren and Walters, for the partition of certain lands, of which she claims to be entitled to one-third as the widow of Hemp Kimes deceased. It is alleged in the complaint, inter alia, that Henry Kimes, the husband of the plaintiff, was seized in fee of the lands described in the complaint, when, in the year 1858, the defendants and others commenced proceedings against him, in the Randolph Circuit Court, in attachment, in which judgments were recovered against said Henry; that executions and orders of sale were issued on said judgments, by virtue of which the sheriff of said county levied on and sold said' lands to the defendants, and executed to them a deed of conveyance therefor; under which they have ever since held possession of the lands; that said Henry Kimes subsequently died, leaving the plaintiff, his widow,surviving him; that the plaintiff, “never having parted with her interest” therein, is the owner and entitled to one-third of said lands, and the defendants'to two-thirds thereof.</p> <p>The defendants filed an answer of three paragraphs. The first was a general denial; the others were special paragraphs, alleging new matter in bar; to .each of which the court sustained a demurrer, and the defendants excepted.</p> <p>The case was then submitted to the court for trial, upon an agreed state of facts. The court found for the plaintiff, that she was the owner of one undivided third of said lands,- and entitled to partition thereof, and, having overruled a motion for a new trial, rendered a decree therefor. Partition was subsequently made and final judgment rendered.</p> <p>The errors assigned relate: 1. To the error of the court in sustaining demurrers to the second and -third paragraphs of the answer. 2. To the refusal to grant a new trial, because the finding of the court is contrary to the law and the evidence.</p> <p>The facts of the case are as follows: In 1858, Henry Kimes, the husband of the plaintiff, was the owner in fee of the real estate described in the complaint, and at the same time was largely indebted to the defendants and others; “ that to hinder, delay and defraud his said creditors, the said Henry did, on the 1st of January in said year, for the fraudulent purpose aforesaid, and without any consideration whatever,” convey all of said real estate by deed in fee, with covenants of warranty, to one Hannah Kimes, the mother of said Henry; and the said plaintiff joined with her husband in said fraudulent conveyance, with a full knowledge of all the facts above stated. Subsequent to the execution of said fraudulent conveyance, the defendants, and other creditors of said Henry■ Kimes, brought an action in the Randolph Circuit Court against Henry, Ann V. and Hannah Kimes, to set aside said conveyance, as fraudulent and void, and such proceedings were thereupon had, that, upon the final hearing, the Circuit Court rendered the following judgment and decree therein, to-wit:</p> <p>“ The parties by counsel come, and said defendants having failed to file their answer in discharge of ;a rule taken against them, it is therefore considered' by the court that the matters and things set forth in said complaint be taken as true and confesssd. And the court, having heard the evidence of said plaintiffs, and examined said complaint and all things touching the same, doth now adjudge and decree that the deed set out in said complaint, from Henry Kimes and Ann V. Kimes, his wife, to Hannah Kimes, to the following described real estate, situated in Randolph county, Indiana, to-wit: ” (Here follows a full description of the lands by metes and bounds, being the same lands described in the complaint -in the present suit) “be declared fraudulent and held to be null and void'as to the creditors of the said Henry Kimes, and to convey no title whatever to the said Hannah Kimes. And it is further ordered and decreed that said real estate described in said deed be made subject to the payment of the debts owing by said Henry Kimes, as though said deed had never been made,” and that the plaintiffs recover of the defendant Henry Kimes their costs and charges herein laid out and expended.</p> <p>Said decree was rendered on the 8th day of April 1858, and on the same day, the defendants herein, and other creditors of said Henry Kimes, recovered judgments in said court, on their respective claims against him. Executions were issued on said judgments, upon which the sheriff regularly advertised and sold said real estate, which was bid in and purchased by these defendants, for a less amount than the judgments upon which it was sold, and the sheriff thereupon executed and delivered to them a proper and legal deed of conveyance for said land. The defendants took possession of said land under said deed and still continue to hold the same.</p> <p>Henry Kimes died on the 1st day of Api’il 1865, leaving the plaintiff his widow, who has not in any way, except as in said deed to Hannah Kimes, parted with her rights in said real estate. And unless hy said deed to said Hannah Kimes, or by the proceedings in court herein, referred to, the said plaintiff is barred of her rights, it is agreed that she is entitled to one-third in fee of said real estate.</p> <p>It is further agreed, as the deed of Henry Kimes and the plaintiff to Hannah Kimes,- and the deed of the sheriff to the defendants, are long and would tend to make the record voluminous, that said deeds are in all respects regular in form, and their production in evidence is waived, as well as the requirement that they should be attached to and made a part of the pleadings, both as to the trial of the facts and the issue of law on the demurrer to the answer. It is further agreed, that the fraudulent grantee, Hannah Kimes, never had any possession of said real estate.</p>
| null | null |
<p>Piiactice — An error in sustaining a demurrer to a paragraph of an answer will not be available on appeal, if the party had the full benefit of the defense under another paragraph of his answer.</p> <p>Bill or Exceptions. — Where, upon the overruling of a motion for a new trial, no time was asked or given to file a bill of exceptions, the court refused to consider a question attempted to be presented upon a bill filed at the succeeding term of the court.</p>
| null | null | null | null | null | 64,118,747 | null | 0 |
ind
|
S
|
t
|
Indiana Supreme Court
|
Indiana Supreme Court
|
611,232 |
998 F.2d 1009 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Charles Edward HOLLEY, Plaintiff-Appellant, v. COOK ENTERPRISES, INCORPORATED, t/a Burger King Restaurant, Defendant-Appellee. No. 92-2079. United States Court of Appeals, Fourth Circuit. Argued: May 6, 1993. July 6, 1993. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (CA-90-2299-2-18) Argued: Jessie James, Jr., Washington, D.C., for Appellant. Stephen P. Hughes, Howell, Gibson & Hughes, Beaufort, South Carolina, for Appellee. D.S.C. AFFIRMED. Before RUSSELL and WIDENER, Circuit Judges, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. OPINION PER CURIAM: 1 A jury awarded Charles Edward Holley ("Holley") $65,000.00 in damages for his injuries resulting from a slip and fall at a Burger King Restaurant in Hardeeville, South Carolina ("Burger King"), owned and operated by Cook Enterprises, Incorporated ("Cook"). Holley moved for a new trial on the ground that the damages award was inadequate. Citing the conflicting testimony regarding the severity and cause of Holley's injuries, the district court denied the motion. Holley now appeals. Finding no error, we affirm. I. 2 On September 2, 1989, Holley, a correctional officer at the Lorton Correctional Institute in Northern Virginia, was traveling by car to Georgia. While driving, Holley stopped at Burger King for lunch. Inside Burger King, Holley apparently slipped on a puddle of water from a leaking air conditioner and fell to the floor. 3 After the fall, Holley complained of severe pain in his back and shoulder and numbness in his leg. Several patrons advised that he not be moved. Approximately thirty minutes later, paramedics arrived. They placed Holley on a hard stretcher and transported him to Live Oak Hospital in Ridgeland, South Carolina ("Live Oak"). At Live Oak, the doctor reviewed several X-rays and concluded that Holley may have had a broken pelvis. Because Live Oak was not equipped to handle a broken pelvis, the doctor sent Holley by ambulance to Memorial Medical Center in Savannah, Georgia ("Memorial"), where he was seen by Dr. William N. Wessinger ("Dr. Wessinger"), an orthopedic surgeon. 4 Dr. Wessinger reviewed the X-rays from Live Oak and some additional X-rays made at Memorial and concluded that there was no pelvic fracture. Rather, Dr. Wessinger concluded that Holley had a fleck of calcium in his left groin which probably occurred when a muscle was torn years earlier. Dr. Wessinger also ordered a CAT scan. Upon review of the results, Dr. Wessinger concluded there was minor bulging in one disc of the lumbar spine, but the bulging was within normal limits. He also confirmed that Holley's pelvis was not broken. Dr. Wessinger did, however, diagnose a contusion or bruising of the sacrum (the back of the buttocks). The next day, Dr. Wessinger released Holley with specific instructions regarding the trip home and advised that he see an orthopedic surgeon when he got there. 5 The day after his release from Memorial, Holley returned to Northern Virginia. Upon arrival, he proceeded directly to the Veterans' Administration Hospital at Fort Meyer, Virginia (the"VA"). The doctors at the VA referred Holley to Walter Reed Hospital ("Walter Reed"). That evening he went to Walter Reed, but the doctors told him to return the next day for X-rays. After the X-rays were taken, the doctors at Walter Reed told Holley that he had a bulge on his spine that could require immediate attention and treatment by a specialist. 6 Less than a week after his fall, on September 8, 1989, Holley saw Dr. Rida Azer ("Dr. Azer"), an orthopedic surgeon. At that time, he complained only of low back pain. Holley saw Dr. Azer or one of his associates several times over the next year. Over the course of Holley's treatment, Dr. Azer conducted clinical examinations and specialized radiological tests including X-rays, CAT scans, and magnetic resonance imaging. 7 On September 10, 1989, two days after his initial visit to Dr. Azer, Holley went to the emergency room at Jefferson Hospital in Alexandria, Virginia, complaining of severe pain in his shoulder. Both the emergency room nurse and doctor indicated on the medical records that Holley stated he was bowling when the pain began. 1 Dr. Susan Maeda ("Dr. Maeda"), a radiologist, reviewed an X-ray of Holley's shoulder and concluded there was no fracture, but there were cystic changes at the distal end of the clavicle, which she associated with degenerative arthritis. 8 On September 15, 1989, Holley again returned to Dr. Azer's office. This time he complained of pain in his lower back and shoulder. Dr. Azer subsequently concluded that Holley had a damaged disc and lumbar disc syndrome resulting from his slip and fall. Moreover, Dr. Azer concluded that Holley had a torn rotator cuff in his shoulder. 9 Approximately one month later, on October 18, 1989, Holley was admitted into Jefferson Hospital where a lumbar myelogram was performed. He also saw a neurosurgeon, Dr. Harold Goald ("Dr. Goald"), who became Holley's treating physician for his lumbar spine problems. Dr. Azer and Dr. Goald agreed that Holley had a damaged lumbar disc. 2 On January 9, 1990, Dr. Azer operated on Holley's shoulder to repair the rotator cuff damage. Holley has apparently progressed well from the surgery, but Dr. Azer gave him permanent limitations on activities such as heavy lifting and overhead use of the hands. II. 10 After a trial lasting several days, the jury found Cook negligent and awarded Holley $65,000.00 in damages. Holley moved for a new trial on the ground that the damages award was inadequate. The district court found the jury's award was neither against the weight of the evidence nor the result of prejudice and denied Holley's motion. Holley now appeals, arguing that a miscarriage of justice occurred given the wide discrepancy between the $65,000.00 in damages awarded by the jury and the $6,913,411.10 3 in damages claimed by Holley. 11 The denial of a motion for a new trial made on the grounds of inadequate damages is discretionary with the district court and is not reviewable absent an abuse of discretion. Bryant v. Muskin Co., 873 F.2d 714 , 716 (4th Cir. 1989). III. 12 In our view, the district court's denial of Holley's Motion for a New Trial was not an abuse of discretion. At trial, Holley claimed three primary areas of injury: his shoulder, his back, and his groin. The evidence conflicted as to the severity, existence, and cause of those injuries. 13 First, the severity of the groin injury was disputed. Shortly after his fall, the doctor at Live Oak suspected Holley may have had a fractured pelvis and therefore sent Holley to Memorial for further diagnosis. At Memorial, Dr. Wessinger noted that Holley complained only of pain right over his sacrum, but denied having pain in his legs, scrotum area, or arms. Dr. Wessinger reviewed the medical evidence and concluded that Holley's pelvis was not fractured, but that he had a small calcium deposit in his left groin caused by a muscle being torn years earlier, not by this fall. Dr. Wessinger did, however, diagnose a bruising of the sacrum. Given this medical evidence, the jury could have reasonably concluded that any pain Holley experienced in his groin area was not permanent and resulted only from the bruising of the sacrum. 14 Moreover, the medical testimony concerning the existence of the back injury was conflicting. At Memorial, Dr. Wessinger reviewed the results of a CAT scan and concluded that while Holley did have a minor bulging in a disc of the lumbar spine, the bulging was within normal limits. Furthermore, Dr. Maeda reviewed a post-myelogram CT scan taken on October 18, 1989, and concluded that Holley had mild bulging in the same lumbar disc. Thus, the jury could have reasonably concluded that any pain Holley experienced in his back was the normal result of a mild bulging of the lumbar disc rather than lumbar disc syndrome caused by this fall. 15 Finally, the cause of the shoulder injury was disputed. Holley testified that when he left both Live Oak and Memorial, his arm was in a sling because of the pain in his shoulder. However, Dr. Wessinger stated that Holley's only complaint was pain in the sacrum. Moreover, when Dr. Azer first saw Holley on September 8, 1989, Dr. Azer noted only complaints of pain in the lower back. Although, Holley did complain about shoulder pain on September 10, 1989, when he went to Jefferson Hospital, the notations in the medical records indicate that the pain was experienced while bowling. In any event, Dr. Maeda concluded that the shoulder pain was due to degenerative arthritis which first occurred before the slip and fall. Finally, Dr. Azer first noted complaints of pain in the shoulder on Holley's second visit on September 15, 1989 (after the alleged bowling incident). Therefore, the jury could have reasonably concluded that the pain Holley experienced in his shoulder was caused by something other than his slip and fall, such as bowling or degenerative arthritis, and therefore the surgery performed by Dr. Azer was not attributable to the slip and fall. 16 Given the conflicting testimony concerning the severity, existence, and cause of Holley's injuries, the jury could reasonably have concluded that $65,000.00 was appropriate compensation for any injuries properly attributable to the slip and fall. Finding no abuse of discretion, the decision of the district court to deny Holley's Motion for a New Trial is therefore 17 AFFIRMED. 1 Holley disputes that he was bowling. Instead, he claims he said the pain felt like a bowling ball hit his shoulder 2 Surgery for the disc had not been performed as of the trial. Dr. Goald did not testify nor was a de bene esse deposition taken or read at trial 3 Holley arrives at this figure as follows: Current medical expenses, $25,156.15; Future medical expenses, $50,000.00; Travel expenses, $575.00; Current lost earnings, $135,756.00; Future lost earnings, $1,628,017.20; and Pain and suffering, $4,938,150.80. The remaining $135,755.95 is unaccounted for
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Charles Edward Holley v. Cook Enterprises, Incorporated, T/a Burger King Restaurant
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429 F. Supp. 2d 868 (2006) Billy Stewart JEFFRIES, Petitioner v. James L. MORGAN, Warden, Respondent. Civil Action No. 05-CV-66. United States District Court, E.D. Kentucky, Frankfort. May 2, 2006. *869 *870 Timothy G. Arnold, Frankfort, KY, for Petitioner. Louis F. Mathias, Jr., Office of Attorney General, Frankfort, KY, for Respondent. OPINION AND ORDER KAREN K. CALDWELL, District Judge. On September 9, 2005, petitioner Billy Stewart Jeffries filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Consistent with local practice, this matter was referred to the United States Magistrate Judge for consideration. The Magistrate Judge filed his proposed report and recommendation on April 11, 2006. Based on a review of the state court record and the applicable case law relevant to federal habeas corpus petitions, the Magistrate Judge concluded that the petition is not entitled to federal habeas corpus relief. Accordingly, the Magistrate Judge recommends that petitioner's habeas petition be denied and that this action be dismissed and stricken from the docket. On April 25, 2006, petitioner filed objections to the Magistrate Judge's proposed report and recommendation. This Court must make a de novo determination of those portions of the Magistrate Judge's proposed report and recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(C). Having considered petitioner's objections, which the Court finds to be without merit, and having made a de novo determination, the Court hereby adopts the Magistrate Judge's proposed findings of fact and conclusions of law. Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS that (1) the Magistrate Judge's report and recommendation [DE # 14] is ADOPTED as and for the opinion of the Court; (2) petitioner's objections to the Magistrate Judge's report and recommendation [DE # 15] are OVERULED; *871 (3) petitioner's petition for a writ of habeas corpus [DE # 1] is DENIED; and (4) judgment will be entered contemporaneously with this opinion and order in favor of respondent. REPORT & RECOMMENDATION WEHRMAN, United States Magistrate Judge. On September 9, 2005, petitioner Billy Stewart Jeffries, through counsel, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent filed a response and a motion to dismiss the petition on November 22, 2005. In lieu of a formal response to the motion to dismiss, petitioner moved to compel expansion of the state court record. The court granted petitioner's motion in part, directing the respondent to provide a detailed list of what state court transcripts and/or tapes might be available for review by this court. The respondent filed a detailed list of items available in the state court record on February 17, 2006 without electing to file any additional portions of that record in this court. This matter has been referred to the undersigned magistrate judge for initial consideration and a report and recommendation. 28 U.S.C. § 636(b). I. Background The factual and procedural history of this case was set forth by the state courts, first on direct appeal, and subsequently during post-conviction proceedings. On direct appeal, the Kentucky Supreme Court affirmed the conviction in an unpublished opinion rendered on October 15, 1998: Appellant, Billy Stewart Jeffries, was convicted of murder and attempted rape. Jeffries was sentenced to twenty-five (25) years on the murder charge and ten (10) years on the attempted rape charge, with the sentences to run consecutively for thirty-five (35) years. He appeals his convictions to this Court as a matter of right. We affirm. On February 20, 1995, Mary McKee left her house for a walk and never returned. The next day, her housekeeper became alarmed when Mrs. McKee failed to answer her door. The housekeeper contacted a neighbor. A search was conducted and Mrs. McKee's body was discovered in a yard between two houses. Her pantyhose and panties had been removed, her longish skirt was hiked up to her mid-thigh, and her blouse was ripped partially open. Blood was splattered on a nearby wall and teeth fragments were scattered near the body. There were smeared fingerprints on Mrs. McKee's right thigh and buttocks. According to the medical examiner, Mrs. McKee was beaten to death, apparently with the bloody rocks found near her body. Further, the medical examiner testified that Mrs. McKee did not die immediately from the beating but probably expired some twenty minutes thereafter. On February 27, 1995, Jeffries was questioned by the police about Mrs. McKee's murder and turned over the clothes he was wearing on the day of the murder. Tests revealed the presence of blood on his jacket, sole of his shoe, and inside the tongue of his right shoe. There was no identification as to whom the blood on his jacket and the sole of his shoe belonged or whether it was even human blood. However, the blood found on the inside of the tongue of Jeffries' shoe was positively identified as Mrs. McKee's. Further, a palm print on Mrs. McKee's glasses, which were found next to her body, was positively identified *872 as belonging to Jeffries. Finally, witnesses testified that they saw Jeffries in the general area where Mrs. McKee's body was found. Upon questioning, Jeffries denied all knowledge of the crime. However, when he took the stand, he testified that he had lied to the police when they questioned him. Contrary to his earlier statements, he testified that on the evening of the murder he had been cutting through the yard in question and had tripped over a body. He testified that he could not even identify the gender of the body. He ran away because he was scared. He never checked on the wellbeing of the person he tripped over. He did not tell his mother or his father about tripping over the body, apparently because his parents were mad at him and telling them would require a confession that he had been drinking that day. DE # 2, Exh. 2. The Kentucky Supreme Court rejected the petitioner's arguments that there was insufficient evidence to prove that Jeffries murdered and raped the victim. The state court also rejected Jeffries' arguments that the trial court erred when it admitted evidence of unidentified blood on defendant's jacket and sole of a shoe, that the Commonwealth improperly was allowed to argue during closing that the defendant's clothes from the day of the murder were washed free of blood, and that it was error not to sever trial on the charges of attempted rape and murder. Jeffries filed a Motion for a New Trial under Ky. R.Cr. 10.02 on June 9, 1998. [1] Jeffries argued that he was entitled to a new trial due both to the prosecutor's failure to reveal exculpatory evidence, and newly discovered evidence. Both the alleged exculpatory evidence and the newly discovered evidence concerned allegations that an uncharged person, John Dillon, was the true perpetrator of the crimes for which Jeffries was convicted. The Shelby Circuit Court denied Jeffries' motion for a new trial on August 29, 2001, and the Kentucky Court of Appeals affirmed that denial in an unpublished opinion dated October 17, 2003: We agree with the trial court that the evidence of John Dillon's involvement would not exonerate Jeffries, but merely implicate a possible accomplice. As to the theory that exculpatory evidence was withheld, we opine that the information withheld was not in itself exculpatory but possibly could have led to some admissible evidence. Therefore, we affirm. On February 20, 1995, Mary McKee was beaten to death with a rock. When Jeffries was questioned by the police, he denied knowing anything about the crime. He was asked, and did provide the police with the clothes he was wearing that night. The clothes had been washed but still had a residue of blood although forensics could not identify whose blood. Blood was also found on the tongue of Jeffries's shoe which was identified as Mrs. McKee's. Additionally, Jeffries's palm print was found on Mrs. McKee's glasses which were found next to her body. Two witnesses placed Jeffries near the scene at the time of death. At trial, Jeffries took the stand and claimed he tripped over the body and then ran away. He denied any involvement in the killing. The jury convicted Jeffries of murder and attempted rape. On June 9, 1997, Jeffries was sentenced to a total of thirty-five years' imprisonment. The Supreme Court affirmed the conviction in an unpublished *873 opinion rendered October 15, 1998. . . . . . In deciding if the evidence was material, the trial court asked whether the newly discovered evidence would with reasonable certainty change the verdict or outcome at trial. The court pointed to the evidence as summarized by the Commonwealth in its "Final Response" to the motion: The Defendant lived in the vicinity of the murder, attended a party in that neighborhood on the date of that crime, was absent and unaccounted for at the party during the time frame of the murder and was seen and positively identified below and above the very spot where Mary Evelyn McKee was attacked and slain during the time frame for her murder. His palm print was found on her glasses, her blood found on the tongue of his hightop shoe, human blood found on the other shoe, blood found on his jacket, his jacket established to have been torn and other signs of a struggle found in the driveway areas above the murder scene (parts of the victim's watch and earrings). The Defendant was caught lying to the police about his whereabouts and movements during the afternoon in question. The trial court concluded that "None of the Defendant's new trial claims affect any of this evidence. The Defendant's conviction was affirmed on appeal. The evidence against the Defendant was strong and the new trial claims are unpersuasive, as they would not with reasonable certainty or with reasonable probability have affected the verdict." The trial court denied the motion but did order a special grand jury to hear all the evidence presented against John Dillon. The grand jury did not return an indictment against John Dillon. Jeffries appealed the trial court's denial of his RCr 10.02 motion to this Court. On appeal to this Court, Jeffries's first allegation of error is that the trial court erred in not granting a new trial because the newly discovered evidence casts serious doubt upon Jeffries's conviction. The decision to grant a new trial rests within the sound discretion of the trial court. Copley v. Commonwealth, Ky., 854 S.W.2d 748 (1993). In Collins v. Commonwealth, 951 S.W.2d 569 , 576 (1997), our Supreme Court quoted its earlier case of Coots v. Commonwealth, 418 S.W.2d 752 , 754 (1967), for the proposition that "[n]ewly discovered evidence `must be of such decisive value or force that it would with reasonable certainty, change the verdict or that it would probably change the result if a new trial should be granted.'" We believe that the trial court was correct in its analysis of the newly discovered evidence. On September 16, 2004, the Kentucky Supreme Court denied discretionary review of the defendant's motion for a new trial. DE # 2, Exh. 16. The United States Supreme Court denied petitioner's petition for writ of certiorari on February 22, 2005. Petitioner then filed this federal petition for writ of habeas corpus. In his current petition, petitioner argues that he is entitled to relief under 28 U.S.C. § 2254 for two reasons. Jeffries argues that the prosecutor violated the rule announced in Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963), thereby compromising petitioner's constitutional rights. Petitioner additionally argues that the evidence was insufficient under Jackson v. Virginia, 443 U.S. 307 , 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979). As will be explained below, neither of the claims *874 presented by petitioner entitle him to the relief he seeks. Because the present record is adequate for this court to fully review petitioner's claims, petitioner's pending motions to expand the record and for further scheduling will be denied as moot. II. Analysis A. Standard of Review The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to all habeas corpus cases and requires "heightened respect" for legal and factual determinations made by state courts. See Herbert v. Billy, 160 F.3d 1131 , 1134 (6th Cir.1998). Relief may be granted on a federal constitutional claim decided by a state court only if the state court decision is "contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362 , 405, 120 S. Ct. 1495 , 146 L. Ed. 2d 389 (2000). All findings of fact by the state court are presumed to be correct and only "clear and convincing evidence" may alter those determinations. Mitchell v. Mason, 325 F.3d 732 , 737-738 (6th Cir.2003), cert. denied 543 U.S. 1080 , 125 S. Ct. 861 , 160 L. Ed. 2d 824 (2005); 28 U.S.C. § 2254(e)(1). Legal conclusions made by state courts are also given substantial deference under the AEDPA. Section 2254(d) provides: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. As the Supreme Court recently reiterated: "A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result." Brown v. Payton, 544 U.S. 133 , 125 S. Ct. 1432 , 1438, 161 L. Ed. 2d 334 (2005); see also Williams v. Taylor, 529 U.S. at 405-406, 120 S. Ct. 1495 . B. Insufficient Evidence Claim Petitioner asserts that the Kentucky Supreme Court's decision affirming the conviction was contrary to or involved an unreasonable application of Jackson v. Virginia, 443 U.S. 307 , 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979) and related Supreme Court precedents. However, in his direct appeal to that court petitioner neglected to cite to Jackson v. Virginia or other federal law. 1. Procedural Default Based on petitioner's failure to cite to federal law in his direct appeal to the state court, the respondent now argues that petitioner's challenge to the sufficiency of the evidence has been procedurally defaulted. A petitioner seeking federal relief under 28 U.S.C. § 2254 must demonstrate that he has exhausted all available state court remedies by first presenting his claim(s) to the state courts. If a petitioner has failed to exhaust his state court remedies but no longer has the right under state law to seek further remedy, then he *875 is deemed to have waived or defaulted his claim in state court. A procedural default in state court will bar federal relief on the same claim, absent a showing of cause and prejudice. To determine whether petitioner's claim is procedurally defaulted, this court must look to the pleadings filed by petitioner in state court. A petitioner must present "the same claim under the same theory" to the state courts as he subsequently presents to the federal court. Pillette v. Foltz, 824 F.2d 494 , 497 (6th Cir.1987). To determine whether a particular claim has been "fairly presented" to the state court, a federal court should examine the petitioner's state court brief for: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law. Clinkscale v. Carter, 375 F.3d 430 , 437 (6th Cir.2004), cert. denied 543 U.S. 1177 , 125 S. Ct. 1316 , 161 L. Ed. 2d 162 (2005) ( citing Newton v. Million, 349 F.3d 873 , 877 (6th Cir.2003)). In his brief in support of his direct appeal, petitioner/defendant argued that insufficient evidence supported his conviction under the standards announced in Commonwealth v. Jones, 880 S.W.2d 544 (Ky.1994). Although petitioner cited no federal case law, the state court in Commonwealth v. Jones heavily relied on Jackson v. Virginia, 443 U.S. 307 , 99 S. Ct. 2781 , 61 L. Ed. 2d 560 (1979) for its analysis. Therefore, although petitioner's presentation of his evidentiary claim to the state court did not clearly reference federal constitutional law, he relied on a state case which itself employed federal constitutional analysis. In addition, both the legal and the factual basis for the claim presented to the state court were articulated in such a plain fashionas insufficient evidenceas to not substantially differ from the federal claim presented here. Looking at the record as a whole, I conclude that the petitioner adequately challenged the sufficiency of the evidence in the state courts. Therefore, petitioner's evidentiary claim is not barred by the doctrine of procedural default. 2. Sufficiency Claim Without Merit Although the claim has not been procedurally defaulted, petitioner's challenge to the sufficiency of the evidence does not warrant relief under § 2254 because the state court's decision is neither contrary to nor an unreasonable application of clearly established federal law, nor based on an unreasonable determination of facts. Petitioner argues that in light of circumstantial evidence pointing to another perpetrator, that evidence of petitioner's presence at the scene was insufficient to support his convictions for attempted rape and murder. Petitioner notes that evidence admitted at trial included a hair left in the victim's panties which did not belong to the victim or petitioner, as well as a variety of fibers under and around the body not tied to petitioner. Petitioner argues that the circumstantial evidence linking him to the crimes was more consistent with him stumbling upon the body than with him committing the crimes. Petitioner asserts that no reasonable jury could have concluded, beyond a reasonable doubt, that it was Billy Jeffries and not an unknown other person near the body who attempted to rape and ultimately killed the victim. Specifically, petitioner notes evidence of a clean palm print left by petitioner on the victim's glasses as contrasted *876 with an unidentified muddy palm print found on the victim's left buttock. There was not a significant amount of blood on petitioner's clothes, even though the crime scene was extremely bloody. Finally, petitioner notes that he would have had to commit the offenses during an extremely short time frame based on witness accounts. Petitioner argues that the jury's conclusion that he committed the crimes required belief in the "least probable theory." The Kentucky Supreme Court rejected the same arguments on direct appeal, holding that it was not clearly unreasonable for a jury to find Jeffries guilty of either count. DE # 2, Exh. 2 at 5. Jeffries' arguments on appeal that there was physical evidence pointing to another perpetrator of the crimes and that the crimes could not have been committed during the time line presented by the Commonwealth go to the weight and credibility of the evidence and not its sufficiency. Thus, these arguments have no bearing on the Benham standard. The Kentucky Supreme Court additionally found there was no abuse of discretion under state evidentiary rules. Id. at 7, 9. Petitioner now argues that the state court's analysis was contrary to or involved an unreasonable application of Jackson v. Virginia because the Kentucky Supreme Court "expressly refused" to consider all the circumstances and evidence and not merely that supporting an inference of guilt. According to petitioner, the state court's analysis is tantamount to a holding that evidence indicating that a party is innocent may be disregarded so long as the prosecutor introduces some evidence consistent with a finding of guilt. Under Jackson v. Virginia , however, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id., 99 S.Ct. at 2789. The Kentucky court found the evidence on the attempted rape charge sufficient to support conviction: The overt acts in this case are those that led to the discovery of Mrs. McKee on her back with her undergarments removed, her skirt pushed up, her blouse torn partially open, and with smeared fingerprints on her thigh and buttocks. The circumstances of the case are that the brutal attack on Mrs. McKee occurred in a yard away from the street, out of sight. I concur with the state court that it was not clearly unreasonable in light of the above evidence for the jury to conclude that an attempted rape had occurred. Petitioner's primary argument is not so much that it was unreasonable for the jury to concluded that rape was attempted, but that it was unreasonable for the jury to conclude that petitioner was the perpetrator rather than an uncharged person. Again, the Kentucky Supreme Court held otherwise, noting the following evidence: The evidence against Jeffries consisted of: blood on the tongue of one of his shoes that was positively identified as being Mrs. McKee's blood; a palm print on Mrs. McKee's glasses which was positively identified as belonging to Jeffries; witness testimony placing him near the place where Mrs. McKee's body was found within the time frame in which the murder occurred; and evidence that there was traces of unidentified blood on the jacket and shoes he wore on the day Mrs. McKee was murdered. While circumstantial, based on this evidence, it was not clearly unreasonable for the jury to find Jeffries guilty of murder. *877 The Kentucky Supreme Court also noted evidence that Jeffries was covered with mud on the day of the murder, but that the clothes he later surrendered to police were free of mud, blood, and dirt and appeared to have been laundered. Finally, the evidence showed that Jeffries initially denied all knowledge of the crime, but later testified at trial that he had lied to police when they questioned him. Contrary to earlier statements, he testified at trial that he had drunkenly tripped over the body, and could not even identify the gender of the body at the time. Yet his palm print was found on the victim's glasses, which were folded and resting next to the body. Jeffries testified that he ran away because he was scared and did not tell his parents about the body because telling them would require a confession that he had been drinking that day. The fact that a hair matching neither Jeffries nor the victim was found in the victim's panties may give rise to an inference that another person was near the body. However, I concur with the state court's analysis that it does not render the petitioner's convictions invalid in light of the substantial evidence against him. I do not read the state court's opinion as disregarding or misinterpreting Jackson v. Virginia . Rather, the state court appropriately considered the record as a whole including the substantial evidence in support of petitioner's convictions. In contrast to this case, the Sixth Circuit recently affirmed the grant of a writ of habeas corpus under Jackson in Brown v. Palmer, 441 F.3d 347 , 2006 WL 618791 (6th Cir.2006). There, the defendant had been convicted of aiding and abetting the crimes of armed robbery and carjacking. The defense was that the defendant/petitioner had met and offered a ride to the perpetrator of the crimes just minutes before the crimes occurred. When the petitioner and his passenger (the perpetrator) arrived at a gas station, the passenger pulled out a gun and committed the crimes. The Sixth Circuit held that the writ was appropriately granted because "viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (citing Jackson at 319, 99 S. Ct. 2781 ). In Brown v. Palmer , the Sixth Circuit first reviewed the element of "intent" required under state law to prove the "aiding and abetting" offenses for which the defendant had been convicted. Under state law, "mere presence, or even knowledge, that a crime is about to be committed is insufficient to prove guilt under an aiding-and-abetting theory." Id.citing People v. Wilson, 196 Mich.App. 604, 493 N.W.2d 471 , 476 (1992). Noting that the state had presented no evidence of intent beyond evidence that the defendant was present at the scene of the crime and was acquainted with the perpetrator, the Sixth Circuit held that the evidence was nothing more than "reasonable speculation" even when viewed in the light most favorable to the state. The state "offered no evidence that Brown had ever met the gunman prior to arriving at the gas station, that Brown possessed a weapon or handed one to the gunman, or that Brown knew that the gunman was going to commit a robbery and carjacking." We further note that the state offered no evidence to counter Brown's testimony that he did not know the perpetrator before offering him a ride on the night in question and that he had no prior relationship with the victims. Moreover, this court in Hopson upheld a grant of habeas corpus on insufficiency-of-the-evidence grounds where the evidence showed even greater contact by the defendant with both the shooter and the *878 victim than was established here. Hopson, 1987 WL 37432 , at *2. Although the state relies on evidence demonstrating that Brown "stared at the victims," never pumped gas at the gas station, attempted to flee following the gunshots, and failed to contact the police to retrieve his car, none of this evidence suggests that Brown assisted or encouraged the gunman in the commission of the armed robbery and carjacking or that Brown intended for the gunman to commit the offensesboth necessary elements for aiding and abetting under Michigan law. Based on all the evidence, the district court determined that no rational trier of fact could have found the defendant guilty under Jackson v. Virginia , a conclusion shared by the appellate court. Unlike Brown v. Palmer , in this case petitioner is not accused of an "aiding and abetting" offense but of actually committing the crimes of attempted rape and murder. The evidence was sufficient to prove all the elements of both offenses under state law. To prove attempted rape, the Commonwealth had to prove that the perpetrator "intentionally [did] or [omitted] to do anything which, under the circumstances as he believe[d] them to be, [was] a substantial step in a course of conduct planned to culminate in his commission of the crime." The crime attempted was the crime of engaging "in sexual intercourse with another person by forcible compulsion." KRS § 506.010(1)(b), KRS § 510.040(1)(a) (1995). To prove murder, the Commonwealth had to show that "with the intent to cause the death of another person, [Jeffries] causes the death of such person. . . ." KRS § 507.020(1)(a)(1995). The offense of murder required the jury to find that Jeffries acted "intentionally," meaning that "his conscious objective is to cause that result. . . ." KRS § 501.020(1)(1995). Petitioner does not seriously challenge the proof on any particular element except for the element identifying him as the perpetrator. Petitioner argues that evidence that a third person was in close proximity to the body (the hair and fibers) so strongly refutes the evidence that petitioner was the perpetrator as to render the verdict untrustworthy. Similarly, petitioner argues strenuously that the evidence as a whole "is more consistent with Billy Jeffries stumbling upon the body, than it is with Billy Jeffries personally killing Ms. McKee." Taken as a whole, petitioner argues that the evidence "was not sufficient to foreclose all reasonable doubts about the defendant's guilt." In making his arguments, petitioner neglects the portion of Jackson which requires that the reviewing court view the evidence in the light most favorable to the prosecution. Although petitioner argues that some evidence points to another perpetrator, the same evidence viewed in favor of the prosecution could as easily have been interpreted by the jury as pointing to petitioner. For example, the lack of blood on petitioner's clothing was explained by the fact that the clothing had been laundered. The prosecution suggested that the unidentified fibers might well have come from petitioner's body. Other evidence suggested that petitioner was covered in mud at the time the crimes occurred. It would not have been unreasonable for the jury to assume that it was the petitioner who left the unidentified muddy print on the victim's body, in addition to the clean print left by petitioner on the victim's glasses. When viewed in favor of the prosecution, the circumstantial evidence identifying petitioner as the perpetrator is sufficient to support the convictions, notwithstanding the presence of a *879 single hair which did not belong to petitioner. Because the state court's decisions are not contrary to and do not involve an unreasonable determination of the facts or an unreasonable application of clearly established federal law, petitioner is not entitled to relief under 28 U.S.C. § 2254 in reference to his second claim. C. 28 U.S.C. 2254 review Brady Violation In his remaining claim, petitioner asserts that the state court interpreted Brady v. Maryland in a "manner that is flatly contradicted by the text of the Bagley decision." DE # 2 at 21. Petitioner claims that the state court's decision "undeniably resulted in a miscarriage of justice." Id. Although this claim presents closer issues than petitioner's Jackson claim, I again conclude that petitioner is entitled to no relief because the state court's denial of the claim does not involve an unreasonable application of clearly established federal law. The specific violation of which petitioner complains is the failure of the prosecution to provide petitioner pre-trial with the name of John Dillon, an uncharged individual alleged by petitioner to have been involved in the crimes for which petitioner was convicted. Both the trial court and the Kentucky Court of Appeals held that the defense should have been provided with Dillon's name. However, the state courts held under Bagley that petitioner was not entitled to relief, notwithstanding the failure to disclose Dillon's name, because there was no reasonable probability that had the evidence been disclosed to the defense the outcome of the proceeding would have been different. Petitioner presented his Brady claim to the state courts in the context of his motion for a new trial. For the most part, this is not a case in which petitioner presents new evidence to this court not previously presented to the state court. [2] In both the state court and this court, petitioner relies on pretrial evidence not provided to him though known to police (Dillon's name and statements made by Dillon during an interview/investigation), as well as post-trial evidence concerning Dillon's alleged involvement. The post-trial evidence included information received by the prosecutor after Jeffries was sentenced, advising that a detective had received information about the murder. Subsequent investigation revealed: 1) four or five witnesses stating that they had heard Dillon directly implicating himself in the crimes, or else that they had heard hearsay implicating Dillon; and 2) evidence discrediting Dillon's alibi. [3] Following the presentation of this evidence at an evidentiary hearing on petitioner's motion for a new trial, the trial court called for a special grand jury to hear evidence of Dillon's alleged involvement. *880 Despite calling for a grand jury, the trial court denied Jeffries' motion for a new trial. The grand jury was convened in May of 2000, but dissolved without taking action. In light of the deference due to the state courts' determination of this issue, the opinion of the Kentucky Court of Appeals, which affirmed the denial of Jeffries' motion for new trial, is extensively quoted below: Jeffries filed his RCr 10.02 motion in the trial court contending newly discovered evidence, that subsequent to Jeffries's conviction, the Shelbyville police were investigating the possibility of additional suspects in Mrs. McKee's homicide. The motion contended the Commonwealth's theory at trial was that Jeffries acted alone. However, the Commonwealth had been investigating other potential suspects, and in discovery, had listed some sixty-five names of suspects or tips (although not the name, John Dillon). The motion also contended that the post-conviction investigation revealed evidence that a John Dillon had committed the crime, that a Linda Raisor provided the police with the name John Dillon, whom she suggested publicly admitted killing someone. A former probation and parole officer placed John Dillon within 7/10ths of a mile from the crime scene shortly after the murder. Chris Beach, an inmate at the Shelby County Jail, claims to have heard Dillon implicate himself in the murder. Supposedly, a girl named Tammy was also in the room when Dillon made the statement. A Pochahantas Biggers was supposed to have indicated that John Dillon had admitted to killing Mary McKee and she told Linda Raisor, who then told the police. A Tiffany Solace told a deputy sheriff that Dillon had murdered Mrs. McKee. John Dillon's former girlfriend supposedly heard him make statements and even admitted committing the murder to her. A Nicki Chesser was also supposed to have information about John Dillon's statement. Based on the allegations in the defense motion, the trial court granted Jeffries a hearing on April 17, 1999. The defense did not present witnesses at the hearing but did present attachments to its motion. The first attachment was a letter from the special prosecutor to defense counsel. The March 2, 1998, four-page letter summarized the investigation into John Dillon's alleged involvement in the murder. Also attached were quoted portions of the Commonwealth's opening statement and of the closing argument. The supplemental report of Detective Mike Pratt of his investigation was attached. Detective Rick Babiarz's report was attached as well as the defense's request for exculpatory evidence. Affidavits from Nikki Chesser, Chris Beach, and Billy Jeffries were attached. At the hearing, the defense became aware that the police had actually brought John Dillon in for questioning prior to Jeffries's conviction and had taped the interview. That tape was either lost or destroyed by the time of the motion and John Dillon had been eliminated as a suspect by the police. The trial court allowed the defense to also argue that suppressing John Dillon's name as a suspect in discovery amounted to a denial of exculpatory evidence which would also entitle Jeffries to a new trial. The trial court conducted an extensive hearing, allowed the parties to file briefs, and made these findings on the newly discovered evidence: The Defendant claims that he is due a new trial because the Commonwealth was arguing to a jury at trial that the Defendant was the killer while the *881 Commonwealth had information that someone else had told Pochahantas Biggers that he had killed the victim, Mary Evelyn McKee. The Commonwealth has convincingly shown that it did not learn of any statement attributed to Ms. Biggers until months after the trial. Further, the Commonwealth has demonstrated that Ms. Biggers denies making such a statement to Linda Raisor, the woman who claims that Ms. Biggers told her about another person claiming responsibility for the murder. Ms. Raisor is a cousin of the Defendant's father, who has worked for Ms. Raisor. Ms. Raisor has known the Defendant since he was four years old. Given Ms. Biggers denial of ever telling Ms. Raisor that she overheard somebody confess to the crime and the closeness of Ms. Raisor to the Defendant's family, there is ample reason to doubt that the alleged statement of Ms. Biggers was made. This information does not warrant a new trial, as it would not with reasonable certainty change the verdict in this matter. The Defendant is not entitled to a new trial based upon the affidavit of Nicky Chesser. Ms. Chesser's affidavit is no more than a statement that John Dillon told her that he killed the victim. Mr. Dillon denies making this statement and no eyewitness or forensic evidence links him to the crime. Mr. Dillon's denial and alibi were not impeached by any credible source. Further, the affidavit of Ms. Chesser dated June 3, 1998, reflects that Mr. Dillon allegedly told her about his responsibility for the murder during the summer of 1996. This would therefore have been known to Ms. Chesser months before the Defendant's March 1997 trial. The failure of Ms. Chesser to come forward with this information before trial further casts doubt upon its reliability. Under all of the circumstances, the statement of Nicky Chesser would not with reasonable certainty have changed the verdict in this case. The Defendant is not entitled to a new trial upon the affidavit of Chris Beach. Mr. Beach's own statements are suspect due to his contradiction of himself. He originally claimed that he saw John Dillon with a girl and overheard him describing a screaming old lady with whom John Dillon was going to take his turn when someone else got done, and that she kept screaming and he had to kill her. Mr. Beach's subsequent affidavit reads that he does not remember if Mr. Dillon said "I" did not mean to kill "her" or "we" did not mean to kill "her" and after that, Mr. Dillon was scared and crying. The inconsistency of the two Beach statements undermines his reliability and does not demonstrate that the claims of Mr. Beach would with reasonable certainty change the verdict. The statement attributed to Tiffany Solace that both Mr. Dillon and the Defendant were involved in killing Ms. McKee would not with reasonable certainty change the verdict. The statement was merely a declaration that both men were involved in the crime, with no basis or underlying knowledge to support the statement provided. Such an unsupported comment does not undermine confidence in the verdict. The Defendant contends that perhaps other people (of whom the Defendant had knowledge but did not produce any information from them pursuant to the new trial motion and proceedings) might have some knowledge regarding *882 this case. Speculation about what somebody might know does not give rise to a reasonable certainty that the verdict would have been different. [August 29, 2001 Order of the Shelby Circuit Court at 2-3]. The defense's second theory contended the Commonwealth's failure to disclose the name and interview of "John Dillon" was a denial of exculpatory evidence and grounds for a new trial. The trial court found that: The statement of John Dillon, as described in the affidavit of Detective Rick Babiarz, shows that Mr. Dillon said that he was not in Ms. McKee's neighborhood at the time of the murder and that he did not know where the Defendant was at the time of the murder. This statement does not implicate Mr. Dillon in the murder and it does not implicate or exculpate the Defendant. This information was not favorable to the Defendant and he was not prejudiced by not having access to the statement. The statement was not material, as it does not give rise to a reasonable probability that its disclosure would have changed the outcome of the trial. [ Id. at 4]. . . . . . . The trial court had a number of allegations and theories in the motion which did not hold up at the April 17, 1999, hearing. Although John Dillon was a suspect, Pochahantas Biggers denied that she ever told Linda Raisor that someone else claimed responsibility for the murder. John Dillon was placed within 7/10ths of a mile of the crime scene with enough time to get to the scene, but no other evidence of him actually involved in the crime. The inmate, Chris Beach, claims to have heard Dillon implicate himself in the murder. However, his statements do not clear Jeffries, but implicate Dillon also. Tiffany Solace supposedly heard the statement by Dillon, but again, if said, this would not clear Jeffries, but would implicate Dillon as an accomplice. Nicky Chesser supposedly heard Dillon say before Jeffries's trial that he killed Mrs. Mary Evelyn McKee. Like the trial court, we question why this witness did not come forward before the trial. Nevertheless, this statement alone, with all the other evidence pointing toward Jeffries's guilt, would not change the outcome of the trial. Jeffries's second theory contends that the lower court's denial of a new trial based on a denial of exculpatory evidence violated his due process right to a fair trial. Jeffries is alleging that his discovery request for a list of suspects entitled the defense to John Dillon's name and the contents of the police interview. With this evidence, the defense contends it could have discovered the exculpatory evidence before trial. (Although the Commonwealth conducted a post-trial investigation, it was not until after the trial that the Commonwealth learned of the exculpatory evidence.) We agree, as did the trial court, that the defense was entitled to John Dillon's name before trial as a suspect, which could have led to exculpatory evidence. However, the fact that further investigation of John Dillon could have led to exculpatory evidence does not necessarily entitle Jeffries to a new trial. We can all agree that evidence which helps establish that another person ( i.e. John Dillon) may have been responsible for the killing is exculpatory. United States v. Agurs, 427 U.S. 97 , 96 S. Ct. 2392 , 49 L. Ed. 2d 342 (1976). In the case sub judice, there was a discovery request for a list of suspects, and John Dillon's name was not given to the defense *883 before trial. In Brady v. Maryland, 373 U.S. 83 , 87, 83 S. Ct. 1194 , 1197, 10 L. Ed. 2d 215 (1963), the United States Supreme Court stated "Society wins not only when the guilty are convicted but when criminal trials are fair . ." The Court was reviewing a case wherein the prosecution suppressed evidence favorable to an accused. In deciding whether or not due process required a new trial, the Court determined the test was whether the evidence was material, irrespective of the good faith or bad faith of the prosecutor. Brady, 373 U.S. at 87, 83 S. Ct. 1194 . When is the evidence material? Kyles v. Whitley, 514 U.S. 419 , 115 S. Ct. 1555 , 131 L. Ed. 2d 490 (1995), reviewed a case similar to the present case which also involved a murder (in the Old French Quarter in New Orleans) and another suspect that did not appear at trial for the prosecution. The New Orleans police knew about this suspect prior to trial and even used his assistance in recovering evidence against Kyles. Kyles gave a number of inconsistent statements to the police, and if he did not do the crime himself, appeared to have been an accomplice. The exculpatory and impeaching statements evidence was suppressed. At trial,1 Kyles's defense was that the eyewitnesses were mistaken in their observations and that he had been framed by "Beanie." Unbeknownst to Kyles, Beanie was the police informant that gave conflicting statements and other evidence pointing to Beanie as the murderer. The prosecution did bring Beanie into the courtroom so the eyewitnesses could chose between Beanie and Kyles, but continued to suppress the exculpating evidence. Kyles was convicted of murder and sentenced to death. On review, the Supreme Court referred to precedent, including Brady, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 and United States v. Bagley, 473 U.S. 667 , 105 S. Ct. 3375 , 87 L. Ed. 2d 481 (1985), to reaffirm that, "favorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Kyles, 514 U.S. at 433, 115 S. Ct. 1555 (citation omitted). FN1. The first trial resulted in a mistrial. The Kyles Court discussed the materiality of the exculpatory evidence at great lengths in its discussion of the "[flour aspects of materiality under Bagley . . ." Kyles, 514 U.S. at 434, 115 S. Ct. 1555 . We agree with Jeffries that the Court did say "[a] `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial'". Kyles, 514 U.S. at 434, 115 S. Ct. 1555 (citation omitted). However, the Court was not changing the Bagley test of materiality as Jeffries contends. See also Wood v. Bartholomew, 516 U.S. 1 , 116 S. Ct. 7 , 133 L. Ed. 2d 1 (1995). Jeffries's argument concerning the application of the materiality test is a red herring. If the exculpatory evidence was available to the prosecution before the trial, we would have no reluctance in reversing and remanding for a new trial under Kyles, Bagley, and Brady, and Funk v. Commonwealth, Ky., 842 S.W.2d 476 (1992). What we have in the current situation is the suppression of the name and interview of a suspect before trial. Neither the name nor the results of the interview are in themselves exculpatory. This case is similar to Wood v. Bartholomew , wherein the Supreme Court quoted (with approval) *884 the Federal District Court's analysis of the suppressed evidence as being not exculpatory evidence but " [t]he information withheld only possibly could have led to some admissible evidence. " Wood, 516 U.S. at 5, 116 S. Ct. 7 (emphasis original). Wood involved a couple of witnesses (in a murder case) that were given polygraph examinations (the results of which were not admissible at trial in the State of Washington). The witnesses did not do very well. In fact, one (Rodney) failed so badly that he should have become a suspect as an accomplice either before or after the fact. The police did not follow up on this lead and did not disclose the fact that the polygraph was even given. Not only was the failure to disclose the results of the polygraph not itself considered exculpatory evidence, but the Court looked at the evidence against the defendant and concluded that "In short, it is not `reasonably likely' that disclosure of the polygraph resultsinadmissible under state lawwould have resulted in a different outcome at trial. Even without Rodney's testimony, the case against respondent was overwhelming." Wood, 516 U.S. at 8, 116 S. Ct. 7 . In Jeffries's case, the trial court made findings that none of the new trial claims affected the evidence against Jeffries, and after summarizing the evidence concluded: "[t]he evidence against the Defendant was strong and the new trial claims are unpersuasive, as they would not with reasonable certainty or without reasonable probability have affected the verdict." We agree. DE # 2, Exh. 15 at 2-13. Petitioner now argues that the state courts erred by considering only the failure to disclose Dillon's name in and of itself, without considering the "avenues of investigation" which the failure to disclose Dillon's name and/or statements may have cut short or eliminated. Petitioner argues that the state courts misinterpreted Kyles by failing to recognize that Bagley "is not a sufficiency of the evidence test" but instead requires relief upon a showing "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 435, 115 S. Ct. 1555 . Petitioner asserts that the state courts mistakenly interpreted Wood as modifying the Kyles/Bagley standard. The Respondent argues that there was no Brady violation. In Brady v. Maryland , the United States Supreme Court held that the due process clause requires a prosecutor to disclose to defense counsel evidence which is favorable to the defense. In subsequent cases, the Supreme Court provided guidance on what evidence falls under Brady. First, the evidence must be material either to guilt or punishment. Second, failure to disclose it constitutes reversible error only when "there is a `reasonable probability' that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667 , 682, 105 S. Ct. 3375 , 87 L. Ed. 2d 481 (1985); Pennsylvania v. Ritchie, 480 U.S. 39 , 57, 107 S. Ct. 989 , 94 L. Ed. 2d 40 (1987); Wood v. Bartholomew, 516 U.S. 1 , 5-6, 116 S. Ct. 7 , 133 L. Ed. 2d 1 (1995). "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome does not establish materiality in the constitutional sense." United States v. Agurs, 427 U.S. 97 , 112, fn. 20, 96 S. Ct. 2392 , 49 L. Ed. 2d 342 (1976). In Strickler v. Greene, 527 U.S. 263 , 119 S. Ct. 1936 , 144 *885 L.Ed.2d 286 (1999), the Court summarized its post- Brady rulings: We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused . . . and that the duty encompasses impeachment evidence as well as exculpatory evidence. . . . Moreover, the rule encompasses evidence "known only to police investigators and not to the prosecutor." . . . There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Id. at 280-282, 296, 119 S. Ct. 1936 . Respondent first asserts that the prosecutor "in fact turned over the information that John Dillon's name came up, before trial." By contrast, the petitioner alleges that the Commonwealth responded to petitioner's pretrial request for information by turning over dozens of names, but that the prosecution did not turn over Mike Miller's report that he saw John Dillon with an unidentified white male. . . . less than a mile from the scene of the crime, sometime between 5:10 and 5:20 p.m. on the day of the offense. It also did not turn over a subsequent interview with Mr. Dillon, wherein he denied involvement in the offense and claimed to be visiting a girlfriend at the time. The investigating officer would later testify that he made no effort to verify Mr. Dillon's alibi, and that he eliminated Mr. Dillon based on Dillon's grandmother's statement that she was keeping Dillon "on a short leash." By the time this "oversight" was discovered, the tape of Dillon's interview was either lost or destroyed. The Respondent's assertion that the defense was provided with Dillon's name is directly refuted by the facts as found by both the trial court and the Kentucky Court of Appeals. Both courts concluded that Dillon's name had been suppressed. The Court of Appeals found: "In the case sub judice, there was a discovery requests for a list of suspects, and John Dillon's name was not given to the defense before trial." Because the facts found by the state courts are entitled to deference and the Respondent has not demonstrated that those facts are erroneous, this court declines to adopt the Respondent's contention that Dillon's name was in fact provided to the defense prior to trial. On the other hand, the fact that Dillon's name was suppressed does not necessarily mean that Brady was violated. Dillon was questioned by an investigator prior to trial. The trial court concluded that there was no Brady violation because Dillon's pretrial statement was not material and because its lack of disclosure did not prejudice the defendant. The court noted that the statement did not "implicate Mr. Dillon in the murder" or "implicate or exculpate the Defendant." This information was not favorable to the Defendant and he was not prejudiced by not having access to the statement. The statement was not material, as it does not give rise to a reasonable probability that its disclosure would have changed the outcome of the trial. The Kentucky Court of Appeals agreed that there was no violation of Brady because John Dillon's statement was not "material." The appellate state court distinguished John Dillon's original pretrial statementwhich was neither exculpatory nor inculpatoryfrom the exculpatory evidence discovered post-trial, including the statements of witnesses who identified John Dillon as the perpetrator. "If the *886 exculpatory evidence [witness statements implicating Dillon] was available to the prosecution before the trial, we would have no reluctance in reversing and remanding for a new trial." However, the only evidence suppressed prior to trial was Dillon's name and statement, and Mike Miller's statement that he had observed Dillon and an unidentified white male seventenths of a mile away from the crime scene between 5:10 and 5:20 that day. Because the information known to the prosecution alone was not exculpatory, both the state courts concluded that the suppression of that evidence was not "material." In other words, there was no "reasonable probability" that the verdict was affected merely by the pre-trial suppression of the limited and non-exculpatory evidence involving Dillon. Petitioner now argues that the state courts misinterpreted Wood and Bagley by failing to consider the evidence as a whole, including all of the hearsay statements of witnesses discovered after the trial. Instead, petitioner argues that the state courts improperly limited review to what was known at the time of trial. Petitioner argues that Bagley requires courts to consider post-trial evidence when a state's nondisclosure prevents the defense from discovering exculpatory evidence, by cutting off "avenues of investigation" which the defense might otherwise have pursued. According to petitioner, access to Dillon's initial statement would have led petitioner to further investigation, including ultimately the discovery of the alleged weakness in Dillon's alibi and that Dillon "was taking credit for the crime." DE # 2, at 17. I disagree. A critical fact is that the evidence known by the police ,and/or prosecutor prior to trial was limited to the interview with Dillon, which was neither inculpatory nor exculpatory to Jeffries, and the statement of Mike Miller placing Dillon seven-tenths of a mile away from the crimes. It is highly improbable that if the prosecution had provided the defense with this relatively innocuous and non-material evidence, the defense would have been spurred to investigate so completely as to discover the witness statements and/or inconsistencies in Dillon's alibi. The subsequent witness statements implicating Dillon arose spontaneously after trial, and do not appear to have had any connection to the original investigation of Dillon. In short, the state court did not err in focusing on the fact that the exculpatory evidence implicating Dillon was not discovered by the prosecution until following trial. Bagley and Kyles are distinguishable because neither case involved consideration of evidence discovered post-trial by the prosecution. In Bagley the Government was aware prior to trial that it had agreed to compensate two key witnesses for their assistance. However, the Government deliberately failed to disclose that information to the defense and in fact offered affidavits of the witnesses stating that their testimony was made "without any threats or rewards, or promises of reward." 105 S. Ct. at 3377 . The defense discovered the falsity of the affidavits and impeachment evidence after trial. The Supreme Court remanded for "a determination whether there is a reasonable probability that, had the inducement offered by the Government . . . [to the witnesses] been disclosed to the defense, the result of the trial would have been different." Id. at 3385. Likewise, Kyles involved the nondisclosure of clearly exculpatory evidence known to the prosecution prior to trial. The facts of the instant case are closest to those presented in Wood v. Bartholomew , where the prosecution suppressed evidence of a polygraph examination of a key witnessthe defendant's brother. Although the evidence would have been inadmissible at trial, the polygraph examiner concluded that the brother's denial of his own involvement in the crime indicated *887 deception. The Ninth Circuit concluded that the information was material under Brady and warranted habeas relief, because had it been disclosed, the defendant "might have led . . . counsel to conduct additional discovery that might have led to some additional evidence that could have been utilized." 116 S. Ct. at 10 . However, because even a confession by the brother would not have been inconsistent with the "overwhelming" evidence of the defendant's guilt, the Supreme Court held that it was not "reasonably likely" that disclosure of the evidence would have resulted in a different outcome at trial. Although the evidence in this case may have been less "overwhelming" than the evidence in Wood v. Bartholomew , the state court's analysis correctly applied the legal standards espoused in Wood, Bagley, and Kyles. The state trial court held a hearing on Jeffries' motion for a new trial. Jeffries failed to present any witnesses at that hearing, but did present attachments to his motion in the form of a four-page letter from the special investigator to defense counsel summarizing the investigation into Dillon's alleged involvement and a supplemental report of the investigator. Jeffries now argues that if this court were to grant him a new hearing, he would call Dillon. "If he refused to testify, his statements could be admitted as statements against interest. KRE 804(b)(3). If he took the stand and denied involvement, he could be impeached on the basis of his prior statements." DE # 2 at 20, n. 2. Jeffries offers no explanation for his failure to call Dillon at the evidentiary hearing held in state court. Jeffries' failure to fully develop the factual basis for his claim in state court precludes further development in this court, absent a showing of cause and prejudice. Aside from the critical issue of when the exculpatory evidence involving Dillon was discovered by the prosecution, the Respondent argues that there is no "reasonable probability" that even the hearsay statements discovered post-trial would have had any impact on the outcome of the trial if admitted into evidence at that time. "Considering the fact that one of the hearsay witnesses would state that it was not Dillon, but Dillon and the Petitioner who committed the crime, defense counsel would have been hard pressed even to consider calling Dillon as a witness, understanding that this could have opened many doors for information not favorable to Petitioner." DE # 7, Memorandum in Opposition at 12. In other words, as in Wood, the newly discovered evidence does not do as much to exonerate Jeffries as it does to implicate Dillon, and therefore there is no "reasonable probability" that the outcome of trial would have been different. D. Actual Innocence Claim Based On New Evidence The essence of petitioner's claim is the newly discovered (post-trial) evidence regarding Dillon's involvement. However, the law is clear that the existence of newly discovered evidence is generally not a ground for relief under 28 U.S.C. § 2254. Herrera v. Collins, 506 U.S. 390 , 400, 113 S. Ct. 853 , 122 L. Ed. 2d 203 (1993); see also Simpson v. Jones, 238 F.3d 399 , 408 (6th Cir.2000). To obtain relief under an "actual innocence" claim, a petitioner must present at the least a persuasive demonstration of actual innocence. Herrera, 506 U.S. at 417, 113 S. Ct. 853 . Petitioner's showing falls short of that showing in this case. As previously explained by the state courts and reiterated herein, the jury was presented with ample physical and other circumstantial evidence of petitioner's guilt. III. Conclusion and Recommendation For the reasons stated herein, IT IS RECOMMENDED THAT the petitioner's *888 petition for writ of habeas corpus [DE # 1] be DENIED, and that this case be dismissed and stricken from the active docket. IT IS FURTHER RECOMMENDED THAT Petitioner's motion to compel the Respondent to file additional portions of the state court record, and for a further scheduling order [DE # 12], be DENIED AS MOOT. OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of the date of service of the same or further appeal is waived. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140 , 106 S. Ct. 466 , 88 L. Ed. 2d 435 (1985). Poorly drafted objections, general objections or objections that require a judge's interpretation will be afforded no effect and are insufficient to preserve the right of appeal. See Howard v. Secretary of Health and Human Services, 932 F.2d 505 , 509 (6th Cir.1991). A party may file a response to another party's objections within ten (10) days after being served with a copy. Fed.R.Civ.P. 72(b). April 11, 2006. NOTES [1] The motion referenced Ky RCr 10.06, but the state court's opinion refers to Rule 10.02. [2] One exception is petitioner's suggestion that he might present stronger evidence of Dillon's involvement if permitted a hearing in this court. [3] Petitioner argues that the alleged girlfriend, Jessica Peyton, later testified (before the grand jury) that she was only 11 years old at the time of the crime and had never had a romantic relationship with Dillon. Jessica Peyton's name appears in the Supplemental Report of Det. Mike Pratt as having been identified by Dillon on 12-3-97 (post-trial) as Dillon's "girlfriend" at the time. The same report states that Dillon stated that he was with "a girlfriend at the end of Tenth Street" at the time of the crimes. Notably, Dillon does not state that he was with Peyton. The initial investigation included a statement by Mike Miller, dated 3/7/95, that he had observed John Dillon with an unidentified white male at "10, st. Between Bland & Clay St." Therefore, evidence that Dillon's alibi was discredited in post-trial proceedings is not well-developed.
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opinion_html_with_citations
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2013-10-30 09:53:19.972671+00
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f
| 2,487,878 |
Karen K. Caldwell
| null |
LU
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Published
| 0 |
Jeffries v. Morgan
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Jeffries
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Billy Stewart JEFFRIES, Petitioner v. James L. MORGAN, Warden, Respondent
| null | null |
<parties id="b908-7">
Billy Stewart JEFFRIES, Petitioner v. James L. MORGAN, Warden, Respondent.
</parties><br><docketnumber id="b908-10">
Civil Action No. 05-CV-66.
</docketnumber><br><court id="b908-11">
United States District Court, E.D. Kentucky, Frankfort.
</court><br><decisiondate id="b908-14">
May 2, 2006.
</decisiondate><br><attorneys id="b910-15">
<span citation-index="1" class="star-pagination" label="870">
*870
</span>
Timothy G. Arnold, Frankfort, KY, for Petitioner.
</attorneys><br><attorneys id="b910-16">
Louis F. Mathias, Jr., Office of Attorney General, Frankfort, KY, for Respondent.
</attorneys>
| null | null | null | null | null | null | 2,355,531 |
5:05-cv-00066
| 0 |
kyed
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FD
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t
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E.D. Kentucky
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District Court, E.D. Kentucky
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9,410,469 |
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 07/21/2023 09:07 AM CDT - 748 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 NP Dodge Management Company, appellee, v. Teresa Holcomb, appellant. N.W.2d Filed July 21, 2023. No. S-22-272. 1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions. 2. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion indepen- dent of the decisions made by lower courts. 3. Moot Question: Words and Phrases. A case is moot if the facts under- lying the dispute have changed, such that the issues presented are no longer alive. 4. Moot Question. The central question in a mootness analysis is whether changes in circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief. 5. Moot Question: Appeal and Error. The public interest exception to the mootness doctrine requires an appellate court to consider (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for guidance of public officials, and (3) the likelihood of recurrence of the same or a similar problem. Appeal from the District Court for Douglas County, J. Michael Coffey, Judge, on appeal thereto from the County Court for Douglas County, Darryl R. Lowe, Judge. Appeal dismissed. Caitlin Cedfeldt, of Legal Aid of Nebraska, and Kasey D. Ogle, of Nebraska Appleseed Center for Law in the Public Interest, for appellant. - 749 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 Andrew J. McElmeel, of Goosmann Law Firm, P.L.C., and Gene M. Eckel and Tara E. Holterhaus, of Spencer Fane, L.L.P., for appellee. Lindsay R. Belmont, of Koenig | Dunne, P.C., L.L.O., for amicus curiae National Housing Law Project. Russell E. Lovell II, for amicus curiae Iowa-Nebraska NAACP, and Rebecca Scout Richters for amicus curiae ACLU Foundation of Nebraska. Kevin Ruser, Ryan P. Sullivan, Rachel Tomlinson Dick, and Alan Dugger for amicus curiae University of Nebraska College of Law Civil Clinical Law Program. Douglas J. Peterson, Attorney General, James A. Campbell, and Christian Edmonds for amicus curiae Attorney General. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Per Curiam. When Teresa Holcomb allegedly breached the terms of her residential lease agreement, her landlord, NP Dodge Manage ment Company (NP Dodge), terminated the lease. Holcomb did not leave the property, and NP Dodge initiated eviction proceedings under Nebraska’s Uniform Residential Landlord and Tenant Act (the NURLTA). See Neb. Rev. Stat. § 76-1401 et seq. (Reissue 2018). Holcomb requested a jury trial. The county court denied her request, held a bench trial, found in favor of NP Dodge, and ordered restitution of the premises to NP Dodge. Holcomb appealed to the district court, but before that appeal was decided, the county court issued a writ of resti- tution, whereby Holcomb was removed from the property. The district court later affirmed in all respects. Holcomb’s principal argument on appeal is that § 76-1446, which mandates a bench trial for a possession action under - 750 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 the NURLTA, violates article I, § 6, of the Nebraska Consti tution, which provides that the “right of trial by jury shall remain inviolate.” We find the case is moot and therefore dis- miss the appeal. BACKGROUND Lease Agreement and Termination. Holcomb and NP Dodge signed a residential lease agree- ment in August 2020. The lease was for 1 year and was set to expire on July 31, 2021. An addendum to the agreement granted NP Dodge the right to terminate the lease if Holcomb engaged in illegal activity, acts of violence, or threats of vio- lence. On May 6, Holcomb allegedly threatened two residents in the common area of the leased property, and police officers responded to the scene. The next day, pursuant to the adden- dum, NP Dodge served Holcomb a written notice of termina- tion that required her to vacate the premises within 5 days. Holcomb did not comply. Bench Trial. On May 19, 2021, NP Dodge filed a complaint in county court seeking restitution of the premises pursuant to the NURLTA. Holcomb denied the allegations in the complaint and requested a jury trial. On June 9, the county court denied Holcomb’s request and conducted a bench trial. After the bench trial, the county court found that Holcomb breached the adden- dum to the lease agreement and entered judgment in favor of NP Dodge. The county court further ordered NP Dodge not to execute a writ of restitution, the means by which it could have Holcomb removed from the premises, until July 9. Posttrial Procedural History. On June 22, 2021, Holcomb filed a notice of appeal to the district court. She also filed a motion requesting that the county court stay enforcement of the writ of restitution until the county court set an appeal bond and Holcomb had an opportunity to put up the bond. On July 27, NP Dodge filed a - 751 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 praecipe for writ of restitution, which the county court granted the next day. A Douglas County constable executed the writ and removed Holcomb from the apartment on July 29. On August 3, 2021, the county court entered an order setting a supersedeas bond in the amount of $225, and additionally ordering Holcomb to make monthly payments to NP Dodge of $225 while the appeal was pending. The county court’s order stated that any writ of restitution was to “be recalled” until after the deadline by which the supersedeas bond was to be paid. The county court judge apparently was unaware that the writ of restitution had already been executed. In her appeal to the district court, Holcomb preserved three arguments relevant to this appeal. First, Holcomb argued that the county court violated article I, § 6, of the Nebraska Constitution by denying her request for a jury trial. Second, Holcomb asserted that the county court violated § 76-1447 by issuing the writ of restitution prior to setting an appeal bond, the payment of which would have stayed execution of the writ while the appeal was pending. Third, Holcomb argued that the county court violated her constitutional right to due process by issuing the writ of restitution without first serving her notice that the writ would issue. The district court rejected each of Holcomb’s arguments. Holcomb appealed again and petitioned to bypass the Nebraska Court of Appeals. We granted the petition to bypass. After oral argument in this matter, we directed the parties to submit supplemental briefs addressing whether the case had become moot and, if so, whether we should address any of the issues raised under exceptions to the general rule that moot cases are subject to dismissal. ASSIGNMENTS OF ERROR Holcomb assigns that the district court erred (1) in affirm- ing the county court’s denial of her request for a jury trial contrary to article I, § 6, of the Nebraska Constitution; (2) in affirming the county court’s issuance of the writ of restitution - 752 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 prior to setting an appeal bond contrary to § 76-1447; and (3) in affirming the county court’s issuance of the writ of restitu- tion without first serving notice to Holcomb, in violation of her constitutional right to due process. STANDARD OF REVIEW [1,2] Because mootness is a justiciability doctrine that oper- ates to prevent courts from exercising jurisdiction, an appel- late court reviews mootness determinations under the same standard of review as other jurisdictional questions. Weatherly v. Cochran, 301 Neb. 426 , 918 N.W.2d 868 (2018). When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by lower courts. Id. ANALYSIS Mootness. [3,4] We first confront whether this case is moot given that the writ of restitution was executed and Holcomb was removed from the apartment. A case is moot if the facts underlying the dispute have changed, such that the “issues presented are no longer alive.” See Nebuda v. Dodge Cty. Sch. Dist. 0062, 290 Neb. 740 , 747, 861 N.W.2d 742 , 749 (2015). The central question in a mootness analysis is whether changes in circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief. Id. Or, as another state supreme court has described moot- ness, “[a] moot case exists where a judgment rendered by the court will have no practical legal effect upon an existing controversy because an intervening event renders any grant of effectual relief impossible for the reviewing court.” Sloan v. Friends of Hunley, Inc., 369 S.C. 20 , 26, 630 S.E.2d 474 , 477 (2006). Holcomb argues in this appeal that she was wrong- fully evicted because a court, rather than a jury, found that she breached the lease agreement, in violation of her - 753 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 constitutional right to a jury trial. She also argues that she should have had the opportunity to remain in her apartment pending an appeal, but that the county court erred by issuing a writ of restitution without giving her the opportunity to stay issuance of the writ. There is no meaningful relief we could provide to remedy any errors pertaining to Holcomb’s attempt to stay in her apartment pending appeal. Holcomb was removed from her apartment prior to the completion of the appellate process. Even if we were to find error in that removal, there is nothing we can do now that would allow her to stay in her apartment pending appeal. As for Holcomb’s claim that she should have received a jury trial, she argues that, if we were to find in her favor on that issue, we could grant meaningful relief by vacating the prior judgment, ordering that the cause be remanded for a jury trial, and awarding her possession of the same or a similar unit during the pendency of that jury trial. We dis- agree such relief would be meaningful. If we were to vacate the judgment and remand the cause for a jury trial, we know of no reason why NP Dodge would continue to pursue this action. An action brought pursuant to the NURLTA deter- mines only whether the plaintiff is entitled to possession. See § 76-1446. But, now, about 2 years after Holcomb’s departure from the apartment, NP Dodge would have no need for a determination that it, rather than Holcomb, is currently entitled to possession. And even if this cause were remanded for a jury trial, NP Dodge continued to seek a judgment, and Holcomb prevailed, we do not believe the county court could grant relief that would have practical legal effect. Although this point is not made perfectly clear in Holcomb’s briefing, we presume that she takes the position that if she were to prevail in a subse- quent jury trial, the county court should award her posses- sion of the apartment or a similar unit going forward. But, again, the issue in this action is who is entitled to immediate - 754 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 possession. Back in the summer of 2021, Holcomb could con- tend that, if NP Dodge’s claim that it was entitled to demand that she vacate her apartment lacked merit, she was entitled to possession of an apartment. But Holcomb’s lease expired in July 2021, and she offers no reason why she would be enti- tled to possession of the apartment now about 2 years later. Because Holcomb has no basis to claim a current right of pos- session, this issue is moot. See Marshall v. Housing Auth. of City of San Antonio, 198 S.W.3d 782 (Tex. 2006) (concluding issue of possession in appeal from forcible entry and detainer judgment was moot because tenant’s lease had expired and she presented no basis for claiming right to possession after that date). See, also, Banks v. Housing Auth. of City of Omaha, 281 Neb. 67 , 795 N.W.2d 632 (2011) (explaining that if landlord had continued to pursue forcible entry and detainer action after tenant moved out, action would have been found to be moot). [5] That this case is moot does not end the matter, however. While a moot case is normally subject to summary dismissal, Nebraska recognizes a public interest exception to the moot- ness doctrine. See Rath v. City of Sutton, 267 Neb. 265 , 673 N.W.2d 869 (2004). The exception requires us to consider (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for guid- ance of public officials, and (3) the likelihood of recurrence of the same or a similar problem. Id. We separately analyze each assignment of error to determine whether to exercise our discretion to review the assignment under the public interest exception. See id. Public Interest Exception: Constitutional Jury Trial Right. Both NP Dodge and Holcomb contend that we should address Holcomb’s argument that she was entitled to a jury trial under the public interest exception to the mootness doctrine. The parties’ agreement, however, cannot constrain whether - 755 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 this court will exercise its discretion to address an argument under the public interest exception. And, for reasons we will explain, we decline to exercise our discretion to address the issue in this case. We do not dispute the public questions that are implicated by Holcomb’s argument. Neither can we deny that an authori- tative adjudication would benefit trial judges when presented with arguments like Holcomb’s. And while it is certainly possible that this issue will recur in future cases, future recur- rence is not the only thing we consider in evaluating this third factor under the public interest exception. Instead, we have said that even if a problem is likely to recur, it is generally inappropriate for an appellate court to review a moot case that does not evade review as a result of a transitory set- ting. See, e.g., Beachy v. Becerra, 259 Neb. 299 , 609 N.W.2d 648 (2000). It is not clear to us that this issue inherently evades appel- late review. Although Holcomb’s case is moot, there are means by which a tenant can stay enforcement of a writ of restitution pending appeal. See § 76-1447. Indeed, as discussed above, Holcomb attempted to do so in this case. Furthermore, this is the only case we are aware of in which a tenant has attempted to challenge the bench trial provision of the NURLTA and the case was moot by the time it reached this court. We are leery of concluding that an issue inherently evades review based on a sample size of one. Our decision on whether to address this issue under the public interest exception in this case is also informed by another proposition of law: that ordinarily this court will not pass upon the constitutionality of legislation absent a need to do so in order to properly dispose of an action. See, e.g., State ex rel. Wieland v. Beermann, 246 Neb. 808 , 523 N.W.2d 518 (1994). Because this case is subject to dismissal even if we were to reach Holcomb’s arguments under the public inter- est exception, see Rath, supra, we need not pass upon the - 756 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 constitutionality of the NURLTA’s bench trial requirement to decide the case. We acknowledge that this court has in at least one case addressed the constitutionality of statutes under the public interest exception to the mootness doctrine. See In re Interest of Anaya, 276 Neb. 825 , 758 N.W.2d 10 (2008). And we need not foreclose the possibility that we would find that course of action appropriate in a future case. That said, we believe constitutional avoidance principles counsel in favor of the exercise of caution before passing upon the constitutionality of a statute in a case that is moot. That caution and the fact that it is not clear that this issue inherently evades appellate review lead us to conclude that we should not address the argument that the NURLTA’s bench trial provision is unconstitutional in this case. Public Interest Exception: Appeal Bond and Notice for Writ of Restitution. Holcomb assigns two errors in addition to her constitutional jury trial argument. Holcomb assigns that the county court violated § 76-1447 by issuing the writ of restitution prior to setting the appeal bond and that further, the county court violated her constitutional right to due process by issuing the writ of restitution without first serving her notice that the writ would issue. These assignments of error do not warrant review under the public interest exception to mootness because both are bound up with the peculiar procedural history of this par- ticular case. Recall that in Holcomb’s second assignment of error, she argues that the county court violated § 76-1447 in failing to set an appeal bond before it issued the writ of restitution and Holcomb was removed from the apartment. It strikes us as quite unlikely that the facts of another case would present this legal issue for decision. We presume that it is the usual practice of county court judges, if aware of a request for an appeal bond in an eviction case, to promptly set an appeal bond - 757 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 and thereby allow the appealing party the opportunity to remain in his or her residence while the appeal is pending. It appears that the appeal bond may not have been set in this case until after the writ of restitution issued because the county court judge was not previously made aware of Holcomb’s request to set an appeal bond. Although the record on appeal contains a June 22, 2021, motion to set an appeal bond and stay the writ of restitution, there is no indication that motion was set for a hearing before the county court judge. In any event, Holcomb had ample time to ensure that an appeal bond was set. When it entered judgment, the county court stated that it would not issue a writ of restitution for 30 days. And even after those 30 days passed, the county court did not actually issue a writ of restitution until almost 3 weeks later. Even if the county court judge was aware of Holcomb’s request during that time and simply failed to act, a writ of mandamus may have been available to compel the setting of the appeal bond. See In re Smitherman, 533 S.W.3d 907 (Tex. App. 2017). Cf. State v. Kloke, 78 Neb. 133 , 110 N.W. 687 (1907). Because we doubt that future courts will fail to set an appeal bond when asked or that future litigants will fail to avail themselves of all legal avenues to avoid an impending eviction, we find this issue is unlikely to recur and therefore does not warrant review under the public interest exception to the mootness doctrine. See Rath v. City of Sutton, 267 Neb. 265 , 673 N.W.2d 869 (2004) (declining to address issue under public interest exception that would require detailed examina- tion into specific factual circumstances of case and, due to its unique facts, was unlikely to recur). The unique posttrial procedural history also leads us to conclude that we should decline to reach Holcomb’s third assigned error, that the county court’s issuance of the writ of restitution without serving Holcomb notice violated her right to due process. In the normal case, we expect that a tenant against whom a judgment of eviction has been entered will either (1) appeal and post the requisite appeal bond to stay - 758 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 enforcement of the writ of restitution pending appeal or (2) choose not to appeal and face imminent removal from the premises. The writ of restitution would not be enforced pend- ing appeal in the first scenario, and a tenant in the second sce- nario will not be caught off guard when the writ of restitution is enforced, since the relief granted to a landlord in an action for possession under the NURLTA is “recovery of possession of the premises.” § 76-1431(4). See, also, § 76-1446 (“[i]f judgment is rendered against the defendant for the restitution of the premises, the court shall . . . issue a writ of restitution, directing the constable or sheriff to restore possession of the premises to the plaintiff on a specified date not more than ten days after issuance of the writ of restitution”). Only in a situa- tion where, as here, a tenant desires to stay enforcement of the writ but fails to do so could there possibly be a question about whether the tenant was given adequate notice that the writ of restitution would issue. For the reasons we have explained, however, we believe it unlikely that this situation will recur. We thus decline to reach this issue under the public interest exception to the mootness doctrine. See Rath, supra. Collateral Consequences. In addition to the public interest exception to the moot- ness doctrine, Holcomb also argues that we should proceed to the merits of her appeal under a separate exception: the collateral consequences exception. Generally, that exception “permits adjudication of the merits of a criminal case where the petitioner may suffer future state or federal penalties or disabilities as a result of the [criminal] judgment” even though the criminal sentence has already been served. State v. Patterson, 237 Neb. 198 , 202, 465 N.W.2d 743 , 747 (1991), citing St. Pierre v. United States, 319 U.S. 41 , 63 S. Ct. 910 , 87 L. Ed. 1199 (1943). Holcomb suggests that she will face negative collateral consequences if the judgment of eviction is not vacated. She claims that as a result of that judgment, landlords may not accept her as a tenant and she may be - 759 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 disqualified from certain subsidized housing programs. This court has previously refused to apply the collateral conse- quences exception to mootness outside the criminal context, however, and we decline to do so here. See Hron v. Donlan, 259 Neb. 259 , 609 N.W.2d 379 (2000) (refusing to vacate protection order in moot appeal because appellant faced no collateral consequences from criminal conviction). CONCLUSION Because this case is moot, we dismiss the appeal. Appeal dismissed. Papik, J., concurring. I agree with the majority opinion that this case is moot and that therefore, the appeal should be dismissed. That said, I believe Holcomb has identified a potential constitutional problem with the provision of Nebraska’s Uniform Residential Landlord and Tenant Act (the NURLTA) requiring that actions for possession be tried to the court. I write separately to high- light why I believe the bench trial provision may rest on con- stitutionally fragile ground. Constitutionality of NURLTA’s Bench Trial Provision. The statute providing for actions for possession under the NURLTA states that such an action “shall be tried by the court without a jury.” Neb. Rev. Stat. § 76-1446 (Reissue 2018). When the NURLTA was first enacted in 1974, this provi- sion was not present. It was added by a statutory amendment enacted in 1995. See 1995 Neb. Laws, L.B. 52. Holcomb argues this provision violates article I, § 6, of the Nebraska Constitution. Article I, § 6, of the Nebraska Constitution provides that the “right of trial by jury shall remain inviolate.” We have long understood this provision to “preserve the right to a jury trial as it existed at common law and under statutes in force when the Nebraska Constitution was adopted in 1875.” - 760 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 Eihusen v. Eihusen, 272 Neb. 462 , 466, 723 N.W.2d 60 , 63 (2006). See, also, Bell v. State, 104 Neb. 203 , 176 N.W. 544 (1920). At common law, legal claims were tried by a jury and equitable claims were tried by a court. Schmid v. Simmons, 311 Neb. 48 , 970 N.W.2d 735 (2022). Thus, in Nebraska, it is well established that litigants are typically entitled to a jury trial on legal claims, but not equitable claims. Id. As a result, when a party contends that it is constitutionally entitled to a jury trial, we usually resolve the issue by determin- ing “whether the action is of an equitable or legal nature.” Eihusen, 272 Neb. at 467 , 723 N.W.2d at 63 , citing State ex rel. Douglas v. Schroeder, 222 Neb. 473 , 384 N.W.2d 626 (1986). To determine whether an action is equitable or legal in nature, we consider its “essential character,” as well as the “remedy or relief it seeks.” See State ex rel. Cherry v. Burns, 258 Neb. 216 , 223, 602 N.W.2d 477 , 482 (1999). The essential character of § 76-1446 is an “action for pos- session” of real property leased to a tenant. See, also, Neb. Rev. Stat. §§ 76-1440 to 76-1447 (Reissue 2018). All other causes of action relating to the tenancy “shall be answered and tried separately” from the sole question of possession that an action tried under § 76-1446 resolves. See § 76-1441. The relief awarded, if the landlord prevails, is “restitution of the premises” to the landlord. See § 76-1446. Our cases—both ancient and recent—have recognized that an action to recover possession of real property is legal, not equitable, in nature. For example, nearly a century ago, this court held that a landlord was not entitled to an injunction restraining a lessee from interfering with the landlord’s right to enter the premises. The court explained that the landlord could not rely on an equitable remedy—an injunction—when he had an adequate remedy at law—an action for possession of the premises. See Vance v. Sumner, 119 Neb. 630 , 230 N.W. 490 (1930). Other cases decided even earlier in our state’s history also describe actions for possession of real property as legal in nature. See, Mohat v. Hutt, 75 Neb. 732 , - 761 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 106 N.W. 659 (1906); Wehmer v. Fokenga, 57 Neb. 510 , 78 N.W. 28 (1899); Warlier v. Williams, 53 Neb. 143 , 73 N.W. 539 (1897); Morton v. Green, 2 Neb. 441 , 451 (1872) (“[t]his was an action to recover the possession of lands, commonly styled an action of ejectment, and is purely legal in its char- acter”). Fast forward to the modern era, and this court has continued to treat actions for possession of real property as legal in nature. Just 2 years ago, we observed that “[a]n action for restitution of premises brought under [the NURLTA] is an action at law.” Dreesen Enters. v. Dreesen, 308 Neb. 433 , 439, 954 N.W.2d 874 , 879 (2021). This court’s characterization of actions for possession of real property as legal in nature is hardly anomalous. Consistent with this court’s holdings in the early years of Nebraska’s his- tory, the U.S. Supreme Court has stated that although it is dif- ficult to state “any general rule” that would distinguish suits in equity from actions at law, it could say that “where an action is simply for the recovery and possession of specific real or personal property, or for the recovery of a money judgment, the action is one at law.” Whitehead v. Shattuck, 138 U.S. 146 , 151, 11 S. Ct. 276 , 34 L. Ed. 873 (1891) (emphasis sup- plied). See, also, Scott v. Neely, 140 U.S. 106 , 110, 11 S. Ct. 712 , 35 L. Ed. 358 (1891) (“[a]ll actions which seek to recover specific property, real or personal, . . . are legal actions”). Leading historians of the common law likewise describe the various modes of recovering real property as common-law actions triable by jury. See F.W. Maitland, Equity, Also, the Forms of Action at Common Law: Two Courses of Lectures 333 (A.H. Chaytor & W.J. Whittaker eds., 1926); Theodore F.T. Plucknett, A Concise History of the Common Law 130 (5th ed. 1956). Although this court has never had occasion to consider whether the nature of an action for possession under the NURLTA means that a party to such an action is entitled to a jury trial, many other courts have concluded that similar actions by a landlord to evict a tenant and recover possession - 762 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 of real property are legal in nature and are thus subject to similar constitutional jury trial guarantees. The most notable such example is the U.S. Supreme Court’s decision in Pernell v. Southall Realty, 416 U.S. 363 , 94 S. Ct. 1723 , 40 L. Ed. 2d 198 (1974). In that case, the U.S. Supreme Court held that the District of Columbia’s summary eviction statute, which did not provide for a jury trial, was inconsistent with the jury trial guarantee set forth in the Seventh Amendment to the U.S. Constitution. In its opinion, the U.S. Supreme Court relied on the practice at common law, as well the cases referenced above, in recognizing that actions to recover real property were historically treated as actions at law triable to a jury. It rejected an argument that juries were available only where title was in issue and explained that common-law actions for possession alone were also treated as legal in nature and triable to a jury. And since the “right to recover possession of real property” was “a right ascertained and protected by courts at common law,” the U.S. Supreme Court held the Seventh Amendment preserved the right to a jury trial in actions brought under the District of Columbia’s summary eviction statute. Pernell, 416 U.S. at 376 . Because the Seventh Amendment’s jury trial guarantee does not apply to suits in state courts, see, e.g., Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 , 119 S. Ct. 1624 , 143 L. Ed. 2d 882 (1999), the U.S. Supreme Court’s decision in Pernell, supra, is not binding in this or other state courts. Even so, most state courts to consider the issue have followed the analytical path laid out in Pernell and have concluded that, under jury trial guarantees similar to ours, statutory actions by a landlord to recover possession of real property from a tenant are legal in nature and are thus triable to a jury. See, Ex Parte Moore, 880 So. 2d 1131 (Ala. 2003); Hill v. Levenson, 259 Ga. 395 , 383 S.E.2d 110 (1989); N. Sch. Congregate Housing v. Merrithew, 558 A.2d 1189 (Me. 1989); Criss v. Salvation Army Residences, 173 W. Va. 634 , 319 S.E.2d 403 (1984); Baldwin Sod Farms, Inc. v. Corrigan, - 763 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 746 So. 2d 1198 (Fla. App. 1999). But see Vinson v. Hamilton, 854 P.2d 733 (Alaska 1993) (holding that action for possession brought under forcible entry and detainer statute was equitable in nature and that thus, parties did not have state constitutional right to jury trial). The longstanding precedent of this court and the weight of authority from other jurisdictions thus appears to support Holcomb’s argument that actions for possession under the NURLTA are legal in nature. And because the constitutional right to a jury trial extends to actions that are legal in nature, article I, § 6, would seem to afford litigants the right to a jury trial for actions brought under § 76-1446. In addition to the legal nature of actions for possession, statutes in effect at the time article I, § 6, was adopted also appear to support the argument that the jury trial guarantee applies to actions for possession under the NURLTA. Statutes in effect at that time are relevant because that constitutional provision states that the “right of trial by jury shall remain inviolate.” In light of that language, we have long inter- preted article I, § 6, to “preserve the right to a jury trial as it existed at common law and under statutes in force when the Nebraska Constitution was adopted in 1875.” Eihusen v. Eihusen, 272 Neb. 462 , 466, 723 N.W.2d 60 , 63 (2006) (emphasis supplied). At least two Nebraska statutes in effect in 1875 provided the right to a jury trial in actions to recover real property. First, in 1875, the Nebraska Code of Civil Procedure pro- vided that “[i]ssues of law must be tried by the court” but that “[i]ssues of fact arising in actions for the recovery of money, or of a specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered as hereinafter provided.” Comp. Stat. ch. 2, § 280 (1881) (emphasis supplied); Rev. Stat. ch. 2, § 280, p. 440 (1866) (same). In addition to the Nebraska Code of Civil Procedure, Nebraska’s forcible entry and detainer statute that existed in - 764 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 1875 independently guaranteed the right to a jury trial in sum- mary possession actions. See Comp. Stat. ch. 10, § 1028 (1881); Rev. Stat. ch. 10, § 1028, p. 576 (1866). As NP Dodge admit- ted in this case, “the procedures set forth in [the NURLTA] are essentially the same as the procedures found” under the forcible entry and detainer statutes that exist today. Brief for appellee at 21. The forcible entry and detainer statutes have remained essentially unamended since 1875. Compare Rev. Stat. ch. 10, §§ 1019 through 1032, pp. 574-77 (1866), with Neb. Rev. Stat. §§ 25-21 ,219 through 25-21,235 (Reissue 2016). Like the possession action under the NURLTA, the sole purpose of a forcible entry and detainer action in 1875 was “to determine the immediate right of possession.” Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301 , 310, 854 N.W.2d 774 , 781 (2014). See Neb. Rev. Stat. § 76-1441 (1) (Reissue 2018). By its terms, forcible entry and detainer applied “in all cases against tenants holding over their terms,” and the statutory remedy was “restitution of the premises” enforced by issuance of a “writ of restitution.” Rev. Stat. ch. 10, §§ 1020, 1027, and 1031, pp. 574-76 (1866). Likewise, under the NURLTA, a landlord who succeeds at trial is entitled to “restitution of the premises” enforced by issuance of a “writ of restitution.” § 76-1446. Nebraska’s forcible entry and detainer statute that existed in 1875 thus appears to be “substantially similar” to the possession action authorized by the NURLTA. Eihusen, 272 Neb. at 467 , 723 N.W.2d at 64 . A landlord-tenant eviction proceeding in 1875 would have been triable to a jury under both the Nebraska Code of Civil Procedure and the forcible entry and detainer statutes then in effect in Nebraska. The fact that these statutes codified the same right to a jury trial that existed for real property pos- session actions at common law is unsurprising. In 1866, the Territorial Legislature of Nebraska “adopted[] and declared” the “common law of England” to be the law in Nebraska to the extent not inconsistent with the U.S. Constitution, “the organic law of this territory,” or with statutes passed by - 765 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 the Legislature. Rev. Stat. ch. 7, § 1, p. 81 (1866), now codi- fied at Neb. Rev. Stat. § 49-101 (Reissue 2021). The jury trial provisions in the Nebraska Code of Civil Procedure and forc- ible entry and detainer statutes that existed in 1875 thus could be understood as the Legislature’s attempt to faithfully imple- ment the common-law right to a jury trial in possession actions as the law in Nebraska. Despite all of the foregoing, NP Dodge and the Attorney General, who filed a brief defending the constitutionality of the NURLTA’s bench trial provision, argued in this case that article I, § 6, of the Nebraska Constitution does not require that actions for possession under the NURLTA be triable to a jury. Their primary argument in support of this position was that such actions are special or summary proceedings. They contended that under State v. Moores, 56 Neb. 1 , 76 N.W. 530 (1898), the constitutional right to a jury trial does not extend to special or summary proceedings. To be sure, there is language in Moores in which this court quoted an opinion of the Arkansas Supreme Court stating that “‘[t]he right of trial by jury, at common law, never existed in . . . summary proceedings.’” 56 Neb. at 8, 76 N.W. at 532, quoting State v. Johnson, 26 Ark. 281 (1870). And although Moores does not expressly mention special proceedings, NP Dodge and the Attorney General argued that some legal ency- clopedias and other jurisdictions have stated that a constitu- tional right to a jury trial also does not extend to such proceed- ings. See, e.g., 47 Am. Jur. 2d Jury § 39 (2017); 50A C.J.S. Juries § 37 (2019). NP Dodge and the Attorney General took the position that an action for possession under § 76-1446 qualifies as both a summary and special proceeding under these authori- ties. Although the exact definitions they offered for these categories were not completely clear to me, they seemed to argue that an action for possession under the NURLTA is a special proceeding because it is codified in chapter 76 of the Nebraska Revised Statues, rather than chapter 25, and - 766 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 because it is governed by its own, distinct rules of procedure, as opposed to the ordinary rules of civil procedure. NP Dodge and the Attorney General suggested that an action for posses- sion under the NURLTA is a summary proceeding because the NURLTA prescribes an expedited timeline for certain requirements in such an action. See, e.g., § 76-1442 (requiring service of summons within 3 days); § 76-1446 (requiring that trial be held “not less than ten nor more than fourteen days after the issuance of the summons”). This argument, however, has some flaws. As an initial mat- ter, the statement NP Dodge and the Attorney General rely on from Moores, supra, is dicta—the issue in Moores was whether the jury trial guarantee applied to a quo warranto proceeding. Furthermore, other dicta in Moores is contrary to the argument of NP Dodge and the Attorney General. Moores quoted other language from the same Arkansas Supreme Court opinion that stated, “‘[s]o far as our research has extended, the right of trial by jury, at common law, only extended to criminal prosecutions and in actions where a freehold or goods and chattels were in dispute. The term “goods and chattels” includes personal property, choses in action, and chattels real.’” 56 Neb. at 9, 76 N.W. at 533, quoting State v. Johnson, supra. And “chattels real” meant “interests in land which devolve after the matter of personal estate, as leaseholds,” Black’s Law Dictionary 194 (2d ed. 1910), or, more simply, “a leasehold estate,” Black’s Law Dictionary 286 (10th ed. 2014). In any event, it is difficult for me to conclude that the language in Moores at issue would allow the Legislature to remove an action from constitutional jury trial protections by, for example, codifying an action somewhere other than chap- ter 25 or requiring that the action be completed in an expe- dited manner. Our court has never before understood Moores to allow as much. And if we were to adopt this argument, I do not know what would prevent the Legislature from enacting a statute codified somewhere other than chapter 25 or with some expedited procedures that makes actions that would - 767 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 otherwise be obviously subject to the constitutional jury trial guarantee—say, a breach of contract action for damages— “special or summary proceedings” tried by a court instead of a jury. It is difficult to understand how this is consistent with article I, § 6’s promise that the “right of trial by jury shall remain inviolate.” As opposed to the reading urged by NP Dodge and the Attorney General, it strikes me as more likely that the lan- guage in Moores regarding summary proceedings and the language in legal encyclopedias and cases from other jurisdic- tions regarding special proceedings recognizes a much less remarkable proposition: that there are certain proceedings, sometimes described as special, summary, or statutory, that did not exist at common law and that the constitutional jury trial guarantee does not apply to such proceedings. Indeed, many of the authorities relied upon by NP Dodge and the Attorney General actually state that it is special or summary proceed- ings unknown at common law to which a jury trial guarantee does not apply. See, e.g., Hair Excitement v. L’Oreal U.S.A., 158 N.H. 363 , 368, 965 A.2d 1032 , 1037 (2009) (stating that the right to a jury trial “does not extend . . . to special, statu- tory, or summary proceedings unknown to the common law”) (internal quotation marks omitted); State v. Bennion, 112 Idaho 32 , 74-75, 730 P.2d 952 , 994-95 (1986) (“it has been held that the right to jury trial does not apply to actions unknown to the common law . . . and that it does not apply to special proceed- ings created by statute and not in the nature of common law actions”); 47 Am. Jur. 2d Jury § 39 at 452-53 (2017) (“[t]he constitutional right to a jury trial does not apply to special or summary proceedings unknown to the common law[] and . . . provided by statute after the adoption of the constitution”); 50A C.J.S. Juries § 37 at 196 (2019) (“there is generally no right to a jury trial in special proceedings unknown at common law, or in summary proceedings”). Our court, too, has recognized that certain statutory pro- ceedings created after 1875 are neither legal nor equitable - 768 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 because they did not exist at common law and that the con- stitutional jury trial guarantee does not apply to such proceed- ings. See, Schroeder v. Oeltjen, 184 Neb. 8 , 165 N.W.2d 81 (1969) (school district reorganization proceeding); McMaster v. Wilkinson, 145 Neb. 39 , 15 N.W.2d 348 (1944) (election contest), overruled in part on other grounds, State ex rel. Brogan v. Boehner, 174 Neb. 689 , 119 N.W.2d 147 (1963). But to the extent it is argued that an action for a writ of resti- tution under the NURLTA was unknown to the common law, that seems dubious. As explained at length above, actions for possession of real property have consistently been treated as legal in nature, and furthermore, statutes in effect at the time the Nebraska Constitution was adopted also made actions for possession of real property triable to a jury. It is true that the NURLTA contains myriad other provi- sions besides the few sections creating and effectuating the summary possession action. See Neb. Rev. Stat. §§ 76-1401 to 76-1449 (Reissue 2018). And I acknowledge that some sections of the NURLTA place statutory obligations on both landlords and tenants—obligations that did not exist at com- mon law or by statute in 1875. But in analyzing whether the Nebraska Constitution protects the right to a jury trial in a particular proceeding, our court considers not the statutory enactment as a whole, but, rather, the “essential character” of the specific “cause of action” upon which the plaintiff brings suit, as well as the “remedy or relief” the plaintiff seeks. See State ex rel. Cherry v. Burns, 258 Neb. 216 , 223, 602 N.W.2d 477 , 482 (1999). Immediate possession of the premises is the only issue before the court in a possession action under the NURLTA. An action for possession is not a case where a landlord seeks to “obtain injunctive relief to compel” a tenant to give it lawful access to the premises, § 76-1438(1), nor is it a case where a tenant sues a landlord to “obtain injunctive relief for any noncompliance by the landlord with the rental agreement,” § 76-1425(2). Instead, the remedy awarded in a - 769 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 successful action for possession is simply “recovery of pos- session of the premises.” §§ 76-1431(4) and 76-1440. And as discussed extensively above, at common law, causes of action seeking possession of real property were legal in nature and were tried by a jury. Public Interest Exception. Although the NURLTA’s bench trial provision may be of questionable constitutionality, I agree we cannot give practical legal relief to Holcomb in this case and therefore the issue is moot. And while we can decide otherwise moot issues under the public interest exception to the mootness doctrine, the court declines to reach the question of whether the NURLTA’s bench trial provision is unconstitutional under that exception in this case. As I understand the majority opinion, we have declined to exercise our discretion to decide the constitutionality of the bench trial provision in this case because this issue may not inherently evade review. I join the majority opinion with that understanding, but also observe that the relatively short length of most residential leases combined with the time it takes for an appeal to reach this court may make it difficult for this issue to reach this court in a live fashion. If future cases dem- onstrate that this issue does, in fact, inherently evade review, I would be open to addressing this issue under the public inter- est exception. Conclusion. In closing, I note some practical realities after today’s deci- sion. While the court has not held that the NURLTA’s bench trial provision is unconstitutional, neither have we held that it is constitutional. Furthermore, three members of this court, through this concurrence, have expressed doubts about the constitutionality of the bench trial provision. Suffice it to say, the constitutionality of the NURLTA’s bench trial provision remains an open question. - 770 - Nebraska Supreme Court Advance Sheets 314 Nebraska Reports NP DODGE MGMT. CO. V. HOLCOMB Cite as 314 Neb. 748 This state of affairs may be of interest to the Legislature. The Legislature may wish to itself consider the constitution- ality of, and reassess, the NURLTA’s bench trial provision. And even if the bench trial provision remains unchanged, the Legislature may wish to consider addressing whether the rest of the NURLTA is severable from its bench trial provision and, if so, how actions for possession under the NURLTA are to proceed if the bench trial provision is found unconstitutional. Miller-Lerman and Funke, JJ., join in this concurrence.
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48 Cal.2d 320 (1957) THE CITY OF LOS ANGELES, Appellant, v. BELRIDGE OIL COMPANY (a Corporation), Respondent. L. A. No. 24129. Supreme Court of California. In Bank. Apr. 12, 1957. Roger Arnebergh, City Attorney, Bourke Jones and James A. Doherty, Assistant City Attorneys, for Appellant. Wellborn, Barrett & Rodi, Vernon Barrett and F. C. Lowell Head for Respondent. CARTER, J. This is an appeal by the city of Los Angeles from a judgment entered upon a retrial after a decision by this court (City of Los Angeles v. Belridge Oil Co., 42 Cal.2d 823 [ 271 P.2d 5 ]) reversing a judgment in favor of defendant, Belridge Oil Company. The only question involved here is whether the trial court properly applied the law as set forth in our decision [fn. *] on the prior appeal. Upon the retrial the parties stipulated that all of the gross receipts of the defendant "are attributable in part to its selling activities within the City of Los Angeles and in part to its selling activities without the City" and that "not more than 20% of defendant's total gross receipts for the years 1948 and 1949 are attributable to defendant's business [or selling activities] in the City of Los Angeles under any method of allocation which is fairly calculated to determine the defendant's gross receipts derived from or attributable to sources within the City of Los Angeles and to determine the defendant's gross receipts derived from or attributable to sources outside the City of Los Angeles" subject to plaintiff *322 city's right to maintain on appeal that there should be no allocation of receipts for the purpose of determining the amount of the tax and that the tax should be measured by defendant's total gross receipts. Defendant agreed that 20 per cent of its total gross receipts for the years 1948 and 1949 might be used to measure the tax to be imposed upon it under section 21.166 of plaintiff's license ordinance for the years 1949 and 1950. The trial court held, in accord with the stipulations entered into between the parties, that defendant was subject to the license tax ( 21.166) for such portion of its gross receipts "as is derived from or attributable to its business or selling activities in the City of Los Angeles; that such portion of such gross receipts should be determined under some method of allocation which is fairly calculated to determine the defendant's gross receipts derived from or attributable to sources within the City of Los Angeles and to determine the defendant's gross receipts derived from or attributable to sources outside the City of Los Angeles." And that "Not more than 20% of defendant's total gross receipts for the years 1948 and 1949 are derived from or attributable to defendant's business in the city of Los Angeles." And that "Not more than 20% of defendant's total gross receipts for the years 1948 and 1949 are derived from or attributable to defendant's selling activities in the City of Los Angeles." In harmony with its conclusion, the trial court held that there remained due and owing to the plaintiff from the defendant the sum of $536.43, including both principal and interest. The primary argument of the plaintiff is that this court did not, in its prior opinion, hold that there should be an allocation of the total gross receipts of defendant based upon the selling activities directly attributable to the Los Angeles part of defendant's business. Section 21.166 of the Los Angeles City Tax Ordinance provides that "Every person manufacturing and selling any goods, wares or merchandise at wholesale, or selling goods, wares, or merchandise at wholesale, and not otherwise specifically licensed by other provisions of this Article, shall pay for each calendar year, or portion thereof, the sum of $8.00 for the first $20,000, or less, of gross receipts, and, in addition. ..." We held (p. 830) that "defendant's Los Angeles office was engaged in the activity of 'selling goods, wares or *323 merchandise at wholesale' within the city of Los Angeles and was therefore subject to the provisions of section 21.166 of the Los Angeles tax ordinance." We also specifically held (pp. 831, 832) that "There is, however, one important limitation which should be pointed out and that is this: even though the city can tax the activity of selling it can only base the tax on such selling activities as are carried out within its territorial limits. For this reason it is only those gross receipts which are attributable to selling activities within the city which should form the basis for the rate of tax. Gross receipts attributable to selling activities conducted outside the city should not be included. Such a construction necessarily follows from the fact that the business license tax is on the privilege of engaging in selling activities in the city of Los Angeles and as such should only be based on such activities." [1] Plaintiff argues that the controversy centers around the statement made by this court (p. 831) that "Defendant company also contends that even if section 21.166 is applicable, the city cannot constitutionally tax the total gross receipts of the company since such would be an attempt to impose a tax on business carried on outside the city. This argument is based on the ground that since the total gross receipts include the proceeds of products produced and delivered outside the city the effect would be to allow a city to tax transactions occurring outside its boundaries. This argument seems to lose sight of the nature of section 21.166." This statement was directed at defendant's argument that some of its gross receipts were attributable to extraterritorial elements such as the production and delivery of the goods. We held that there was no constitutional objection to resorting to extraterritorial elements in determining the rate of tax (Great Atlantic & Pac. Tea Co. v. Grosjean, 301 U.S. 412 [ 57 S.Ct. 772 , 81 L.Ed. 1193 , 112 A.L.R. 293 ]; Maxwell v. Bugbee, 250 U.S. 525 [ 40 S.Ct. 2 , 63 L.Ed. 1124 ]; Cedar Hills Cemetery Corp. v. District of Columbia, 124 F.2d 286 ). We concluded that "The activity being taxed here is the activity of selling and such activity can be taxed by the city even though the goods never enter its territorial limits. (Keystone Metal Co. v. Pittsburgh, supra, 374 Pa. 323 [ 97 A.2d 797 ].)" [2] Plaintiff argues that the requirements of due process and equal protection do not compel an apportionment of receipts attributable to the business carried on within the city. This argument was answered adversely to plaintiff in our *324 opinion on the prior appeal where we held that "To allow a city to levy a license tax based upon gross receipts attributable to selling activities outside the city would be an unreasonable discrimination and a denial of equal protection of the law. (See Ferran v. City of Palo Alto, 50 Cal.App.2d 374 [ 122 P.2d 965 ].) If such taxation were allowed it would unjustly discriminate against those firms whose selling activities in Los Angeles compose but a small fraction of the total sales effort and whose gross receipts are in large part attributable to selling activities in other areas. [3] As stated in Franklin v. Peterson, 87 Cal.App.2d 727 , 730 [ 197 P.2d 788 ], 'It is the rule that where a statute or ordinance is susceptible of two constructions, one of which will render it constitutional and the other unconstitutional, in whole or in part, the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable. The rule is based on the presumption that the legislative body intended not to violate the Constitution, but to make a valid statute or ordinance within the scope of its constitutional powers.' In the instant case a just and reasonable construction requires that the measure of the tax be limited to those gross receipts attributable to selling activities within the city of Los Angeles." Plaintiff's argument concerning the intent and meaning of the "Bradley- Burns Uniform Local Sales and Use Tax Law" enacted by the Legislature in 1955 [Rev. & Tax. Code, 7200 et seq.) does not merit discussion. We are here concerned with a business license tax imposed by the city of Los Angeles, the applicable section of which we have heretofore held applied to selling activities carried on within the city, the tax to be measured by that portion of the gross receipts directly attributable to the defendant's selling activities in the city. ( 42 Cal.2d 823 .) [4] Having heretofore held that only that portion of the gross receipts directly attributable to defendant's selling activities carried on in the city of Los Angeles may be taxed under section 21.166, and the parties having stipulated that by a method of allocation "fairly calculated to determine the defendant's gross receipts" 20 per cent thereof was derived from selling activities in the city of Los Angeles, we conclude that the trial court was correct in applying the tax formula to 20 per cent of defendant's gross receipts. *325 Plaintiff's other contentions are an attempt to reargue matters concluded on the former appeal and need no discussion here. The judgment is affirmed. Gibson, C.J., Shenk, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred. NOTES [fn. *] *. The facts are fully set forth therein.
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City of Los Angeles v. Belridge Oil Co.
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The CITY OF LOS ANGELES, Appellant, v. BELRIDGE OIL COMPANY (A Corporation), Respondent
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[L. A. No. 24129.
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In Bank.
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Apr. 12, 1957.]
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THE CITY OF LOS ANGELES, Appellant, v. BELRIDGE OIL COMPANY (a Corporation), Respondent.
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Roger Arnebergh, City Attorney, Bourke Jones and James A. Doherty, Assistant City Attorneys, for Appellant.
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<parties data-order="3" data-type="attorneys" id="b344-7">THE CITY OF LOS ANGELES, Appellant, v. BELRIDGE OIL COMPANY (a Corporation), Respondent.</parties> <p data-order="4" data-type="legal" id="b345-7"><page-number citation-index="1" label="321">*321</page-number>Roger Arnebergh, City Attorney, Bourke Jones and James A. Doherty, Assistant City Attorneys, for Appellant.</p> <p data-order="5" data-type="legal" id="b345-8">Wellborn, Barrett & Rodi, Vernon Barrett and F. C. Lowell Head for Respondent.</p>
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L. A. 24129
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CAVANAUGH, Judge: This is an appeal from the lower court’s order granting judgment on the pleadings in favor of the defendant, Pennsylvania National Mutual Casualty Insurance Company (hereinafter Penn National) and against the plaintiff, who is the defendant’s insured. The following facts are not disputed. The plaintiff who was employed by Penn Road Materials Company was injured while alighting from one of his employer’s trucks in the course of his employment. He applied for and is currently receiving total disability benefits under the Pennsylvania Workmen’s Compensation Act.1 At the time of the accident the plaintiff owned his own car and was insured under a no-fault policy issued by Penn National. He initially gave notice to his employer and his employer’s no-fault insurance carrier and requested basic loss benefits. This request was denied. He then initiated an action in assumpsit against his insurer. Penn National filed an answer and new matter to which the plaintiff filed preliminary objections. With the consent of both parties the court issued an order overruling the plaintiff’s preliminary objections without prejudice to either party to file a motion for judgment on the pleadings. Both parties filed such motions. After argument the lower *52court issued an order granting the defendant’s motion and denying the plaintiff’s motion. Relying on Gradler v. Prudential Insurance Company v. Traveler’s Insurance Company, 464 F.Supp. 575 (W.D.Pa. 1979)2 and § 204(a) of the No-Fault Act3 the lower court held that the plaintiff could not recover from his own no-fault carrier because the employer’s no-fault insurance carrier was the proper company against whom he should proceed. The Supreme Court’s recent decision in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980) clearly indicates that although the plaintiff cannot recover from his employer’s no-fault insurance carrier he is entitled to receive basic work-loss benefits to make up the difference between his actual wage loss and benefits conferred on him under the Workmen’s Compensation Act from his own no-fault insurance carrier.4 In Wagner, supra, the estate of a decedent, who was killed during the course of his employment while operating a company tractor-trailer, filed a claim against the employer’s no-fault carrier.5 The employer’s carrier filed preliminary *53objections and the trial court dismissed the claim based on Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978).6 This court affirmed and the Supreme Court granted allocatur. The appellant in Wagner, supra, argued that Sections 204 and 206 of the No-Fault Act created an exception to § 303 of the Workmen’s Compensation Act. Section 204 provides: “(a) Applicable security.—The security for the payment of basic loss benefits applicable to an injury to: “(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim; “(2) an insured is the security under which the victim or deceased victim is insured; “(3) the driver or other occupant of a motor vehicle involved in an accident resulting in injury who is not an insured is the security covering such vehicle; “(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purpose of this *54paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury; and “(5) any other individual is the applicable assigned claims plan.” 40 P.S. § 1009.204 (Supp.1979-80). Further, Section 206 provides: “.. . Except as provided in section 108(a)(3) of this act, all benefits or advantages (less reasonably incurred collection costs) that an individual receives or is entitled to receive from social security (except those benefits provided under Title XIX of the Social Security Act and except those medicare benefits to which a person’s entitlement depends upon use of his so-called ‘life-time reserve’ of benefit days) workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits (except the proceeds of life insurance) received by or available to an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.” 40 P.S. § 1009.206(a) (Supp.1979-80). The court found that neither of these sections created an exception to the exclusivity of remedy section of the Workmen’s Compensation Act and held that the appellant could not recover from the employer’s no-fault insurance carrier. The court specified, however, that an employee would be limited to workmen’s compensation benefits only in a situation identical to the one before it; i.e., where the driver carries no insurance of his own on his own vehicle and no other vehicle is involved in the injury-producing accident. Wagner, supra 492 Pa. at 167, 422 A.2d at 1068 (Emphasis added). The court stated: In sum, an employee injured in the scope of his employment while driving his employer’s vehicle may recover *55only workmen’s compensation benefits from his employer or the employer’s workmen’s compensation carrier; such a result is compelled by Section 303 of the Workmen’s Compensation Act. The injured employee may, if applicable, proceed against any of the applicable security mentioned in Section 204(a)(2)-{5). Should the employee recover no-fault benefits, workmen’s compensation benefits must first be deducted from any no-fault benefits to be paid. Should an employee be using his employer’s vehicle for private non-work related reasons, the employee could recover from his employer’s no-fault carrier. Wagner, supra, 492 Pa. at 167, 422 A.2d at 1068. Applying the principles of Wagner to the facts of the instant case it is clear that although the plaintiff may not recover from his employer’s no-fault insurance carrier, he may proceed against his own insurer under § 204(a)(2).7 It is also clear that § 206 of the No-Fault Act mandates that workmen’s compensation benefits must be deducted from this recovery. For the above reasons we find that the lower court erroneously granted judgment on the pleadings in favor of the defendant. We therefore reverse the lower court’s order and remand for proceedings consistent with this opinion. PRICE, J., did not participate in the consideration or decision of this case. . Act of June 2, 1915, P.L. 736, Art. I, § 101, et seq., as amended 77 P.S. § 1, et seq. . In Gradler v. Prudential Insurance Company v. Travelers Insurance Company, supra, an employee was involved in an accident while driving a truck furnished by his employer. At the time of the accident he was not using the truck for work-related purposes and thus he was not eligible to receive any workmen’s compensation benefits. Under those circumstances the court properly ruled that the employer’s no-fault carrier was liable to the employee under Section 204(a)(1) of the No-Fault Act. In the instant case, however, the employee was injured during the course of his employment and therefore the lower court erroneously relied on Gradler to support its holding . Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009. 101 et seq. . We note that three judges dissented in Wagner, supra, however, the dissenters did so on the grounds that the injured employee should be able to recover from his employer’s no-fault carrier. They did not in any way refer to an insured employee’s right to recover from his own no-fault carrier. . The court pointedly noted that at the time of the accident the decedent did not own a car and thus had no insurance of his own. . In Turner, supra, this court held that Section 303 of the Workmen’s Compensation Act barred an employee injured during the course of his employment while driving his employer’s vehicle from seeking recovery against his employer under the No-Fault Act. Section 303 provides: “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death ... or occupational disease...”. As amended, Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 481(a) (Supp. 1979-80). (Emphasis added). . Our holding is supported by the court’s recent decision in Adams v. Nationwide Insurance Company, 285 Pa.Super. 79, 426 A.2d 1150 (1981). In Adams the court held that an employee injured while driving his own automobile within the scope of his employment is entitled to receive work-loss benefits from his no-fault insurance carrier to make up the difference between his actual wage loss and benefits conferred on him under the Workmen’s Compensation Act.
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Augostine v. Pennsylvania National Mutual Casualty Insurance
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Augostine
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Robert J. AUGOSTINE v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, a Corporation
| null | null | null | null | null | null | null | null | null | 63,086,353 |
No. 97
| 0 |
pasuperct
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SA
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t
|
Superior Court of Pennsylvania
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Superior Court of Pennsylvania
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1,674,033 |
612 So. 2d 55 (1993) MTU OF NORTH AMERICA, INC. and MTU Friedrichshafen v. RAVEN MARINE, INC., Transocean Marine, Inc. and Bernard A. Favret. No. 92-C-2356. Supreme Court of Louisiana. January 29, 1993. Reconsideration Denied March 19, 1993. Denied. CALOGERO, C.J., and WATSON and LEMMON, JJ., would grant the writ. MARCUS, J., not on panel.
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opinion_html_with_citations
| 55 |
2013-10-30 07:05:13.237718+00
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010combined
|
f
|
f
| 1,674,033 |
Calogero
| null |
L
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f
|
Published
| 1 |
MTU of North America, Inc. v. Raven Marine, Inc.
| null | null | null | null | null | null | null | null | null | null | null | 1,262,452 |
92-C-2356
| 0 |
la
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S
|
t
|
Supreme Court of Louisiana
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Supreme Court of Louisiana
|
6,852,972 |
Appeal from a judgment of the Superior Court for King County, No. 80-8-05593-5, George T. Mattson, J., entered March 18, 1981. Affirmed by unpublished opinion per Swanson, J., concurred in by Andersen, C.J., and Williams, J.
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opinion_xml_harvard
| 36 |
2022-07-23 20:38:33.246102+00
|
020lead
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t
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f
| 6,955,800 | null | null |
U
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f
|
Published
| 0 |
State v. Holeman
|
Holeman
|
The State of Washington v. Wayne Norman Holeman
| null | null | null | null | null | null | null | null | null | 63,944,089 |
No. 10158-7-I
| 0 |
washctapp
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SA
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t
|
Court of Appeals of Washington
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Court of Appeals of Washington
|
8,157,496 |
314 U. S. 598.
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opinion_xml_harvard
| 4 |
2022-09-09 20:44:09.422256+00
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020lead
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t
|
f
| 8,195,561 |
Application, Consideration, Took
| null |
U
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f
|
Published
| 0 |
Helvering v. Southwest Consolidated Corp.
|
Helvering
|
Helvering, Commissioner of Internal Revenue v. Southwest Consolidated Corp.
| null | null | null | null | null | null | null | null | null | 65,293,344 |
No. 286
| 0 |
scotus
|
F
|
t
|
Supreme Court
|
Supreme Court of the United States
|
6,521,594 |
PELHAM, J. The judges of-this court, acting under the provisions of the statute, certified the question presented by this appeal on the following statement of facts as shown by the record in the case to the Supreme Court as an abstract proposition: “The appellant in this case challenged the validity of the indictment against him by appropriate and timely attack in the trial court on the ground that the foreman of the grand jury, Geo. D. Williamson, had been excused by an order of the court on the 3rd day of August, 1912, from further service as a grand juror, but that, notwithstanding this fact, he continued to serve as the foreman of the grand jury until the 5th day of August, 1912, when, acting as such foreman, he returned into open *130court the indictment in this case against the defendant, indorsed by him as such foreman. “The record in this case shows the following order of the court: ‘Now on this 3d day of August, 1912, on account of the sickness of Geo. D. Williamson, foreman of the grand jury now in session in this court, it is ordered by the court that the said Geo. D. Williamson be, and he is hereby, excused from further service on said grand jury.’ “Following this order is another order made by the court requiring the jury box to be brought into the court, and reciting that the presiding judge in open court drew from the jury box the names of two jurors, who were ordered to be duly summoned to appear in court on the 5th day of August, 1912, at 10 o’clock, to serve as grand jurors. It is further shown that the persons so drawn appeared on August 5,1912, and that one of them was selected and sworn as a member of the grand jury, and that W. A. Roger, a member of the grand jury, was duly sworn as a foreman thereof. “It is shown by the record in this case that the indictment upon which the defendant Avas put upon his trial was on August 5, 1912, returned to and received by the court and filed and indorsed, ‘A true bill. G. D. Williamson, Foreman.’ “It appears from the pleadings raising the question of the validity of the indictment that the foreman of the grand jury, Geo. D. Williamson, applied to the court on Saturday, the 3d day of August, 1912, to be relieved from service as a grand juror because of his ill health, and that the court thereupon entered the order herein-above set out, excusing said grand juryman, avIio had been selected as the foreman of the grand jury,- from further sendee. It further appears, however, that the said Williamson continued to serve as foreman of the grand *131jury and to participate in the deliberations of that body until some time during the day of August 5, 1912, when he returned into court the indictment in this case against the defendant,' indorsed as above set forth. “It is also shown that the indictment against the defendant was found by the grand jury after the said order excusing the said Williamson as foreman was entered by the court, and that Williamson participated in the deliberations of said grand jury at the time of finding the indictment'. “Question: Was the indictment preferred against the defendant in this case a valid indictment?” The Supreme- Court in response to the inquiry hold that the facts set forth did not affect the legality of the indictment. — Wilder v. State, 60 South. 923. If the court improperly admitted parol testimony having a tendency to impeach the order of the court excusing Williamson as a member of the grand jury on hearing the preliminary motions, issues tendered by the pleas in abatement, etc., it was without injury under the ruling made by the Supreme Court in this case on o-ur certification, and would not authorize a reversal. No other question is insisted upon or presented by the appeal in this case, and on the authority of the holding by the Supreme Court as above noted the case will be affirmed. Affirmed.
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opinion_xml_harvard
| 690 |
2022-07-19 19:04:00.188597+00
|
020lead
|
t
|
f
| 6,644,875 |
Pelham
| null |
U
|
f
|
Published
| 0 |
Wilder v. State
|
Wilder
|
Wilder v. State
|
<p>
Violating Prohibition Law.
</p> <p>Appeal from Morgan Law and Equity Court.</p> <p>Heard before Hon. Thomas W. Wert.</p> <p>Joe Wilder was convicted of violating the prohibition law and he appeals.</p> <p>For answer of Supreme Court to questions propounded, see 60 South. 928.</p> <p>Counsel discuss the action of the court in reference to the grand jury and insist that the court was in error to such an extent as to invalidate the indictment, but in view of the opinion it is not deemed necessary to bere set out the argument and authorities in support thereof. The court erred in allowing the introduction of parol evidence, contradicting the order and record excusing Williamson as a member of the grand jury. — State v. Allen, 1 Ala. 442; State v. Clarlcson, 3 Ala. 382; State v. Brooks, 9 Ala. 15; Desloncle v. Darrington, 29 Ala. 92; Gross v. The State, 63 Ala. 43; Knox v. Paul, 95 Ala. 507; Ex parte Rice, 102 Ala. 679.</p> <p>Counsel insist that if the-action of the court in reference to the grand jury did not invalidate the indictment, then the admission of parol evidence tending to impeach the record was harmless, if error at all. They cite authorities in support of the rulings of the court on the validity of the indictment, but in view of the opinion, it is not deemed necessary to here set them out.</p>
| null | null |
<p>Appeal and Error; Harmless Error; Evidence. — Where it is held that the action oí the court substituting one grand juror for another did not invalidate the indictment preferred against the defendant, the admission of parol evidence tending to impeach the order of the court excusing such grand juror on hearing the preliminary motion and issues tendered by the pleas in abatement was without injury, if error.</p>
| null | null | null |
Affirmed.
| null | 63,622,489 | null | 0 |
alactapp
|
SA
|
t
|
Alabama Court of Appeals
|
Alabama Court of Appeals
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4,872,192 |
*1269In re Bushnell Sr., Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Evangeline, Div. A, No. 78262-F; to the Court of Appeal, Third Circuit, No. 11-594. Denied.
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opinion_xml_harvard
| 31 |
2021-08-26 02:50:49.904304+00
|
020lead
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t
|
f
| 5,057,305 | null | null |
U
|
f
|
Published
| 0 |
State v. Bushnell
|
Bushnell
|
STATE of Louisiana v. Michael BUSHNELL, Sr.
| null | null | null | null | null | null | null | null | null | 60,307,237 |
No. 2012-KO-0036
| 0 |
la
|
S
|
t
|
Supreme Court of Louisiana
|
Supreme Court of Louisiana
|
2,820,536 |
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1275 In re: KHALEEL ALI HILLIARD Petitioner. On Petition for Writ of Mandamus. (Nos. 1:06-cr-00156-NCT-1; 1:08-cv-00870-NCT-DPD) Submitted: July 23, 2015 Decided: July 27, 2015 Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Khaleel Ali Hilliard, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Khaleel Ali Hilliard petitions for a writ of mandamus seeking an order directing the U.S. Attorney’s Office for the Middle District of North Carolina to respond to his motion to amend his 28 U.S.C. § 2255 (2012) motion. We conclude that Hilliard is not entitled to mandamus relief. Mandamus relief is a drastic remedy and should be used only in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426 U.S. 394 , 402 (1976); United States v. Moussaoui, 333 F.3d 509 , 516-17 (4th Cir. 2003). Further, mandamus relief is available only when the petitioner has a clear right to the relief sought. In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135 , 138 (4th Cir. 1988). The relief sought by Hilliard is not available by way of mandamus because the Government was not ordered by the district court to respond to Hilliard’s motion to amend his § 2255 motion. * Accordingly, we deny the petition for writ of mandamus. We dispense with oral argument because the facts and legal * We note that the § 2255 motion, the Government’s motion to dismiss, and Hilliard’s motion to amend were referred to the magistrate judge on January 31, 2014, and no action has been taken. However, Hilliard’s petition sought relief only from the U.S. Attorney’s Office. 2 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. PETITION DENIED 3
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opinion_html_with_citations
| 308 |
2015-07-27 19:03:07.330113+00
|
010combined
|
f
|
f
| 2,820,536 |
Hamilton, King, Niemeyer, Per Curiam
| null |
CU
|
f
|
Unpublished
| 0 |
In Re: Khaleel Hilliard v.
|
In Re: Khaleel Hilliard v.
|
In Re Khaleel Ali HILLIARD, Petitioner
| null | null |
<parties id="b312-7">
In re Khaleel Ali HILLIARD, Petitioner.
</parties><br><docketnumber id="b312-8">
No. 15-1275.
</docketnumber><br><court id="b312-9">
United States Court of Appeals, Fourth Circuit.
</court><br><otherdate id="b312-10">
Submitted: July 23, 2015.
</otherdate><decisiondate id="AsZ">
Decided: July 27, 2015.
</decisiondate><br><attorneys id="b312-12">
Khaleel Ali Hilliard, Petitioner Pro Se.
</attorneys><br><judges id="b312-13">
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
</judges>
| null | null | null | null | null | null | 2,677,314 |
15-1275
| 0 |
ca4
|
F
|
t
|
Fourth Circuit
|
Court of Appeals for the Fourth Circuit
|
848,525 |
703 N.W.2d 814 (2005) PEOPLE v. SHAFFER. No. 128411. Supreme Court of Michigan. September 28, 2005. Application for Leave to Appeal. SC: 128411, COA: 252848. On order of the Court, the application for leave to appeal the February 17, 2005 judgment of the Court of appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
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opinion_html_with_citations
| 67 |
2013-03-01 23:43:31.638757+00
|
010combined
|
f
|
f
| 848,525 | null | null |
LC
|
f
|
Published
| 0 |
People v. Shaffer
|
Shaffer
| null | null | null | null | null | null | null | null | null | null | 2,143,306 |
128411
| 0 |
mich
|
S
|
t
|
Michigan Supreme Court
|
Michigan Supreme Court
|
1,653,170 |
465 N.W.2d 412 (1991) In the Matter of the WELFARE OF M.S.S., Minor Child. No. C1-90-882. Court of Appeals of Minnesota. January 22, 1991. *413 John Steven Lind, Indian Legal Assistance Program, Duluth, for appellant Father. Marvin Ketola, Carlton County Atty., Robert E. Macauly, Jr., Asst. County Atty., Carlton, Patti S. Mallecoccio, Duluth, for guardian ad litem. Considered and decided by PARKER, P.J., and FORSBERG and KALITOWSKI, JJ. OPINION PARKER, Judge. Elgin Smith appeals the termination of his parental rights to his daughter, M.S.S. He asserts that the petitioner county did not meet the "reasonable doubt" standard of proof necessary before termination *414 could occur under section 1912(d) and (f) of the Indian Child Welfare Act. We reverse and remand. FACTS On June 7, 1983, M.S.S. was born to Elgin and Catherine Smith, who were married in 1980. Catherine is enrolled in the Minnesota Chippewa Tribe and Elgin is enrolled in the Wisconsin Winnebago Tribe. M.S.S. was eligible for enrollment in the Wisconsin Winnegabo Tribe only and on July 9, 1988, was so enrolled. She is Elgin Smith's only biological child. In February 1984 the Cloquet, Minnesota, police and the Carlton County Human Services Department removed M.S.S. and her two half-sisters, J.A.P. and Y.L., from the Smith home. They did so after receiving reports from a school teacher that Elgin Smith was sexually abusing his two stepdaughters, J.A.P. and Y.L. No evidence of anyone sexually abusing M.S.S. was presented. In April 1984 Carlton County filed a criminal complaint against Smith, alleging that he had sexually abused his two stepdaughters. He pled not guilty to the charges and was subsequently convicted by a jury of one count of first degree criminal sexual conduct involving Y.L. The state dismissed the charge that he abused J.A.P. The trial court sentenced Smith to 43 months in Stillwater Prison. He had served 18 months before his appeal resulted in a reduction of his conviction to second degree criminal sexual conduct. The court then reduced his sentence to 21 months, with credit for his 18 months served; the court placed him on probation for the remaining three months. After Smith's conviction, the state sent M.S.S. and J.A.P. to live with Catherine under protective supervision of the Carlton County Human Services Department. At that time, the court ordered Elgin Smith restrained from having any contact with M.S.S. until further order. On May 2, 1986, the county again removed M.S.S. and J.A.P. from the Smith home and placed them in emergency foster care. This time the county removed them because of allegations that Catherine's brother had sexually abused J.A.P. After Smith's release from prison in June 1986, the trial court granted him supervised visits with M.S.S. However, the trial court's February 1987 order restrained him from having any contact with her. In April 1987 the trial court adjudicated M.S.S. to be a dependent child. Carlton County filed a petition for termination of Elgin and Catherine Smith's parental rights in December 1987; Elgin Smith denied it. On April 4, 1988, the date scheduled for the fact hearing, Smith informed the court that he was a Wisconsin Winnebago Indian. He claimed the hearing violated the Indian Child Welfare Act (ICWA) because his tribe was not notified of the proceedings. The trial court rescheduled the hearing for June 8-10, 1988, in order to meet the notification requirements. On June 8 and 9, 1988, the trial court heard testimony regarding the petition for termination. The trial court then suspended part of the proceedings to allow the Winnebago Tribe to become more involved in the case. In the interim, M.S.S. was enrolled as a member of the Wisconsin Winnebago Tribe. On December 20, 1988, Elgin Smith appeared in the trial court with his brother John and John's wife, Virginia, proposing that permanent placement and custody of M.S.S. be given to his brother and sister-in-law. Smith's brother is a member of the Wisconsin Winnebago Tribe and has been a police officer for approximately 18 years; the couple were also licensed foster parents. The court did not address the proposal at that time. On December 21, 1988, Smith sought to have the court approve a visit between M.S.S. and his brother and sister-in-law. The court indicated that it would allow visitation only if it were approved through Carlton County. The county never allowed the visit. On January 23 and 24, 1989, the trial court resumed hearing testimony. Smith again requested that the court consider his proposal to place M.S.S. permanently with his brother in Wisconsin. *415 Naomi Russell, the representative for the Winnebago Tribe and the Tribe's Indian child welfare coordinator for the past seven years, testified that the Winnebago Tribe had previously handled placements such as the one proposed. She specifically recommended the acceptance of Smith's proposal. Carlton County Human Services director Don Bacigalupo testified that he was made aware of the proposal before trial, but he still recommended termination. Several witnesses were called to give opinions on whether Smith's parental rights should be terminated. The court certified eight witnesses Naomi Russell, Don Bacigalupo, Debbie Peterson, Marilyn Mathaler, Jewell Anderson, Wayne DuPuis, Teddy Fosness, and Rhonda Trotterchaude as experts qualifying under the ICWA. Several other witnesses also testified, but were not certified. Mathaler is a member of the Wisconsin Brotherton Tribe and a St. Louis County social worker. At the time of trial, she had worked as a social worker for nearly 15 years, after having obtained a B.A. in sociology. Nearly one-third of her caseload involves Native Americans. She has had specific training in working with Native Americans and has been involved in many Native American cultural activities. Mathaler testified that she supports the termination. Smith objected to her certification as an expert. Anderson is a member of the Minnesota Chippewa Tribe, was raised in an Indian home, and presently lives on the Fond du Lac Reservation. She is an R.N. and previously held jobs as senior program coordinator and community health nurse for the Fond du Lac Reservation. Anderson was guardian ad litem for M.S.S. between March 1984 and January 1988. Smith objected to her testimony as an expert. In June 1988, Anderson testified she believed that long-term foster care in an appropriate Indian home was in M.S.S.' best interests. In January 1989, however, she said she believed that termination of parental rights was in M.S.S.' best interests based upon the fact that the parents had made no efforts in the interim toward rehabilitation. She believed termination should occur despite the proposal to place the child permanently with Smith's brother and sister-in-law. She testified that if M.S.S. were returned to her parents' custody today or in the foreseeably near future, she would be at risk of serious emotional or physical harm. DuPuis is a Fond du Lac social worker and an enrolled member of the Minnesota Chippewa Tribe who was educated in the customs and traditions of the Indian way of life. He testified, without objection, as an expert. Though DuPuis admitted to having few contacts with the Wisconsin Winnebago Tribe, he supported termination as a step toward permanency for M.S.S. and in her best interests. He testified that serious emotional and physical damage could occur if she were returned to her parents' custody in the near future. Fosness, another member of the Minnesota Chippewa Tribe and a Fond du Lac human services chemical dependency counselor, testified as an expert, without objection. She recognized that it was important for M.S.S. to remain in the Indian culture, but thought it unnecessary to be experienced in the Winnebago Tribe. Though she admitted to knowing little about Smith's brother and sister-in-law, she strongly recommended termination rather than permanent placement with them. She testified that she believed M.S.S. would be at risk of serious emotional or physical harm if she were returned to her parents' home at any time in the near future. There was no objection to the testimony, as an expert, of Trotterchaude, a member of the Minnesota Chippewa Tribe and family planning consultant for the Fond du Lac Reservation. Trotterchaude represented M.S.S. as guardian ad litem from January through October 1988. She admitted to having had contact with Smith on only one occasion and knew little about his family in Wisconsin. Though she initially believed reunification to be in the child's best interests, she testified that she would agree only with termination at this time because the parents had failed to follow up on the programs offered. *416 Peterson, a child protection worker with a psychology degree who is employed by Fond du Lac Social Services, testified as an expert. Smith objected to her testimony being received as that of an expert because she had only one year of work experience and because she is not an Indian. She also recommended termination of parental rights. Bacigalupo, who has a master's degree in social work, was accepted as an expert, without objection. He has been a social worker working with people of Indian descent since approximately 1968. Bacigalupo testified that he believed termination was in the best interests of M.S.S. and testified that he would not consider Smith's alternative plan. He further testified that if M.S.S. were returned home in the foreseeable future, it would likely result in serious physical or emotional harm to her. Russell, a Potowatomi Indian who was the designated representative of the Wisconsin Winnebago Tribe in this suit, was also accepted as an expert witness. Though she is not an enrolled member of the Winnebago Tribe, she speaks their language and has been their Indian child welfare coordinator for the past seven to eight years. She testified that returning M.S.S. to her parents would result in serious emotional damage to the child. She was not sure that termination of parental rights was in M.S.S.' best interests and recommended long-term placement of M.S.S. with relatives in Wisconsin to ensure that she remained enrolled in the Winnebago Tribe. She said she would agree with termination if it could be guaranteed that M.S.S. would remain a member of the Winnebago Tribe. Smith offered the testimony of his brother and sister-in-law but the court refused it. After the hearing, the trial court instructed the parties to submit written findings and arguments. Catherine Smith submitted proposed findings of fact and conclusions of law in February and April 1989. Elgin Smith submitted a written memorandum opposing the petition. Both argued that the petitioners had failed in their burden of proof under the ICWA. The presiding judge issued an order terminating the parental rights on March 15, 1990. Elgin and Catherine Smith and Elgin's Wisconsin relatives have not been allowed to see M.S.S. since the hearing concluded in January 1989. ISSUES I. Did the trial court err in finding proof of the petition for termination beyond a reasonable doubt, pursuant to section 1912(f) of the ICWA? II. Did the trial court err in finding certain persons to be "qualified expert witnesses" pursuant to the ICWA? III. Did the trial court use the proper standard in determining whether active efforts had been made to provide remedial services and rehabilitative programs to prevent the breakup of an Indian family? DISCUSSION I Smith claims the trial court erred in finding that Carlton County had proved its petition for termination beyond a reasonable doubt, as required by section 1912(f) of the ICWA. A very stringent standard of review is applied to a trial court's order to terminate parental rights. In re W.R., 379 N.W.2d 544 , 547 (Minn.App.1985), pet. for rev. denied (Minn. Feb. 19, 1986) (citing In re Chosa, 290 N.W.2d 766 , 769 (Minn. 1980)). This stringent standard is followed because of the presumption in favor of maintaining parental rights. In re Clausen, 289 N.W.2d 153 , 156 (Minn.1980). The Clausen court indicated that even though some deference would be given to the trial court, the reviewing court "will closely inquire into the sufficiency of the evidence." Id. The "reasonable doubt" standard of proof was enacted by Congress for cases involving termination of parental rights to Indian children. W.R., 379 N.W.2d at 548. Use of the highest standard of proof known to our jurisprudence was specified to stop the all-too-common removal of Indian children from their Indian families and *417 tribal communities "by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 , 34-35, 109 S. Ct. 1597 , 1601, 104 L. Ed. 2d 29 (1989). The stricter standard in the ICWA requires that [n]o termination of parental rights may be ordered in such a proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(f) (1986). Pursuant to section 1912(f), Smith argues that there was insufficient testimony by qualified expert witnesses to prove beyond a reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. We agree, for the reasons expressed in sections II and III following. II Smith argues that Naomi Russell is the only witness who actually qualified as an expert witness under the ICWA. He contends that the other witnesses do not meet the requirements for an "expert" that have been established under the Bureau of Indian Affairs (BIA) guidelines and the Minnesota Department of Human Services (DHS) manual. To determine whether witnesses qualify as experts pursuant to the ICWA, Minnesota follows the guidelines issued by the BIA and found in the DHS manual. In re B.W., 454 N.W.2d 437 , 443-44 (Minn. App.1990). These guidelines provide that under the ICWA, a qualified expert witness should be: (i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices. (ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe. (iii) A professional person having substantial education and experience in the area of his or her speciality and having substantial knowledge of prevailing social and cultural standards and childrearing practices within the Indian community. Id. at 442; DHS manual, XIII-3586 (January 30, 1987). This court in B.W. indicated that a guardian ad litem is not automatically qualified as an expert. See B.W., 454 N.W.2d at 444-45 (guardian ad litem was not accepted as a professional but could possibly have qualified under paragraph (ii) of the DHS manual, since he was a layperson who had some knowledge of cultural standards and childrearing practices within the Indian child's tribe). This court also indicated that a non-Indian child protection worker could not qualify under paragraph (iii) unless having had substantial knowledge of prevailing social and cultural standards and childrearing practices within the Indian community. Id. at 444. We noted that merely because a case worker deals with Indian families, it does not necessarily follow that he qualifies as an Indian child welfare expert. Id. The experts should also be conversant with Indian culture and child-rearing practices, lest "the problems Congress has tried to remedy may remain, despite the adoption of the Indian Child Welfare Act." Id. The trial court issued its order terminating parental rights prior to publication of our decision in B.W. Therefore, we must remand for reconsideration in light of B.W. III Smith further contends that Carlton County failed to show that active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of Smith's family, consistent *418 with section 1912(d) of the ICWA. He contends that such efforts must be found to have been proved beyond a reasonable doubt. The ICWA provides: Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proved unsuccessful. 25 U.S.C. § 1912(d) (1986). Prior to this time, Minnesota courts have not found it necessary to discuss the standard of proof necessary under Section 1912(d). See In re T.J.J., 366 N.W.2d 651 (Minn.App.1985). However, other jurisdictions have concluded that Congress did intend the reasonable doubt standard of section 1912(f) to be applied to the requirements of section 1912(d). See In re L.N.W., 457 N.W.2d 17 , 19 (Iowa App. 1990); Matter of Morgan, 140 Mich.App. 594, 364 N.W.2d 754 , 758 (1985); People in the Interest of S.R., 323 N.W.2d 885 , 887 (S.D.1982). In enacting the ICWA, Congress indicated its intent to diminish the effect of having culturally biased government officials, who perceive the necessity of terminating parental rights of Indian citizens through quite different cultural lenses, decide whether to terminate an Indian's parental rights. See 25 U.S.C. § 1901. One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by nontribal government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing. Many of the individuals who decide the fate of our children are at best ignorant of our cultural values, and at worst contemptful of the Indian way and convinced that removal, usually to a non-Indian household or institution, can only benefit an Indian child. Holyfield, 490 U.S. at 34-35, 109 S.Ct. at 1601 (citing Hearings on S.1214 before the Subcommittee on Indian Affairs and Public Lands of the House Committee on Interior and Insular Affairs, 95th Cong.2d Sess. (1978)). In view of the tragic results of this quite different focus on familial life, the importance Congress placed on requiring a higher standard of proof in parental rights termination cases can be readily understood. Logically, this seems to be compelled: If termination of parental rights of Indian parents to their children can be ordered only upon a factual basis shown beyond a reasonable doubt (§ 1912(f)), and if termination cannot be effected without a showing of active efforts to prevent the breakup of the Indian family and a failure thereof (§ 1912(d)), then the adequacy of efforts and futility of them, as predicates to termination, must likewise be established beyond a reasonable doubt. Therefore, we recognize the reasonable doubt standard as appropriate in determining whether the petitioning party has complied with section 1912(d). Smith contends that the "active efforts" and futility requirement of section 1912(d) were not proved beyond a reasonable doubt. He contends his proposal to place M.S.S. permanently with his brother and sister-in-law was clearly a remedial and rehabilitative measure designed to prevent the breakup of an Indian family which was ignored and prevented from happening by Carlton County and upheld by the trial court. He claims that his proposal must be attempted and thereafter be shown to have been unsuccessful before his parental rights can be terminated. The BIA has established guidelines on the form that these remedial and rehabilitative services must take: These efforts shall take into account the prevailing social and cultural conditions and way of life of the Indian child's tribe. They shall also involve and use the available resources of the extended family, the Tribe, the Indian social service agencies, and individual Indian care givers. *419 Guidelines for State Courts, 44 Fed.Reg. 67,592 (Nov. 26, 1979) (emphasis added). Other jurisdictions have attempted to enlist the assistance of extended family members in their programs designed to prevent the breakup of the Indian family. See L.N.W., 457 N.W.2d at 19 (party seeking termination required to demonstrate that services were also offered to extended family members); In re Adoption of T.R.M., 525 N.E.2d 298 , 310 (Ind.1988) (actions of adoptive parents to adopt and raise the child seen as active efforts to reunite the preexisting Indian family unit). Although the county and trial court were not made aware of the existence of Smith's brother and sister-in-law or his proposed plan until late in the termination proceedings, we do not believe the reasonable doubt standard could have been met without consideration of this alternative plan. Therefore, we conclude the trial court erred in not having required the county to extend the focus of its efforts to the extended family and the Indian child's tribe. 44 Fed.Reg. 67,592. Merely to give his relatives priority in considering preadoptive placement, as required by section 1915(b) of the ICWA, is not sufficient. Should the court find the proposed relatives to be qualified foster parents for M.S.S., the need for terminating Smith's parental rights might be obviated. At issue upon remand, then, will be whether the evidence, including the testimony of experts qualified under the BIA/DHS guidelines, proves beyond a reasonable doubt that the continued custody of the child by the parents or Indian custodian is likely to result in serious emotional or physical damage to the child. This necessitates consideration of whether custody by Smith's brother and sister-in-law might be likely to result in similar damage to the child. Therefore, the trial court must examine the fitness of the proffered Indian custodians and determine whether the child's safety can adequately be ensured under the proposed plan. In examining the proposal, the court must consider contributions of the child's tribe along with the detrimental effects of removing the child from the community in which she has lived. The court must also consider her ties to her half-sisters and the potential for maintaining those ties under the proposed plan. DECISION We reverse and remand with instructions that the record be reopened and the trial court consider testimony and all evidence relevant to the alternative plan proposed by appellant. Reversed and remanded.
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opinion_html_with_citations
| 3,664 |
2013-10-30 07:02:12.222144+00
|
010combined
|
f
|
f
| 1,653,170 |
Forsberg, Kalitowski, Parker
| null |
LU
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t
|
Published
| 22 |
In Re the Welfare of M.S.S.
|
In re Welfare
|
In the Matter of the WELFARE OF M.S.S., Minor Child
| null | null |
<parties id="b456-16">
In the Matter of the WELFARE OF M.S.S., Minor Child.
</parties><br><docketnumber id="b456-17">
No. C1-90-882.
</docketnumber><br><court id="b456-18">
Court of Appeals of Minnesota.
</court><br><decisiondate id="b456-19">
Jan. 22, 1991.
</decisiondate><br><attorneys id="b457-17">
<span citation-index="1" class="star-pagination" label="413">
*413
</span>
John Steven Lind, Indian Legal Assistance Program, Duluth, for appellant Father.
</attorneys><br><attorneys id="b457-18">
Marvin Ketola, Carlton County Atty., Robert E. Macauly, Jr., Asst. County Atty., Carlton, Patti S. Mallecoccio, Duluth, for guardian ad litem’.
</attorneys><br><judges id="b457-19">
Considered and decided by PARKER, P.J., and FORSBERG and KALITOWSKI, JJ.
</judges>
| null | null | null | null | null | null | 1,669,748 |
C1-90-882
| 0 |
minnctapp
|
SA
|
t
|
Court of Appeals of Minnesota
|
Court of Appeals of Minnesota
|
9,238,199 |
C. A. 7th Cir. Certiorari denied.
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opinion_xml_harvard
| 6 |
2022-11-28 18:16:50.640312+00
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020lead
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t
|
f
| 9,243,386 | null | null |
U
|
f
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Published
| 0 |
Greene v. Pollard
|
Greene
|
Greene v. Pollard, Warden
| null | null | null | null | null | null | null | null | null | 66,510,448 |
No. 11-5233
| 0 |
scotus
|
F
|
t
|
Supreme Court
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Supreme Court of the United States
|
6,934,334 |
WARDEN, P. J. Defendant appeals from convictions for murder and attempted murder.1 The only assignment of error requiring our consideration is that relating to the attempted murder charge. Defendant assigns error to the admission of evidence of three prior criminal acts. He contends that the evidence is not relevant to the issue of intent to kill the victim and that, if it were relevant, its prejudicial impact outweighs its probative value to prove intent. We affirm. Defendant, a Native American, entered a tavern during the evening of November 2,1983. He displayed a pistol to several persons and told one of them that he would shoot the person who had harrassed his mother. He pointed the pistol at two others and told them that he would have shot them if he had not known them. Later that evening, the tavern owner, Beagley, observed suspicious behavior between defendant and two other men. One of the men stated: “When Indians drink firewater they get crazy.” Beagley approached them and warned them not to start any trouble. Defendant pulled the pistol and fired three shots, killing the other two men. Beagley ran out of the tavern. Defendant fired at him, hitting the side of the tavern. At defendant’s trial for the attempted murder of Beagley, the prosecution introduced evidence of three occasions on which defendant had acted violently. The first had occurred five years earlier, in 1978, when defendant had shot a neighbor’s dog and had pointed a gun at people in the area. In that incident, according to the testimony, defendant also had said that he had shot blacks and whites and that he would “kill those white mother-fuckers and their dogs.” Defendant was drinking at the time. The second incident also had occurred in 1978. According to a police officer, defendant had been extremely intoxicated, hostile and threatening to the police when they responded to a call regarding a disturbance at his home. He retreated into a bedroom and came out with a rifle and threatened to kill the officers if they did not leave. The third incident, which had occurred in 1981, involved his carrying a rifle while chasing another person. The state *577offered the evidence to prove that defendant intended to kill Beagley when he shot at him, and the court admitted it for that purpose. The admissibility of other bad acts evidence is controlled by OEC 404(3): “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” The Supreme Court recently noted that OEC 404(3) is a rule of inclusion, not exclusion; evidence of other bad acts is admissible if it is relevant, unless its only function is to show the defendant’s bad character or there is some other specific basis for excluding it. State v. Johns, 301 Or 535, 725 P2d 312 (1986). In Johns, the defendant was accused of murdering his wife. The prosecution introduced evidence that he had assaulted his former wife (not the victim in the case), in New Zealand, almost six years earlier. The Supreme Court held the evidence admissible. In doing so, it established a two-phase analysis for trial judges to use in deciding whether to admit evidence of prior bad acts. The judge must first determine the relevance of the evidence to the issues being tried. The court developed five guidelines to consider in determining whether the evidence is relevant to the defendant’s intent. “(1) Does the present charged act require proof of intent? “(2) Did the prior act require intent? “(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case? “(4) Was the type of prior act the same or similar to the acts involved in the charged crime? “(5) Were the physical elements of the prior act and the present act similar?” 301 Or at 555. If the evidence is relevant under those criteria, the judge must then determine whether the probative value of the evidence of the prior act “is substantially outweighed by the *578danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.” OEC 403. In Johns the trial court had essentially followed the two-phase format. The same is true in this case. The judge first held that the evidence of the prior bad acts was probative on the issue of intent and noted the similarities. The similarities included defendant’s malice, his dislike of and antagonism toward whites and the relationship between his drinking and violence. We note another significant similarity between the prior acts and those involved here. In all the incidents, defendant had held a gun or rifle and acted in a threatening manner. Under Johns, that evidence tends to show that, when defendant shot at Beagley, he intended to kill him. It is admissible for that purpose. We turn to the second phase of the Johns analysis. In State v. Collins, 73 Or App 216, 220, 698 P2d 969 (1985), we stated four factors for a trial judge to consider in determining whether the probative value of proferred evidence exceeds its prejudicial nature: (1) the need for the evidence; (2) the certainty that the other act was committed and that the defendant was the actor; (3) the strength or weakness of the evidence; and (4) its inflammatory effect on the jury. In Johns, the court added a fifth factor: “how time-consuming and distracting proof of other crime evidence will be.” 301 Or at 558. There was at least as great a need for the evidence in this case as there was in Johns. Defendant has not disputed any of the prior acts. The evidence was strong on the issue of intent. As the trial judge stated, it related directly to “defendant’s attitude about conduct he engages in when he has a firearm and how he intends to deal with firearms towards others.” Many statements by defendant were highly prejudicial and likely to inflame a jury. In Johns, however, the court gave the term “prejudicial” a limited meaning: Does the evidence invite the jury to resolve the case on the improper basis that defendant is a bad person? On this point we conclude, as did the Supreme Court in Johns, that the “evidence clearly was more relevant to the issue of intent than it *579would be to the question of whether defendant was a person of bad character.” 301 Or at 558. As to the last factor, concerning how time-consuming and distracting proof of other bad acts evidence will be, the court noted in Johns that “the proof of the prior misconduct would not throw the presentation of the murder case out of balance.” 301 Or at 558. The time and effort involved in proving the prior acts in this case is no greater than in Johns. We hold that the trial judge’s analysis comports with the guidelines later set forth in State v. Johns, supra, and we cannot now say that he acted beyond the range of his discretion by admitting evidence of defendant’s prior bad acts. Affirmed. The charges were consolidated in the indictment and then severed for trial. The convictions were consolidated into a single sentence order.
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opinion_xml_harvard
| 1,244 |
2022-07-24 00:22:27.792167+00
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020lead
|
t
|
f
| 7,032,120 |
Hoomissen, Young
| null |
U
|
f
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Published
| 0 |
State v. Harris
|
Harris
|
STATE OF OREGON v. FRANKLIN JOSEPH HARRIS
| null | null | null | null | null | null | null | null | null | 64,020,447 |
10-83-09851; CA A36097
| 0 |
orctapp
|
SA
|
t
|
Court of Appeals of Oregon
|
Court of Appeals of Oregon
|
9,057,643 |
C. A. 3d Cir. Certiorari denied.
|
opinion_xml_harvard
| 6 |
2022-11-27 20:04:16.765673+00
|
020lead
|
t
|
f
| 9,064,021 | null | null |
U
|
f
|
Published
| 0 |
Marra v. United States
|
Marra
|
Marra v. United States
| null | null | null | null | null | null | null | null | null | 66,330,272 |
No. 85-6654
| 0 |
scotus
|
F
|
t
|
Supreme Court
|
Supreme Court of the United States
|
1,840,060 |
206 B.R. 328 (1997) In re BARNEY'S, INC., et al., Debtors. BARNEY'S, INC. and Preen Realty, Inc., Plaintiffs, v. ISETAN COMPANY LIMITED, et al., Defendants. ISETAN COMPANY LIMITED and Isetan of America Inc., Defendants-counterclaim Plaintiffs, v. BARNEY'S, INC., et al., Counterclaim Defendants. Bankruptcy Nos. 96 B 40113 (JLG) to 96 B 40133 (JLG), Adv. No. 96/8021A. United States Bankruptcy Court, S.D. New York. March 14, 1997. *329 LeBeouf, Lamb, Greene & MacRae L.L.P., New York City, for Debtors. Hughes Hubbard & Reed L.L.P., New York City, for Isetan Company Limited, et al. DECISION ON PLAINTIFF DEBTORS' MOTION FOR PARTIAL SUMMARY JUDGMENT JAMES L. GARRITY, Jr., Bankruptcy Judge. Barney's, Inc. ("Barney's"), Preen Realty, Inc. ("Preen") and their debtor affiliates (together with Barney's and Preen, the "movants") seek partial summary judgment declaring that the agreements under which Barney's and its affiliates Madneer Corp. ("Madneer") and Barney's America Inc. ("Barney's America") occupy and manage Barney's stores in Chicago, Beverly Hills and New York City (the "Madison Avenue New York" store) are not "true leases" of non-residential real property for purposes of ง 365 of the Bankruptcy Code. The unsecured creditors' committee appointed herein supports the motion. Isetan Company Limited ("Isetan"), Isetan of America Inc. ("IOA") and the nominal landlords of the three stores, Calireen Realty Corp. ("Calireen"), Newireen Associates ("Newireen"), and Rush Oak Limited Partnership ("Rush Oak" and collectively, the "defendants"), oppose the motion. We deny it. Facts Movants are chapter 11 debtors-in-possession herein. They commenced this adversary proceeding on January 11, 1996, the day after each filed its voluntary chapter 11 petition. In their complaint, they seek the following: (1) enforcement of an alleged understanding and agreement between Barney's and Isetan that certain joint business projects undertaken by them would be restructured into a single global retailing company, or a Barney's/Isetan Global Partnership, in which Isetan *330 and the present owners of Barney's would share the equity ownership; (2) a determination that three real properties housing the Chicago, Beverly Hills and Madison Avenue New York stores, which are held in the names of defendants Newireen, Rush Oak and Calireen, and which were constructed in part with financing provided by Isetan, were intended to be equity contributions by Isetan to Barney's and belong to Barney's; (3) a judicial evaluation of the market value of the three properties so that Isetan may receive an appropriate equity interest in the reorganized debtors; (4) a determination that the lease agreements for the Chicago, Beverly Hills and Madison Avenue New York stores are not true leases, but instead are impermissible and unenforceable mechanisms by which Isetan seeks to realize a preferred return at the expense of Barneys' creditors on its equity investment in the Barney's/Isetan Global Partnership; (5) recovery for the benefit of Barneys' estate of approximately $50 million paid to Isetan and allegedly constituting preferred equity return to Isetan; and (6) a determination that approximately $177 million purportedly loaned by Isetan and IOA to Preen, but which allegedly was used to complete construction of the Madison Avenue New York, Chicago and Beverly Hills stores, is part of defendants' equity contribution to the Barney's/Isetan Global Partnership, and not an enforceable loan. Defendants deny that the Barney's/Isetan Global Partnership exists, or that the parties ever contemplated such a relationship. In their counterclaims, they allege that they are the lessors of the Chicago, Beverly Hills and Madison Avenue New York stores, and that Barney's, Madneer and Barney's America, respectively, are their tenants. Movants seek summary judgment pursuant to Fed. R.Bankr.P. 7056 and Fed.R.Civ.P. 56(c) that the purported lease agreements are not "true leases" for purposes of ง 365 of the Bankruptcy Code. Discussion We base our subject matter jurisdiction of this motion on 28 U.S.C. งง 1334(b) and 157(a) and the "Standing Order of Referral of Cases to Bankruptcy Judges" of the United States District Court for the Southern District of New York, dated July 10, 1984 (Ward, Acting C.J.). This is a core proceeding. See 28 U.S.C. ง 157(b)(2)(A), (B), (F), (K) and (O). Fed.R.Civ.P. 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 , 323, 106 S. Ct. 2548 , 2552, 91 L. Ed. 2d 265 (1986) (quoting Rule 56(c)). A fact is "material" only if it will affect the outcome of a lawsuit under applicable law, and a dispute over a material fact is "genuine" if the evidence is such that a reasonable finder of fact could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 252, 106 S. Ct. 2505 , 2512, 91 L. Ed. 2d 202 (1986); Rovtar v. Union Bank of Switzerland, 852 F. Supp. 180 (S.D.N.Y.1994). In assessing the merits of a summary judgment motion, we must view the record in the light most favorable to the non-moving party. See, e.g., Nat'l Union Fire Ins. Co. v. Turtur, 892 F.2d 199 , 203 (2d Cir.1989). We must determine "`[w]hether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Kulak v. City of New York, 88 F.3d 63 , 70 (2d Cir.1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52, 106 S. Ct. at 2512 ); see also Heyman v. Commerce Industry Insur. Co., 524 F.2d 1317 , 1320 (2d Cir.1975) ("on a motion for summary judgment the court cannot try issues of fact; it can only determine whether there are issues to be tried"). The movant must establish that no issue of material fact exists. *331 Adickes v. S.H. Kress & Co., 398 U.S. 144 , 157, 90 S. Ct. 1598 , 1608, 26 L. Ed. 2d 142 (1970). Movants contend that by examining documents executed by Barney's, Isetan and their affiliates since the inception of their relationship in 1989, including the February 10, 1989 letter agreement between the parties which refers to "a global retailing partnership" and the March 8, 1989 General Letter of Intent reciting the "desire" of the parties to "establish a long-term relationship . . . to develop their respective retail businesses and related and other businesses", we can determine as a matter of law, without extrinsic evidence of the parties' intentions, that the legal status of defendants vis เ vis Barney's, Madneer and Barney's America is not that of a lessor of real property for purposes of ง 365 of the Bankruptcy Code. Barney's contends that when viewed in light of its overall relationship with Isetan, the documents prove that defendants are something other than real property lessors and that the leases are merely payment mechanisms for extracting a preferred guaranteed return on Isetan's investment. Movants' Local Bankruptcy Rule 13(h) (now designated 7056-1) statement essentially catalogues the agreements they contend govern the relationship between Isetan, Barney's and their respective affiliates. In their Rule 13(h) counter-statement, defendants contest, or assert that after completing discovery they may contest, (i) that the February 10, 1989 letter executed by Isetan and Barney's created a "global retailing partnership", and (ii) that Isetan and Barney's entered into a general letter of intent regarding further business ventures between the partners on or as of March 8, 1989. With certain irrelevant exceptions, they do not contest that the remaining agreements were in fact entered into by the parties. They are deemed to have admitted those facts. See Local Bankruptcy Rule 7056-1; Official Committee of Unsecured Creditors v. New York State Department of State (In re Operation Open City), 148 B.R. 184 , 188 n. 3 (Bankr.S.D.N.Y.1992), aff'd, 170 B.R. 818 (S.D.N.Y.1994). Defendants also claim that other material facts preclude the entry of partial summary judgment in movants' favor, including that the parties never intended to create any relationship other than that of lessor and lessee, that the terms of the leases are not atypical and do not provide IOA with a guaranteed preferred return on its investment, and that Barney's for all purposes and at all times acted and portrayed itself to the world as a lessee rather than an owner of the stores. As a preliminary matter, defendants contend that only the Chicago, Beverly Hills and Madison Avenue New York leases and the joint investment agreements executed in connection with the Beverly Hills and Madison Avenue New York projects are relevant to this motion because, during an October 11, 1996 status conference on this matter, movants' counsel agreed that this motion would be based solely on the "four corners" of those agreements. We do not interpret counsel's statements during the status conference to so limit the evidence. Counsel merely indicated that movants' submissions would be confined to documentary evidence concerning Isetan's relationship with Barney's, as opposed to extrinsic evidence of the parties' intent. That is what movants have done. Sections 365(d)(3) and (d)(4) of the Bankruptcy Code [1] apply only to "true" or *332 "bona fide" leases. International Trade Administration v. Rensselaer Polytechnic Institute, 936 F.2d 744 , 748 (2d Cir.1991); Liona Corp. v. PCH Associates (In re PCH Associates), 804 F.2d 193 , 198 (2d Cir.1986). By motion dated January 23, 1996, defendants sought to compel movants to pay post-petition rent and otherwise timely perform their obligations under the purported lease agreements. Pursuant to a series of stipulations approved by this court the parties agreed to defer consideration of that motion pending resolution of this adversary proceeding. Movants contend that PCH Associates is controlling in this case, and as applied herein, mandates that we find the purported lease agreements to be other than bona fide leases. At this point, they do not ask us to determine what they are. We cannot overstate the significance of this litigation to the conduct of these chapter 11 cases. If movants prevail on this motion or at trial, they need not pay post-petition rent to defendants under the agreements or comply with the other statutory requirements governing unexpired leases of non-residential real property. See Rensselaer Polytechnic Institute, 936 F.2d at 748 (agreement that is not true lease not rejected by operation of law despite trustee's failure to assume within 60 days); PCH Associates, 804 F.2d at 201 (งง 365(d)(3) and (d)(4) do not apply to transaction that is not true lease). On the other hand, the increased financial burden on these estates in the event that movants are not successful would be considerable, and possibly crippling, particularly since they have not accrued funds sufficient to make post-petition payments to defendants. We determine whether an agreement constitutes a lease for purposes of the Bankruptcy Code by reference to federal law. See, e.g., City of Olathe, Kansas v. KAR Development Assocs., L.P. (In re KAR Development Assocs., L.P.), 180 B.R. 629 , 638 (D.Kan.1995) ("the legislative history of ง 502(b)(6), read together with ง 365, shows Congressional intent that [federal law] be used to determine whether a real estate transaction should be characterized as a lease"), stay denied, 182 B.R. 870 (D.Kan. 1995); In re Challa, 186 B.R. 750 , 757 (Bankr.M.D.Fla.1995). The appropriate inquiry is whether the parties intended to impose obligations and confer rights significantly different from those arising from the ordinary landlord/tenant relationship. See PCH Associates, 804 F.2d at 200; Rensselaer Polytechnic Institute, 936 F.2d at 748; Hotel Syracuse, Inc. v. City of Syracuse Industrial Development Agency (In re Hotel Syracuse, Inc.), 155 B.R. 824 , 838 (Bankr. N.D.N.Y.1993). We apply an "economic realities" test: while the parties to a transaction may intend that, as between themselves, their relationship be governed by the label they affix, that label neither governs the rights of third parties nor affects the legal consequences of the parties' agreement. In re Best Products Co., Inc., 157 B.R. 222 , 230 (Bankr.S.D.N.Y.1993) (citing PCH Associates, 804 F.2d at 198). We can consider parol evidence in determining the economic substance of the transaction. PCH Associates, 804 F.2d at 198. The burden of proof lies with the party challenging the bona fides of the lease. PCH Associates, 804 F.2d at 200; Marriott Family Restaurants, Inc. v. Lunan Family Restaurants (In re Lunan Family Restaurants), 194 B.R. 429 , 450 (N.D.Ill.1996). The quantum of evidence necessary to satisfy that burden is "substantial". PCH Associates, 804 F.2d at 200. The Bankruptcy Code does not define the term "lease of real property". PCH Associates instructs that in ascertaining its meaning we should be guided by ง 502(b)(6)'s [2] legislative history: *333 [T]he phrase "lease of real property" does not apply to lease financing transactions or to leases intended as security, but rather applies only to a "true" or "bona fide" lease. Thus, where the purported "lease" involves merely a sale of the real estate and the rental payments are, in truth, payments of principal and interest on a secured loan involving a sale of real estate, there is no true lease and section 502(b)(6) does not apply. PCH Associates, 804 F.2d at 199 (citing S.Rep. No. 95-989, at 64, reprinted in 1978 U.S.C.C.A.N. 5787, 5850; 3 COLLIER ON BANKRUPTCY ถ 502.02[7][d], at pp. XXX-XX-XXX-XX (15th ed. 1986)). Movants rely almost exclusively on PCH Associates. In that case, an experienced real estate investor learned that a hotel and the underlying real property were being offered for sale by the hotel owner and operator, an entity that eventually came to be known as PCH Associates. The investor determined that $9 million was necessary to acquire, renovate and provide working capital for the hotel. He then raised $4 million from other investors willing to acquire the owner entity's limited partnership interests and $5 million from an entity designated by a consortium of financial services companies. Id. at 194. The parties structured the $5 million investment as a tax-driven sale/leaseback transaction. PCH sold the underlying land to an entity that eventually became known as Liona Corp., N.V. Liona immediately leased back the property to PCH pursuant to a ground lease with an initial term of 33 years and an aggregate term with renewals of up to 165 years. Id. at 195. The rent under the ground lease consisted of a minimum annual rate plus a percentage of increases in the hotel's gross revenues. The parties adjusted the annual rent to ensure that Liona would receive 12% annual return on its "investment". Also, the ground lease expressly provided that the landlord would in no event be deemed a partner or associate of PCH and that the lease constituted the entire agreement between the parties. Id. After PCH filed for chapter 11, Liona sought an order directing PCH to continue paying rent under the ground lease. PCH commenced an adversary proceeding seeking a declaration that the ground lease represented a joint venture or subordinate financing scheme rather than a non-residential real property lease within the scope of ง 365. The bankruptcy court ruled for PCH, finding that the terms of the contract were ambiguous and included various features that were not commonly found in either actual sale agreements or true leases. In light of this ambiguity, the court relied on extrinsic evidence of the parties' intent in formulating the transaction to assess the true character of the transaction. Id. at 195-96. The district court affirmed. On appeal, the second circuit affirmed the district court. It agreed that the ground lease between Liona and PCH was not a true lease, but took issue with any further determination by the lower courts as to the precise nature of the transaction. Despite the strong presumption that a deed and a lease are what they purport to be, the court found that there was "substantial evidence" pertaining to the "circumstances of the negotiations and the economic substance of the transactions" upon which the bankruptcy and district courts could rely to find that the transaction between Liona and PCH was something other than a true lease. Id. at 200. The court noted that the amount invested in the property was unrelated to the fair market value of the land, but was calculated solely to finance development of the *334 hotel. It also noted that the rent was structured and intended to repay Liona's investment rather than compensate the landlord for use and occupancy of the land inasmuch as the minimum rent due under the ground lease was fixed at the lesser of $600,000 or 12% of Liona's investment. As such, the court concluded, the rent was unrelated to fair market rent. Id. at 201. The court also found other factors supporting characterization of the agreement as a financing transaction rather than a lease, including that PCH's agent initiated the transaction, the property was purchased specifically for PCH's use, PCH assumed many of the obligations associated with ownership, including the responsibility for paying property taxes and insurance, the agreement allowed Liona to recover its investment if the hotel debt were refinanced, and PCH had the right to pre-pay Liona's investment, at which time Liona would share solely in profits. Id. Thus, the following factors were considered by the PCH Associates court in determining whether a purported lease is a "true" lease within the meaning of ง 365: (i) whether the "rental" payments compensate the lessor for use of the land as opposed to being structured for some other purpose, such as to ensure a particular return on an investment; (ii) whether the purchase price is related to the fair market value of the land or calculated as the amount necessary to finance the transaction; (iii) whether the property was purchased by the lessor specifically for the lessee's use; (iv) whether the transaction is structured as a lease to secure certain tax advantages; (v) whether the lessee assumed many of the obligations normally associated with outright ownership, including the responsibility for paying property taxes and insurance; and (vi) whether the lessee can acquire the property at the expiration of the lease term for nominal consideration. 804 F.2d at 200-01; see also In re Hotel Syracuse, Inc., 155 B.R. at 838 (citing PCH Associates ). Movants contend that application of these factors to the agreements at issue herein demonstrates that those agreements are not leases under ง 365 of the Bankruptcy Code because: (a) the so called rent provides IOA with a guaranteed preferred return of 14% on its investment in each project, and does not compensate IOA for Barneys' use of the premises; (b) the Beverly Hills, Chicago and Madison Avenue New York stores were purchased and constructed specifically for Barneys' use; (c) the terms of the leases are unusually long; (d) Barney's, through Goldman Sachs, solicited Isetan for the purpose of developing the projects; (e) Barney's assumed the indicia of ownership because all of the leases are triple net, Barney's maintains the ground leases in Beverly Hills and Chicago by paying ground rent directly to the ground lessors, in Chicago, an affiliate of Barney's manages the property for no consideration, and in New York, IOA assigned to Barney's all of its voting rights as owner of the retail unit condominium and its right to appoint designees to the condominium's board of managers; and (f) except for the Chicago store sublease, each of the leases contains either a right of first refusal or a right of first offer in favor of the lessee, such that Barney's can prevent the transfer of IOA's purported ownership interest to any third party. Defendants deny that the payments under the agreements are structured to provide IOA with a guaranteed preferred return equal to 14% of its investment. They claim that the basic, participation and bonus rent features of the agreements are common in retail lease transactions, that the 14% figure alluded to by movants is not a guaranteed preferred return, but a threshold or "override", after satisfaction of which the Pressman family interests, which, unlike Barney's, actually are joint venturers or partners in the Isetan real estate projects through Calireen, Newireen and Rush Oak, are permitted to share in the rental stream from the stores. They also assert that the rental stream from the stores has never met this threshold, nor was it ever anticipated to do so until many years after the leases were executed. Thus, they dispute movants' contention that the amount payable to defendants under the *335 leases is unrelated to prevailing market rents or the value of the land and improvements. They also assert that it is not uncommon in retail lease transactions for the lessee to contact the lessor and for the property to be constructed to the retail lessees' specifications. As to the alleged unusually long terms of the leases, the defendants state that Barney's, Barney's America and Madneer have the right to walk away from the leases after expiration of a much shorter initial term, such that Isetan and IOA, like any other landlord, bear the risk that they will be confronted with the need to find another tenant to occupy vacant space. Defendants also claim that triple net leases are not at all uncommon in modern commercial leasing transactions and that this feature alone is not an indication that an agreement is not a true lease. Although Barney's may have a right of refusal or first offer in the event that the lessors attempt to transfer their interests in the underlying properties, defendants contend that this purchase option is not "bargain" or nominal. In addition, they contend that Barney's has always treated these transactions as leases for accounting purposes and has otherwise never represented to the world that Barney's, Barney's America and Madneer are anything other than tenants. As support for their allegations regarding the terms of the agreements and the economic substance of those provisions, defendants submitted an affidavit of Robert G. Von Ancken, a purported expert in the field of real estate and appraisal consulting, wherein Mr. Von Ancken opines that the various terms of the agreements are not at all uncommon in retail lease transactions. Among other things, he states that "[i]t should be emphasized in regard to rent and other terms that the market in which development and leasing of retail space occurs is not subject to rigid rules as to how parties must structure rent and otherwise allocate potential risks and rewards of property use and ownership." See Affidavit of Robert G. Von Ancken sworn to on November 6, 1996 ถ 11. In a reply affidavit, he further opines that whether the terms of the agreements are viewed individually or collectively, their economic substance is that of true leases. See Reply Affidavit of Robert G. Von Ancken sworn to on February 13, 1997 ถถ 3 and 4. Defendants supplemented their original submissions herein with stipulated facts and a compendium of exhibits. For purposes of this motion, the parties do not dispute, among other things, that (i) movants' books and records show that Newireen or IOA paid for the real estate upon which the Chicago, Madison Avenue New York and Beverly Hills stores are situated and otherwise reflect that movants had certain rights manifesting a tenancy rather than ownership interest in those properties, (ii) the agreements in question were treated as leases in movants' books and records, which treatment Barney's believed to be appropriate for accounting purposes, (iii) IOA and Newireen became the owners of record of the properties at the time they were acquired, and neither Barney's nor Barney's America undertook any contractual obligation to fund those purchases, and (iv) prior to the commencement of litigation with defendants, movants orally and in writing portrayed the agreements and their obligations thereunder as leases and rent, respectively. Based upon these facts, defendants claim that we can draw inferences of fact that movants' position as to the "true" lease issue is inconsistent with their prior representations. Movants argue that all of the foregoing is immaterial because the labels that the parties may have placed on the transactions in the past do not control. Without refuting Mr. Von Ancken's testimony with their own expert testimony, they assert that his testimony is immaterial to this motion because the issue currently before us is not whether the individual terms of the agreements appear commonly in documents labeled leases, but whether the terms of the transactions viewed collectively indicate that the alleged leases should not be treated as "true" lease for purposes of the Bankruptcy Code. Finally, movants deny that we need to find that a global partnership exists between Barney's and Isetan, a fact which defendants deny and contend in any case, can be proved or disproved only based upon extrinsic evidence concerning the parties' intentions. *336 Movants' position is untenable. On the one hand, they claim that the individual terms of the agreements are immaterial and that we must look to the bigger picture to determine the true economic substance of the transaction. On the other, they seek to limit the scope of that picture to the four corners of documents whose terms, we are told in Von Ancken's unrefuted testimony, either individually or taken as a whole reflect the economic substance of a "true" lease. To be sure, analysis of the leases in accordance with the PCH Associates factors indicates that they contain terms and were entered into under circumstances that may not be commonly associated with true leases of real property. However, movants would have us mechanically apply those factors without considering evidence concerning either prevailing conditions in the retail leasing marketplace or changes in the way that those transactions are structured that may have taken place since our court of appeals rendered its decision. We are loathe to exercise such blind adherence. Moreover, it is particularly ill-advised in light of our court of appeals' subsequent decision in Rensselaer Polytechnic Institute, wherein it rejected the assertion that when a purported lease is "triple net", this factor should be conclusively established against the "true" lease nature of the transaction due to the increasingly common utilization of this feature in commercial leases. 936 F.2d at 751 . Summary judgment on the issue of whether a lease is a "bona fide" lease under ง 365(d)(3) and (4) may be appropriate under certain circumstances. See, e.g., AgriStor Leasing v. Bertholf, 753 F. Supp. 881 (D.Kan. 1990); Beech Acceptance Corp., Inc. v. Connell, Nos. 88-1080-C and 88 1575-C, 1990 WL 129448 (D.Kan.1990); In re Lykes Bros. Steamship Co., Inc., 196 B.R. 574 (Bankr. M.D.Fla.1996); In re Hotel Syracuse, Inc., 155 B.R. at 831. To this end, we note that PCH Associates was resolved after a three day trial on the merits, including extensive expert testimony, in which the court admitted parol evidence on the parties' intention in entering into the underlying transactions. Likewise, Rensselaer Polytechnic Institute was not a summary judgment case, and in any event, required the court to construe one ground lease. In Hotel Syracuse, the court construed one lease and the parties stipulated to the underlying facts. See 155 B.R. at 832. Where extrinsic evidence is required to determine the intent of the parties in a purported lease transaction, however, summary judgment may be denied. See Feldman v. First National City Bank, 368 F. Supp. 1333 , 1339 (S.D.N.Y.1974), rev'd on other grounds, 511 F.2d 460 (2d Cir.1975). We find that to be the case here. We cannot conclude, based solely on the documentary evidence submitted by movants, that the agreements governing the Chicago, Beverly Hills and Madison Avenue New York projects are not "true" leases. Conclusion We deny movants' motion for partial summary judgment. NOTES [1] Those subsections provide as follows: (3) The trustee shall timely perform all of the obligations of the debtor, except those specified in section 365(b)(2), arising from and after the order for relief under any unexpired lease of nonresidential real property, until such lease is assumed or rejected, notwithstanding section 503(b)(1) of this title. The court may extend, for cause, the time for performance of any such obligation that arises within 60 days after the date of the order for relief, but the time for such performance shall not be extended beyond such 60-day period. This subsection shall not be deemed to affect the trustee's obligations under the provisions of subsection (b) or (f) of this section. Acceptance of any such performance does not constitute waiver or relinquishment of the lessor's rights under such lease or under this title. (4) Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor. 11 U.S.C. งง 365(d)(3) and (d)(4). [2] That section limits claims arising from the termination of a lease of nonresidential real property as follows: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if [an] objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim as of the date of the filing of the petition, and shall allow such claim in lawful currency of the United States in such amount, except to the extent that โ * * * * * * (6) if such claim is the claim of a lessor for damages resulting from the termination of a lease of real property, such claim exceeds โ (A) the rent reserved by such lease, without acceleration, for the greater of one year, or 15 percent, not to exceed three years, of the remaining term of such lease, following the earlier of โ (i) the date of the filing of the petition; and (ii) the date on which such lessor repossessed, or the lessee surrendered, the leased property; plus (B) any unpaid rent due under such lease, without acceleration, on the earlier of such dates. . . . 11 U.S.C. ง 502(b)(6).
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opinion_html_with_citations
| 5,020 |
2013-10-30 07:35:08.77425+00
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010combined
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f
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f
| 1,840,060 |
James L. Garrity, Jr.
| null |
LU
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f
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Published
| 3 |
Barney's, Inc. v. Isetan Co. (In Re Barney's, Inc.)
|
In Re Barney's, Inc.
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In Re BARNEY’S, INC., Et Al., Debtors. BARNEY’S, INC. and Preen Realty, Inc., Plaintiffs, v. ISETAN COMPANY LIMITED, Et Al., Defendants; ISETAN COMPANY LIMITED and Isetan of America Inc., Defendants-Counterclaim Plaintiffs, v. BARNEY’S, INC., Et Al., Counterclaim Defendants
| null | null |
<parties id="b378-9">
In re BARNEY’S, INC., et al., Debtors. BARNEY’S, INC. and Preen Realty, Inc., Plaintiffs, v. ISETAN COMPANY LIMITED, et al., Defendants. ISETAN COMPANY LIMITED and Isetan of America Inc., Defendants-counterclaim Plaintiffs, v. BARNEY’S, INC., et al., Counterclaim Defendants.
</parties><br><docketnumber id="b378-17">
Bankruptcy Nos. 96 B 40113 (JLG) to 96 B 40133 (JLG).
</docketnumber><docketnumber id="A32">
Adv. No. 96/8021A.
</docketnumber><br><court id="b378-19">
United States Bankruptcy Court, S.D. New York.
</court><br><decisiondate id="b378-21">
March 14, 1997.
</decisiondate><br><attorneys id="b379-18">
<span citation-index="1" class="star-pagination" label="329">
*329
</span>
LeBeouf, Lamb, Greene & MaeRae L.L.P., New York City, for Debtors.
</attorneys><br><attorneys id="b379-19">
Hughes Hubbard & Reed L.L.P., New York City, for Isetan Company Limited, et al. .
</attorneys>
| null | null | null | null | null | null | 1,444,925 |
18-13805
| 0 |
nysb
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FB
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S.D. New York
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United States Bankruptcy Court, S.D. New York
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9,111,387 |
C. A. 5th Cir. Certiorari denied.
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opinion_xml_harvard
| 6 |
2022-11-27 23:16:02.788016+00
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020lead
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t
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f
| 9,116,868 | null | null |
U
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f
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Published
| 0 |
Pardasani v. Siemens Energy & Automation, Inc.
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Pardasani
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Pardasani v. Siemens Energy & Automation, Inc.
| null | null | null | null | null | null | null | null | null | 66,383,148 |
No. 91-924
| 0 |
scotus
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F
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Supreme Court
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Supreme Court of the United States
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4,877,861 |
COOKS, Judge. _JjThis appeal arises from the trial court’s judgment rendering an award for attorney-fees and costs to the prevailing attorneys in an action under the Americans with Disabilities Act (ADA) and the comparable laws of Louisiana. FACTS AND PROCEDURAL HISTORY The facts of this case which served as the genesis of the present motion for attorney fees were previously set out by this court in Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La.3/6/09), 3 So.3d 491, as follows: On January 31, 2001, plaintiff, Collette Covington (hereinafter “Covington”), was a wheelchair-bound student at McNeese State University (hereinafter “McNeese”) with a history of a seizure disorder. On that date, she attended class on campus in Farrar Hall. Cov-ington then proceeded to the Holbrook Student Union (hereinafter “the Old Ranch”). There she was to meet at the designated location for her transportation provided by the Louisiana Vocational Rehabilitation Service. While waiting, Covington needed to use the restroom and proceeded to go into the Old Ranch. The doorway to the restroom that Covington attempted to use, at its smallest point, measured 29 5/8 inches in width, while the standards for ADA compliance is 32 inches. Cov-ington alleged that while she was unable to enter into the restroom, she suffered the humiliation of urinating on herself while unsuccessfully trying to transport from her wheelchair through the narrow, non-complaint restroom stall door. Covington alleged that she then was injured while trying to gain sufficient leverage to open the door to exit the restroom. After lengthy discovery, it was admitted by McNeese that not a single women’s restroom in the Old Ranch is ADA compliant. Further, McNeese admitted that it did not have a transition plan in writing as required by the ADA. Covington filed suit against McNeese alleging violations of Title II of the Americans with Disabilities Act (ADA), and the comparable Louisiana laws specifically prohibiting discrimination against the handicapped by educational institutions. She further alleged in her petition that she was injured while trying to use and exit a non-compliant restroom on the McNeese campus. She asserted the Lnon-compliant restroom violated both the provisions of Title II of the ADA and La.R.S. 46:2254 which mandates “[A]n educational institution shall not: (1) Discriminate in any manner in the full utilization of the institution ...” On a motion for summary judgment in 2007, the district court found Cov-ington was entitled to a judgment as a matter of law on the following issues: (1) McNeese was not immune from suit under U.S. Const, amend. XI; (2) Covington was disabled as defined by the ADA at the time of the incident giving rise to the lawsuit; and (3) McNeese discriminated against her based on her disability. Despite representations to the contrary, McNeese has judicially admitted that Plaintiffs actions “have and will result in substantial changes both at the facilities at McNeese and McNeese’s policies for the disabled.” The parties stipulated in the injunction signed in this matter as follows: *419The parties stipulate that there has been an alteration in the legal relationship of the parties, thus entitling that Covington is the prevailing party under the ADA with standing to seek attorney’s fees in this suit. During the pendency of this suit Covington filed a grievance with the U.S. Department of Justice. And, as a result, the defendants are in the process of negotiating a settlement under which the State of Louisiana and defendants will expend a substantial sum of money to bring the McNeese campus into compliance with the ADA for the benefit of Covington and other disabled students. The parties stipulate that Covington’s actions have and will result in substantial changes both to the facilities at McNeese and McNeese’s policies for the disabled. On appeal, we affirmed the decision of the district court, stating we could not “fathom that McNeese felt no need, regardless of whether it was required by law, to upgrade a single women’s restroom into ADA compliance in a building that houses, inter alia, the two main student cafeterias on campus, offices for student government and activities, and a state-of-the-art computer laboratory.” Id. at 687. We also noted McNeese’s refusal to comply with the federal mandate to provide handicapped accessibility was “reminiscent of the intolerance of the past.” Id. at 687. As Judge John D. Saunders of this court astutely wrote and cautioned: |sWe had hoped that the days where a court has to step in to ensure that people were treated equally under the laws of this country were gone. Yet, still, McNeese is emboldened enough to bring such a case to an appellate court where a published, written opinion will forever memorialize its discrimination against this country’s disabled citizens. It is hoped that McNeese will reassess its attitude toward its disabled students. It is also hoped that McNeese will prepare and publish a transition plan as required by the ADA. Id. at 687-88. This court also noted that in the previous appeal, Tim Delaney, Director of Services for Students with Disabilities, who was assigned by McNeese to deal with disabled students, candidly admitted he “regarded Covington ‘as having such impairment,’” but McNeese persisted in its discriminatory behavior. This prompted our court to state in that opinion “[h]ad Covington brought an action for frivolous appeal on this particular issue, it would seem that this court would have granted such a request.” Id. at 678-79. McNeese’s request for rehearing with this court, and its writ application to the Louisiana Supreme Court, were denied. McNeese eventually settled with Cov-ington, but took another 895 days from the time it exhausted all efforts to overturn the summary judgment to formulate and disseminate an accommodation plan for the disabled on its campus. McNeese’s response was slow in coming, even when faced with a United States Department of Justice investigation which focused on Covington’s complaint and the multitude of willful violations of the ADA across its campus. Ultimately, McNeese’s final plan addressed some 15,000 ADA violations on its campus. The motion for attorney fees, which is the subject of the present appeal, was filed by six attorneys who worked on Coving-ton’s behalf. Covington’s lead counsel was Seth Hopkins. He began his involvement with the case shortly after graduating from law school in 1999. For the next ten years, young Hopkins worked on Coving-ton’s case, without any compensation. Hopkins testified, to support himself while pursuing Covington’s case, he accepted *420employment as a Rstaff attorney at a Houston, Texas law firm. He testified his continued involvement with Covington’s case kept him from accepting more lucrative work. Meanwhile, McNeese’s attorneys, more than twelve in all, received compensation all along the way for their services as the case dragged along. The trial court noted Hopkins “took a personal interest in the case” and “passionately pursued the interests of his clients, and immersed himself in ADA law in order to provide the most effective representation he possibly could.” He relentlessly pursued the Covington case and ultimately prevailed. In the words of Hopkins: As the months turned to years, I saw Collette’s despair grow, and I was moved by her powerlessness and her passion about getting a degree in early childhood education. I also realized that McNeese was an important part of the community, was the largest employer in the area, had an enthusiastic alumni and supporters, lots of influence and the almost unlimited legal financial resources of the government. I was ... forced to face some of the Attorney General’s most experienced attorneys 30 years my senior, to date, 12 attorneys on the other side. Unlike those who argued in favor of McNeese’s discrimination, plaintiffs counsel have gone unpaid for ten years. Hopkins and the other five plaintiffs attorneys submitted timesheets documenting the time spent on the Covington litigation. The attorneys also presented affidavits from four expert attorneys, including three local attorneys who previously handled ADA cases in the Lake Charles area and one national expert. These experts indicated it was reasonable to expect lead counsel to expend 6,500 hours in advancing Covington’s claim, but Seth Hopkins points out he only requested 88% (5,489.5 hours) of that amount. Hopkins voluntarily reduced his hours covering ten years of dedicated representation to allow for discrepancies in time records which made it appear he had billed for more than twenty-four hours in a day. The claimed hours also do not include numerous hours of telephone conversations with opposing counsel which were too burdensome to constantly | ¿keep track nor the six days spent at the fee application hearing. Additionally, Covington’s attorneys filed nearly 700 pages of briefs and 7,500 pages of exhibits. This was well in excess of the 200 pages of briefs and 500 pages of exhibits introduced by McNeese’s attorneys. The present appeal record includes 45 volumes containing 11,000 pages. Covington also requested an upward adjustment — enhancement—of the Lodestar hourly rate based on the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), such as the novelty or difficulty of a claim, the time and labor required to litigate the claim, and the extent to which taking the case hindered the attorney’s acceptance of other work. During the fee hearing, McNeese presented the live testimony of only one expert, whose testimony was partially stricken from the record without objection. It asked few questions during the hearing designed to test the accuracy of each time entry made by plaintiffs’ attorneys, electing instead to take a shot-gun approach blasting the whole fee application and assailing Hopkins’ credibility — just as it had done for years to derail Covington’s ADA and personal injury claims. These attacks, like the current ones observed from the record, required Hopkins to spend countless hours defending his integrity as a person and as a practicing member of the Bar. McNeese referred to young Hopkins *421as slow, greedy, and unethical and claimed he was obsessive, incompetent, and dishonest. It also accused him of fraud and claimed Hopkins had committed a felony and should be disbarred. Disguised as innocent discovery efforts, McNeese sought Hopkins’ financial records as well as his health records. It investigated his friends and caused his former employer, a Texas law firm, to file and obtain a protective order to prevent McNeese from gaining carte blanche access to the firm’s private records. McNeese even resorted to showing the trial judge a cartoon depicting young Hopkins as a liar. IfiAt the close of the fee hearing, the trial court found Hopkins’ testimony credible, and found the documents the attorneys presented supporting the hours claimed were neither exaggerated nor unexpected. In calculating the attorney fee award, the trial court noted it was following the approach used by the United States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), which used the “lodestar” method, i.e., taking the number of hours the attorneys and their employees worked multiplied by the hourly rates prevailing in the community. First, the trial court fixed the reasonable hourly rate in this ease at $240.00. He then denied all the attorneys’ request for an enhancement of the assigned reasonable hourly rate, stating the following: The Court recognizes that McNeese was disdainfully defensive of its unacceptable condition, in spite of a federal mandate to make its facilities accessible to the disabled. The Court further recognizes the militant defense taken by Defendant throughout this litigation in the face of its obvious error. The number of hours which Plaintiffs counsel was required to expend prosecuting this case has certainly been increased by defendant’s constant attempts to prolong this litigation, and this will be taken into account in the lodestar determination of the fee awarded; however, it cannot be ignored that McNeese is a publicly funded university. Thus, those responsible for the seemingly deliberate disregard for the responsibilities of McNeese will not bear the burden of any sanction imposed upon this state university; it will instead be borne by Louisiana taxpayers. For this reason, the Court declines to enhance the award of attorneys’ fees based upon the conduct of the defendant. Plaintiff also requests an enhancement based upon the twelve Johnson factors; however, plaintiff relied primarily on the following four: 1) time and labor required for the litigation; 2) the customary fee; 3) the amount involved and the results obtained; and 4) the experience, reputation and ability of counsel. Time and labor required to litigate the action is clearly taken into account in the lodestar calculation, as the number of hours reasonably expended is one of the two named factors in lodestar. Clearly, the “customary fee” is also subsumed by the lodestar as the reasonable fee is the second named lodestar factor. The experience, reputation and ability of counsel is also very evidently taken into account in the lodestar calculation, as it is an important factor in the determination of a reasonable hourly rate. Accordingly, the Court does not find these factors to be an appropriate basis for enhancing the lodestar award. [ 7Plaintiff s third argument is certainly the most convincing of the four. Plaintiff did achieve substantial success through this litigation — having ultimately effected a $13.8 million renovation of the campus of McNeese State University to finally bring it into com-*422plicmce with the ADA. However, the exception of the rule against enhancement is strictly limited to “rare and exceptional circumstances”, and the Court believes it important to note that the Supreme Court has never sustained an enhancement of a lodestar award for performance. Perdue v. Kenny A. [— U.S. -], 130 S.Ct. 1662, 1667 [176 L.Ed.2d 494] (2010). Accordingly, the Court declines to grant Plaintiffs request for an enhancement of the attorney’s fee award as calculated by the lodestar method. (Emphasis added.) The trial court accepted, without adjustments, the time sheets filed by five of Covington’s attorneys and rendered the following fee awards: James Hopkins, 624.7 hours at $240.00 per, for a fee of $149,928.00. James Doyle, 28.6 hours at $240.00 per, for a fee of $6,864.00. Heath Dorsey, 76.85 hours at $240.00 per, for a fee of $18,444.00. Robert Breen, 114.9 hours at $240.00 per, for a fee of $27,576.00. Lee Archer, 147.25 hours at $240.00 per, for a fee of $35,340.00. McNeese did not object to the time submitted by these five attorneys and does not challenge the reasonableness of their hours on appeal. It does, however, take issue with the trial court’s decision to calculate the fees based on a finding that $240.00 is the reasonable hourly rate in the community. Thus, it appeals the awards to these five attorneys solely on this basis. Turning to Seth Hopkins’ fee application, the trial court concluded it “was appropriate to reduce Hopkins’ time by 20% in order to arrive at a reasonable number of hours expended for purposes of a lodestar calculation.” The trial court gave the following reasons for this reduction: The Court does recognize that Hopkins’ initial inexperience both with ADA law and as an attorney, having begun this litigation less than two years out of law school, likely contributed to the number of hours spent researching and preparing pleadings, memoranda and ■ other case materials. While certainly not intending to discourage diligence or attention to detail, the Court finds that, had an attorney |smore experienced in ADA law been lead counsel in this case, significantly fewer hours would have been billed. As a result, the trial court reduced Hopkins’ requested number of hours from 5.489.5 to 4,391.6 hours. This, when multiplied by the reasonable hourly rate of $240.00, rendered an attorney fee award to Seth Hopkins of $1,053,984.00. Covington also was awarded expenses in the amount of $41,570.47 and all costs of the litigation were assessed to McNeese. McNeese complains the district court (1) erred in failing to reject “in its entirety ” Hopkins’ application for attorneys’ fees as “excessive, unreasonable, and incredible”; (2) erred in failing to “provide a reasonably specific explanation as to ’how it determined that $240 is the prevailing hourly rate in the Lake Charles community”; and (3) erred in relying on “the prevailing hourly rates from communities other than the Lake Charles community.” (Emphasis added.) Covington’s attorneys answered McNeese’s appeal and also assign error to the assessment of attorney fees. They contend the trial court abused its discretion in reducing Seth Hopkins’ billable hours by 20%, from 5,489.5 hours to 4.391.6 hours. They also argue the trial court abused its discretion in not awarding $265.00 as the reasonable hourly attorney’s fee rate and in failing to enhance this rate. Further, they request that this court *423award sanctions against McNeese for a frivolous appeal. ANALYSIS The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., was passed in 1990 to remedy discrimination against persons with disabilities. Without enforcement, the ADA, and any other civil rights law, would have little practical effect. To that end, congress has enacted fee-shifting statutes, such as 42 U.S.C. § 12205, the attorney fee provision in the ADA, to encourage individuals injured by discriminatory practices to seek judicial redress, and “to ensure that the costs of 1 n'violating civil rights laws [are] more fully borne by the violators, not the victims.” Newman v. Piggie Park Enter., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (Emphasis added). Thus, when a plaintiff brings a civil rights action and prevails, he is acting as a “private attorney general, vindicating a policy that Congress considered of the highest priority.” Id. at 402, 88 S.Ct. 964. Although awarding attorney fees in these contexts is discretionary, it is highly encouraged as a policy to provide incentive for attorneys to take on cases that may cure or deter constitutional and statutory violations yet not engender large damages awards. Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Furthermore, once a plaintiff is a prevailing party, an award of attorney fees is virtually obligatory. In Barrios v. California Interscholastic Federation, 277 F.3d 1128, 1134 (9th Cir.2002), the federal court, quoting the United States Supreme Court in Hensley, 461 U.S. 424, 103 S.Ct. 1933, noted “in civil rights cases, the district court’s discretion is limited. A prevailing party under the ADA ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” We cannot imagine a more compelling case than the one before us in which Plaintiffs attorneys should be fully compensated. I. Did the Trial Court Err in Accepting Seth Hopkins’ Fee Application? McNeese contends the trial court erred in failing to reject in its entirety Seth Hopkins’ application for attorney fees. Although acknowledging Congress has authorized the judiciary to deviate from the general rule that each party bear its own attorney fees and costs by shifting fees from one party to another, McNeese contends in this case Hopkins has lost his right to an award of attorney fees. Essentially, McNeese argues Hopkins should receive no attorney fees because his original fee application did not contain fully accurate and detailed time entries from the outset, with no unnecessary or unreasonable hours. McNeese states in brief that “a fee application that contains exaggerated time entries must be rejected |1ftto discourage greedy lawyers from seeking inflated fees” and that “fee applications with exaggerated time entries cannot simply be reduced, but must be rejected in their entirety.” To support its position, McNeese directs our attention to several cases which it argues compel the result it now demands. McNeese cites Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.1980), which involved a lawyer who demanded 800 hours of billable time for preparation of a six-page complaint on “a simple case which required little legal skill;” and Lewis v. Kendrick, 944 F.2d 949 (1st Cir.1991), in which a plaintiff prevailed only on a minor portion of one claim, and the attorney failed to separate fees for factually separate claims. It also references Fair Housing Council v. Landow, 999 F.2d 92, 97 (4th Cir.1993), *424and points to the court’s denial of a fee request in its entirety citing “woefully inadequate time records, [and a] failure to make a good faith effort to exclude fees attributable to unsuccessful claims,” which led the court to conclude the “fee petition was so outrageously excessive it shocked the conscience of the court.” Finally, McNeese cites Scham v. District Courts Trying Criminal Cases, 148 F.3d 554 (5th Cir.1998). In that case, a lawyer’s motion for attorney fees seeking approximately $624,000.00 was denied in its entirety by the district court. Scham subsequently filed a motion for reconsideration seeking over $20 million in fees, which also was denied. The Fifth Circuit in Scham affirmed the outright denial of fees, noting “[djuring the short, one-year pendency of this case, discovery was limited, and there were no meetings of the parties or attorneys, no settlement negotiations, no mediation, no court appearances, and no trial.” Id. at 557. The court specifically held the amount of fees sought by the attorney was “so clearly excessive that it ‘shocks the conscience’ of the court.” Id. It also set forth what is required to deny an award of attorney fees in their entirety: |nWe conclude there are special circumstances that justify the district court’s denial of fees in this case. Other circuits have held that “a district court may, in its discretion, deny a request for attorneys’ fees in its entirety when the request, submitted pursuant to 42 U.S.C.1988, is so excessive it ‘shock[s] the conscience of the court.’ ” (Citing Fair Housing Council v. Landow, 999 F.2d 92, 96 (4th Cir.1993) (quoting Sun Publ’g Co. v. Mecklenburg News, Inc., 823 F.2d 818, 819 (4th Cir.1987)); see also Lewis v. Kendrick, 944 F.2d 949, 957-58 (1st Cir.1991); Brown v. Stacker, 612 F.2d 1057, 1059 (7th Cir.1980)). Id. at 557. We further note the “shock the conscience” theory in Scham was augmented by the “catalyst theory” in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Other than these theories, we know of none that would move us to reject an award of fees in this case in entirety. The cases cited by McNeese are not factually on par with the present one. The fee application submitted by Hopkins does not shock the conscience of this Court. The same cannot be said for McNeese’s behavior throughout this litigation. McNeese neither urges nor could it rely on the “catalyst theory,” which “posits that a plaintiff is a ‘prevailing party1 if it achieves the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 600, 121 S.Ct. 1835. Nothing McNeese has done here in response to the claims made has been voluntary. Hopkins offered a reasonable explanation in response to McNeese’s pointing out that on a few occasions his billing record reflected more than twenty-four hours in a work day. Hopkins also offered testimony and evidence to demonstrate that on these occasions he worked into the “wee” hours of the morning from the night before and understandably slotted the time on the wrong date. McNeese offered nothing to rebut his reasonable explanation, except defense counsel’s argument buttressed by insinuations followed by verbal cries of dishonesty and like attacks on young Hopkins’ character. Additionally, in a demonstration of good faith and |12fair dealing, Hopkins voluntarily redacted the specific line items flagged by the defense, though he had no doubt the hours were expended, and he expressed a willingness to do more if McNeese would abandon its “not a *425dime” approach. The amount of time claimed by Hopkins was further supported by the affidavits of four experts who all testified that a reasonable time amount for such litigation would be approximately 6,500 hours. Hopkins only requested 88% (5,489.5 hours) of that amount, adjusting for inadvertent errors which may have occurred and understandably anticipating the battle to come as McNeese maneuvered to avoid any payment. Despite Hopkins’ good faith efforts to make a significant downward adjustment in the hours claimed, McNeese continues to discharge torpedoes at his application. As Hopkins so eloquently stated in his opening remarks to the trial court at the hearing on his attorney fee application: A reasonable defendant found to have discriminated against this country’s citizens with a Third Circuit opinion like the one that we got, might conclude that opposing counsel should have earned some fees. But, McNeese believes that ten years worth of work in this case should be worth absolutely nothing to their opponents. That is the kind of hard-line approach that we’ve had to deal with from a $4,000.00 bathroom to a 14 million dollar Compliance Decree, and now with attorney’s fees it’s the same way. We have to start at zero because that’s all that will be conceded. McNeese’s defense tactics have served only to increase the attorneys’ fee bill it complains has been padded. When questioned on appeal as to the wisdom of its stance, McNeese did not equivocate in repeating it. Eventually, after some common sense pressing by the court, McNeese begrudgingly posed, in the event this court was inclined to affirm an award in Hopkins’ favor, it should not exceed a small contingency percentage of Covington’s settlement proceeds — even this amount it insists is undeserved. It remained resolute that the law forbids us from doing more. The only thing the law forbids is acceptance of McNeese’s position. See City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986). 113McNeese fails to seriously give weight to the wealth of jurisprudence favoring a just and reasonable award for the work performed by all the attorneys in this case for many years. Suffice it to say here, in final support of our rejection of McNeese’s position, the jurisprudence speaks loudly against it. We take brief opportunity to selectively reference only a few cases avoiding the unnecessary practice of stringing citations — see Perdue v. Kenny A., — U.S. —, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010); Hensley v. Eckerhart, 461 U.S. 424,103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Liger v. New Orleans Hornets NBA Ltd. Partnership, 2010 WL 3952006 (E.D.La.2010); Oreck Direct v. Dyson, Inc., 2009 WL 1649503 (E.D.La.2009). II. The Trial Court’s Reduction of Seth Hopkins ’ Hours. Covington contends on appeal that the trial court erred in reducing the number of hours earned by Seth Hopkins by 20%, from 5,489.5 to 4391.6 hours. The trial court found this reduction warranted due to Seth Hopkins’ “initial inexperience both with ADA law and as an attorney ... [which] likely contributed to the number of hours spent researching and preparing pleadings, memoranda and other case materials.” The trial court believed “had an attorney more experienced in ADA law been lead counsel in this case, significantly fewer hours would have been billed.” Initially, we note, in reducing the billable hours requested by Seth Hopkins, the trial court did not point to any inaccurate or exaggerated entries in the time sheets provided. The sole reason given for the 20% reduction in the requested billable *426hours was Seth Hopkins’ supposed inexperience with ADA law and as a lawyer in general. Our careful review of this record — comprising 45 volumes containing 11, 000 pages — required us to exhaust an exceptional number of judicial work hours. In doing so, we are firmly convinced Hopkins presented a well-orchestrated case worthy of emulation by the most seasoned attorneys. By the time Hopkins appeared at the motion for summary judgment hearing, he had been 114battling his opponents, who steadfastly defended their discriminatory behavior, for six years. At that time the record comprised some twenty-five volumes with over 500 pages of original briefs by Plaintiffs’ counsel and 7,500 pages of exhibits. The summary judgment and motion for injunctive relief included almost 1,000 pages and literally a truckload of documents. The case became so voluminous that Hopkins had to move out of an apartment into a house so as to dedicate an entire floor to its safekeeping. Against the odds, Hopkins filed a well-documented and thorough motion for summary judgment which avoided a longer, more protracted, and more expensive litigation to bring the matter to an end. We note that McNeese, though asserting now that the attorney fees for disposing of this matter on summary judgment are excessive, vehemently urged at the motion for summary judgment that the case needed far more time and development and should not be disposed of on summary judgment. McNeese argued that even more time should be spent on this litigation and true to that sentiment, it has exhaustively stayed the course. McNeese’s unyielding defense, throughout these proceedings, has substantially contributed to the voluminous record now before us. This Court specifically noted McNeese advanced a hypothesis that Cov-ington was faking her disability, a hypothesis which was “unfathomable ” and “completely unsupported by evidence in the record.” (Emphasis added.) The trial court specifically referenced McNeese’s “militant defense” taken “throughout this litigation.” It also stated “[t]he number of hours which Plaintiffs counsel was required to expend prosecuting this case has certainly been increased by [Djefendant’s constant attempts to prolong this litigation.” There simply is no evidence that the number of hours claimed by Hopkins for his work in this case was increased because of Hopkins’ inexperience or lack of skill. The record clearly demonstrates the contrary. |1fiFurther, the four unpaid experts who testified were unanimous that Seth Hopkins’ original request for 6,199.5 hours was reasonable. This was before Hopkins removed over 700 hours from his request. Edward Fonti, who was a local attorney experienced in ADA law, stated “[t]he itemized billing summary in this case reflects only services and fees necessary for the prosecution of this case and which I and other practitioners of this area of law might have reasonably charged if in the position of prosecuting this case under the same circumstances.” Winfield Little, a former President of the Southwest Louisiana Bar Foundation, who had prosecuted an ADA case in the past, stated in his affidavit that the hours billed were consistent with local billing practices: I am aware that the Covington case has been a long, contentious, and novel case which has resulted in a summary judgment for the plaintiffs, has involved a significant federal civil rights investigation, and has made a significant impact in the field of disability discrimination law in Louisiana. I consider it completely reasonable and consistent with local billing practices for a case of *427this length and impact to require 6,000 or more hours of billable time to prosecute. Thomas Lorenzi, who was involved in an ADA case in southwest Louisiana, testified in his affidavit he “consider[ed] it completely reasonable and consistent with local billing practices for a case of this length and impact to require 6,000-6,500 or more hours of billable time to prosecute.” Jonathan Prejean, who averred that he has evaluated in excess of 2,000 legal bills from firms throughout the world, praised Hopkins’ “lean staffing,” and stated in his affidavit: Based on my review of the complexity and detail of the Covington case and particularly the requirements for extensive expert testimony, appeals, and contested motions, I consider this case to reach a level of complexity that rivals other complex litigation like patent litigation. I consider 6000-6500 hours of attorney time entirely reasonable for such a case. I have also reviewed the billing summary for this case, and the billing entries appear to reflect reasonable tasks to be performed personally by an experienced attorney. Work with the Department of Justice, for example, should rightly be seen as valuable attorney work toward the outcome in this case. There do not 11fiappear to be any substantial charges for administrative tasks that might have been performed by less experienced attorneys who would be reasonably compensated at a lower rate than the blended and multiplied hourly rate being requested in this case. Considering the testimony of the four expert attorneys that the amount of hours billed was well within that expected for such a complex civil rights case, as well as the trial court’s acknowledgment that McNeese’s “constant attempts to prolong this litigation” unduly increased the “number of hours which Plaintiffs counsel was required to expend prosecuting this case,” the reduction of Hopkins’ billable hours by 20% was an abuse of discretion. See Cunningham v. City of McKeesport, 807 F.2d 49 (3rd Cir.1986), cert, denied, 481 U.S. 1049, 107 S.Ct. 2179, 95 L.Ed.2d 886 (1987). Therefore, we amend the judgment to award Seth Hopkins 5,489.5 billable hours. III. The Reasonable Hourly Rate. Both McNeese and Covington contend the trial court’s award of $240.00 as the reasonable hourly rate was in error. As set forth above, in calculating attorney fees under the “lodestar” method the court multiplies the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers. A reasonable hourly rate is “to be calculated according to the prevailing market rates in the relevant community” for attorneys of similar experience in similar cases. Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); see also Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.1990). An award of attorney fees should be high enough to “facilitate plaintiffs’ access to the courts to vindicate their rights by providing compensation sufficient to attract competent counsel.” McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir.2011). In determining the amount of reasonable attorney fees to award under federal fee shifting statutes, the trial court is afforded considerable discretion. Hensley, 461 U.S. 424, 103 S.Ct. 1933. |17At the hearing below, Covington relied on the affidavits of her experts which set forth that $265.00 was the prevailing base rate for civil rights litigation in Lake Charles. McNeese provided the trial court with several decisions from the *428Western District of Louisiana that the prevailing market rate in the Lake Charles community ranges from $105.00 to $200.00 per hour. The trial court noted these cases, but declined to rely on them because they were not published decisions. It noted the only published case cited by McNeese was decided in 1996 and found a reasonable hourly rate in an ERISA action was $120.00 to $140.00. The trial court concluded, after indicating it would not consider rates outside of Lake Charles and would not consider Covington’s cases from neighboring districts, that $240.00 was the prevailing hourly rate in the Lake Charles area “based on the testimony and authority submitted.” McNeese argued it was improper for Hopkins to increase his hourly rate from the $175.00 charged in 2001, which McNeese acknowledged was reasonable, to $265.00 today.1 The law, however, is settled that a prevailing party is entitled to receive current, rather than historic, rates in a fee shifting case. See Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). Obviously attorney rates have increased over the last ten years, and the $265.00 hourly rate was accepted by all four of Covington’s experts as the current base line rate for the Lake Charles area. We find nothing in the record to support the reasonable hourly rate being set below $265.00. See Cunningham, 807 F.2d 49. Winfield Little, who, as noted above, handled one of the few ADA cases in the Lake Charles area, felt a $265.00 hourly rate was “extremely reasonable” and a “modest base rate.” Thomas Lorenzi believed $265 per hour was extremely reasonable in this case, and noted he customarily charged $385.00 per hour. Notably, the $400,000.00 cash settlement | isand six-year scholarship, the injunctive relief prohibiting McNeese from continuing to discriminate against the disabled, the fact that the case prompted a U.S. Justice Department investigation and resulted in $13.8 million being dedicated to bring McNeese’s campus into ADA compliance are ringing endorsements of Covington’s attorneys’ superior performance. Therefore, we amend the judgment to set the reasonable hourly rate at $265.00 per hour. IV. Enhancement of the Trial Court’s “Lodestar” Fee Calculation. Covington urges on appeal that the trial court erred in refusing to award an enhancement to the lodestar hourly rate claimed. The Advocacy Center of Louisiana filed an amicus curiae brief in support of Covington’s right to an enhancement. A review of the trial court’s written reasons indicate several grounds it relied upon in denying the enhancement. These included the fact that taxpayers will ultimately bear the brunt of any enhancement, that an enhancement may not be awarded based on factors that are subsumed in the lodestar calculation, and that the U.S. Supreme Court has “never sustained an enhancement of a lodestar award for performance.” Covington argues an enhancement in this case is justified under the factors presented in Johnson, 488 F.2d 714. In Johnson, the federal appellate court listed 12 factors that a court should consider in *429determining a reasonable fee. . Those factors were: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Id. at 717-19. liJn Hensley, the U.S. Supreme Court citing Johnson, noted that the district court could, in its discretion, adjust the lodestar figure “upward or downward” to account for the “important factor of the ‘results obtained.’” Hensley, 461 U.S. at 434, 103 S.Ct. at 1940. Hensley instructed that the district court should “focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation,” but there was “no precise rule or formula” for taking this factor into consideration. Id., 461 U.S.. at 435-36, 103 S.Ct. at 1940-41. In the years since Hensley, the Supreme Court has attempted to “cabin” the amount of discretion afforded district courts in adjusting the lodestar figure. In Blum, 465 U.S. at 897, 104 S.Ct. at 1548, the Court clarified that while “there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high,” the lodestar figure is “presumed” to be reasonable. The Court also warned against “double counting” factors such as the “amount involved and results obtained” by adjusting the lodestar figure where those factors are fully reflected in the reasonable hourly rate of the attorneys and the reasonable number of hours expended. Blum, at 899-900,104 S.Ct. 1541. The Court noted “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award.” Id. at 900, 104 S.Ct. 1541. More recently, in Perdue v. Kenny A. ex rel. Winn, 559 U.S.-, 130 S.Ct. 1662, 1672, 176 L.Ed.2d 494 (2010), the court commented that the factors in Johnson “gave very little actual guidance to district courts. Setting attorney’s fees by reference to a series of sometimes subjective factors placed unlimited discretion in trial judges and produced disparate results.” It further noted the “lodestar” approach has “achieved dominance in the federal courts after our decision in Hensley.” Id. at |201672. Although noting the “lodestar” approach was not perfect, the court observed “unlike the Johnson approach, the lodestar calculation is ‘objective,’ Hensley, supra, at 433, 103 S.Ct. 1933, and thus cabins the discretion of trial judges, permits meaningful judicial review, and produces reasonably predictable results.” Id. at 1672. The Perdue court, citing Blum, also emphasized “there is a ‘strong presumption’ that the lodestar figure is reasonable.” Id. at 1672. Noting it had never sustained an enhancement of a lodestar amount for performance, the supreme court emphasized that the strong presumption in favor of the lodestar figure can only be overcome in “‘rare’ and ‘exceptional’ circumstances.” Id. at 1674. Covington takes exception with the trial court’s seemingly heavy reliance on the *430fact that the taxpayers of this state will be burdened by any additional fees rather than those responsible for the discriminatory violations on which Covington’s judgment is based. The Perdue court addressed this argument: Section 1988 serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute’s aim. In many cases, attorney’s fees awarded under § 1988 are not paid by the individuals responsible for the constitutional or statutory violations on which the judgment is based. Instead, the fees are paid in effect by state and local taxpayers, and because state and local governments have limited budgets, money that is used to pay attorney’s fees is money that cannot be used for programs that provide vital public services. Cf. Horne v. Flores, 557 U.S. [483, 446-450], 129 S.Ct. 2579, 2593-2594,174 L.Ed.2d 406 (2009). But, the Supreme Court in Perdue was clear to “reject any contention that a fee determined by the lodestar method may not be enhanced in any situation” when the government will ultimately pay the tab. Perdue, 130 S.Ct. at 1673. Certainly the results achieved by counsel for Covington, as well as the hostile behavior engaged in by McNeese which served only to protract the litigation in these proceedings, |ziare factors that weigh heavily in favor of an enhancement to the lodestar award. Additionally, the substantial financial benefit gained by McNeese in receiving nearly fourteen million dollars for improvements to its facilities by the action pursued by Hopkins as a “private attorney general” is no small matter. We accept as sound the Supreme Court’s conclusion that a strong presumption exists favoring the reasonableness of the lodestar figure that can only be overcome in “rare” and “exceptional” circumstances. We find that this is indeed the kind of “rare” and “exceptional” case in which enhancement is entirely merited. We note from the Plaintiffs initial request in 1995, for a meager accommodation — one accessible women’s restroom in one identified building — for handicapped students, it has taken McNeese a total of almost 5,000 days to respond at all to this plea, except to wage a war of attrition against Coving-ton and her attorneys. It took McNeese 3,300 days from the date the suit was filed, 1,200 days from the ruling on the summary judgment ordering relief, and 395 days from the date the appeal was final to formulate and take steps to implement any accommodation plan for Plaintiff or other handicapped persons attempting to use its facilities. While McNeese applauds its willingness to settle Covington’s personal injury claim, even that courtesy did not come until April 2010 — nearly three years after the trial court’s summary judgment holding it liable was rendered. The record discloses that over the protracted course of this litigation McNeese’s actions precipitated Plaintiffs filing at least six consolidated motions to compel discovery. When Plaintiffs counsel had amassed 800 hours of attorney time in the matter he sent a letter to McNeese urging it to put an end to the litigation and its rising costs by agreeing to Plaintiffs humble request for a restroom. At the summary judgment hearing, Judge Carter also urged McNeese to “put an end to this— give her a bathroom — stop making these lawyers work ...” McNeese responded by filing a belated recusal motion, urged by its legal | Z2representative, eventually forcing the removal of Judge Carter from the case. By this time the summary judgment record included 25 volumes — 500 pages of *431original briefs, 7,500 pages of exhibits, and a truckload of documents. The United States Supreme Court in Perdue specifically acknowledged an enhancement may be necessary when “an attorney’s performance involves exceptional delay in the payment of fees” and when “the litigation is exceptionally protracted.” Perdue, 130 S.Ct. at 1674-75. As noted, it did not exempt public institutions from the threat of such an award. We are persuaded by Covington’s argument and the later cases following the reasoning of Perdue that an enhancement is warranted in this case, particularly considering the exceptional delays these attorneys have faced in recouping their expenses and fees, largely attributable to McNeese’s unrelenting efforts to avoid the consequences of its inexcusable deafness when hearing the pleas of the disabled using its public facilities. See McClain v. Lufkin Indus., Inc., 649 F.3d 374 (5th Cir.2011); Baker v. Windsor Republic Doors, 414 Fed.Appx. 764 (6th Cir.2011). The trial court in this matter specifically noted McNeese was “disdainfully defensive” of the unacceptable condition of its campus and adopted a “militant defense” throughout the litigation in “the face of its obvious error.” The trial court also recognized the hours required to prosecute the case were “certainly ... increased by [McNeese’s] constant attempts to prolong this litigation.” McNeese took extreme positions throughout the proceedings, beginning with allegations that Cov-ington was faking her disability, a position this Court referred to as “unfathomable” and “completely unsupported by the record.” In responding to the present attorney fee application, which the United States Supreme Court has advised “should not result in a second major litigation,” (see Hensley, 461 U.S. at 437, 103 S.Ct. 933) McNeese took the untenable position that Seth Hopkins was entitled to nothing. In an attempt to advance its unreasonable position, McNeese engaged in burdensome and over-reaching ^discovery, attacked Hopkins’ worth and credibility as an attorney, and turned the attorney fee motion and hearing into a lengthy proceeding full of personal venom, extending even on this appeal. McNeese’s prolonged “militant” behavior is reason enough for awarding an enhancement. When coupled with the extraordinary success achieved by Cov-ington’s attorneys, it appears to more than meet the “rare” and “exceptional” circumstances mentioned by the United States Supreme Court. The Advocacy Center’s amicus curiae brief noted the “results in this case clearly reflected superior performance by [Covington’s] counsel.” Above and beyond the $400,000.00 cash settlement, injunctive relief, and six-year scholarship awarded to Covington, the case prompted the U.S. Department of Justice to undertake an investigation of the McNeese campus, which resulted in an ADA settlement which provided the McNeese campus with $13.8 million to renovate the campus and bring it into ADA compliance. But despite the ultimate reward it gained from violating the ADA, McNeese persisted in its attempt to avoid full legal responsibility for its shameful past behavior. In its closing remarks during oral argument before this court, McNeese once more demonstrated its refusal to recognize the seriousness of its past failure to comply with the ADA mandates by dismissing Plaintiffs success in this case as “insignificant.” However, our decision to grant an enhancement in this case must also dovetail with this court’s responsibility to use a method that is reasonably objective and capable of being reviewed on appeal. Per-due, 130 S.Ct. at 1674. Guided by this principle, we fix the enhancement at nine *432and one-half percent (9.5%) interest — the statutory judicial interest rate in 2007, the year summary judgment was rendered in this case. This method is in keeping with the United States Supreme Court’s holding in Perdue: 124[T]here may be extraordinary circumstances in which an attorney’s performance involves exceptional delay in the payment of fees. An attorney who expects to be compensated under § 1988 presumably understands that payment of fees will generally not come until the end of the case, if at all. See [Kenny A. ex re. Winn. v. Perdue ] 582 F.3d [1209], at 1227 [ (2008) ] (opinion of Carnes, J.). Compensation for this delay is generally made “either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value.” Missouri v. Jenkins, 491 U.S. 274, 282, 109 S.Ct. 2468, 105 L.Ed.2d 229 (1989) (internal quotation marks omitted). But we do not rule out the possibility that an enhancement may be appropriate where an attorney assumes these costs in the face of unanticipated delay, particularly where the delay is unjustifiably caused by the defense. In such a case, however, the enhancement should be calculated by applying a method similar to that described above in connection with exceptional delay in obtaining reimbursement expenses. (Emphasis added) Id., at 1675. The method referred to in Perdue is to apply “a standard rate of interest” to such expenses or attorney fees. Id. at 1674-75. We have limited our enhancement to this minimal remedy only out of consideration that the awards will be borne by the taxpayers of this state, rather than exclusively by those who willfully and inexcusably practiced discrimination plainly and expressly forbidden by both Louisiana and federal law. Were this not the case, our ruling would surely be to accept young Hopkins’ eloquent plea for greater compensation. Perhaps, if given the opportunity, our supreme court may be inclined to see differently, employing a greater enhancement method, which we would deem a welcome clarification of existing jurisprudence. Our courts must always remain mindful that there are a limited number of attorneys willing to bear the personal cost and sacrifices inherent in most civil rights litigation. We cannot underestimate the chilling effect this type of militant and pernicious behavior heaped upon Plaintiff and her counsel for ten years, and even now on appeal, has upon other attorneys, young and old, as well as potential plaintiffs. It is the court’s duty to likewise send a message to the bar, experienced as well as eager young lawyers, that they may rely upon the precepts of law as well as fundamental fairness and fair-play, to protect and safeguard them against the Impersonal and financial costs of truly devoted representation of their clients. These attorneys’ representation spanned a decade of hard work and sacrifice in the face of obstinate resistance to laws guaranteeing basic human and civil rights and public attacks on their character and worth. To do anything less is a disservice to the citizens which these laws are designed to protect and to the gallant attorneys willing to make years of personal sacrifice in the cause of justice. V. Sanctions for Frivolous Appeal. Covington also seeks sanctions against McNeese under La.Code Civ.P. art. 2164 for a frivolous appeal. While we find McNeese’s arguments are without merit, we cannot say there is no legal basis, however tenuous, for its position on appeal. Therefore, we will not award sanctions for a frivolous appeal. *433 VI. Additional Attorney Fees for Work Performed on Appeal. Covington seeks an award of additional attorney fees for the work necessitated by this appeal. The attorneys list their hours of work on appeal as follows: “158 hours for Seth Hopkins, 80 hours for James Hopkins, and 36 hours for Lee Archer, at the rate established on appeal.” Additionally, Covington’s attorneys seek an award of attorney fees for their work on their reply brief addressing the issue of striking Allen Smith’s testimony in the amount of “32 hours for Seth Hopkins, 17 hours for James Hopkins, and 12 hours for Lee Archer at the rate established on appeal.” In cases where attorney fees are awarded by the trial court, and a subsequent appeal has required additional work on the part of plaintiffs counsel to defend against an unsuccessful appeal, the courts have found an award of attorney fees for the defense of an appeal is merited. See Sims v. Sun Chemical Corp., 34,947 (La.App. 2 Cir. 8/22/01), 795 So.2d 439; Tillmon v. Thrasher Waterproofing, 00-395 (La.App. 4 Cir. 3/28/01), 786 So.2d 131. This Court has held when “attorney fees were correctly awarded below, failing to award increased attorney fees for the ^additional work required for this appeal would be inconsistent with that judgment.” Frank v. Kent Guidry Farms, 01-727, p. 5 (La. App. 3 Cir. 5/8/02), 816 So.2d 969, 973, unit denied, 02-1608 (La.6/27/03), 847 So.2d 1273. Covington properly requested attorney fees associated with the appeal and claimed 335.00 hours of work by plaintiffs counsel was necessitated to defend the present appeal at a rate of $265.00 per hour. McNeese has not attacked as unreasonable the hours claimed by the attorneys on appeal. We award Plaintiff additional attorney fees in the amount of $88,775.00 for work required to successfully litigate this matter on appeal. VIL Motion To Strike McNeese’s Expert’s Testimony After the six-day hearing on the motion to set attorney fees, the trial court agreed to accept transcribed expert deposition testimony from the parties solely pertaining to the appropriate hourly rate to be used in calculating the award of attorney fees. Covington filed a Motion to Strike seeking to have excerpts submitted by McNeese stricken from the record, as those excerpts included testimony from its expert witness as to the reasonableness of hours expended litigating the case. McNeese responded with a one page letter, declining to respond to the motion and instead noting the trial court would “undoubtedly give the appropriate weight to the evidence submitted.” The trial court then granted Covington’s essentially unopposed motion striking “those portions of deposition transcripts submitted by [McNeese] wherein witnesses opine as to the reasonableness of hours expended ..., such that only those portions of transcripts wherein witnesses testify as to the reasonableness of an hourly rate or factors relating to a reasonable hourly rate shall remain part of the case record.” Covington notes on appeal McNeese did not allege any error on the trial court’s part in striking this testimony. However, McNeese did refer to this stricken testimony of its expert several times in brief. Covington filed a Motion to Strike la7the Testimony of McNeese Expert Allen Smith with this Court, seeking to enforce the trial court’s order limiting portions of the deposition excerpts to that pertaining to the reasonableness of the hourly rate. The motion was referred to this panel on the merits. *434Specifically, Covington complains about the following references to this expert’s deposition testimony contained in McNeese’s original brief: (1) in reference to timesheets that were submitted by Seth Hopkins, “[Yjou’re not going to like what it suggests to me ...” (2) “Significantly, one of Hopkins’ own experts (Tom Lorenzi) and McNeese’s expert (Allen Smith) both agree that it is difficult for a lawyer to have as much as 7.5 to eight billable hours in a single day.” (3) “McNeese’s expert, Allen Smith, confirms that the hours claimed are simply not believable.” (4) “As noted by Allen Smith: ‘That’s more than just an occasional transposition, to me.... [T]hat shows me that there was something going on other than inadvertence.’ ” (5) “Beyond that, as pointed out by Allen Smith: ‘If you find that there are entries which are inflated or suspect, then it makes you suspect everything that you have seen, and you know the old falsus in unum, falsus in exten-sor...’” There is no question the passages referenced above pertain to the reasonableness of the hours expended by Seth Hopkins rather than the reasonableness of the hourly rate, and are in violation of the trial court’s order. Therefore, we grant Cov-ington’s Motion to Strike these passages in McNeese’s brief. VIII. Motion To Strike McNeese’s Reply Brief. Covington also filed a Motion to Strike McNeese’s Reply Brief on the grounds it violated the Uniform Court of Appeal Rules because it was not strictly confined to a rebuttal of Covington’s points and contained “numerous offensive, insulting, abusive, discourteous and irrelevant criticisms of Covington’s counsel.” While McNeese’s Reply Brief does not comply with the rules referenced by | ^Covington, we will allow it to remain in the record, as it evidences the vitriolic behavior engaged in by McNeese on appeal. Therefore, we will deny Covington’s Motion to Strike McNeese’s Reply Brief. DECREE For the foregoing reasons, the judgment of the trial court reducing Seth Hopkins’ billable hours by 20% is reversed and the judgment is amended to award Seth Hopkins 5,489.5 billable hours. We also amend the judgment to set the reasonable hourly rate for Covington’s attorneys at $265.00 per hour. We further amend the judgment to set the judicial rate of interest on all attorney fees awarded herein at a rate of 9.5%, such interest to commence as of February 24, 2011, continuing until paid. In all other respects the judgment is affirmed. The Motion to Strike those passages in McNeese’s brief pertaining to the reasonableness of the hours expended by Seth Hopkins is granted. The Motion to Strike McNeese’s Reply Brief is denied. We also award $88,775.00 in attorney fees for the work required to successfully litigate this matter on appeal. All costs of this appeal in the amount of $57,249.00 are assessed against defendant-appellant, McNeese. AFFIRMED IN PART; REVERSED IN PART; AMENDED; MOTION TO STRIKE PASSAGES GRANTED; MOTION TO STRIKE REPLY BRIEF DENIED. AMY, J., concurs in part, dissents in part, and assigns reasons. PICKETT, J., concurs in part, dissents in part, and assigns reasons. . We note with interest that counsel for McNeese, in a fee shifting case involving interpretation of an oil lease located in Calca-sieu Parish, was awarded $805 per hour for 4,970 total hours by this Court (with total attorney fees amounting to approximately $4,000,000). See Corbello v. Iowa Prod., 01-567 (La.App. 3 Cir. 12/26/01), 806 So.2d 32, 51-52, reversed on other grounds, 02-826 (La.2/25/03), 850 So.2d 686 (however, the attorney fee award was upheld by the supreme court).
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opinion_xml_harvard
| 9,560 |
2021-08-26 03:20:10.295226+00
|
020lead
|
t
|
f
| 5,062,517 |
Amy, Cooks, Keaty, Pickett, Thibodeaux
| null |
U
|
f
|
Published
| 0 |
Covington v. McNeese State University
|
Covington
|
Collette Josey COVINGTON and Jade Covington v. McNEESE STATE UNIVERSITY and the Board of Supervisors for the University of Louisiana System
| null | null | null | null | null | null | null | null | null | 60,312,461 |
No. 11-1077
| 0 |
lactapp
|
SA
|
t
|
Louisiana Court of Appeal
|
Louisiana Court of Appeal
|
8,459,913 |
SUMMARY ORDER Youssef Guirguis, Mervat Abdelmalak, and Christine Youssef Guirguis, natives and citizens of Egypt, seek review of an April 11, 2008 order of the BIA, affirming the June 5, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied their applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).2 In re Guirguis, et al, Nos. A73 184 096, A76 101 499/500 (B.I.A. Apr. 11, 2008), affg Nos. A73 184 096, A76 101 499/500 (Immig. Ct. N.Y. City Jun. 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case. When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). As an initial matter, petitioners do not challenge, in their brief to this Court, the IJ’s finding that they failed to establish past persecution in Egypt, and have therefore abandoned any such challenge. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007). We find no error in the agency’s determination that petitioners failed to demonstrate that they have a well-founded fear of future persecution. See Hoxhallari v. Gonzales, 468 F.3d 179, 185 (2d Cir.2006). Petitioners argue that the agency erred in failing to find objectively reasonable their fear that upon return to Egypt they will be forced to convert to Islam, suffer economic persecution, and endure violence as Coptic Christians. However, the IJ and the BIA properly considered the record and determined that petitioners fear discrimination and harassment, not persecution, and that their arguments are speculative at best. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (finding that the alleged harm must be sufficiently severe, rising above mere harassment); see Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (stating that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely speculative at best). Petitioners contend *70that the IJ relied disproportionately on the State Department reports. Indeed, the IJ mainly relied on the State Department’s International Religious Freedom Report and the Country Report on Human Rights Practices. While we have cautioned the agency against excessive reliance on State Department Reports, Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir.2004), they are probative, Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.2006). Here, there is nothing to suggest that the IJ relied on the State Department reports to the exclusion of the other evidence in the record. Rather, the record suggests that the IJ properly afforded the reports more probative weight than the background materials, letters, and news reports petitioners submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (stating that the weight afforded to evidence “ ‘lie[s] largely1 within the discretion of the IJ).” Because petitioners were unable to show the objective likelihood of persecution needed to make out an asylum claim, they were necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal and CAT relief where those claims rested on the same factual predicate. See 8 C.F.R. § 1208.16(b)(2); Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Kyaw Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir.2006). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). . We refer throughout this order to Youssef Guirguis and Mervat Abdelmalak as "petitioners” as they both filed asylum applications before the agency. Christine Youssef Guir-guis was listed as a derivative applicant on Mervat Abdelmalak’s asylum application. To the extent petitioners argue that she has an independent asylum claim, their arguments must be presented to the agency in the first instance and are thus not properly before us. 8 U.S.C. § 1252(d)(1).
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opinion_xml_harvard
| 760 |
2022-11-05 06:01:40.412688+00
|
020lead
|
t
|
f
| 8,487,816 |
Calabresi, Hon, Leval, Raggi
| null |
U
|
f
|
Published
| 0 |
Guirguis v. Holder
|
Guirguis
|
Youssef GUIRGUIS, Mervat Abdelmalak, Christine Youssef Guirguis v. Eric H. HOLDER, Jr., United States Attorney General
| null | null | null | null | null | null | null | null | null | 65,713,701 |
No. 08-2282-ag
| 0 |
ca2
|
F
|
t
|
Second Circuit
|
Court of Appeals for the Second Circuit
|
6,325,676 |
[Cite as Harris v. Cunix, 2022-Ohio-839 .] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Tracey Harris, : Plaintiff-Appellant, : No. 21AP-13 v. : (C.P.C. No. 20CV-2485) Shawn Cunix, : (REGULAR CALENDAR) Defendant-Appellee. : D E C I S I O N Rendered on March 17, 2022 On brief: Law Offices of F. Benjamin Riek III, and F. Benjamin Riek III, for appellant. Argued: F. Benjamin Riek III. On brief: Dinsmore & Shohl LLP, Jan E. Hensel and Jacqueline N. Rau, for appellee. Argued: Jan E. Hensel. APPEAL from the Franklin County Court of Common Pleas KLATT, J. {¶ 1} Plaintiff-appellant, Tracey Harris, appeals from a judgment entered by the Franklin County Court of Pleas denying her motion to amend her complaint and granting motions filed by defendant-appellee, Shawn Cunix, to strike appellant's amended complaint and to dismiss appellant's complaint. For the following reasons, we reverse the trial court's judgment and remand the matter for further proceedings. {¶ 2} In 2014, appellant was a poker table dealer at the Hollywood Casino ("casino") in Columbus. In June 2014, appellee, while playing poker at appellant's table, stood next to appellant, put his hands down her pants, and told her he could see her No. 21AP-13 2 underwear. In December 2014, appellee, again playing poker at appellant's table, crawled under the table and wrapped his arms around appellant's thighs for 30 to 45 seconds. {¶ 3} On March 27, 2020, appellant filed a complaint against appellee alleging that his June and December 2014 conduct constituted aiding and abetting sex discrimination in violation of R.C. 4112.02(J). On June 8, 2020, appellee moved to dismiss the complaint pursuant to Civ.R. 12(B)(6). {¶ 4} On August 13, 2020, appellant, without first seeking leave from the trial court, filed an amended complaint adding an R.C. 2307.60(A)(1) civil claim for damages arising from various criminal acts.1 Specifically, appellant alleged that appellee's conduct in June and December 2014 constituted criminal assault, menacing by stalking, gross sexual imposition, and sexual imposition. On September 10, 2020, appellee filed a motion to strike appellant's amended complaint, arguing that the R.C. 2307.60(A)(1) claim was time-barred by the one-year statute of limitations set forth in R.C. 2305.11(A). On September 18, 2020, appellant filed a response, arguing that the six-year statute of limitations in R.C. 2305.07 governed her claim. On September 25, 2020, appellee filed a reply reiterating his claim that the one-year statute of limitations in R.C. 2305.11(A) barred appellant's claim. On October 13, 2020, appellant filed a motion to amend the complaint, along with an amended complaint identical to that filed on August 13, 2020. {¶ 5} In a decision and entry filed December 10, 2020, the trial court found appellant's proposed amendment adding a new claim under R.C. 2307.60(A)(1) to be futile as "[p]ersuasive authority establishes that R.C. 2307.60 is a penalty statute subject to a one- year statute of limitations under R.C. 2305.11(A)." (Dec. 10, 2020 Decision & Entry at 2.) Accordingly, the court denied appellant's motion to amend the complaint and granted appellee's motion to strike the amended complaint. The trial court also granted appellee's Civ.R. 12(B)(6) motion to dismiss appellant's complaint and dismissed the case with prejudice. {¶ 6} Appellant timely appeals, assigning a single error for our consideration: 1 In Jacobson v. Kaforey, 149 Ohio St.3d 398 , 2016-Ohio-8434 , the Supreme Court of Ohio determined that "[b]y its plain and unambiguous language, R.C. 2307.60 creates a civil cause of action for damages resulting from any criminal act, unless otherwise prohibited by law." Id. at ¶ 13. Nearly a decade later, the court determined that "the plain language of the statute does not require proof of an underlying criminal conviction." Buddenberg v. Weisdac, 161 Ohio St.3d 160 , 2020-Ohio-3832 , ¶ 11. No. 21AP-13 3 Since Revised Code Section 2307.60 is a remedial statute and subject to a six-year statute of limitations in accordance with Revised Code Section 2305.70 [sic] did the Trial Court err in dismissing Appellant's complaint finding R.C. § 2307.60 to be a punitive statute and thus subject to a one[-]year limitations period? {¶ 7} Preliminarily, we note that although appellant frames her assignment of error as challenging the dismissal of her complaint, the issue presented for review and the arguments set forth in her brief address only one issue—whether the trial court erred in denying her motion to amend her complaint as futile based upon its finding that R.C. 2307.60(A)(1) is a penalty statute subject to the one-year statute of limitations in R.C. 2305.11(A). The trial court discussed the statute of limitations issue in the portion of its decision and entry addressing appellant's motion to amend her complaint and appellee's motion to strike appellant's amended complaint. Upon determining that appellant's R.C. 2307.60(A)(1) claim was barred by the one-year statute of limitations set forth in R.C. 2305.11(A), the court denied appellant's motion to amend her complaint to add that claim and granted appellee's motion to strike appellant's amended complaint. As a result, appellant's complaint alleged only a sex discrimination claim under R.C. 4112.02(J), which was the only claim subject to appellee's motion to dismiss. At oral argument before this court, appellant conceded that she was not challenging the dismissal of her complaint. Consequently, we will consider appellant's arguments as challenging the trial court's decision denying her motion to amend her complaint and granting appellee's motion to strike her amended complaint based upon persuasive authority establishing that R.C. 2307.60(A)(1) is a penalty statute subject to the one-year statute of limitations in R.C. 2305.11(A). {¶ 8} Civ.R. 15(A) provides for amendment of pleadings by leave of court or by written consent of the opposing party after a responsive pleading has been made. Leatherwood v. Medco Health Solutions of Columbus, 10th Dist. No. 13AP-242, 2013- Ohio-4780, ¶ 10. A motion to amend a complaint generally may be denied if there is a finding of bad faith, undue delay, or prejudice. Id., citing Hoover v. Sumlin, 12 Ohio St.3d 1 , 8 (1984). In addition, a motion to amend a complaint may be denied if the amendment would be futile. Natl. City Bank v. Citizens Natl. Bank, 2d Dist. No. 20323, 2004-Ohio- 6060, ¶ 26, citing Central Motors Corp. v. Pepper Pike, 9 Ohio App.3d 18 , 20-21 (8th No. 21AP-13 4 Dist.1983). An appellate court reviews a decision to grant or deny a motion to amend a complaint for an abuse of discretion. Townsend v. Ohio Dept. of Transp., 10th Dist. No. 11AP-672, 2012-Ohio-2945 , ¶ 34, citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120 , 122 (1991). In addition, a trial court's decision to grant or deny a motion to strike is also subject to an abuse of discretion standard of review. KeyBank Natl. Assn. v. Columbus Campus, LLC, 10th Dist. No. 11AP-920, 2013-Ohio-1243 , ¶ 68, citing Douglass v. Salem Community Hosp., 153 Ohio App.3d 350 , ¶ 20 (7th Dist.2003); see also Padula v. Wagner, 9th Dist. No. 27509, 2015-Ohio-2374 , ¶ 35 (trial court did not abuse its discretion in granting motion to strike amended complaint). {¶ 9} An abuse of discretion occurs when a court's judgment is unreasonable, arbitrary, or unconscionable. State ex rel. McCann v. Delaware Cty. Bd. of Elections, 155 Ohio St.3d 14 , 2018-Ohio-3342 , ¶ 12; State v. Beavers, 10th Dist. No. 11AP-1064, 2012- Ohio-3654, ¶ 8. However, even under an abuse of discretion standard, no court is authorized, within its discretion, to commit an error of law. Badescu v. Badescu, 10th Dist. No. 18AP-947, 2020-Ohio-4312 , ¶ 9 (further citations omitted.) Thus, a court abuses its discretion when its ruling is based on an error of law or a misapplication of law to the facts. Id. (Further citations omitted.) The applicable statute of limitations presents a question of law an appellate court reviews de novo. Timbuk Farms, Inc. v. Hortica Ins. & Emp. Benefits, 5th Dist. No. 2021 CA 00017, 2021-Ohio-4141 , ¶ 50, citing Haskins v. 7112 Columbia, Inc., 7th Dist. No. 15 MA 0192, 2016-Ohio-5575 , ¶ 15. See also Potter v. Cottrill, 4th Dist. No. 11CA685, 2012-Ohio-2417 , ¶ 9. {¶ 10} Appellant contends the trial court abused its discretion in denying her motion to amend her complaint and in striking her amended complaint because the trial court based its decision on a legal error—that R.C. 2307.60(A)(1) is a penalty statute and that claims brought thereunder are subject to the one-year statute of limitations in R.C. 2305.11(A). Appellant maintains that R.C. 2307.60(A)(1) is a remedial statute; thus, claims brought pursuant to that statute are subject to the six-year statute of limitations in R.C. 2305.07(B). Thus, argues appellant, her R.C. 2307.60(A)(1) claim was timely filed and the trial court erred in finding otherwise. {¶ 11} R.C. 2307.60(A)(1) provides that "[a]nyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically No. 21AP-13 5 excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code." The statute does not contain a limitations period of its own, nor has the Supreme Court of Ohio or this court specifically addressed the limitations issue. {¶ 12} As noted above, the statutes of limitation at issue are R.C. 2305.11(A), which provides in relevant part that "an action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrued," and R.C. 2305.07(B), which states that "[a]n action upon a liability created by statute other than a forfeiture or penalty shall be brought within six years after the cause of action accrued." In finding appellant's proposed amendment adding an R.C. 2307.60 claim to be futile, the trial court essentially concluded that R.C. 2307.60 is penal, rather than remedial, rendering appellant's claim subject to the one-year statute of limitations in R.C. 2305.11(A). In support, the trial court cited two cases from the Eighth District Court of Appeals and one case from the Southern District of Ohio, all of which applied R.C. 2305.11(A) to bar R.C. 2307.60 claims filed more than one year after the cause of action accrued. Specifically, in Steinbrick v. Cleveland Elec. Illum. Co., 8th Dist. No. 66035, 1994 Ohio App. LEXIS 3756 (Aug. 25, 1994), the Eighth District, citing the language in R.C. 2307.60 permitting a plaintiff to collect "punitive or exemplary damages," determined that "because R.C. 2307.60 contemplates a penalty, * * * R.C. 2305.11(A) is the applicable statute of limitations." Id. at *5. Following its decision in Steinbrick, the Eighth District reaffirmed that "R.C. 2307.60 contemplates a penalty, therefore it is subject to the one-year statute of limitations in R.C. 2305.11(A)." State ex rel. Cty. of Cuyahoga v. Jones Lang Lasalle Great Lakes Corporate Real Estate, LLC, 8th Dist. No. CA-16-104157, 2017-Ohio-7727 , at ¶ 131 ("Jones Lang"). The Southern District of Ohio also applied Steinbrick's conclusion that R.C. 2307.60(A)(1) is a penalty statute to which the one-year statute of limitations in R.C. 2305.11(A) applies. Duffy v. Pope, S.D. No. 2:11- cv-16, 2012 U.S. Dist. LEXIS 137471 (Sept. 25, 2012). {¶ 13} Appellant contends that the trial court erred in relying on these cases, as they failed to apply "mandates" from the Supreme Court of Ohio for determining whether a statute is penal or remedial. (Appellant's Brief at 9.) Appellant cites Cosgrove v. No. 21AP-13 6 Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281 (1994), which considered the statute of limitations applicable to R.C. 4112.99.2 That statute provided in full: "Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief." The Supreme Court held that "R.C. 4112.99 is a remedial statute, and is thus subject to R.C. 2305.07's six-year statute of limitations." Cosgrove at syllabus. Justice Resnick authored a concurring opinion, joined by four justices, which set forth the following three-prong test for determining whether a statute is penal or remedial: "(1) whether the purpose of the statute is to redress individual wrongs or wrongs to the public, (2) whether recovery runs to the individual or to the public, and (3) whether the authorized recovery is wholly disproportionate (or unrelated) to the harm suffered." Id. at 288. Appellant maintains that the trial court erred in failing to apply this test in its analysis of the statute of limitations applicable to R.C. 2307.60(A)(1). {¶ 14} Appellant also relies on Rosette v. Countrywide Home Loans, Inc., 105 Ohio St.3d 296 , 2005-Ohio-1736 in support of her claim that R.C. 2307.60(A)(1) is a remedial statute subject to the six-year statute of limitations in R.C. 2305.07. There, the Supreme Court considered the statute of limitations applicable to R.C. 5301.36(C), which provides that " 'a mortgagor may recover, in a civil action, damages of [$250]' if the mortgagee fails to record the satisfaction of a residential mortgage with the appropriate county recorder's office within 90 days from the date of satisfaction." Id. at ¶ 10, quoting R.C. 5301.36(C). The court concluded that R.C. 5301.36(C) is a remedial statute and thus subject to the six- year statute of limitations set forth in R.C. 2305.07. Id. at syllabus. The court based its holding on the plain language of R.C. 5301.36(C) and the fact that had the General Assembly intended to do so, it could have used the term "forfeiture" or "penalty" rather than "damages" in the statute. Id. at ¶ 13-14. The court reasoned that in enacting the statute and choosing the particular words codified therein, the General Assembly intended to provide a remedy to an aggrieved individual mortgagor rather than to impose a penalty upon the wrongdoing mortgagee. The court held that to conclude that the General Assembly intended to create a penalty in R.C. 5301.36(C) rather than to provide for damages, the court would be required to ignore the plain term "damages" and to insert the term "penalty" or "forfeiture" into the statute. The court declined to do so, noting that the 2 R.C. 4112.99 addressed employment discrimination and was repealed effective April 15, 2021. No. 21AP-13 7 General Assembly had used the terms "penalty" or "forfeiture" in other statutes and could have used them again if it so intended. Id. at ¶ 14. Appellant contends that construing R.C. 2307.60(A)(1) as a penal statute would require deletion of the term "damages" and insertion of the word "penalty" or "forfeiture," a practice not countenanced by the Supreme Court under Rosette. {¶ 15} Appellant also argues that under Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio St.3d 394 , 2007-Ohio-2203 , R.C. 2307.60(A)(1) is a remedial statute. In Cleveland Mobile, the Supreme Court considered whether R.C. 4905.61 constitutes a penalty statute for statute of limitations purposes. Id. at ¶ 1. R.C. 4905.61 provides in part that if a public utility violates certain laws, " 'such public utility * * * is liable to the person, firm, or corporation injured thereby in treble the amount of damages sustained in consequence of such violation, failure, or omission.' " Cleveland Mobile at ¶ 13, quoting R.C. 4905.61. The court noted the following factors to determine whether a statute is penal or remedial: the statute at issue and its context; whether the primary purpose of the statute is to penalize or remedy and compensate; and the methods used by the General Assembly to accomplish the goals and overall purpose of the statutory scheme. Id. at ¶ 16. Applying these factors, the court found that R.C. 4905.61 "does not simply compensate an injured party with an award for actual damages but, rather, incorporates a treble-damage award provision and provides that any recovery by a private plaintiff pursuant to it does not preclude the state from seeking additional penalties." (Emphasis sic.) Id. at ¶ 18. Thus, the court concluded that the statute "was designed to augment enforcement of the law and to deter violations through penalties rather than to simply compensate consumers for violations." Id. Appellant contends that unlike R.C. 4905.61, R.C. 2307.60(A)(1) has only one purpose—to allow persons injured by a criminal act to seek damages; thus, it is not a penalty statute. {¶ 16} In addition, appellant contends that a recent case from the Seventh District Court of Appeals compels the conclusion that R.C. 2307.60(A)(1) is remedial. In Brothers v. Nixon, 7th Dist. No. 19 CO 0046 , 2020-Ohio-4035 , a minor child vandalized the victims' home. The victims asserted a civil action for damages for vandalism pursuant to R.C. 2307.70(B)(1) against the parents of the minor child. The parents sought summary judgment on the claim, arguing that it was an action upon a penalty statute and thus barred No. 21AP-13 8 by the one-year statute of limitations in R.C. 2305.11. The victims opposed summary judgment, arguing that their R.C. 2307.70(B)(1) claim was subject to a six-year statute of limitations. The trial court held that the claim was governed by the two-year statute of limitations in R.C. 2305.10 and that the claim was timely filed. {¶ 17} On appeal, the parents argued that they were entitled to summary judgment on their R.C. 2307.70 claim because that statute is a penalty statute governed by the one- year statute of limitations under R.C. 2305.11. R.C. 2307.70(B)(1), the section of R.C. 2307.70 under which the victims sued, provides in relevant part that " '[a]ny person who suffers injury or loss to person or property as a result of an act committed in violation of [certain criminal statutes] by a minor child has a civil action against the parent of the minor child and may recover in that action compensatory damages not to exceed [$15,000], court costs, other reasonable expenses incurred in maintaining that action, and reasonable attorney fees incurred in maintaining that action.' " Brothers at ¶ 16, quoting R.C. 2307.70(B)(1). {¶ 18} The court of appeals concluded that R.C. 2307.70 is not a penalty statute subject to the one-year statute of limitations in R.C. 2305.11. Id. at ¶ 35. In so concluding, the court observed that the text of the statute focuses on making the victim whole or remedying a wrong done to a victim and does not contain the terms "penalty" or "forfeit." Id. at ¶ 22. The court further noted that R.C. 2307.70 does not provide for treble damages as did the statute considered in Cleveland Mobile, 113 Ohio St.3d 394 , 2007-Ohio-2203 . Id. In addition, the court observed that although R.C. 2307.70(A), which allows victims to recover compensatory damages, punitive or exemplary damages, court costs, reasonable expenses, and reasonable attorney fees from a minor child offender, the statute under which the victims sued, R.C. 2307.70(B)(1), does not subject the child's parents to punitive or exemplary damages. Id. {¶ 19} The court also rejected the parents' argument that because R.C. 2307.70(A) permits recovery of punitive damages, the statute is penal. The court first noted that " '[t]he purpose of punitive damages is not to compensate a plaintiff, but to punish and deter conduct.' " Id. at ¶ 24, quoting Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638 , 651 (1994). The court further stated that "[t]he fact that R.C. 2307.70 provides for plaintiffs to receive punitive damages is not a sufficient reason to categorize the statute as a penalty No. 21AP-13 9 statute for several reasons. First, * * * R.C. 2307.70 independently creates a cause of action for vandalism victims, which implicates that the statute is not intended to punish defendants. Second, 'punitive damages are awarded as a mere incident of the cause of action in which they are sought.' [Moskovitz at 650.] Thus, without compensatory damages provided by the statute, there is no claim for punitive damages. Third, * * * punitive damages are not completely determinative of whether a statute is penal in nature. Fourth, [the victims'] claim was premised on R.C. 2307.70(B)(1), not (A), and this subsection does not provide for punitive damages." Brothers, 7th Dist. No. 19 CO 0046 , 2020-Ohio-4035 , at ¶ 24. {¶ 20} The court also found misguided the parents' reliance on Cleveland Mobile to support its argument that R.C. 2307.70 is penal because it does not preclude the state from bringing criminal charges for vandalism; thus, according to the parents, the statute is designed to augment enforcement of criminal vandalism rather than provide a remedy to victims of that crime. Brothers ¶ 25. The court distinguished Cleveland Mobile, finding that the Supreme Court of Ohio's decision that R.C. 4905.61 augmented enforcement of the law and deterred violations through penalties was because R.C. Chapter 49 " 'was intended to penalize public utilities for failing to comply with their statutory obligations.' " Brothers at ¶ 27, quoting Cleveland Mobile at ¶ 18-19. The court noted that in the present case, there "is no duty to comply with a statutory obligation. [The victims'] R.C. 2307.70(B)(1) claim was not premised on [the child offender's parents] failing to comply with a statutory duty, it was premised on [the child offender] committing vandalism." Brothers at ¶ 28. {¶ 21} The court also noted that in Cleveland Mobile, R.C. Chapter 49 provided both individual plaintiffs and the state the ability to recover damages against public utilities for violations, a fact indicating that R.C. 4905.61 augmented enforcement of the law and deterred violation. Brothers at ¶ 28. In contrast, "if the state were to seek additional action against [the child offender], then it would presumably be pursuant to the criminal vandalism statute R.C. 2909.05, not R.C. 2307.70. These are two different statutory schemes with R.C. 2909.05 providing the basis for punishing [the child offender] and R.C. 2307.70(B)(1) providing the basis for compensating [the victims]." Brothers at ¶ 28. {¶ 22} Finally, the court addressed the parents' argument that R.C. 2307.70 is a penalty statute based upon the Eighth District's construction of an analogous statute—R.C. No. 21AP-13 10 2307.60(A)(1)—as a penalty statute. After noting the Eighth District's holding in Steinbrick, 8th Dist. No. 66035, 1994 Ohio App. LEXIS 3756 (Aug. 25, 1994), that R.C. 2307.60 is a penalty statute under R.C. 2305.11(A) because it contemplates punitive damages, and the summary reaffirmance and application of that ruling in Jones Lang, 8th Dist. No. CA-16-101457, 2017-Ohio-4066 , and Duffey, S.D. No. 2:11-cv-16, 2012 U.S. Dist. LEXIS 137469 , respectively, the court subtly implied, without expressly asserting, that it disagreed with the Eighth District's analysis. Indeed, the court observed that "no other Ohio court has held R.C. 2307.60 is a penalty statute." Brothers at ¶ 31. The court further cited two Supreme Court of Ohio cases, Rice v. CertainTeed Corp., 84 Ohio St.3d 417 (1999), and Cosgrove, 70 Ohio St.3d 281 (1994), both of which held that " ' "[a] law is not penal merely because it imposes an extraordinary liability on a wrongdoer in favor of a person wronged, which is not limited to damages suffered by him." ' " Brothers at ¶ 32, quoting Rice at 421, quoting Cosgrove. The court also noted Rice's specific holding that a statute providing for punitive damages does not automatically render it penal in nature. Id., citing Rice at 421. {¶ 23} The Brothers court concluded that "R.C. 2307.70 is not a penalty statute subject to a one-year statute of limitations because the expressed language of this statute creates a cause of action for victims of, among other things, vandalism. The overall purpose of the statute is not punishing defendants but rather compensating victims. The fact that R.C. 2307.70(A) provides for punitive damages is not sufficient to render it penal in nature because the overall purpose of the statute is to compensate victims. Moreover, [the victims' claim] was premised on R.C. 2307.70(B)(1) and this subsection does not provide for punitive damages." Id. at ¶ 35. {¶ 24} Appellee counters that since Cosgrove was decided, the Supreme Court of Ohio has analyzed whether a statute imposes a penalty for purposes of R.C. 2305.11(A) without mentioning the three-factor test urged by Justice Resnick. Appellee further asserts that none of the cases upon which appellant relies specifically address the statute at issue in this case—R.C. 2307.60. Appellee also notes that appellant "does not cite a single Ohio state case or federal court case that has held that claims brought under R.C. 2307.60 are subject to a six-year statute of limitations" and that "Ohio state and federal courts have consistently held R.C. 2307.60 to be a penalty statute, and as such, subject to the one-year No. 21AP-13 11 statute of limitations in R.C. 2305.11(A)." (Appellee's Brief at 7-9.) Appellee points out that in addition to the cases relied upon by the trial court in its decision and entry, other state and federal cases have applied R.C. 2305.11(A)'s one-year statute of limitations to R.C. 2307.60 claims. See, e.g., Ettayem v. H.E.R., Inc., 5th Dist. No. 19 CAE 12 0070, 2020- Ohio-4647, ¶ 24, 26 (pursuant to Steinbrick, "[a] claim under R.C. 2307.60 is * * * subject to the one-year statute of limitations set by R.C. 2305.11(A)"); Sampson v. Cleveland, N.D. Ohio No. 1:20 CV 741, 2020 U.S. Dist. LEXIS 150851 , at *9 (Aug. 20, 2020) ("The statute of limitations for [plaintiff's] state law claims is one year following the date the claims accrued. See * * * R.C. 2307.60 (criminal acts liability)."); Marquardt v. Carlton, N.D. Ohio No. 1:18-CV 333, 2019 U.S. Dist. LEXIS 58402 , at *6-8 (Apr. 2, 2019), rev'd on other grounds, Marquardt v. Carlton, 971 F.3d 546 , 2020 U.S. App. LEXIS 26355 (6th Cir.2020) ("Plaintiff has not cited, and the court has not identified, a single case that has applied the six-year statute of limitations to 2307.60(A)(1) claims. Consequently, the court finds that the applicable statute of limitations for claims brought under O.R.C. 2307.60(A)(1) is the one-year period identified in O.R.C. 2305.11(A)"); and Roarty-Nugent v. Cuyahoga Cty., N.D. Ohio No. 1:20 CV 1025, 2020 U.S. Dist. LEXIS 168934 , at *18 (Sept. 15, 2020) ("Plaintiff's claim for Civil Liability for Criminal Acts [under R.C. 2307.60(A)(1)] is barred by the one-year statute of limitations [in R.C. 2305.11(A)(1)]."). Appellee maintains that because every court that has considered the issue has applied the one-year statute of limitations to R.C. 2307.60(A)(1) claims, the trial court did not err in denying appellant's motion to amend her complaint and granting appellee's motion to strike on the ground that such amendment would be futile, as her R.C. 2307.60 claim was barred by the one-year statute of limitations. {¶ 25} Although not cited by either party, this court notes a recent case from the Northern District of Ohio determining that a one-year limitations period governs claims brought under R.C. 2307.60. In Brack v. Budish, No. 1:19-cv-1436, 2021 U.S. Dist. LEXIS 92941 , F.Supp.3d , (N.D.Ohio 2021), the plaintiff asserted civil liability claims for various criminal acts under R.C. 2307.60. The plaintiff, relying on Rosette, 105 Ohio St.3d 296 , 2005-Ohio-1736 , argued that the six-year statute of limitations in R.C. 2305.07 should apply. The defendant, citing several state and federal cases, maintained that the one-year statute of limitations in R.C. 2305.11(A) applied to bar the plaintiff's claims. The district No. 21AP-13 12 court noted that "[e]very court that has considered the issue, State or federal, applies a one- year limitations period to claims under Section 2307.60. Plaintiff cites no case casting doubt on this conclusion, and the Court's research has not located any. Based on these longstanding, uniform rulings, the Court is hard pressed to reach any other conclusion." Brack at *12. {¶ 26} The court went on to note, however: Plaintiff's arguments have considerable force, however, and on a blank slate might well carry the day. On its face, Section 2307.60(A)(1) creates a cause of action for the victim of a crime to "recover full damages," suggesting the statute is not penal. To be sure, some parts of the statute allow for recovery of amounts that are penal in nature, such as punitive damages or attorneys' fees. But it is difficult to see why such language, subsidiary to the statute's authorization of a civil action to recover damages, would make it penal in nature as a whole. In this regard, Rosette may provide a rough analogy by virtue of its reliance on the statutory text and relying on the word "damages" in the statute. Even if Rosette does not remain good law or, as [defendant] argues, is limited to its facts and has no application here, the substantive force of Section 2307.60 suggests a different limitations period should apply. In Jacobson v. Kaforey, 149 Ohio St. 3d 398 , 2016-Ohio-8434 , 75 N.E.3d 203 , ¶ 12, the Ohio Supreme Court held that Section 2307.60 creates "a civil cause of action for damages." That holding does not sound like characterizing the statute as penal in nature. Rather, the statute provides crime victims with a civil recovery when they experience an injury to person or property. That statutory aim also suggests a longer limitations period. Actions for injuries to person or property generally, though not always, have longer limitations periods. Personal injury claims, for example, have a two-year limitations period. Ohio Rev. Code § 2305.10(A). And the general statute of limitations for felonies is six years. Id. § 2901.13(A)(1)(a). Yet Ohio's lower courts continue to apply a one-year limitations period, even after the Ohio Supreme Court's ruling in Jacobson. See, e.g., Ettayem v. H.E.R., LLC, 5th Dist. Delaware No. 19 CAE 12 0070, 2020-Ohio-4647 , ¶ 24, 26 (affirming and adopting judgment of Delaware County Court of Common Pleas). So have the federal courts. See, e.g., Marquardt v. Carlton, No. 1:18 CV 333, 2019 U.S. Dist. LEXIS 58402 , 2019 WL 1491966 , at *3 (N.D. Ohio Apr. 2, No. 21AP-13 13 2019). Contrary to Plaintiff's argument, not all State or federal decisions reach this conclusion through unreasoned application of decisions superseded by the Ohio Supreme Court's decision in Jacobson. See, e.g., id.; Duffey, 2012 U.S. Dist. LEXIS 137471 , at *32-33, 2012 WL 2012 4442753, at *7 (analyzing various State and federal authorities to determine one-year limitations period applies). Based on the uniform authority in the State and federal courts that have considered the issue, the Court predicts the Ohio Supreme Court would determine that a one-year statute of limitations applies to claims under Section 2307.60. Id. at *12-14. {¶ 27} Upon careful consideration of the parties' arguments and supporting case law, we conclude that R.C. 2307.60(A)(1) is a remedial statute subject to the six-year statute of limitations in R.C. 2305.07(B) rather than a penalty statute governed by the one-year statute of limitations in R.C. 2305.11(A). We recognize that Ohio and federal jurisprudence regarding the statute of limitations applicable to claims brought pursuant to R.C. 2307.60(A)(1) is consistent, i.e., that such claims are subject to the one-year statute of limitations in R.C. 2305.11(A). We further acknowledge that the cases appellant cites in support of her position construe statutes other than R.C. 2307.60(A)(1). However, the analysis (or lack of analysis) employed by the courts in construing R.C. 2307.60(A)(1) and similar statutes convinces us that R.C. 2307.60(A)(1) is remedial, not penal. {¶ 28} As noted above, the trial court cited three cases in support of its finding that appellant's proposed amendment adding a new claim under R.C. 2307.60(A)(1) was futile because R.C. 2307.60(A)(1) is a penalty statute subject to a one-year statute of limitations under R.C. 2305.11(A). However, the primary case relied upon for this proposition, Steinbrick, 8th Dist. No. 66035, 1994 Ohio App. LEXIS 3756 , provides no analysis beyond the cursory finding that because the statute allows a plaintiff to recover punitive or exemplary damages, the statute "contemplates a penalty" and is thus subject to the one- year statute of limitations in R.C. 2305.11(A). Steinbrick did not consider the significance of the General Assembly's use of the term "damages" rather than "forfeiture" or "penalty," or whether the primary purpose of the statute is to provide a remedy to a crime victim or to punish the offender. Further, Steinbrick does not provide any rationale for its conclusion that the provision allowing recovery of punitive damages ipso facto renders the statute No. 21AP-13 14 penal in nature. The other two cases cited by the trial court, Jones Lang, 8th Dist. No. CA- 16-104157, 2017-Ohio-7727 and Duffy, S.D. No. 2:11-cv-16, 2012 U.S. Dist. LEXIS 137471 , merely follow Steinbrick without additional analysis. {¶ 29} Moreover, the analyses employed by the Supreme Court of Ohio and other courts construing different statutes provides guidance regarding the remedial-versus-penal nature of R.C. 2307.60(A)(1). {¶ 30} In both Cosgrove, 70 Ohio St.3d 281 , and Cleveland Mobile, 113 Ohio St.3d 394 , 2007-Ohio-2203 , the Supreme Court of Ohio set forth factors to be considered in determining whether a statute is penal or remedial. The factors concern the primary purpose of the statute, i.e., whether the statute is to penalize or remedy and compensate, whether the statute redresses individual or public wrongs, whether recovery runs to the individual or to the public, and whether the statute was designed to augment enforcement of the law and to deter violations through penalties rather than simply compensate victims. Cosgrove at 288 (Resnick, J. concurring), and Cleveland Mobile at ¶ 16, 18. {¶ 31} In Rosette, 105 Ohio St.3d 296 , 2005-Ohio-1736 , the Supreme Court of Ohio looked to the plain language of the statute at issue in concluding that the General Assembly's use of the term "damages" rather than "forfeiture" or "penalty" evidenced its intention to provide a remedy to the aggrieved party rather than to impose a penalty upon the wrongdoer. {¶ 32} In Brothers, 7th Dist. No. 19 CO 0046 , 2020-Ohio-4035 , the court noted that the text of the statute at issue there focused on making the victim whole or remedying a wrong done to the victim rather than punishing the offender and did not contain the terms "penalty" or "forfeit." The court further noted the absence of language in the statute augmenting enforcement of the law and deterring violations. The court also stated that a provision in a statute providing for the recovery of punitive damages does not definitively render it penal in nature if the overall purpose of the statute is to compensate the victim. The court emphasized this last point in its discussion of the statute at issue in the present case—R.C. 2307.60(A)(1) {¶ 33} Finally, although the Brack court ultimately followed the jurisprudence set forth in Ohio and federal cases specifically addressing R.C. 2307.60(A)(1), i.e., that because the statute permits a plaintiff to recover punitive or exemplary damages, the statute No. 21AP-13 15 contemplates a penalty and is thus subject to the one-year statute of limitations in R.C. 2305.11(A), the court addressed the plaintiff's claim that the statute was remedial and thus governed by the six-year statute of limitations in R.C. 2305.07. To that end, the court made several salient points that serve to bolster our conclusion that R.C. 2307.60(A)(1) is remedial, not penal. {¶ 34} First, the court observed that the statute's creation of a civil cause of action for a crime victim to "recover full damages" suggests that the statute is not penal. Further, the language permitting recovery of punitive damages or attorney fees auxiliary to the primary purpose of the statute, i.e., to compensate victims, did not make the statute penal in nature as a whole. The court further observed that the Supreme Court's holding in Jacobson v. Kaforey, 149 Ohio St.3d 398 , 2016-Ohio-8434 that R.C. 2307.60(A)(1) created a "civil cause of action for damages," id. at ¶ 12, did not suggest that the court characterized the statute as penal in nature. Finally, the court found that the statute's aim in authorizing damages for personal or property injury suggested a limitations period longer than one year. {¶ 35} Applying the rationale employed in Cosgrove, Cleveland Mobile, Rosette, Brothers, and Brack, we find that the trial court erred as a matter of law in concluding that R.C. 2307.60(A)(1) is penal in nature, as we find the statute is remedial in nature. The General Assembly's use of the term "damages" rather than "forfeiture" or "penalty" signals that the primary purpose of the statute is to provide a remedy to a crime victim rather than to punish the offender. Any state action against the offender presumably would be taken pursuant to criminal statutes designed to punish the offender, rather than under R.C. 2307.60, which provides the basis for compensating victims. Further, that the statute provides for recovery of punitive damages does not definitively render the statute penal in nature, as the overall purpose of the statute is to compensate the victim. {¶ 36} Having concluded that R.C. 2307.60(A)(1) is a remedial statute subject to the six-year statute of limitations in R.C. 2305.07(B), we find that the trial court's ruling denying appellant's motion to amend her complaint and granting appellee's motion to strike appellant's amended complaint based on a finding that R.C. 2307.60(A)(1) is a penalty statute subject to the one-year statute of limitations in R.C. 2305.11(A) was based on an error of law. No. 21AP-13 16 {¶ 37} Because the trial court's ruling regarding the applicable statute of limitations was legally erroneous, the portion of the judgment denying appellant's motion to amend the complaint and granting appellee's motion to strike the amended complaint must be reversed and the matter remanded to the trial court for further proceedings. However, we emphasize that the trial court's legal error in applying the wrong statute of limitations does not require the court to grant appellant's motion to amend her complaint. Rather, the trial court is free to consider other relevant factors such bad faith, undue delay, or prejudice in determining whether to grant or deny appellant's motion to amend her complaint and appellee's motion to strike appellant's amended complaint. {¶ 38} For the foregoing reasons, appellant's single assignment of error is sustained, the portion of the judgment of the Franklin County Court of Common Pleas denying appellant's motion to amend the complaint and granting appellee's motion to strike the amended complaint is reversed, and the matter is remanded to that court for further proceedings in accordance with law and consistent with this decision. Judgment reversed and cause remanded. SADLER and JAMISON, JJ., concur.
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Trial court erred as a matter of law in concluding R.C. 2307.60(A)(1) is a penalty statute subject to the one-year statute of limitations in R.C. 2305.11(A)
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OPINION OF THE COURT ADAMS, Circuit Judge. We are confronted in this appeal with the termination, by a manufacturer of kitchen cabinets, of one of its customers, a discount house, at the urging of another customer, a retailer, allegedly because of price considerations. Although the manufacturer’s action was destructive to competition between the two customers, under the circumstances present here the plaintiff may recover only if the challenged conduct is termed a per se violation of the Sherman Act, because under a “rule of reason” analysis the necessary anti-competitive effects as to a particular commodity in a relevant market cannot be proven.1 Inasmuch as we believe, based on the allegations set forth by the plaintiff, that a per se violation of the Act might be found, we reverse the summary judgment entered in favor of the defendants, and remand the case for trial. I. Plaintiff, Cernuto, Inc. (Cernuto), is a seller in Western Pennsylvania of supplies and appliances used in the construction or remodeling of buildings. One of these products is kitchen cabinets. Beginning in March, 1974, United Cabinet Corporation (United), through its sales representative, Robert L. Lappin Company (Lappin), agreed to supply Cernuto with United cabinets for at least a two year period. In return Cernuto agreed to promote, display and sell United’s cabinets, and undertook to advertise them and alter its display area so as to feature them prominently. Only three months after entering into the contract, however, Lappin informed Cernuto that United would cease supplying the cabinets. Plaintiff alleges that Famous Furnace & Supply Co. (Famous), a retail store selling United cabinets in the same competitive area as Cernuto, complained to United about the discounter’s price competition. Because this appeal concerns a grant of summary judgment, we must view the record in the light most favorable to the plaintiff, and consequently must infer that Famous’ conduct was the cause of United’s decision to terminate Cernuto’s supply, and that Famous was motivated by direct price competition between it and Cernuto.2 Cernuto brought the present action against United, Lappin, and Famous, alleging, inter alia, conduct violative of § 1 of the Sherman Act. After completion of discovery and the filing of pretrial narrative statements, defendants moved for summary judgment on two counts of the complaint, including the Sherman Act claim. The district judge concluded that plaintiff could not recover on these counts and that there was no just reason for delay. He therefore entered a judgment as to both counts, and Cernuto took a timely appeal to this Court.3 *166II. Because almost all business agreements may be interpreted as restraining trade to some degree, § 1 of the Sherman Act has been construed for the most part to proscribe only those combinations that “unduly” restrain trade. In the classical § 1 controversy, therefore, a “rule of reason” is applied, and the plaintiff must prove “that the combination or conspiracy produced adverse, anti-competitive effects within relevant product and geographic markets . .”4 Thus, to demonstrate an antitrust violation under the “rule of reason” in the present case, Cernuto would have to show an actual anti-competitive impact on the sale of cabinets in Western Pennsylvania. However, Cernuto does not allege, and apparently cannot prove, such harmful effects. Other sources of cabinets were available, and it is clear from its pretrial narrative statement that plaintiff was not prepared to offer any market analyses at trial. Plaintiff’s claim, therefore, is grounded entirely on the alleged per se illegality of the defendants’ combination.5 The per se violations of the Sherman Act — those requiring no proof of an actually harmful impact — are specific exceptions to the general rule of reason. They were described by Justice Black in Northern Pacific Railroad Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958), as: . agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. Among those business practices that have been treated as per se violations are price fixing,6 resale price maintenance,7 group boycotts,8 tying arrangements,9 and certain types of reciprocal dealing.10 The question we must consider is whether the conduct at issue here — a manufacturer deliberately withdrawing its product from a distributor that resold it for a price less than its competitors at the request of a competitor— should be classified as a per se violation of the Act. Following Justice Black’s formulation, the activity under consideration in this case must be seen to have a pernicious effect on competition without having any redeeming virtue. The pernicious effect is apparent: one competitor has succeeded in excluding another from dealing in United cabinets through a combination with United and its agent, and, in so doing, has eliminated the possibility of price competition by the foreclosed dealer. Although this harm may have its impact solely in the market for United kitchen cabinets, rather than in the general market for kitchen cabinets, it is not for that reason, beyond the reach of the antitrust laws.11 *167The difficult problem here, as we read the ease law, is whether the business decision that has been brought into question has the same redeeming pro-competitive virtues that have been relied upon in rejecting a per se rule in other arguably similar cases. The conduct at issue, it might be said, is merely a decision by a manufacturer to terminate a customer. It is therefore, the argument goes, comparable to the conduct at issue in Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977), a case notable for the importance the Supreme Court placed on the pro-competitive aspects of the manufacturer’s marketing plan. There, the Court upheld the right of a company to terminate a distributor of its television sets when that distributor began to sell them at an outlet outside of its allotted territory. The Supreme Court reasoned that the manufacturer’s exclusive-franchise marketing plan was in fact beneficial to competition among the various television manufacturers and should therefore be governed by a “rule of reason.” For the most part, the Supreme Court has been disinclined to apply harsh or rigorous rules when reviewing unilateral decisions made by a single manufacturer in arranging its distribution structure. The interest of the manufacturer in controlling the marketing of its own product has been thought to justify restrictions on those who distribute it, or those who would like to do so. Thus, a manufacturer may sell its product to whomever it wishes, and a unilateral refusal to deal has not been considered to be a violation of the Act.12 Moreover, a manufacturer may include in its marketing strategy certain restraints designed to improve its overall competitive position. Nor is it either uncommon or illegal for a manufacturer to enter into contracts that provide particular customers exclusive rights to sell the product in designated geographical areas.13 And, under certain circumstances, a manufacturer may change its strategy, franchising new dealers or substituting new dealers for less productive old ones.14 The result in GTE Sylvania, then, is not out of keeping with the law’s traditional tolerance of unilateral decisions on the part of a manufacturer. The ultimate reach of the GTE Sylvania decision is still uncertain, and continues to be a subject of considerable controversy,15 but we are not persuaded that the *168law’s tolerance of reasonable restraints designed to improve the manufacturer’s competitive position may be converted into a blanket allowance of any marketing decision made by a manufacturer. As Professor Sullivan has suggested in his treatise on the antitrust laws: “It does not follow from the fact that a manufacturer may, when franchising a dealer, commit itself not to franchise another in a territory defined by the manufacturer, that it may, having earlier franchised two or more dealers, agree at the request of one to terminate the others.” 16 When a marketing decision, although ostensibly taken by a manufacturer, is in fact the result of pressure from another customer, such a decision must be scrutinized more closely than solely unilateral action might be. This Court recently observed in a different context: Particularly where the refusal to deal is not unilateral but rather is prompted by an understanding with other parties, an antitrust violation may be found, either by application of a per se rule or through a ‘rule of reason’ analysis.17 Thus, to the extent that the conduct here differs from the conduct held to be justifiable in other cases involving manufacturer decisionmaking, application of a per se rule may be warranted. Two of the most crucial differences between the conduct under consideration here and other accepted manufacturer actions are, upon analysis, readily apparent. When a manufacturer acts on its own, in pursuing its own market strategy, it is seeking to compete with other manufacturers by imposing what may be defended as reasonable vertical restraints. This would appear to be the rationale of the GTE Sylvania decision. However, if the action of a manufacturer or other supplier is taken at the direction of its customer, the restraint becomes primarily horizontal in nature in that one customer is seeking to suppress its competition by utilizing the power of a common supplier. Therefore, although the termination in such a situation is, itself, a vertical restraint, the desired impact is horizontal and on the dealer, not the manufacturer, level. The importance of the horizontal nature of this arrangement is illustrated by United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). Although General Motors, the manufacturer, was seemingly imposing vertical restraints when it pressured recalcitrant automobile dealers not to deal with discounters, the Supreme Court noted that in fact these restraints were induced by the dealers seeking to choke off aggressive competitors at their level, and found a per se violation, rejecting the suggestion that only unilateral restraints were at issue.18 So here, if United and Lappin acted at Famous’ direction, both the purpose and effect of the termination was to eliminate competition at the retail level, and not, as in GTE Sylvania, to promote competition at the manufacturer level. Accordingly, the pro-competitive redeeming virtues so critical in GTE Sylvania may not be present here. Equally important, the motivating factor in Famous’ efforts and therefore the resulting conspiracy was — at least according to Cernuto’s theory of the case — price. The pre-eminence of price considerations in antitrust law was summarized recently by Justice Stevens: “Price is the ‘central nervous system of the economy,’ and an agreement that ‘interfere[s] with the setting of price by free market forces’ is illegal on its face.”19 It is true that the alleged combination in the case at hand did not set prices at an *169exact level. But such a traditional conspiracy is not a sine qua non of a per se violation of the Act under the price-fixing rubric. If the purpose and effect of the challenged conduct is to restrain price movement and the free play of market forces, it is then illegal per se. As the Supreme Court stated in the celebrated price-fixing case, United States v. Socony-Vacuum Oil Co.: Any combination which tampers with price structures is engaged in an unlawful activity. Even though the members of the price-fixing group were in no position to control the market, to the extent that they . . . stabilized prices they would be directly interfering with the free play of market forces.20 Cernuto’s pretrial narrative statement points to the centrality of price in the combination of Famous, Lappin, and United to cut off plaintiff. The thrust of Famous’ communication to United, it is alleged, was “that [Cernuto] was selling United products in Famous’ territory and that [Cernuto] was a low price volume dealer.” 21 Cernuto is a “discount house”, and, it must be presumed, was prepared to sell United cabinets at prices lower than those offered by Famous. Famous’ concern, understandably, was that Cernuto’s low prices would force Famous’ own prices down if it were to compete effectively in selling United cabinets. By prevailing upon United and Lappin to terminate their contract with Cernuto, Famous effectively eliminated the threatened competition and was able to maintain prices at its own preferred levels. It is just this type of conduct that the antitrust laws were designed to reach. There are, it must be noted, a scattering of cases suggesting a result contrary to the one we reach today. The best known is the so-called Packard case.22 There, the most successful car dealer in the Baltimore area threatened to cease selling the manufacturer’s automobiles unless the dealer’s competitors were terminated and it was granted an exclusive right for the entire region. The manufacturer was not in a strong enough overall competitive position to resist the demand of this dominant dealer, and acquiesced. Notwithstanding the horizontal impact of the dealer’s action, the court reversed a jury verdict for plaintiff and refused to find an antitrust violation on the part of the manufacturer. A more recent case is Oreck Corp. v. Whirlpool Corp23 There, the Court of Appeals for the Second Circuit, sitting en banc, reversed a jury verdict for a plaintiff that had been deprived of its profitable trade in Whirlpool vacuum cleaners, as a result of an agreement between Whirlpool and Sears & Roebuck Co., the plaintiff’s principal competitor. The court found the trial judge’s instructions to the jury, which left open the possibility of finding a per se violation on such facts, to be erroneous, and remanded for a new trial — -presumably under a rule of reason analysis. As a preliminary matter, we are not convinced that this Court would necessarily have decided Packard and Oreck the same way had we been presented with the identical factual configurations. But whatever result we might have reached in such situations, those two cases are distinguishable from this one. Packard, often criticized on its own facts, dealt with a manufacturer that was struggling to maintain a declining competitive position, and is frequently explained as an example of the failing-company doctrine. Moreover, in Packard the dealer was seeking not to fix prices but to secure an exclusive franchise, a form of marketing strategy that is not without cer*170tain overall competitive advantages. In contrast, Famous was not the exclusive dealer of United products in Western Pennsylvania and, at least as far as the record shows, was not seeking such a position. Instead it was desirous of eliminating a dealer that was providing price competition. Similarly, in Oreck there was no proof that Sears, the aggressive dealer, was inspired by price. In fact, Sears was selling Whirlpool vacuum cleaners at prices below those offered by plaintiff Oreck.24 Price control, then, was not the likely purpose of the Whirlpool-Sears agreement. Furthermore, Whirlpool did no more than refuse to renew a contract with Oreck, whereas here United breached its two year contract with Cernuto after only three months. Whirlpool’s decision may be considered to be more an element of its own marketing strategy, in contradistinction to United’s decision, which, given the sudden repudiation of a recently made agreement, is alleged to have been predominantly the result of customer pressure. Thus, despite Packard and Oreck, the situation present in this case may be fairly considered to raise the possibility of a per se violation of the Sherman Act. Given the alleged anti-competitive and arguably horizontal impact of United’s decision, and given the price orientation of the alleged conspiracy, we cannot say that a per se violation of the Act may not be shown. If Cernuto can prove at trial that United, Lap-pin and Famous conspired to protect Famous from price competition by Cernuto, and that United and Lappin terminated Cernuto at Famous’ request and in pursuit of a price related end, then it can prevail on a price-fixing theory notwithstanding its failure to show any impact on competition involving kitchen cabinet sales in Western Pennsylvania. Of course, at trial the defendants may be able to demonstrate that the evidence does not at all conform to what plaintiff has alleged. If it could be shown, for example, that United’s decision to terminate Cernuto was in fact its own— the result of its own marketing strategy and judgment — then notwithstanding Famous’ actions, the alleged conduct would be essentially unilateral in nature and might be found to possess the pro-competitive redeeming virtues that would defeat the application of a per se rule.25 Similarly, if defendants can demonstrate that their actions were not motivated solely by considerations of price then the use of a per se rule might be inappropriate. But at present — in reviewing a grant of summary judgment— we must assume that the facts are otherwise. Under these circumstances, a per se application of § 1 of the Sherman Act may well be warranted. III. The other count of the complaint ruled upon by the district court alleges tortious interference with a business contract. All parties are agreed that our resolution of this question must turn on whatever decision is reached on the antitrust claim. Pennsylvania has adopted § 766 of the Restatement of Torts26 which applies only to those who act “without a privilege to do so.” Lappin maintains that under § 771 of the Restatement27 it had such a privilege, *171but acknowledges that the privilege would be destroyed were its actions found to be violative of the antitrust laws.28 Because we have concluded that an antitrust violation might be found, we shall reverse the district court’s judgment on the sixth count of the complaint as well as on the first. The judgment of the district court will be reversed, and the case will be remanded for action consistent with this opinion. . After discovery was completed, plaintiff filed a pretrial narrative statement that did not, and presumably could not, allege the harmful economic effects necessary to make out a § 1 violation under the rule of reason analysis. Under Local Rule 5. II. G. of the Western District of Pennsylvania, such evidence may not be introduced at trial because of the pretrial narrative statement and plaintiffs position at pretrial conference. . See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (non-moving party entitled to have record viewed in the light most favorable to it). We note that summary judgment is to be used sparingly in complex antitrust litigation. Id. . The complaint included seven counts: one count charging violation of § 1 of the Sherman Act (count 1), two counts charging breach of contract (counts 2 and 3), a count charging wrongful cancellation of the contract (count 4), a recoupment count (count 5), a count alleging tortious interference with contractual relations (count 6), and a count alleging unfair trade practices (count 7). The district court granted summary judgment as to counts 1 and 6, and retained jurisdiction over the other • counts. Only these two counts, then, are before this Court. *166Under Fed.R.Civ.Proced. 54(b) the district court was empowered to enter a final judgment as to some claims without deciding others. This Court has jurisdiction to consider appeals from such judgments under 28 U.S.C. § 1291. See Wright & Miller, Federal Practice and Procedure, § 2657. . Martin B. Glauser Dodge Co. v. Chrysler Corp., 570 F.2d 72, 81 (3d Cir. 1977). . 448 F.Supp. 1332, 1334 (W.D.Pa.1978). See note 1 supra. . United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940). . Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911). . Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). . International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). . United States v. Griffith, 334 U.S. 100, 68 S. Ct. 941, 92 L.Ed. 1236 (1948). . Interbrand competition — competition between manufacturers of different brands of the same commodity — has been labelled the “primary concern of antitrust law.” Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 52 n.19, 97 S.Ct. 2549. Nonetheless, intrabrand competition — competition between sellers of the same product produced by a single manufacturer — has not been of so little importance as never to merit the protection of a per se rule. See, e. g., United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966) (Chevrolet automobiles); United States v. Parke, Davis & Co., 362 U.S. 29, 80 *167S. Ct. 503, 4 L.Ed.2d 505 (1960) (Parke, Davis pharmaceutical products). . See, e. g., United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). . [A] manufacturer of a product other and equivalent brands of which are readily available in the market may select his customers, and for this purpose he may “franchise” certain dealers to whom, alone, he will sell his goods . United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967), overruled on other grounds, Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). . “ . . [I]t is indisputable that a single manufacturer or seller can ordinarily stop doing business with A and transfer his business to B and that such a transfer is valid even though B may have solicited the transfer and even though the seller and B may have agreed prior to the seller’s termination of A.” Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 (3d Cir. 1972). . It might be argued that GTE Sylvania, if pressed to its logical conclusion, may be read to undermine all per se rules applied to primarily vertical restraints. Cf. Handler, Changing Trends in Antitrust Doctrines: An Unprecedented Supreme Court Term — 1977, 77 Colum. L.Rev. 979, 987 (1977) (questioning continuing validity of a previous decision); Posner, The Rule of Reason and the Economic Approach: Reflections on the Sylvania Decision, 45 U.Chi. L.Rev. 1 (1977) (evaluating effect of GTE Sylvania on precedents other than Schwinn). It should be noted however, that the GTE Sylvania Court was careful to preserve the per se analysis traditionally applied to cases involving price-fixing or resale price maintenance, 433 U.S. at 51 n.18, 97 S.Ct. 2549, and we believe it would be ill advised to presume that so radical a change in existing law as the abolition of per se rules in all arguably vertical cases was intended, absent an express declaration to that effect. Moreover, although we are confronted here with an apparently vertical conspiracy, the principal impact of that conspiracy, as we note infra at page 168, is horizontal rather than vertical in nature. . L. Sullivan, Antitrust, § 148 (1977). . Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 142 (3d Cir. 1978) (emphasis added). . 384 U.S. at 144-45, 86 S.Ct. 1321. General Motors, like the present dispute, involved a combination with conspirators at different levels of the distribution chain. Unlike this case, however, there was more than one conspirator at the dealer level. . United States v. National Society of Professional Engineers, 435 U.S. 679, 692, 98 S.Ct. 1355, 1365, 55 L.Ed.2d 637 (1978). . 310 U.S. 150, 221, 60 S.Ct. 811, 843, 84 L.Ed. 1129 (1940). . 53a. . Packard Motor Car Co. v. Webster Motor Car Co., 100 U.S.App.D.C. 161, 243 F.2d 418, cert. denied, 355 U.S. 822, 78 S.Ct. 29, 2 L.Ed.2d 38 (1957). See also Schwing Motor Co. v. Hudson Sales Corp., 138 F.Supp. 899 (D.Md.), aff’d, 239 F.2d 176 (4th Cir. 1956), cert. denied, 355 U.S. 823, 78 S.Ct. 30, 2 L.Ed.2d 38 (1957). . 579 F.2d 126 (2d Cir.) (en banc), cert. denied, - U.S. -, 99 S.Ct. 340, 58 L.Ed.2d 338 (1978). . Id. 130. . On the other hand, if United acted in pursuit of its own policy, but that policy was itself a form of resale price maintenance, involving other parties in its enforcement, it might constitute a per se violation of the Act under United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), and an antitrust violation may be made out, albeit under a slightly different rubric than the parties have argued heretofore. . Section 766 of the Restatement of Torts reads: Except as stated in Section 698, one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract with another or, (b) enter into or continue a business rela- ■ tion with another is liable to the other for the harm caused thereby. (emphasis added). . Section 771 of the Restatement of Torts reads: One who purposely causes a third person not to enter into or continue a business relation with another in order to influence the other’s *171policy in the conduct of his business is privileged, if (a) the actor has an economic interest in the matter with reference to which he wishes to influence the policy of the other and (b) the desired policy does not illegally restrain competition or otherwise violate a defined public policy and (c) the means employed are not improper, (emphasis added). . Appellee’s Brief at 13-14.
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020lead
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| 8,920,578 |
Adams, Weiner, Weis
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U
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Published
| 0 |
Cernuto, Inc. v. United Cabinet Corp.
| null |
CERNUTO, INCORPORATED, a corporation t/d/b/a C & C Builders Supply Company v. UNITED CABINET CORPORATION, a corporation, Famous Furnace & Supply Company, a corporation and Robert L. Lappin Company, Inc., a corporation
| null | null | null | null | null | null | null | null | null | 66,186,786 |
No. 78-1872
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ca3
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F
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t
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Third Circuit
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Court of Appeals for the Third Circuit
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3,628,544 |
The defendant Peter Guardino stands convicted of the crime of compulsory prostitution of women, in violation of section 2460 of the Penal Law, which provides in part as follows: "§ 2460. Compulsory prostitution of women. "1. * * * "2. * * * "3. Any person who shall induce, entice or procure, or attempt to induce, entice or procure any woman or girl for the purposes of prostitution or concubinage, or for any other immoral purpose, or to enter any house of prostitution in this state shall be deemed guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding five thousand dollars. "4. * * * "5. * * * "6. * * * "7. * * * "8. Any person who shall knowingly accept, receive, levy, or appropriate any money or other valuable thing without consideration, from the proceeds or earnings of any woman engaged in prostitution shall be deemed guilty of a felony and, on conviction thereof, shall be punishable by imprisonment for a period of not less than two years nor more than twenty years and by a fine not exceeding *Page 134 one thousand dollars. Any such acceptance, receipt, levy, or appropriation of such money or valuable thing shall upon any proceeding or trial for violation of this section be presumptive evidence of lack of consideration. "9. * * *." The jury by which the defendant was convicted, and the Appellate Division by which the judgment of conviction has been affirmed, were satisfied that the record contains proof which establishes beyond a reasonable doubt that the defendant violated the penal statute quoted above. In our review of the case, to ascertain whether there is any substantial evidence to sustain the finding of defendant's guilt, we have searched the record to determine whether the evidence satisfies the further statutory requirement, which is peculiar to this type of case, that "No conviction shall be had under this section upon the testimony of the female unless supported by other evidence." (Penal Law, § 2460, subd. 9.) The testimony chiefly relied upon by the District Attorney to prove defendant's guilt, was adduced from two young women named in the indictment — hereinafter referred to as the complainants — who were the alleged victims of the defendant's procurement and from whom he is charged with having appropriated moneys earned from prostitution. Upon the trial herein each of the complainants testified that she had pleaded guilty of being a prostitute. Omitting a recital of sordid details with which the record is replete, it is sufficient to note the District Attorney's argument that, within the requirement of Penal Law, section 2460, subdivision 9, quoted above, the evidence given by the two complainants, whose testimony is said to corroborate each other, was competent to satisfy Penal Law, section 2460, subdivision 9, and thus tended to establish the defendant's guilt. Such an argument disregards the fact that the quality of mutual corroboration thus claimed for the complainant's testimony was withdrawn from the jury's consideration when the trial judge charged that "the testimony of a second prostitute is not sufficient *Page 135 to corroborate the testimony of the first prostitute." We must assume that in reaching its verdict, the jury gave full heed to instructions by the trial judge given upon that subject. "The duty imposed upon a jury is to hear the evidence adduced upon the trial, apply the rules of law as declared by the court and render a verdict thereon." ( Mulder v. U.S. Slicing Machine Co., 228 N.Y. 88 , 91 .) The question of whether the charge of the trial judge was correct should await determination until directly presented and fully argued. Proceeding, as we must, upon the assumption that the jury did not accept the testimony of either complainant as corroborative of the other, we have examined the record to ascertain whether, within the requirement of the statute, the testimony of either complainant is "supported by other evidence." The defendant was tried with one Luigi Mangione upon a single indictment which charged that by acts which are alleged to have been connected together and constituted parts of a common scheme and plan the present defendant and Mangione on or about February 8, 1940, and prior thereto, induced and procured each of the two complainants to live a life of prostitution, and that on or about February 8, 1940, the defendant and Mangione knowingly appropriated certain sums of money which were known by them to be the proceeds and earnings of prostitution by the complainants, who were described as women engaged in prostitution. Upon the trial it appeared from the testimony of each complainant that on the night of February 8, 1940, as a result of procurement by the defendant and Mangione, the complainants were engaged in a life of prostitution at 237 Penn street in the borough of Brooklyn, and that during that night the defendant appropriated from both complainants certain sums earned by them in prostitution. It also appears from the testimony of one of the complainants that prior to February 8, 1940, she had lived for at least seven nights as a prostitute at No. 72 Throop avenue, from which address she had moved when she was *Page 136 told by Mangione that detectives had placed that house under surveillance due to complaints that too many men were frequenting the place. In an effort to support this testimony "by other evidence" (Penal Law, § 2460, subd. 9) the District Attorney called the People's witness Rendfleish, who testified that he had known Mangione and that Mangione had called at his room accompanied by one of the complainants. It also appears that the young woman who accompanied Mangione was the complainant who, prior to February 8, 1940, for a period of at least seven nights, had engaged in prostitution at No. 72 Throop avenue, and when advised to do so by Mangione, had moved from that address. The examination of Rendfleish adduced the following: Redirect examination by Mr. McDonald (Assistant District Attorney): "Q. What did he [Mangione] tell you about what had happened at his own house? * * * A. He said he had trouble; they made complaints about him, about many men coming * * *." Recross examination by Mr. Drescher (attorney for Mangione): "Q. Did you know Louis Mangione's address, the old house that you are referring to? A. Old house? Q. You said something — By the Court: Q. This place he spoke about, where he told you that he had some trouble. A. He had some trouble there. Q. What was the address? A. 45 Throop Avenue. " This evidence, instead of supporting the complainants' testimony as to events which occurred at 72 Throop avenue, refers to "trouble" which Mangione had at "45 Throop Avenue." The District Attorney also asserts that the evidence given by the complainants finds support in the testimony of the People's witness Steinbach, the police officer who arrested the defendant. His testimony tended only to establish an admission by the defendant that at some time — no date being given — he had visited the premises at 237 Penn street when one of the complainants was there. *Page 137 We do not find that the testimony given by the complainants is supported by "other evidence" of a type which satisfies the requirement of Penal Law, section 2460, subdivision 9. ( People v. Plath, 100 N.Y. 590 , 593 , 594 ; People v. Page, 162 N.Y. 272 , 274 ; People v. Taleisnik, 225 N.Y. 489 , 494 , 495 .) The judgments should be reversed and a new trial ordered. LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, CONWAY and DESMOND, JJ., concur. Judgments reversed, etc.
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| 1,307 |
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| 3,644,501 |
Lewis
| null |
ZU
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Published
| 4 |
People v. Guardino
|
Guardino
|
The People of the State of New York, Respondent, v. Peter Guardino, Appellant
| null | null |
<parties data-order="0" data-type="parties" id="b158-5">
The People of the State of New York, Respondent,
<em>
v.
</em>
Peter Guardino, Appellant.
</parties><br><otherdate data-order="1" data-type="otherdate" id="b158-11">
Argued June 6, 1941;
</otherdate><decisiondate data-order="2" data-type="decisiondate" id="A0t">
decided July 29, 1941.
</decisiondate><br><attorneys data-order="3" data-type="attorneys" id="b158-13">
<em>
Maurice Edelbaum
</em>
for appellant.
</attorneys><p data-order="4" data-type="legal" id="Adj">
The People failed to furnish any testimony required by subdivision 9 of section 2460 of the Penal Law.
<em>
(People
</em>
v.
<em>
O’Farrell,
</em>
175 N. Y. 323;
<em>
People
</em>
v.
<em>
Taleisnik,
</em>
225 N. Y. 489;
<em>
People
</em>
v.
<em>
Downs,
</em>
236 N. Y. 306;
<em>
People
</em>
v.
<em>
Plath,
</em>
100 N. Y. 590;
<em>
People
</em>
v.
<em>
Page,
</em>
162 N. Y. 272;
<em>
People
</em>
v.
<em>
Kingsley,
</em>
166 App. Div.
<span citation-index="1" class="star-pagination" label="133">
*133
</span>
320;
<em>
People
</em>
v.
<em>
Seaman,
</em>
152 App. Div. 495;
<em>
People
</em>
v.
<em>
Farina,
</em>
134 App. Div. 110;
<em>
People
</em>
v.
<em>
O’Sullivan,
</em>
104 N. Y. 481;
<em>
People
</em>
v.
<em>
Kearney,
</em>
110 N. Y. 188;
<em>
People
</em>
v.
<em>
Love,
</em>
153 App. Div. 907;
<em>
People
</em>
v.
<em>
Draper,
</em>
169 App. Div. 479.)
</p><br><attorneys data-order="5" data-type="attorneys" id="b159-7">
<em>
William O’Dwyer, District Attorney (Edward II. Levine
</em>
of counsel), for respondent.
</attorneys><p data-order="6" data-type="legal" id="A4e">
The People established the necessary corroboration to satisfy the requirement of subdivision 9 of section 2460 of the Penal Law.
<em>
(People
</em>
v.
<em>
Draper,
</em>
169 App. Div. 479;
<em>
People
</em>
v.
<em>
Deitsch,
</em>
237 N. Y. 300;
<em>
People
</em>
v.
<em>
Trombino,
</em>
238 App. Div. 61;
<em>
People
</em>
v.
<em>
Luciano,
</em>
277 N. Y. 348;
<em>
People
</em>
v.
<em>
McKane,
</em>
143 N. Y. 455.)
</p>
| null |
Appeal from the Supreme Court, Appellate Division, Second Department, GARVIN, J.
|
<attorneys data-order="3" data-type="attorneys" id="b158-13"><em>Maurice Edelbaum </em>for appellant.</attorneys> <p data-order="4" data-type="legal" id="Adj">The People failed to furnish any testimony required by subdivision 9 of section 2460 of the Penal Law. <em>(People </em>v. <em>O’Farrell, </em>175 N. Y. 323; <em>People </em>v. <em>Taleisnik, </em>225 N. Y. 489; <em>People </em>v. <em>Downs, </em>236 N. Y. 306; <em>People </em>v. <em>Plath, </em>100 N. Y. 590; <em>People </em>v. <em>Page, </em>162 N. Y. 272; <em>People </em>v. <em>Kingsley, </em>166 App. Div. <page-number citation-index="1" label="133">*133</page-number>320; <em>People </em>v. <em>Seaman, </em>152 App. Div. 495; <em>People </em>v. <em>Farina, </em>134 App. Div. 110; <em>People </em>v. <em>O’Sullivan, </em>104 N. Y. 481; <em>People </em>v. <em>Kearney, </em>110 N. Y. 188; <em>People </em>v. <em>Love, </em>153 App. Div. 907; <em>People </em>v. <em>Draper, </em>169 App. Div. 479.)</p> <attorneys data-order="5" data-type="attorneys" id="b159-7"><em>William O’Dwyer, District Attorney (Edward II. Levine </em>of counsel), for respondent.</attorneys> <p data-order="6" data-type="legal" id="A4e">The People established the necessary corroboration to satisfy the requirement of subdivision 9 of section 2460 of the Penal Law. <em>(People </em>v. <em>Draper, </em>169 App. Div. 479; <em>People </em>v. <em>Deitsch, </em>237 N. Y. 300; <em>People </em>v. <em>Trombino, </em>238 App. Div. 61; <em>People </em>v. <em>Luciano, </em>277 N. Y. 348; <em>People </em>v. <em>McKane, </em>143 N. Y. 455.)</p>
| null | null | null | 3,516,626 | null | 0 |
ny
|
S
|
t
|
New York Court of Appeals
|
New York Court of Appeals
|
2,562,380 |
592 F. Supp. 2d 127 (2009) CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. Civil Action No. 08-1535 (RCL). United States District Court, District of Columbia. January 9, 2009. *129 Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiff. Brad P. Rosenberg, Department of Justice, Washington, DC, for Defendants. MEMORANDUM OPINION ROYCE C. LAMBERTH, Chief Judge. This matter comes before the Court on defendant's Motion [9] for Summary Judgment and plaintiff's subsequent Cross-Motion [10] for Summary Judgment. For the reasons contained herein, the Court will grant summary judgment for plaintiff. These motions raise legal issues identical to some addressed by this Court in parallel litigation, Citizens for Responsibility and Ethics in Washington v. U.S. Department of Homeland Security, et al., No. 06-1912, in which the same plaintiff sought the same type of records from the same defendant. For those issues, this opinion will not repeat at length the legal analysis from opinions in that litigation. It will instead summarize the analyses when applicable and refer to 06-1912 opinions for a more detailed explanation. I. FACTUAL BACKGROUND In July 2008, plaintiff filed a FOIA request with defendant seeking agency records related to visits by Stephen Payne to the White House or the Vice President's residence ("VPR"). [1] The Secret Service, a component of defendant, creates various types of records associated with visitors to either the White House complex or the VPR. The main records of visitors to the White House are Access Control Records System ("ACR") records and Worker and Visitor Entrance System ("WAVES") records. Other security-related records are also maintained. VPR visit records include post entry logs (handwritten entry records), permanent and daily access lists (clearance lists for regular visitors and specific visitors, respectively), event lists (clearance lists for particular events), and e-mails requesting access to VPR. [2] Other records reflecting White House visitors include parking records, daily briefing sheets, schedules, name check reports, email access requests, and "Visitor Multiple Entry Reports." [3] When defendant *130 did not produce responsive records within the period allowed by statute, plaintiff initiated this action. II. STANDARD FOR SUMMARY JUDGMENT Summary judgment should be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of production as to the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 , 323, 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if the evidence, viewed in the light most favorable to the nonmoving party, "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248, 106 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986). But a genuine issue requires more than "a scintilla of evidence" supporting the nonmoving party; "there must be evidence on which the jury could reasonably find" for the nonmoving party. Id. at 252, 106 S. Ct. 2505 . The operative question for summary judgment motions in FOIA cases is whether the agency has executed a search "reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344 , 1351 (D.C.Cir. 1983). Summary judgment can be awarded based on information provided by the agency in affidavits or declarations. Military Audit Project v. Casey, 656 F.2d 724 , 738 (D.C.Cir.1981). Agency affidavits or declarations establishing the adequacy of a search must be "relatively detailed and non-conclusory." SafeCard Servs. v. SEC, 926 F.2d 1197 , 1200 (D.C.Cir.1991). Such affidavits or declarations "are accorded a presumption of good faith." Id. "An agency must demonstrate that `each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements.'" Long v. Dep't of Justice, 450 F. Supp. 2d 42 , 54 (D.C.Cir.2006) (citing Goland v. CIA, 607 F.2d 339 , 352 (D.C.Cir. 1978) (internal citation and quotation omitted)). If the agency claims that records are exempt from disclosure, it bears the burden of showing that the claimed exemption applies. See 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 , 142 n. 3, 109 S. Ct. 2841 , 106 L. Ed. 2d 112 (1989). III. ANALYSIS Defendant makes three main arguments in favor of its motion. First, defendant contends that the records sought by plaintiff are not "agency records" subject to FOIA. Second, defendant argues that FOIA must be construed as excluding these records so as to avoid "serious questions" about its constitutionality. Finally, defendant claims that the sought records reflect presidential communications and thus are exempt from disclosure under FOIA Exemption 5. This Court's opinions in the parallel case, No. 06-1912, reject all three of these arguments. This opinion rejects them as well, for the same reasons. A. The Records Sought by Plaintiff Are Agency Records The Court's December 17, 2007 opinion in the parallel litigation No. 06-1912 established that many of the records sought by plaintiff hereWAVES records, ACR records, and the various types of VPR recordsare "agency records" subject *131 to FOIA. Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Homeland Security, 527 F. Supp. 2d 76 , 88-98 (D.D.C.2007). Defendant recognizes this prior adverse ruling, but briefs the issue in detail anyway "to preserve its record for future appeal." (Def.'s Mot. at 13.) Defendant offers no new theories as to why these records should not be considered "agency records" under FOIA. Because the defendant bears the burden of demonstrating that the sought records are not subject to FOIA, U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 , 142 n. 3, 109 S. Ct. 2841 , 106 L. Ed. 2d 112 (1989), the Court maintains its position that those records are subject to FOIA. Defendant points out in a footnote that the request here may implicate "a small category of records" that were not at issue in 06-1912 (parking records, daily briefing sheets, schedules, name check reports, e-mail access requests, and "Visitor Multiple Entry Reports"). ( Id. at 13 n. 14.) Mention of these records was limited to this footnote only. The footnote contained one or two brief justifications for why defendant believed each type of record was not an "agency record." This passing mention does not give the Court enough basis to hold that these new types of records are also "agency records." At the same time, though, it falls short of establishing that the records are not agency records. The agency bears the burden of showing that those types of records would not be covered by an adequate search of agency records. Accordingly, this small category of records will be considered agency records for the purposes of this litigation. B. "Constitutional Avoidance" Does Not Preclude Applying FOIA to the Records at Issue Defendant briefs the "constitutional avoidance" issue in much the same way as the "agency records" issue. This Court disposed of the question in 06-1912, CREW v. DHS, 527 F.Supp.2d at 98-100, and defendant, recognizing the adverse decision (Def.'s Mot. at 24 n. 21), argued the issue again. Here, defendant emphasized how applying FOIA to these records would unconstitutionally intrude on the President's ability to maintain confidentiality and frankness in soliciting and receiving advice. However, defendant did not refute the primary basis for the Court's earlier opinion: in the absence of statutory ambiguity the constitutional avoidance doctrine has no place, and FOIA unambiguously encompasses the records at issue here. See CREW v. DHS, 527 F.Supp.2d at 98-100. As a result, the Court maintains that the doctrine of constitutional avoidance is inapplicable here. C. The Records Are Not Within the Presidential Communications Privilege and Thus Are Not Exempted From Disclosure by FOIA Exemption 5 The final argument made by defendant was also made in 06-1912, and resolved in an opinion issued today. See Mem. Op., No. 06-1912[75], 592 F. Supp. 2d 111 , 2009 WL 50149 (D.D.C. Jan. 9, 2009). Defendant argued there, as it does here, that releasing the sought records would reflect from whom the President was soliciting advice and perhaps even allow one to surmise the content of that advice. As a result, they would be protected in the civil discovery context under the "presidential communications" privilege, and thus exempted from disclosure under FOIA by FOIA Exemption 5. See 5 U.S.C. § 552(b)(5) (exempting "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the *132 agency."). Relying on the exemption, defendant neither confirms nor denies the existence of responsive records. Such a "Glomar response" is appropriate "where to answer the FOIA inquiry [as to the existence or nonexistence of responsive records] would cause harm cognizable under an FOIA exception." Gardels v. CIA, 689 F.2d 1100 , 1103 (D.C.Cir.1982); see also Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976) (approving such a response by the CIA regarding the secret "Glomar Explorer" vessel). The 06-1912 opinion goes into some detail in its rejection of this proposition, but the bottom line is that the presidential communications privilege protects only communications; the bits of information contained in the sought records names of visitors, dates of visits, and in some case who was visiteddo not rise to the level of protection under the presidential communications privilege. [4] See Mem. Op., No. 06-1912[75], 592 F. Supp. 2d at 120-23 , at 6-8 (D.D.C. Jan. 9, 2009). Such negligible intrusion into the presidential consultation process does not justify curtailing the public disclosure aims of FOIA. See id. 122-24, at 8-9. Because Exemption 5 does not apply here, defendant's Glomar response is similarly inappropriate. CONCLUSION For the reasons stated above, the Court shall grant summary judgment for plaintiff. A separate order shall issue this date. NOTES [1] Plaintiff indicated that its interest in Stephen Payne was related to reports of his "attempt[s] to sell access to top White House officials in exchange for contributions to the Bush presidential library." (Def.'s Opp'n at 1.) [2] These types of White House and VPR visit records are discussed in detail in Citizens for Responsibility and Ethics in Wash. v. U.S. Dep't of Homeland Security, et al., 527 F. Supp. 2d 76 , 79-87 (D.D.C.2007). That lengthy discussion is not repeated here. As noted later herein, though, this Court does follow that opinion's position that these records are "agency records" subject to FOIA. [3] According to defendant, these record categories were not implicated in the parallel litigation. See supra note 2. Defendant's brief explained these categories: Parking records are created by the White House; the Secret Service does not modify or add anything to them. Second Caldwell Decl. ¶¶ 3-4. Daily briefing sheets, while created by the Secret Service, contain scheduling information that is supplied by the White House. Id. ¶¶ 5-6. Similarly, the Secret Service has received some protectee schedules from the White House, id. ¶ 7, and name check reports contain appointment information from the White House or other authorized White House passholders, id. ¶¶ 8-9. The Secret Service receives e-mail access requests from, among others, OVP staff. Third Morrissey Decl. ¶ 34. Finally, the Visitor Multiple Entry Reports are an embodiment of WAVES data. See Fourth Morrissey Decl. ¶ 3. (Def.'s Mot. at 13 n. 14.) [4] Because the presidential communications privilege does not apply, the Court need not address plaintiff's argument that it was improperly invoked.
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Citizens for Responsibility & Ethics v. U.S. Department of Homeland Security
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CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Et Al., Defendants
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CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
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Civil Action No. 08-1535 (RCL).
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United States District Court, District of Columbia.
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Jan. 9, 2009.
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See also 527 F.Supp.2d 76.
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*129
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Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, Washington, DC, for Plaintiff.
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Brad P. Rosenberg, Department of Justice, Washington, DC, for Defendants.
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976 So. 2d 1118 (2008) ROSS v. STATE. No. 3D06-2871. District Court of Appeal of Florida, Third District. March 5, 2008. Decision without published opinion. Affirmed.
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| 1,684,588 | null | null |
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f
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| 1 |
Ross v. State
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Ross
| null | null | null | null | null | null | null | null | null | null | 1,273,707 |
3D06-2871
| 0 |
fladistctapp
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SA
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District Court of Appeal of Florida
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District Court of Appeal of Florida
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7,777,376 |
DAVIS, Judge. The State challenges the trial court order granting D.D.D.’s motion to suppress physical evidence related to several charges against D.D.D. We reverse. The State charged D.D.D. with possession of a firearm by a minor, carrying a concealed weapon, possession of a controlled substance, and possession of a legend drug without a prescription. These charges stem from an incident in which an officer stopped D.D.D. after the officer received information from police dispatch that an individual, generally described as an eleven- to twelve-year-old boy wearing dark pants and a light shirt, was seen in a certain area in possession of a handgun. Prior to the stop, when D.D.D. saw the officer in his marked patrol car, he walked behind a tree and dropped a silver object. The officer could not see what the object was but surmised that it was heavy because dust kicked up when it hit the ground. D.D.D. then walked away from the officer in the opposite direction than he originally had been traveling. The officer called D.D.D. over to the patrol car and conducted a pat-down search that yielded a sheathed knife hanging on a chain around D.D.D.’s neck. The officer and D.D.D. then walked over to the tree and retrieved the gun. Before D.D.D. was placed in a patrol car, he was again searched, and drugs were found in his shoes. Prior to trial, D.D.D. moved to suppress the physical evidence and his statements, and the trial court granted the motion, concluding that the stop of D.D.D. was illegal because the officer did not have the necessary reasonable suspicion. When reviewing a trial court’s ruling on a motion to suppress, the trial court’s factual findings must be affirmed if supported by competent, substantial evidence, Caso v. State, 524 So.2d 422 (Fla.1988), while the trial court’s application of the law to those facts is reviewed de novo, Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Here, the trial court’s findings that the officer saw D.D.D. walking down the street, witnessed him drop something heavy behind a tree, stopped and searched him, and then retrieved the gun were supported by the testimony presented at the suppression hearing. We, however, do not agree with the trial court’s application of the law to those facts. While we agree with the trial court that this was an investigatory stop, we conclude that the officer possessed a reasonable suspicion that D.D.D. had committed a crime. See Pop*1182ple v. State, 626 So.2d 185, 186 (Fla.1993) (“The second level of police-citizen encounters involves an investigatory stop .... At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime.”). The officer had received a report from his dispatcher that a juvenile, approximately age eleven or twelve, wearing dark pants and a light shirt, was in the area of the 3400 block of Fifty-First Avenue Terrace West and was possibly in possession of a handgun. The officer reached the location within two minutes of the dispatch report and saw D.D.D., who matched the dispatch description, walking along the shoulder of the road. When he saw the officer, D.D.D. dropped a heavy, silver object behind a tree and began to walk away from the officer. Based on these facts, we conclude that the officer had the requisite “well-founded, articulable suspicion” to perform an investigatory stop. See id. (“In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.”). We note that because it concluded that the stop was improper based on the officer’s knowledge at the time, the trial court did not make a specific finding as to whether the dispatch report received by the officer was citizen Information or an anonymous tip. The distinction can be important because “[t]ips from known reliable informants, such as an identifiable citizen who observes criminal conduct and reports it, along with his own identity to the police, will almost invariably be found sufficient to justify police action.” J.L. v. State, 727 So.2d 204, 206 (Fla.1999). On the other hand, anonymous tips referring to activity that is occurring at the time the tip is made that provide only “ ‘innocent details of identification’ ” are generally considered to be less reliable and require some corroboration to provide the foundation for reasonable suspicion to stop. Id. at 206 (quoting Butts v. State, 644 So.2d 605, 606 (Fla. 1st DCA 1994)). “[F]or these types of tips ..., the independent police investigation would have to uncover something more than just a verification of the innocent details. The police must observe additional suspicious circumstances as a result of the independent investigation.” Id. at 207. Even if we considered the tip here to be the latter type, it would not change our analysis. The arresting officer here observed D.D.D., upon seeing the officer in his marked patrol car, go behind a tree and drop a heavy, silver object. D.D.D. then turned and walked away from the officer in the opposite direction than he had been traveling when the officer first saw him. These observations of the officer combined with the information provided to him from dispatch provided the officer with the reasonable suspicion necessary to conduct a stop. See J.L., 727 So.2d at 207. However, we agree with the trial court that the pat-down search of D.D.D. was not proper. See Owens v. State, 854 So.2d 737, 740 (Fla. 2d DCA 2003) (“A pat-down for weapons is permissible only when the officer has a reasonable suspicion that the defendant is armed and dangerous.”). Although the dispatcher informed the officer that the suspect was in possession of a firearm, the officer testified that he believed he saw D.D.D. drop the gun behind a tree. Therefore, it was not reasonable for the officer to suspect that D.D.D. was armed. We recognize that it was ultimately discovered that D.D.D. was armed with a knife, but at the time of the pat-down the officer was not in possession of any information that would reasonably lead him to *1183believe D.D.D. was carrying a knife — or any other weapon. The impropriety of the pat-down search, however, does not negate the lawfulness of the initial stop, nor does it taint D.D.D.’s arrest. Because the officer had a reasonable suspicion that D.D.D. had committed a crime, he was well within his authority to stop and detain him and even to bring him over to the tree to retrieve the gun. Once the officer discovered the gun, he had the probable cause necessary to arrest D.D.D. See Popple, 626 So.2d at 186 (“[A]n arrest ... must be supported by probable cause that a crime has been or is being committed.”). Once the officer effected the arrest, a search incident to that arrest would have revealed the knife. Accordingly, although the pat-down search was improper at the time it was conducted, the knife would have inevitably been discovered. See A.J.M. v. State, 746 So.2d 1222, 1225 (Fla. 3d DCA 1999) (“Florida has adopted the inevitable discovery doctrine which provides that ‘evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means.’ ” (quoting Maulden v. State, 617 So.2d 298, 301 (Fla.1993))). In conclusion, because the initial stop and subsequent arrest of D.D.D. were proper, we reverse and remand for further proceedings. Reversed and remanded. SALCINES and LaROSE, JJ., Concur.
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2022-07-30 21:05:13.134453+00
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020lead
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Davis, Larose, Salcines
| null |
U
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f
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Published
| 0 |
State v. D.D.D.
|
D.D.D.
|
STATE of Florida v. D.D.D.
| null | null | null | null | null | null | null | null | null | 64,840,061 |
No. 2D04-2424
| 0 |
fladistctapp
|
SA
|
t
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District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
5,372,695 |
In a proceeding to settle a testamentary trustee’s accounts, etc., decree of the Surrogate’s Court, Kings County, entered on the report of a referee, modified on the law and the facts by striking out the provisions requiring the appellant to restore the fund, plus interest, and accept the named securities, and by substituting in place thereof a provision for the discharge of the appellant upon payment of the sum of $555, with interest at four per cent per annum from the dates of the defaults in payment of interest on the mortgage certificates, and upon surrender of all assets of the estate. As thus modified, the decree is affirmed, with costs to the respondent, payable out of the estate, and the matter is remitted to the Surrogate’s Court for the entry of a decree accordingly. We do not find that there was negligence in investing in the guaranteed whole mortgages in February and March, 1931. We find that there was negligence in making the purchases of the guaranteed mortgage certificates at prices above the market prices. Lazansky, P. J., Hagarty, Johnston and Adel, JJ., concur; Close, J., dissents and votes to affirm the decree. Settle order on notice.
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opinion_xml_harvard
| 198 |
2022-01-08 08:20:25.382666+00
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020lead
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f
| 5,532,083 | null | null |
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f
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Published
| 0 |
In re Midwood Trust Co.
| null |
In the Matter of the Petition of Midwood Trust Company to Render and Settle Its Account as Trustee under the Last Will and Testament of Thomas Fee, Midwood Trust Company, Trustee for the Benefit of Thomas Fee Hodgman, an Infant, Appellant Beatrice M. Judge, Special Guardian for Thomas Fee Hodgman, an Infant
| null | null | null | null | null | null | null | null | null | 61,884,450 | null | 0 |
nyappdiv
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SA
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t
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Appellate Division of the Supreme Court of New York
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Appellate Division of the Supreme Court of the State of New York
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1,254,152 |
248 S.C. 402 (1966) 150 S.E.2d 235 Lonnie Lee BENTON, Jr., by his Guardian ad Litem, Lonnie Lee Benton, Appellant, v. Donald Edward DAVIS, a minor, Harry L. Cannady, a minor, Herman Webster and Martschink Beer Distributors, Inc., Respondents. 18561 Supreme Court of South Carolina. September 8, 1966. *403 *404 Samuel C. Craven, Esq. , of Charleston, for Appellant . Messrs. Sinkler, Gibbs & Simons , of Charleston, for Respondents, Harry L. Cannady and Herman Webster , and Grimball & Cabaniss , of Charleston, for Respondent, Donald Edward Davis . September 8, 1966. LEWIS, Justice. The plaintiff brought this action to recover for injuries sustained in an automobile collision. A jury returned a verdict in favor of the defendants and plaintiff has appealed. The plaintiff alleges that the trial judge erred (1) in the denial of his motion for a directed verdict, (2) in rulings relative to the claim for damages, and (3) in certain portions of the charge to the jury. *405 The plaintiff, a minor, 19 years of age at the time, was injured on the afternoon of February 7, 1964, while riding as a passenger in a Volkswagen automobile owned by the defendant Herman Webster and driven at the time by the defendant Donald Edward Davis. Plaintiff's injuries were received when the driver lost control of the car and it overturned while they were passing a truck at a speed of 60 to 65 miles per hour on a narrow, winding road near Charleston, South Carolina. There were five persons in the automobile at the time of the accident the plaintiff, the defendants Davis and Cannady, and two others. The defendant Cannady was sued upon the theory that the defendant Webster, the owner, had loaned the vehicle to Cannady who, in turn had authorized its operation by Davis, the driver. This action was brought by plaintiff through his guardian ad litem against the above defendants to recover for the injuries received in the accident. Since the plaintiff was a guest passenger in the vehicle, his right to recover in this action was governed by the provisions of Section 46-801 of the 1962 Code of Laws which, as construed by this Court, "restricts liability to a guest to cases where injury has resulted from either intentional or reckless misconduct of the owner or operator of the motor vehicle." Crocker v. Weathers , 240 S.C. 412 , 126 S.E. (2d) 335. The plaintiff alleged in his complaint that the driver of the automobile operated it at the time and place in a reckless manner and that the remaining defendants were liable for the driver's acts. The answers of the defendants interposed, among others, the defenses of contributory recklessness and assumption of risk as a bar to plaintiff's recovery. During the trial of the case, plaintiff moved for a directed verdict in his favor against the defendant Davis, the driver, upon the ground that the evidence conclusively showed recklessness on the part of the driver, and that the defendants failed as a matter of law to establish contributory recklessness or assumption of risk on the part of plaintiff so as to bar *406 recovery. This motion was refused by the trial judge, as was a motion by the defendants for a directed verdict in their favor, and all issues were submitted to the jury for determination, resulting in a verdict for the defendants. The first question for determination is whether the trial judge erred in refusing plaintiff's motion for a directed verdict as to liability of the defendant Davis, the driver of the automobile. It is assumed for the purposes of this appeal that the defendant Davis was operating the vehicle at the time of the collision in a reckless manner. Therefore, to bar recovery, plaintiff must have been guilty of contributory recklessness. Ardis v. Griffin , 239 S.C. 529 , 123 S.E. (2d) 876. The question then is narrowed to one of whether there was any evidence to require submission to the jury of the issue of contributory recklessness on the part of the plaintiff. The plaintiff and the other occupants of the car in which he was riding were good friends, apparently all about the same age. The plaintiff had spent the night away from home and he and the others in the car got together around 11 o'clock A.M. on the day of the accident. They had been driving around Charleston County and visiting various places from that time until the wreck happened about 4 P.M. There is evidence to support the conclusion that the occupants of the car were just riding around drinking beer or liquor at various times and places during the day of the wreck; that plaintiff participated in the drinking at least to the extent of one can of beer; that plaintiff knew that the other members of the party, including the driver, had been drinking; and that at no time prior to the accident did plaintiff try, or indicate any desire, to leave the party. The investigating officer testified that the odor of alcohol was strong in the automobile immediately after the wreck. The Volkswagen driven by the defendant Davis in this accident was the third automobile he had wrecked, all of which the plaintiff knew. In fact, the plaintiff and the *407 defendant Davis, with Davis driving, were involved in a wreck about a week prior to the one here involved. It is further inferable that the defendant Davis, the driver, was under the influence of intoxicants at the time of the collision and that such condition contributed as a proximate cause to the collision, and that he was known by the plaintiff to be a reckless driver. Further review of the testimony would serve no useful purpose. It is well settled that questions as to the contributory negligence or recklessness of a guest in an automobile are ordinarily for determination by the jury and become a matter of law for determination by the court only when the evidence admits of but one reasonable inference thereabout. Lynch v. Alexander , 242 S.C. 208 , 130 S.E. (2d) 563. We have consistently recognized the principle that "[a] guest is barred from recovery for injuries caused by the host's reckless disregard of the guest's safety, if knowing of the host's reckless misconduct and the danger involved to said guest, the guest recklessly exposes himself thereto." Crocker v. Weathers, supra . Nettles v. Your Ice Co. , 191 S.C. 429 , 4 S.E. (2d) 797; Augustine v. Christopoulo , 196 S.C. 381 , 13 S.E. (2d) 918; Jackson v. Jackson , 234 S.C. 291 , 108 S.E. (2d) 86; Ardis v. Griffin, supra , 239 S.C. 529 , 123 S.E. (2d) 876; Lynch v. Alexander, supra , 242 S.C. 208 , 130 S.E. (2d) 563; Gray v. Barnes , 244 S.C. 454 , 137 S.E. (2d) 594. The factual situation presented in this case is clearly susceptible of a reasonable inference of contributory recklessness on the part of the plaintiff and the issue was properly submitted to the jury for determination. There is evidence that plaintiff joined in a riding and drinking party from 11 A.M. until the wreck at 4 P.M., with the driver, known to be reckless, joining in the drinking; and, although he knew the driver was of a reckless disposition *408 and drinking, continued in the vehicle until the wreck occurred, although ample opportunity existed for him to leave the car. Such conduct would support a finding by the jury that the plaintiff recklessly failed to take any care or precaution for his own safety, which barred him from recovery. It is next contended that the trial judge erred in his rulings with respect to the claim of plaintiff for medical expenses. The complaint alleged, with respect to this item of damages that plaintiff "has been forced to expend, and that he is informed and believes, he will be forced to expend large sums of money for hospitalization, medical attention, medical supplies and nursing for the rest of his life. * * *" While the record contains none of the testimony relative to medical expenses, it appears that plaintiff offered in evidence a statement showing medical bills incurred for his treatment in the amount of approximately $8,400.00. The plaintiff was 19 years of age at the time of the collision and 20 at the time of trial. When this evidence relative to the medical expenses was offered, objection was interposed by the defendants upon the ground that expenses incurred by the plaintiff during his minority were not a part of his claim but that of the parents. In response to the objection, the trial judge indicated that he interpreted the complaint as seeking recovery for all medical expenses of the plaintiff, both past and future, including those incurred during his minority; and that recovery for both, in an action by the minor, was permitted under the law. Counsel for plaintiff then stated to the court that no recovery was sought in this action for medical expenses during the minority of the plaintiff and, to eliminate any question thereabout, moved to amend his complaint so as to remove any claim for such expenses. When the motion to amend was made and the court indicated, with the consent of the defendants, that it would be allowed, question arose as to the admissibility of evidence as to the amount of the medical bills incurred during plaintiff's *409 minority, if the complaint was so amended and recovery for medical expenses confined to those which might result after plaintiff reached his majority. The plaintiff contended that, if the complaint was so amended, proof of the cost of the prior hospitalization and medical expenses would be admissible in any event as a guide to the jury in determining the amount of any award for future medical expenses. The trial judge ruled that, if the medical expenses of plaintiff during his minority were not an element of damage in the case, then the evidence as to the amount thereof should be stricken from the record. Upon such ruling, counsel for plaintiff, apparently desiring to keep in the record proof of the cost of the prior medical expenses, withdrew his motion to amend and stated that he would let the complaint "stay just as it is." When the motion to amend was withdrawn, the trial judge ruled that the complaint included demand for recovery of all medical expenses incurred on behalf of the minor plaintiff, both past and future; allowed the introduction of testimony as to the cost of the prior medical expenses; and all issues thereabout were submitted to the jury, without further objection. The plaintiff now seeks to challenge the correctness of the foregoing rulings of the trial judge. We need not attempt to state the particular assignments of error or determine whether the rulings were erroneous. In any event, they clearly resulted in no prejudice to plaintiff in this case in view of the verdict of the jury absolving the defendants of all liability. The plaintiff apparently sustained serious personal injuries and the element of damages in question was one of several submitted to the jury. The challenged rulings related only to the claim for medical expenses incurred during plaintiff's minority and in no way affected the basic right of plaintiff to recover. The award of damages in any amount was necessarily predicated upon the right to *410 recovery, which the jury denied. Since the jury found that there was no liability for any damage, the plaintiff was not prejudiced by the rulings of the court relative to one of several elements of damage submitted. See: Laurens Telephone Co. v. Enterprise Bank , 90 S.C. 50 , 72 S.E. 878 . It is next contended that a new trial should be granted because of alleged error in the instructions to the jury relative to the defense of assumption of risk. We do not reach the merits of this question because of the failure of plaintiff to object to the instructions at the conclusion of the charge when opportunity was afforded to do so. At the conclusion of the charge, the jury was excused and opportunity given to counsel to make objections to the charge and to request additional instructions. No objection was made by plaintiff at that time to the instruction relative to the defense of assumption of risk and the failure to do so constituted a waiver of any objection thereto. Section 10-1210 of the 1962 Code of Laws; Johnson v. Williams , 238 S.C. 623 , 121 S.E. (2d) 223. The plaintiff argues however that an objection was made at a conference in the judge's chambers prior to the charge and that such objection was sufficient to preserve his right to have the question reviewed on appeal. We do not agree. While counsel for defendants concede in the brief that such an objection was made at the precharge conference, it was not entered in the record and the trial judge did not recall that it had ever been made. No doubt the trial judge considered the conference an informal one between him and counsel and not a part of the record in the case, which would explain his failure to have the Court Reporter present to record what transpired. It was counsel's duty to enter any objection to the charge at the conclusion thereof when opportunity was afforded to do so. The duty to make timely objection to portions of the charge considered erroneous is not discharged by an objection made at an informal conference in the judge's chambers which is not recorded as a part of the record. *411 Finally, the plaintiff alleges that the trial judge erred in his charge in response to the jury's request for further instructions. During the deliberations of the jury, they returned to the courtroom and requested the trial judge to clarify the charge given to them "on the balance of justice". The judge did not immediately understand the reference to the charge "on the balance of justice", but concluded, after inquiry of the jury, that they were seeking further instructions on the burden and degree of proof. He then correctly instructed them again as to the burden of proof on the various issues in the case and also as to the meaning of "greater weight or preponderance of the evidence". At the conclusion of these instructions, the jury indicated, in response to inquiry by the court, that the additional instructions given were those sought by them. The plaintiff apparently contends that the request by the jury for further instructions on "the balance of justice", when no charge previously given them had been so labelled, indicated that the entire charge was so vague that the jury did not understand the instructions that had been given them and, therefore, a new trial should be granted. The short and conclusive answer to this argument is that the trial judge ascertained what the jury meant by "balance of justice"; instructed them correctly in response thereto; and the jury indicated at the conclusion of the instructions that any misunderstanding, which they may have previously had, was removed by the instructions given. We find nothing to indicate that the verdict of the jury resulted from any misunderstanding on their part of the instructions given by the court. All exceptions are overruled and the judgment affirmed. MOSS, C.J., BUSSEY and BRAILSFORD, JJ., and LIONEL K. LEGGE, Acting Associate Justice, concur.
|
opinion_html_with_citations
| 2,579 |
2013-10-30 05:14:18.331879+00
|
010combined
|
f
|
f
| 1,254,152 |
Brailsford, Bussey, Legge, Lewis, Lionel, Moss
| null |
LU
|
f
|
Published
| 2 |
Benton v. Davis
|
Benton
|
Lonnie Lee BENTON, Jr., by His Guardian Ad Litem, Lonnie Lee Benton, Appellant, v. Donald Edward DAVIS, a Minor, Harry L. Cannady, a Minor, Herman Webster and Martschink Beer Distributors, Inc., Respondents
| null | null |
<docketnumber id="b432-7">
18561
</docketnumber><br><parties id="b432-8">
Lonnie Lee BENTON, Jr., by his Guardian
<em>
ad Litem,
</em>
Lonnie Lee Benton, Appellant, v. Donald Edward DAVIS, a minor, Harry L. Cannady, a minor, Herman Webster and Martschink Beer Distributors, Inc., Respondents.
</parties><br><citation id="b432-9">
(150 S. E. (2d) 235)
</citation><br><attorneys id="b434-4">
<span citation-index="1" class="star-pagination" label="404">
*404
</span>
<em>
Samuel C. Craven, Esq.,
</em>
of Charleston,
<em>
for Appellant,
</em>
</attorneys><br><attorneys id="b434-5">
<em>
Messrs. Sinkler, Gibbs & Simons,
</em>
of Charleston,
<em>
for Respondents, Harry L. Cannady
</em>
and
<em>
Herman Webster,
</em>
and
<em>
Grimball & Cabaniss,
</em>
of Charleston,
<em>
for Respondent, Donald Edward Davis,
</em>
</attorneys><br><decisiondate id="b434-6">
September 8, 1966.
</decisiondate>
| null | null | null | null | null | null | 2,575,464 |
18561
| 0 |
sc
|
S
|
t
|
Supreme Court of South Carolina
|
Supreme Court of South Carolina
|
3,891,954 |
Complainant, Aubrey F. Folts, as guardian of Nannie J. Paul, alleged in his bill herein that his ward is a person of unsound mind, having been so adjudged on February 5, 1938, and committed to Central State Hospital, at Nashville, Tennessee; that among the assets of his ward coming into his hands as guardian is a life insurance policy for the face amount of $5,000, issued to Nannie J. Paul by the Mutual Life Insurance Company of New York on March 6, 1922, which policy is on the twenty-year payment life plan; that the annual premium on said policy is $257.20, which have been kept paid in order to keep the policy in force pending a final determination of the guardian's rights and duties in respect to said policy. It is further averred that defendant, Kathleen Jones, is named beneficiary in said policy; but that the right is reserved to the insured, under the terms of the policy, of revocation and change of beneficiary. That the guardian believes that since the right of revocation and change *Page 80 of beneficiary is reserved in the policy, no rights whatever vested in the beneficiary any present interest and that the cash surrender of said policy is that of the insured in her own right; that even if the court should declare he has no right to surrender the policy for cash as a part of his ward's estate, yet he has the right to discontinue payment of premiums and allow the policy to remain in a paid-up status according to the non-forfeiture clause of the policy. It is further alleged that in all of these insistences the beneficiary, Kathleen Jones, has an adverse interest and is made a party defendant in order that she may have the opportunity to present what claim, if any, she may have in connection with said policy. The prayer of the bill is, in substance, that the court advise and direct the guardian with reference to the matters set out in the bill. Defendant, Kathleen Jones, made answer and alleged that to maintain the insurance in force would be more beneficial to the estate of Nannie J. Paul than would be the cash for which the policy could be surrendered; that complainant did not allege facts showing that a conversion of the policy into cash would be of any benefit to her estate; and that Nannie J. Paul having created a succession during her sanity by which Kathleen Jones was to succeed to the value of the insurance policy upon her death, the court should protect and carry out the intentions and desires of the incompetent as shown by her acts prior to her incompetency; that should the court find it was to the best interest of the estate of the incompetent to convert the policy into cash such conversion shall be under the direction of the court, so that the fund so created would, upon the death of the incompetent, prior to the death of Kathleen Jones, be payable to said *Page 81 defendant as would be the proceeds of the insurance policy if left in force; and that if the court should find it to the best interests of the incompetent's estate to direct the surrender of the policy for either a term insurance policy or a paid-up policy that it should be payable under the same terms as the existing policy. It is further alleged that there was available dividend additions having a cash value of $575, which could be cashed without surrendering the policy, in the event the income from the estate of the incompetent should be insufficient to keep her in comfort and pay the annual premiums upon the policy, it would be more advantageous to her estate and would maintain the succession to the benefits; that she (Kathleen Jones) has an expectant interest in said policy which should be protected and preserved by the court. The cause was tried upon a written stipulation of facts. The decree of the chancellor, in its material parts, was as follows: "1. That the amount of premiums which the Guardian has paid since Insured's commitment in order to keep the policy in force, together with all costs of this cause, including the fee, hereinafter allowed, of the guardian ad litem, shall be paid by the guardian out of the cash surrender value of the dividend additions upon said policy. "2. That the policy involved in this cause shall not be surrendered for cash at this time, but it shall be retained and kept in force in the manner hereinafter decreed. "3. That after the guardian has repaid to himself, for the benefit of the estate of Nannie J. Paul, the amount of the premium payments which he has paid from her estate since his appointment, and after the costs of this cause have been paid out of the cash surrender value of *Page 82 the dividend additions, as ordered by Paragraph 1, supra , the balance of the cash surrender value of said dividend additions upon the policy shall be applied by the Guardian to the payment of future premiums as they shall fall due. When the cash surrender value of the dividend additions and those dividends which may be declared upon the policy annually, have been exhausted so that the premiums cannot be paid from that source, then the Guardian shall advance from the estate of Nannie J. Paul such further sums as may be necessary to pay the premiums and keep the policy in force until it shall become a paid up policy under its terms. Such sums as may be advanced from the estate of Nannie J. Paul for the payment of future premiums shall be and remain a prior charge against said policy or proceeds realized therefrom, in favor of the estate of Nannie J. Paul, to the amount of such advancements, together with 6% interest from the date of such payment or payments by the Guardian. Any dividends declared by the insurance company upon the policy after the premiums have been fully paid, shall be collected by the Guardian and credited by him as repayments to the estate of Nannie J. Paul, of the advancements made from her estate in paying the premiums upon the policy. In the event the dividends declared upon the policy shall be insufficient to reimburse the estate of Nannie J. Paul for the amount of the advancements with interest thereon at the time the policy becomes collectible, then the proceeds of the policy shall be first subject to the payment of the balance of such advancements. "4. That the complainant guardian be, and he hereby is, authorized and instructed to do all acts and to make such applications, complete such forms, sign such lien *Page 83 instruments or do any other acts as may be necessary to effect the plan as hereinabove outlined and decreed. "5. That the fee of the Guardian ad litem, Clarence Kolwyck, is fixed at $50.00 for services to date. "6. That this decree is without prejudice to the Guardian in making further application to be allowed to surrender said policy for cash in the event of extraordinary need on the part of the Ward, and is without prejudice to the rights of the Insured Ward under the policy contract, and the cause shall be and remain open for any petitions or orders that may be necessary in this respect." From this decree all of the parties, except defendant insurance company, have appealed to this court and assigned errors. The controlling questions presented for determination may be stated as follows: (1) Shall the policy be surrendered for its cash value? (2) If not, how shall the premiums be paid? An insane person is, of course, incapable of exercising a right or power of election, but any election on his behalf should be exercised by the court. 32 C.J., 749. But, to authorize such election it shall clearly appear to be for the best interests of the incompetent. 32 C.J., 695. It appears from the stipulation of facts that the assets of the estate of Nannie J. Paul aggregate approximately $27,680 and consist of U.S. Government bonds and other liquid assets, except approximately $10,650 in notes due her, most of which are secured by land either in Alabama or Georgia. The guardian's annual settlement for the year ending February 10, 1939, discloses a gross income from the estate, including considerable delinquent interest collected on said notes, of $1,302.20, and that disbursements amounted to $1,202.85, *Page 84 including several hundred dollars for non-recurring items. The guardian estimates an income from the estate for the current year at about $850, and that the disbursements will be within the income, barring any protracted sickness or other emergency. In the absence of such emergencies, payments of $100 quarterly to the Central State Hospital provide for all the comforts and care of Nannie J. Paul that can be supplied one in her condition. Clothes are not included in this figure. The premiums upon the guardian's bond are $150 annually and further expenses on account of administration costs are to be anticipated. It appears from the application for the policy that Nannie J. Paul was born September 14, 1877. She is now slightly over 62 years of age. With a sufficient income from her estate to take care of her adequately in the hospital where she is confined, no sufficient reason is shown why the court should exercise the power of election in her behalf to surrender the policy for its present cash value of $3,451.41. Furthermore, the chancellor in his decree expressly reserved to the guardian the right to make further application to be allowed to surrender the policy for cash in the event of extraordinary need on the part of the ward and provided that the cause shall be and remain open for any petitions or orders that may be necessary in this respect. While it is true that the beneficiary, Kathleen Jones, a grandniece of the insured, has no vested interest in the insurance prior to the death of the insured, the right to change the beneficiary being reserved in the policy, Life Association v. Winn, 96 Tenn. 224 , 33 S.W. 1045 ; Lunsford v. Nashville Sav. Corp., 162 Tenn. 179 , 35 S.W.2d 395 , nevertheless, the court will not elect to order a surrender of the policy for its cash value and *Page 85 thereby destroy the beneficiary's contingent interest, save and unless it be plainly shown to be for the manifest interest of the insane insured. While it cannot be said that the beneficiary has the legal right of succession to the benefits of the policy, during the lifetime of the insured, yet, the insured while sane, named Kathleen Jones as the person she desired the proceeds of the policy to be paid. While, as above stated, the beneficiary is without legal right to succession during the lifetime of the insured, the rule against alteration in succession by a court can be said to find application in a general way to a situation presented in the instant case. In 32 C.J., 724, the rule is stated as follows: "Before the character of the interest in property, held by a person of unsound mind, can be changed, it must be made manifest that it is necessary to protect and promote his interest. Although as a rule, the court will preserve, so far as possible, the interests of the succession, this rule yields to the paramount rule which makes the ward's welfare the first consideration without regard to the rights of those who may have eventually rights to succession." In note 78 to the above, it appears that in Matter of Colah, 3 Daly, N.Y., 529, 538, the court quoted the following from the English case of Ex parte Whitbread, 35 Reprint 878: "The Court has nothing to consider but the situation of the lunatic himself, always looking to the probability of his recovery, and never regarding the interest of the next of kin. . . . The Court does nothing wantonly or unnecessarily to alter the lunatic's property, but, on the contrary, takes care of it for his sake, that, if he recover, he shall find his estate as nearly as possible in the same condition as he left it, applying the property *Page 86 in the mean time, as the Court thinks it would have been wise and prudent in the lunatic himself to apply it, if he had been capable." On the second question presented, how the premiums shall be paid, we think the method set forth in the chancellor's decree to be just and equitable and for the best interest of the ward. Without further elaboration, it is our conclusion that all assignments of error must be overruled and the decree of the chancellor affirmed. The cause will be remanded for such further proceedings as may become necessary. The costs of the cause will be paid by the complainant guardian out of the assets of the estate of the ward. *Page 87
|
opinion_html_with_citations
| 2,183 |
2016-07-06 09:22:14.312865+00
|
020lead
|
f
|
f
| 4,129,522 |
DeHaven
| null |
ZU
|
f
|
Published
| 19 |
Folts v. Jones
|
Folts
|
Folts Et Al. v. Jones Et Al.
| null | null |
<parties data-order="0" data-type="parties" id="b105-4">
Folts
<em>
et al. v.
</em>
Jones
<em>
et al.
</em>
</parties><br><court data-order="1" data-type="court" id="b105-5">
<em>
(Knoxville,
</em>
</court><p data-order="2" data-type="misc" id="AeA">
September Term, 1939.)
</p><br><decisiondate data-order="3" data-type="decisiondate" id="b105-6">
Opinion filed October 21, 1939.
</decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b107-4">
<span citation-index="1" class="star-pagination" label="79">
*79
</span>
Thomas, Folts & Brown, of Chattanooga, for complainant.
</attorneys><br><attorneys data-order="5" data-type="attorneys" id="b107-5">
FeaNcts Esslinger, of Huntsville, Ala., for defendant Kathleen Jones.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b107-6">
Miller, Miller & Martin, of Chattanooga, for defendant Mutual Life Ins. Co. of New York.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b107-7">
Clarence Kolwyck, of Chattanooga, guardian
<em>
ad litem
</em>
for defendant Nannie J. Paul.
</attorneys>
| null |
Appeal from Chancery Court of Hamilton County. — HON. J. LON FOUST, Chancellor.
Suit by Aubrey F. Folts, guardian of Nannie J. Paul, a person of unsound mind, against Kathleen Jones, the Mutual Life Insurance Company of New York, and another, for a decree advising and directing complainant with reference to a policy of insurance on the life of Nannie J. Paul. From the decree, all of the parties, except the Mutual Life Insurance Company of New York, appeal. Decree affirmed, and cause remanded for further proceedings.
| null | null | null | null | 4,001,664 | null | 2 |
tenn
|
S
|
t
|
Tennessee Supreme Court
|
Tennessee Supreme Court
|
5,218,849 |
Order affirmed, with ten dollars *928costs and disbursements. All concurred, except Kruse, J., who dissented upon the ground that the order for examination appears upon its face to have been made under article 1 of title 3 of chapter 9 of the Code of Civil Procedure. Such an order can only be made by a judge and not by the court. If the .order was incorrectly entered it should have been resettled before the judge who presided at the court that made it.
|
opinion_xml_harvard
| 83 |
2022-01-06 16:29:11.177434+00
|
020lead
|
t
|
f
| 5,382,733 | null | null |
U
|
f
|
Published
| 0 |
Clark v. Phillips
|
Phillips
|
George Clark v. Frank Phillips, Appellant Jane Mahanna v. Frank Phillips
| null | null | null | null | null | null | null | null | null | 61,730,976 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
2,445,831 |
349 S.W.2d 95 (1961) E. J. ROHRT et al., Petitioners, v. KELLEY MANUFACTURING COMPANY, Respondent. No. A-8375. Supreme Court of Texas. July 12, 1961. Rehearing Denied October 3, 1961. *96 McNees & McNees, Dallas, for petitioners. Turner, White, Atwood, Meer & Francis, Lancaster Smith, with firm, Dallas, for respondent. GRIFFIN, Justice. This is a suit by respondents against petitioners on a written lease contract, whereby respondents seek to recover future rentals less amount of rents received from others after petitioners removed from the rented premises. The cause was tried upon stipulated facts. On a trial before the court without a jury, judgment was rendered that respondents take nothing. On appeal the Court of Civil Appeals reversed and rendered for respondents. 344 S.W.2d 904 . November 3, 1956, respondent, as landlord, rented to petitioners, as lessees, certain properties in the City of Dallas, Texas, for a term ending December 31, 1958. The consideration was for a total of $7,770 payable in monthly installments. The down payment was $270 plus $300 as payment for the last month of the term. The lease contract contained the following paragraph: "That in case of default in any of the covenants herein, Lessor may enforce the performance of this lease in any modes provided by law and this lease may be forfeited at Lessor's discretion if such default continues for a period of ten days after Lessor notifies said Lessee of such default and his intention to declare the lease forfeited, such notice to be sent by the Lessor by mail or otherwise to the demised premises, and thereupon (unless the Lessee shall have completely removed or cured said default) this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof, and Lessor, his agent or attorney shall have the right, without further notice or demand, to re-enter and remove all persons and Lessee's property therefrom without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or breach of covenant; or Lessor, his agent or attorney may resume possession of the premises and re-let the same for the remainder of the term at the best rent Lessor, his agent or attorney may obtain, for account of the Lessee, who shall make good any deficiency, * * *" Petitioners paid all rentals up through May 1, 1958. Petitioners being delinquent on the rental payments due June 1 and July 1, respondent on July 7, 1958, through its agent, wrote a letter to petitioners, the material part of which is as follows: "Inasmuch as rent for the captioned property has not been received, we have been instructed to give you official notice of such default and the intention of the lessor to declare the lease forfeited. This notice fulfills the requirements set forth in Paragraph 8 of the lease contract." July 15, 1958, petitioners sent a check to respondents for the $300 rent due June 1, 1958. July 31, 1958, petitioners, by their attorneys, wrote respondents a letter, the material parts of which are as follows: *97 "This is to advise you and your principal that inasmuch as the lessee, Dwelle Electronics Company has been unable to completely cure such default within ten days after such notice, that, therefore, the said Lessee, Dwelle Electronics Company, considers that the lease ceased and came to an end on July 17, 1958, as if that were the day originally fixed in the lease contract for the expiration of the term of such lease, as is expressly set forth in said paragraph 8 of the lease contract. This is to further advise that the Dwelle Electronics Company no longer occupies the premises." At all pertinent times lessee was financially able to pay the rentals due under the leases contract. After receiving the above letter from the petitioners, respondent took possession of the premises and re-let for the best rent obtainable. After applying the rents received to credit of petitioners, respondents claimed there was a balance due of $1,467.50, for which respondent sued, and also for attorney's fees. The Court of Civil Appeals gave recovery to respondents upon the ground that petitioners had wrongfully abandoned the premises and breached the lease contract. Therefore, respondent was within his contract rights and his legal rights in re-entering and re-letting the premises, and was entitled to recover for the rental deficiency. In this holding the Court of Civil Appeals was in error and we reverse that judgment, and affirm the judgment of the trial court. It is not disputed that the effect of respondent's letter of July 7, 1958, coupled with the failure of petitioner to pay the delinquent rentals within a ten-day period thereafter, resulted in a forfeiture of the lease contract as of July 17, 1958; and that respondent did forfeit. Unquestionably, respondent was given the right to take such action by the terms of the contract. The question at issue is: Did such action by respondent relieve petitioners from liability for future rentals? We hold that it did. The contract provides that upon such forfeiture "* * * this lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof * * *." That language is plain. Had the lease gone to the end of the term (December 31, 1958) there is no question but that lessee would have owed no future rentals. The obligation to pay rent would have ceased. Therefore, if the language last above quoted has any meaning, it must mean that the obligation of petitioners to pay future rents ceased and terminated July 17, 1958. Walling v. Christie & Hobby, Inc., 1932, Tex.Civ.App., 54 S.W.2d 186 , 188, no writ history, was a case where Walling had leased by written contract certain property to Christie and Hobby for 99 years, rentals payable monthly. The lease contained the following provision: "It is mutually covenanted and agreed that the various rights, powers, options, elections, appointments and remedies of the lessor contained in this lease shall be construed as cumulative and no one of them as exclusive of the other, or exclusive of any rights or rents allowed by law." About two and one-half years after signing the lease, Christie & Hobby, Inc., defaulted in paying the rentals due. Walling gave notice to Christie & Hobby, Inc., that he had elected to rescind and cancel the lease contract. Walling re-let the premises for best rent obtainable and sued, under the above-quoted provision of the lease contract, for the delinquent rentals and the future rentals. The court held that when Walling cancelled and rescinded the contract, that put an end to the obligation of Christie & Hobby, Inc., to pay future rentals and that Walling could not recover for this item. Judgment was rendered *98 for Walling against Christie & Hobby, Inc., only for delinquent rentals due as of date of cancellation, plus taxes Christie & Hobby, Inc., had agreed to pay in the lease contract, and had not paid. After quoting the general rule that upon breach of a contract, the innocent party [the lessor, Walling] must either treat the contract as binding and sue for damages, or sue to cancel the contract, but cannot do both, the court says: "This general rule, however, is not applicable in a case in which the lease expressly stipulates that re-entry by the lessor will not affect the obligations of the lessee for the unexpired term of the lease * * *" It was held that the provision in the lease, first above quoted, was not such an express stipulation of lessee's liability as to entitle the lessor to recover for future rentals. In discussing the liability of a lessee, after forfeiture of a lease contract by the lessor, the annotation found in 99 A.L.R. 42 et seq., says: "* * * if a lessor elects to assert a forfeiture of the lease, under provisions of the lease therefor, he ordinarily terminates the lease, together with all unaccrued liabilities of the lessee which are dependent upon the continuance of the term." On page 45 of same authority it is stated: "In the absence of clear language to that effect, courts will not construe a lease as providing that, upon re-entry of forfeiture, the tenant shall remain liable for unaccrued rent." Respondent contends that the language of our lease "* * * without prejudice to any remedies for arrears of rent or breach of covenant * * *" following that language saying the "* * * lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof * *," gave him, on petitioner's default in paying the rent, authority to take possession of the premises; and acted to prevent termination of the petitioner's contractual obligations to pay further rentals. It is contended that the forfeiture put an end to the privity of estate between the parties, but did not end the privity of contract. The authorities do not support the contention. The case of Dearborn Stove Co. v. Caples, 1951, 149 Tex. 563 , 236 S.W.2d 486 , cited by respondent was a suit whereby an assignee of a lessee had abandoned leased premises at the end of the third month of a twelve-month contract, and sought to recover the unearned portion of a prepaid rental. This court held he could not recover, and that the lessor had a right to retain the full consideration. This case also recognized that a different rule was applicable in deciding whether or not a termination of a lease contract relieves the lessee for rentals becoming due after date of termination. Brown v. Johnson, 1930, 118 Tex. 143 , 12 S.W.2d 543 , was a suit between a lessee and a party whom lessee had employed to farm the leased premises for one-half of the proceeds of the crops produced. It is not on point on our problem. All of the other cases cited by respondent to uphold his judgment are cases where the lessee had abandoned the leased premises and the right of the lessor to re-enter and re-let and sued for the balance was recognized. We have no quarrel with those cases. In the case at bar, it was the lessor and not the lessee who had terminated and put an end to the lease contract. That part of the contract which provides that the re-entry shall be "without prejudice to any remedies for arrears of rent or breach of covenant" does not allow recovery for future rentals. Future rentals are not arrears of rent. The "breach of covenant" covers only the obligations to keep the premises in good repair, and other like covenants. The right which respondent seeks is covered by the alternate provision contained *99 in the contract immediately following that provision under which respondent proceeded. That provision for action by lessor in case of default by the lessee is "* * * or Lessor, his agent or attorney may resume possession of the premises and re-let the same for the remainder of the term at the best rent Lessor, his agent or attorney may obtain, for account of the Lessee, who shall make good any deficiency * * *." This is not a provision for a forfeiture, but recognizes the continued liability of lessee for rentals. Nor, under this latter alternative provision, does the lease cease and come to an end "as if that were the day originally fixed herein for the expiration of the term hereof." Respondents elected to terminate the lease contract under the provisions of the first alternative provision; therefore, it cannot recover future rentals from lessee. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.
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opinion_html_with_citations
| 1,983 |
2013-10-30 09:37:28.299653+00
|
010combined
|
f
|
f
| 2,445,831 |
Griffin
| null |
LU
|
f
|
Published
| 34 |
Rohrt v. Kelley Manufacturing Company
|
Rohrt
|
E. J. Rohrt, Et Al v. Kelley Manufacturing Company
| null | null |
<parties id="b542-5">
E. J. Rohrt, Et Al v. Kelley Manufacturing Company
</parties><br><docketnumber id="b542-6">
No. A-8375.
</docketnumber><decisiondate id="Ai7">
Decided July 12, 1961
</decisiondate><otherdate id="Amy">
Rehearing overruled October 3, 1961
</otherdate><citation id="A_C">
(349 S. W. 2d Series 95)
</citation><br><attorneys id="b543-4">
<span citation-index="1" class="star-pagination" label="535">
*535
</span>
<em>
McNees & McNees,
</em>
of Dallas, for petitioners.
</attorneys><br><attorneys id="b543-5">
<em>
Turner, White, Atwood, Meer & Francis,
</em>
of Dallas, for respondent.
</attorneys>
| null | null | null | null | null | null | 2,318,069 |
A-8375
| 0 |
tex
|
S
|
t
|
Texas Supreme Court
|
Texas Supreme Court
|
6,267,182 |
ORDER PER CURIAM. AND NOW, this 29th day of December, 2003, there having been filed with this Court by Samuel Mychak, Jr., his verified Statement of Resignation dated November 7, 2003, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is ORDERED that the resignation of Samuel Mychak, Jr., be and it is hereby accepted and he is DISBARRED ON CONSENT from the Bar of the Commonwealth of Pennsylvania; and it is further ORDERED that he shall comply with the provisions of Rule 2117, Pa.R.D.E. Respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.
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opinion_xml_harvard
| 115 |
2022-02-18 00:30:50.467661+00
|
020lead
|
t
|
f
| 6,396,697 | null | null |
U
|
f
|
Published
| 0 |
Office of Disciplinary Counsel v. Mychak
|
Mychak
|
OFFICE OF DISCIPLINARY COUNSEL v. Samuel MYCHAK, Jr.
| null | null | null | null | null | null | null | null | null | 63,052,543 |
No. 889, Disciplinary Docket No. 3
| 0 |
pa
|
S
|
t
|
Supreme Court of Pennsylvania
|
Supreme Court of Pennsylvania
|
1,810,583 |
558 F.Supp. 38 (1982) Vickie D. CONNERS v. UNIVERSITY OF TENNESSEE PRESS and the University of Tennessee. Civ. No. 3-82-480. United States District Court, E.D. Tennessee, N.D. December 20, 1982. *39 W.P. Boone Dougherty, Knoxville, Tenn., for plaintiff. Ronald C. Leadbetter, Associate General Counsel, Curtis S. Sprouse, Staff Atty., Knoxville, Tenn., for defendant. MEMORANDUM ROBERT L. TAYLOR, Chief Judge. This is an action for violation of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Plaintiff is a twenty year old woman. She worked for defendant, the University of Tennessee Press, an operating unit of the University of Tennessee, from January 28, 1981 until August 17, 1981. Plaintiff was a clerk-typist and receptionist in an office that employed approximately twelve people. Plaintiff claims that she was forced to resign after requesting leave for a pregnancy related illness. The Court makes the following findings of fact and conclusions of law. Initially, plaintiff was a good employee. In June and July 1981, however, plaintiff's superiors became increasingly dissatisfied with her work. Carol Orr, the Director of the University of Tennessee Press, and Sue English, plaintiff's immediate supervisor, testified regarding several criticisms. They had brought these to plaintiff's attention in July, 1981. (Ex. 13). Plaintiff's superiors became aware of typing inaccuracies and lack of care in her proofreading responsibilities. They disapproved of plaintiff's excessive use of the office phone for personal calls and her husband's frequent visits during working hours. They also desired her to have more regularity in her working hours. In a memo dated July 27, 1981, Ms. Orr reprimanded plaintiff for using the office telephone for personal toll calls. (Ex. 14). The memo stated that Ms. Orr would thereafter "consider any infraction of the `University Work Rules,' as listed in the Personnel Procedures Manual, cause for immediate dismissal." Plaintiff also experienced attendance problems prior to the discovery of her pregnancy on July 28, 1981. University of Tennessee policy provides one day paid sick *40 leave and one day annual leave for each month worked. Employees may request additional leave of absence without pay after exhausting accrued leave time. (Ex. 5). The granting of unpaid leave is discretionary with the employee's supervisors. Length of employment, quality of work, and the need for personnel to fill the vacancy are factors in request consideration. By August 1981, plaintiff had exhausted her sick and annual leave time. She had also taken several days leave without pay. On July 28, 1981 plaintiff discovered that she was pregnant. That week she told Sue English and Carol Orr of the pregnancy. On August 3, 1981 plaintiff became ill from hyperemisis, a nausea related to her pregnancy. Her doctor advised her not to work for two weeks. Plaintiff's supervisors granted her request for a two week unpaid leave of absence. By letter dated August 6, 1981, Ms. Orr notified plaintiff that if she was unable to return to work on August 17, Ms. Orr would have to terminate plaintiff's employment. Plaintiff returned to work on August 17 but was ill. She says she requested an additional week leave of absence, which was denied. Plaintiff states that Sue English forced her to sign a letter of resignation on that day. Ms. English testified that plaintiff asked to resign on August 17. In either event, plaintiff signed her resignation letter on August 17, 1981. Plaintiff alleges that other employees with nonpregnancy related illnesses were granted extended leaves of absence without pay. The evidence indicates that at least two other employees, Sara Dodson and Katherine Holloway, were granted such leave. (Exs. 11, 12). Ms. Orr characterized Sara Dodson as an excellent employee. Katherine Holloway had worked for the University Press several years. Ms. Orr has also recently granted pregnancy-related leave to two other employees, Debbie Gaston and Julia Burnett. (Exs. 9, 10). Ms. Orr testified that Julia Burnett was a long-time employee with the University and that Debbie Gaston had an excellent work record. The Pregnancy Discrimination Act provides that: Women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work ... 42 U.S.C. § 2000e(k). In order to establish a prima facie case of employment discrimination under Title VII of the Civil Rights Act, plaintiff must show that she is a member of a protected group. She must also prove that although she was qualified for the benefit sought, she was denied the benefit. Lastly she must show that the benefit was provided to others with plaintiff's qualifications. See McDonnell-Douglas v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for denial of the benefit. See Id. at 802, 93 S.Ct. at 1824 . Plaintiff is then given the opportunity to establish that the stated reason is in fact pretext for unlawful discrimination. Id. at 804, 93 S.Ct. at 1825 . The burden of persuasion at all times remains with the plaintiff. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981). The denial of a leave of absence because of temporary pregnancy complications violates Title VII when leaves are generally granted for non-pregnancy related disabilities. See St. John v. G.W. Murphy Industries, Inc., 407 F.Supp. 695 (W.D.N.C.1976). This has been an unusual case. The evidence in some respects is in conflict. We feel that plaintiff and her counsel are sincere in their belief that she was discriminated against unlawfully. Likewise, defendant's counsel is sincere in believing that the University did not unlawfully deny benefits or terminate plaintiff from her work. After careful consideration we must conclude that the University did not unlawfully discriminate against plaintiff because of her sex or pregnancy. *41 Plaintiff clearly belongs to a protected class under Title VII. She has failed to show, however, that she was qualified for the benefit sought, a leave of absence without pay. Plaintiff had exhausted paid leave benefits before her pregnancy. She knew that continued employment depended on no further infractions of University rules. She was in a precarious employment position when she requested additional leave. We find that plaintiff's supervisors were, in fact, understanding in granting two weeks leave under the employment situation as it stood on August 3, 1981. Even if plaintiff were to have made out a prima facie case of discrimination, defendants have come forward with non-pretextual reasons for refusing to grant additional leave time. Plaintiff's work record, short tenure, and past absence record, as well as the need for a permanent secretary-receptionist in the office, provide adequate explanation for their action. It is also of significance that defendants granted pregnancy-related leave to other employees with more tenure or better work records than plaintiff. This indicates to the Court that defendants would have treated plaintiff no differently if she suffered some disability other than pregnancy and requested additional leave. We need not decide whether plaintiff requested to resign on August 17 or requested additional leave and resigned under pressure. In either event, pregnancy was not a factor in any action taken by defendants. Accordingly, it is ORDERED that judgment enter in favor of defendants and that this case be, and the same hereby is, dismissed. Order Accordingly.
|
opinion_html_with_citations
| 1,227 |
2013-10-30 07:30:04.378895+00
|
010combined
|
f
|
f
| 1,810,583 |
Robert L. Taylor
| null |
LU
|
f
|
Published
| 2 |
Conners v. University of Tennessee Press
|
Conners
|
Vickie D. CONNERS v. UNIVERSITY OF TENNESSEE PRESS and the University of Tennessee
| null | null |
<parties id="b100-11">
Vickie D. CONNERS v. UNIVERSITY OF TENNESSEE PRESS and the University of Tennessee.
</parties><br><docketnumber id="b100-14">
Civ. No. 3-82-480.
</docketnumber><br><court id="b100-15">
United States District Court, E.D. Tennessee, N.D.
</court><br><decisiondate id="b100-17">
Dec. 20, 1982.
</decisiondate><br><attorneys id="b101-13">
<span citation-index="1" class="star-pagination" label="39">
*39
</span>
W.P. Boone Dougherty, Knoxville, Tenn., for plaintiff.
</attorneys><br><attorneys id="b101-14">
Ronald C. Leadbetter, Associate General Counsel, Curtis S. Sprouse, Staff Atty., Knoxville, Tenn., for defendant.
</attorneys>
| null | null | null | null | null | null | 1,722,590 |
Civ. 3-82-480
| 0 |
tned
|
FD
|
t
|
E.D. Tennessee
|
District Court, E.D. Tennessee
|
5,327,047 |
Order so far as appealed from affirmed, with twenty dollars costs and disbursements. No opinion. Present — Finch, P. J., Merrell, Martin, Sherman and Townley, JJ.
|
opinion_xml_harvard
| 26 |
2022-01-08 04:56:26.968708+00
|
020lead
|
t
|
f
| 5,487,635 | null | null |
U
|
f
|
Published
| 0 |
Ellis v. Ellis
|
Ellis
|
Bessie Ellis v. Abraham Ellis
| null | null | null | null | null | null | null | null | null | 61,839,978 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
8,513,671 |
OPINION By J. J. P. CORRIGAN, J.: Plaintiff spent two months as a patient in defendant University Hospitals. Desirous of obtaining detailed information concerning her injuries and treatment pursuant to a determination of the question of damages in a lawsuit filed against another person, she authorized her attorney to obtain a copy of her hospital records at plaintiff’s expense. Following the Hospital’s refusal to deliver a copy of the records to plaintiff’s agent, she filed a petition for mandatory injunction seeking *258the production of these records. The defendant Hospital has answered raising three defenses: 1. That they offered to read the record to plaintiff’s attorney; 2. That Rule 12 of the Court of Common Pleas is the proper means of obtaining records pursuant to the original suit; and 3. That the records are the sole property of the Hospital and that the plaintiff has no legal right to obtain them. Having considered these defenses, the Court disagrees with each of them. The Hospital’s offer to read a technical treatment record encompassing a two-month period of treatment and recovery to the attorney is hardly adequate. In order to gain full benefit from the information, an attorney should have the opportunity to study the record at his leisure and to submit it to a medical expert of his own choosing for evaluation. Although the offer to read is inadequate, having offered to furnish the agent with the information contained in the record it is only a technical step to the Hospital’s furnishing him with a photocopy of the record at plaintiff’s expense. Hospital’s offer to read the record therefore labels their refusal to furnish the copy as an arbitrary and somewhat vain act. Rule No. 12 of the Common Pleas Court empowers a judge of the Court “upon motion of any party showing good cause therefor and upon notice to all other parties,” to order a Hospital to produce hospital records containing evidence “pertinent” to a pending suit as are “not privileged.” Analysis of Rule No. 12, as well as consideration of Rule No. 34 of the Federal Rules of Civil Procedure which inspired Rule No. 12, indicates that it was drawn to afford an adverse party access to relevant non-privileged records normally accessible to the opposite party. The terms and conditions of the Rule indicate that the Court did not intend it to be used by a party seeking to gain access to information normally within his knowledge or normally available to him. Therefore, while Rule No. 12 is available to the adverse party in plaintiff’s suit, it is not available to the plaintiff, and plaintiff must resort to additional means to obtain those records should the Hospital refuse her. Considering the third defense, it is true that the original Hospital records are the property of the Hospital. Since they include the records of all births, deaths, nature and length of treatment and other information, their maintenance and custody is essential to the proper administration of the Hospital. However, it is also true that a patient has a property right in the information contained in the record and as such is entitled to a copy of it. Plaintiff’s or her physician’s access to these records might at sometime be a decisive factor in her future medical treatment. To an attorney and his expert the record can illuminate question of damage in a pending claim. In summary, the Court finds that plaintiff’s right to a copy of her hospital records is an incident of treatment and that since Rule No. 12 does not afford her means of obtaining these records in the primary suit, a Mandatory Injunction is a proper means of compelling the Hospital to provide the plaintiff with a copy of the records at plaintiff’s expense. Injunction granted.
|
opinion_xml_harvard
| 628 |
2022-11-23 08:46:40.157871+00
|
020lead
|
t
|
f
| 8,541,071 |
Corrigan
| null |
U
|
f
|
Published
| 0 |
Wallace v. University Hospitals
|
Wallace
|
WALLACE v. UNIVERSITY HOSPITALS OF CLEVELAND
| null | null | null | null | null | null | null | null | null | 65,803,514 |
No. 725551
| 0 |
ohctcomplcuyaho
|
ST
|
f
|
Cuyahoga County Common Pleas Court
|
Cuyahoga County Common Pleas Court
|
2,681,985 |
Filed 7/3/14 P. v. Abdul-Jaami CA1/1 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. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE THE PEOPLE, Plaintiff and Respondent, A139737 v. KHALIL ABDUL-JAAMI, (Lake County Super. Ct. No. CR930788) Defendant and Appellant. Defendant Khalil Abdul-Jaami appeals from a judgment following a jury verdict finding him guilty of unlawfully possessing a firearm (Pen. Code, § 29900, subd. (a)(1)).1 The trial court sentenced him to the upper term of three years doubled because of a prior strike, plus two consecutive one-year prison prior enhancements, for a total sentence of eight years in state prison. His appellate counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Wende (1979) 25 Cal.3d 436 .) Defendant was notified of his right to file a supplemental brief, was given additional time to do so, but did not file anything further. Upon independent review of the record, we conclude no arguable issues are presented for review, and affirm the judgment. DISCUSSION In October 2012, the District Attorney for Lake County filed a two-count felony complaint against defendant, alleging he unlawfully owned, possessed or had custody of 1 All further statutory references are to the Penal code unless otherwise indicated. 1 a firearm (§ 29900, subd. (a)(1)) and unlawfully purchased, received or had control of a firearm (§ 29800, subd. (a)(1)). It was further alleged he had been convicted of a serious or violent offense (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), and had served two prior prison terms (§ 667.5, subd. (b)) and was ineligible for probation (§ 1203, subd. (e)(4)). A month later, the prosecution filed a first amended complaint, adding counts for unlawfully carrying a concealed weapon (§ 25400, subd. (a)(1)) and unlawfully possessing a stolen firearm (§ 496, subd. (a)). At the preliminary hearing Deputy Sheriff Lyle Thomas testified he pulled defendant over for running a red light and determined he was on probation. When defendant repeatedly hesitated in answering whether he had anything illegal in the car, Thomas searched it and discovered a loaded gun hidden in a sock under the driver’s seat. At that point, Thomas advised defendant of his Miranda2 rights and arrested him. Defendant denied knowing about the weapon. Criminal Investigator Denise Hinchcliff testified to numerous phone calls defendant made from the jail to the owner of the car, Karen Johnson. Johnson was upset about the gun and suggested defendant could claim he needed it to protect his family. Hinchcliff also determined the gun was registered to an individual who was deceased and had been stolen from the home of one of the county deputy district attorneys. The prosecution also entered into evidence defendant’s conviction records. The court held defendant to answer as to the first three charges, but found insufficient evidence he knew the firearm was stolen. The court also found defendant in violation of his probation in another matter. The district attorney then filed a three-count information in December 2012, charging defendant with unlawfully owning or possessing a firearm in violation of sections 29900, subdivision (a)(1) (count I) and section 29800, subdivision (a) (count II), and carrying a concealed weapon in violation of subdivision 25400, subdivision (a)(1) (count III). It further charged he had been convicted of a serious or violent offense 2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). 2 (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–(i)), and had served two prior prison terms (§ 667.5, subd. (b)) and was ineligible for probation (§ 1203, subd. (e)(4)). Defendant then filed a motion to disqualify the district attorney because of an asserted conflict of interest. It turned out, Karen Johnson, the owner of the car, was in a romantic relationship with defendant and was also a county correctional officer. Defendant claimed Deputy Thomas told him when he was arrested he should keep quiet about the relationship and plead out without calling attention to it. Defendant also claimed a “well known” and “well liked” retired prosecutor was a tangential victim, since the firearm in question had been stolen from his home. Defendant asserted these matters had raised the ire of the district attorney, rendering the office biased and unfair and causing it to withdraw a negotiated disposition. On the same grounds, defendant moved to set aside the information. The prosecutor opposed the motions, denying any bias and explaining she withdrew the plea offer after learning about the jail telephone calls indicating defendant was clearly aware the firearm was in the car. The Attorney General also filed opposition to the motion to recuse the district attorney. The court heard and denied the motions and set the case for trial. Defendant then sought and was granted a continuance of the trial date to file a motion to suppress and a Pitchess motion3 based on alleged improper conduct by Deputy Thomas in pressuring defendant to quickly make a deal and avoid embarrassment to Johnson. The trial court found defendant made a sufficient showing under Pitchess to warrant an in camera review of the officer’s personnel files. On review, the trial court found no documents should be disclosed. Two weeks before trial commenced, defendant made a Code of Civil Procedure section 170.6 challenge, and the case was assigned for trial to another department. Trial commenced in May 2013. Before the presentation of evidence, the prosecution moved to dismiss counts II and III on grounds they were essentially duplicative of count I. 3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). 3 Defendant then stipulated to the prior conviction alleged in connection with count I. There was a further stipulation that no identifiable latent fingerprints were found on the gun or the ammunition in the gun and that the search of the car was lawful. Deputy Thomas testified as he had at the preliminary hearing. In addition, Lieutenant Jason Findley, who worked at the county jail, testified for the prosecution as to telephone calls between defendant and Scott, tapes of three of which were played to the jury. Criminal Investigator John Flynn testified the absence of identifiable fingerprints on a firearm is not unusual. Defendant called no witnesses and argued in closing the prosecution had not proven beyond a reasonable doubt he knew the gun was in the car. The jury returned a guilty verdict. Defendant thereafter waived a jury trial as to the enhancement allegations, and the trial court found the prior “strike” offense and two prior prison terms allegations true. Defendant then made a Romero motion,4 asking the court to strike the prior serious felony and prison term allegations, so he would be eligible for probation. The trial court denied the motion, and sentenced defendant to the upper term of six years, with an additional two years for the prison priors to be served consecutively, for an aggregate term of eight years. Throughout the proceedings, defendant was ably represented by counsel. Defendant was duly admonished as required in connection with his waiver of jury trial on the enhancement allegations. The trial court did not abuse its discretion in connection with evidentiary rulings and properly instructed the jury. The court also did not abuse its discretion in denying defendant’s Romero motion or in sentencing defendant. The court duly set forth on the record the sentencing factors considered, and imposed applicable fines and provided custody credits. 4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 . 4 DISPOSITION After a full review of the record, we find no arguable issues and affirm the judgment. Banke, J. We concur: Dondero, Acting P. J. Becton, J. Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5
|
opinion_html_with_citations
| 1,357 |
2014-07-04 00:01:18.043993+00
|
010combined
|
f
|
f
| 2,681,985 | null | null |
C
|
t
|
Unpublished
| 0 |
People v. Abdul-Jaami CA1/1
| null | null | null | null | null | null | null | null | null | null | null | 361,988 |
A139737
| 1 |
calctapp
|
SA
|
t
|
California Court of Appeal
|
California Court of Appeal
|
5,711,705 |
— Appeal from an order denying appellants’ motion to dismiss the first cause of action (for a judgment declaring respondent to be the lawful wife of appellant Cassano) and the second cause of action (to annul the purported marriage between the appellants) on the grounds that they do not state facts sufficient to constitute causes of action and that a prior action is pending and undetermined, in which action respondent is seeking a judgment of divorce from appellant Cassano, and to dismiss the third cause of action (to set aside a separation agreement between respondent and appellant Cassano) on the ground that that cause is barred by the Statute of Limitations. Order affirmed, with $10 costs and disbursements. No opinion. Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur. [18 Misc 2d 981.]
|
opinion_xml_harvard
| 134 |
2022-01-12 15:54:54.8953+00
|
020lead
|
t
|
f
| 5,855,469 | null | null |
U
|
f
|
Published
| 0 |
Cassano v. Cassano
|
Cassano
|
Carmela Cassano v. Philip Cassano
| null | null | null | null | null | null | null | null | null | 62,213,355 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
2,670,619 |
Case: 13-30856 Document: 00512601364 Page: 1 Date Filed: 04/18/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 13-30856 April 18, 2014 Lyle W. Cayce LAURIE ANNE FUTRAL, Clerk Plaintiff - Appellant v. PAUL T. CHASTANT, individually and as Trustee on behalf of Robert B Chastant D D S Defined Benefit & Profit Sharing Plans, Defendant - Appellee Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:12-CV-2653 Before JONES, SMITH, and OWEN, Circuit Judges. PER CURIAM:* The widow of Dr. Robert Chastant sued to recover attorney’s fees that were allegedly illegally deducted from the dentist’s ERISA plans to contest her status as beneficiary. The district court entered summary judgment against Futral and awarded Defendant Paul Chastant additional legal fees. We affirm the district court’s summary judgment against Futral, and reverse the award of additional legal fees. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 13-30856 Document: 00512601364 Page: 2 Date Filed: 04/18/2014 No. 13-30856 Dr. Robert Chastant was murdered on December 13, 2010. Prior to his death, he established an ERISA qualified defined benefit plan and profit sharing plan through his dental practice, which was the plans’ sponsor. He also purchased several life insurance policies. The sole remaining beneficiary under the plans and insurance policies was Laurie Futral, Dr. Chastant’s widow. Dr. Chastant’s brother, Paul Chastant (“Chastant”), was named executor of Dr. Chastant’s will and also the trustee of the ERISA plans. Shortly after her husband’s death, Futral filed a suit against the insurance companies and Chastant to recover the insurance proceeds and plan benefits. By the time the suit was filed, Chastant and the insurance companies had become aware of allegations that Futral had a hand in her husband’s death, which would have disqualified her from receiving benefits under the Louisiana Slayer Statute. LA. R. S. 22:901(D). In light of the allegations, the insurance companies interpled the insurance proceeds, and Chastant answered Futral’s complaint and asserted the Slayer Statute as an affirmative defense. On May 21, 2012, a jury found that Futral had not participated in the murder. The verdict was not appealed, and both the insurance proceeds and the ERISA plan benefits were released to Futral. During the course of the litigation, and allegedly in accord with the provisions of the ERISA plans, Chastant paid the majority of his attorney’s fees from their corpus. Futral brought this suit to recover the funds – over $80,000 – Chastant expended on attorney’s fees in the previous action. She alleged that using plan funds in this way was a breach of the fiduciary duty that Chastant owed her as the plans’ trustee. On cross motions for summary judgment, the district court denied Futral’s motion and granted Chastant’s motion for additional attorney’s fees relating to the previous suit and expenses and attorney’s fees defending the instant suit. The court held that Chastant did not breach his fiduciary duty. 2 Case: 13-30856 Document: 00512601364 Page: 3 Date Filed: 04/18/2014 No. 13-30856 STANDARD OF REVIEW This court reviews a grant of summary judgment de novo, applying the same standards as the district court. Greater Houston Small Taxicab Co. Owners Ass’n v. City of Houston, Tex., 660 F.3d 235 , 238 (5th Cir. 2011). 1 DISCUSSION Futral contends that Chastant violated his fiduciary duty by defending against her suit to determine benefits and by paying his attorney’s fees out of the corpus of the plans. She asserts that he had a conflict of interest because he acted as both the trustee of the plans and the executor under the will. Futral first argues that this case is governed by Gibbs v. Gibbs, 210 F.3d 491 (5th Cir. 2000). In Gibbs, we reversed the district court, which held under similar circumstances that an insurer who defended against a claim for benefits was entitled to attorney’s fees under the ERISA attorney’s fees provision, 29 U.S.C. § 1132 (g)(1). Gibbs is distinguishable. Here, Chastant did not seek attorney’s fees under § 1132(g)(1) but rather withheld attorney’s fees from the corpus of the plans pursuant to provisions in the plans. Accordingly, Gibbs is not relevant. Futral next contends that Chastant’s decision to defend Futral’s suit and to pay his attorney’s fees from the corpus of the plans violated his fiduciary duties under ERISA. In support of this argument before the district court and on appeal, Futral cites the general description of a trustee’s fiduciary duties under ERISA: “the proper management, administration, and investment of 1 Chastant maintains that when he paid the attorney’s fees he was construing the terms of the plan and that under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 , 115, 109 S. Ct. 948 , 956-57 (1989) his actions should be reviewed only for an abuse of discretion. See also Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287 , 297 (5th Cir. 1999) (en banc). Firestone held that an abuse of discretion standard governs challenges to a denial of benefits under 29 U.S.C. § 1132 (a)(1)(B). Because this is a suit for a breach of fiduciary duty rather than a suit for denial of benefits, Firestone does not apply and the proper standard of review is de novo. 3 Case: 13-30856 Document: 00512601364 Page: 4 Date Filed: 04/18/2014 No. 13-30856 [plan] assets, the maintenance of proper records, the disclosure of specified information, and the avoidance of conflicts of interest.” Laborers Nat. Pension Fund v. N. Trust Quantitative Advisors, Inc., 173 F.3d 313 , 317 (5th Cir. 1999) (citation omitted). She also cites 29 U.S.C. § 1104 (a)(1) to reiterate the proposition that trustees have a fiduciary duty to discharge their duties “solely” in the interest of plan participants and beneficiaries. Finally, she notes that transfers of plan benefits to the fiduciary are “prohibited transactions” under 29 U.S.C. § 1106 (a)(1)(D). Other than these citations, Futral provides no authority for the proposition that Chastant’s actions breached his fiduciary duties. Futral has provided no evidence that Chastant was actually conflicted, but relies instead on his dual roles as trustee of the plans and executor under the will. While it is undisputed that Chastant was wearing two hats, in this context, having dual roles, without more, is not a breach of fiduciary duty. It should be noted that ERISA approves a similar arrangement where employers operate as both plan sponsors and administrators, even though there is a potential conflict of interest. Varity Corp. v. Howe, 516 U.S. 489 , 526-27, 116 S. Ct. 1065 , 1084-85 (1996) (Thomas, J., dissenting). This structural arrangement would not have been permitted under the traditional law of trusts, but it is a common feature under ERISA plans. Id. Chastant confronted a serious question regarding the eligibility of the beneficiary under Louisiana law. It is undisputed that Chastant owed a duty of loyalty to the beneficiary of the plans, but only several weeks after his brother’s murder, the allegations against Futral made it unclear whether Chastant could pay her claims without violating state law. Consequently, Chastant used plan funds to defend against a suit seeking to compel disbursement to a potentially ineligible beneficiary. When the issue was resolved, he released the balance of the funds after paying most of his 4 Case: 13-30856 Document: 00512601364 Page: 5 Date Filed: 04/18/2014 No. 13-30856 attorney’s fees and costs. We agree with the district court that Chastant did not breach his fiduciary duty. Futral also asserts that Chastant should have deposited the plan monies in the court’s registry and notes that this court has approved of interpleader in a prior case. See Tittle v. Enron Corp., 463 F.3d 410 , 423 (5th Cir. 2006). But Futral has not shown that the plans require interpleader under these circumstances, and she has cited no authority for the argument that failure to interplead the funds is a per se breach of a trustee’s fiduciary duty. Interpleader is common in insurance cases where there is a dispute among potential beneficiaries because it is a relatively straightforward matter to deposit a sum certain in the court’s registry. Here, however, Chastant had a continuing duty as trustee to maintain the corpus to pay ongoing administrative fees associated with the plans. Because of the recurring financial obligations, which existed independent of the cost of defending Futral’s suit, it would be impossible to require interpleader at the outset of the litigation. In his cross-motion for summary judgment, Chastant sought any remaining balance of attorney’s fees and costs from both of Futral’s lawsuits. The court awarded him these expenses. The only basis for Chastant’s claim for additional attorney’s fees is the terms of the plans. While these documents authorize payment of legal expenses from the corpus of the plans in some situations, Chastant has not explained how they authorize recovery from a beneficiary after the plans’ funds have been dispersed. Neither has he attempted to demonstrate that any trusts associated with the plans are still extant or that the plans have assets to meet his additional requests for fees. Given these facts, there was no basis to award Chastant attorney’s fees from Futral above those already paid from the corpus of the plans. 5 Case: 13-30856 Document: 00512601364 Page: 6 Date Filed: 04/18/2014 No. 13-30856 For the foregoing reasons, we AFFIRM the judgment exonerating Chastant from any breach of fiduciary duty but REVERSE the award of his legal costs. AFFIRMED in part, REVERSED in part. 6
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Laurie Futral v. Paul Chastant
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Laurie Anne FUTRAL, Plaintiff-Appellant v. Paul T. CHASTANT, Individually and as Trustee on Behalf of Robert B Chastant D D S Defined Benefit & Profit Sharing Plans, Defendant-Appellee
| null | null |
<parties id="b145-8">
Laurie Anne FUTRAL, Plaintiff-Appellant v. Paul T. CHASTANT, individually and as Trustee on behalf of Robert B Chastant D D S Defined Benefit & Profit Sharing Plans, Defendant-Appellee.
</parties><br><docketnumber id="b145-11">
No. 13-30856.
</docketnumber><br><court id="b145-12">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate id="b145-14">
April 18, 2014.
</decisiondate><br><attorneys id="b145-25">
Steven G. Durio, Daniel Josef Phillips, Esq., Durio, McGoffin, Stagg & Acker-mann, Lafayette, LA, for Plaintiff-Appellant.
</attorneys><br><attorneys id="b145-26">
James Louis Daniels, Lafayette, LA, for Defendant-Appellee.
</attorneys><br><judges id="b146-3">
<span citation-index="1" class="star-pagination" label="118">
*118
</span>
Before JONES, SMITH, and OWEN, Circuit Judges.
</judges>
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13-30856
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Court of Appeals for the Fifth Circuit
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STATE OF MINNESOTA IN SUPREME COURT A16-0769 Court of Appeals McKeig, J. Madison Equities, Inc., Appellant, vs. Filed: January 25, 2017 Office of Appellate Courts Robert L. Crockarell, Respondent. Kelly S. Hadac, Michael S. Mather, HKM, P.A., Saint Paul, Minnesota, for appellant. Matthew P. Kostolnik, Kelly C. McGinty, Moss & Barnett, P.A., Minneapolis, Minnesota, for respondent. SYLABUS 1. Minnesota Rule of Civil Procedure 58.01 does not provide the district court an independent grant of authority to order a stay of entry of judgment. 2. Mandamus is the proper remedy to compel the district court to vacate a stay that the court did not have the authority to order. Reversed; writ of mandamus issued. 1 OPINION MCKEIG, Justice. Appellant Madison Equities, Inc. sued respondent Robert Crockarell for repayment of a long-overdue promissory note. Crockarell later initiated a separate action against Madison Equities and other parties alleging, among other things, that Madison Equities sued Crockarell on the note to interfere with his business interests. The district court granted summary judgment to Madison Equities on the note claim, but ordered a stay of entry of judgment pending mediation in Crockarell’s later-filed action. Madison Equities petitioned for a writ of mandamus seeking to vacate the stay, and the court of appeals denied the petition. We granted review. We reverse the court of appeals and issue a writ of mandamus ordering the district court to vacate the stay. I. In December 2004, Crockarell borrowed $100,000 from his father, James Crockarell, and his stepmother, Rosemary Kortgard, (collectively, “parents”) to purchase a home. He executed a note promising repayment with interest within 2 years. Crockarell and his parents were also involved together in several business ventures, including in the parents’ company, Madison Equities. While Crockarell worked for Madison Equities, he did not repay the note and his parents did not demand repayment. After Crockarell’s employment with Madison Equities ended in 2014, however, his parents allonged 1 the note 1 To “allonge” means to transfer a note by endorsing it on a piece of paper firmly affixed to the note. See Nw. Nat. Bank of Minneapolis v. Shuster, 307 N.W.2d 767 , 770 (Minn. 1981); see also Allonge, Black’s Law Dictionary (10th ed. 2014). 2 to Madison Equities, which then sued Crockarell for repayment of the note in Ramsey County District Court (“Note Litigation”). While the Note Litigation was pending, Crockarell initiated a separate action in Ramsey County District Court (“Shareholder Litigation”). Crockarell alleged multiple business-related claims against his parents, Madison Equities, and five limited liability companies (LLCs) co-owned by Crockarell and his parents. Crockarell claimed that his parents initiated the Note Litigation to pressure him to return to work for Madison Equities and to interfere with his business interests. 2 By April 2016, the district court had granted summary judgment to Madison Equities in the Note Litigation, awarding it $144,698.59 in damages, plus interest and late charges, and an additional $34,790.36 in costs and attorneys’ fees. Crockarell filed a motion to stay the entry of judgment in the Note Litigation pending the resolution of the Shareholder Litigation. He argued that payment of the Note Litigation judgment would substantially impair his ability to pursue the Shareholder Litigation. Crockarell reasoned that if the Note Litigation judgment were entered, he would engage in additional motion practice, followed by an appeal, to stay the enforcement of the judgment and therefore resist payment while the Shareholder Litigation was still pending. He further argued that his debt to Madison Equities would likely be offset by the more than $11 million in damages he claimed in the Shareholder Litigation. Crockarell relied on Minn. R. Civ. P. 54.02, which allows the court to defer the final entry of judgment when a decision fails to 2 Crockarell did not assert these claims as counterclaims or third-party claims in the Note Litigation. 3 resolve “all the claims or the rights and liabilities of . . . all the parties.” Although he suggested that the district court could consolidate the two actions sua sponte to ensure that Rule 54.02 applied, Crockarell never filed a motion to consolidate the actions. On April 25, 2016, without consolidating the Note Litigation with the Shareholder Litigation, the district court ordered a stay of entry of judgment in the Note Litigation. The court stated: 3. Defendant’s parents allonged the Note to defendant Madison Equities after waiting nearly a decade to seek payment under a personal Note between them and their son, Robert Crockarell. The allonge is suspiciously timed to coincide with disputes resulting in the commencement of another action involving defendant Crockarell, his parents, and Madison Equities, among others. 4. There are enough common interests and common parties in the two cases to merit a short stay of entry of judgment in this case. In [the Shareholder Litigation], the parties are ordered to complete mediation by October 1, 2016. That mediation should, but is not required to, encompass the claim in this case and will have a better chance of being successful if the parties are not spending their energies and money needlessly on collections and an appeal relating to this case. Moreover, [Crockarell’s parents], by allonging the Note in this case to the Madison Equities entity, made this into a dispute involving Madison Equities, which is substantially involved and interconnected with the parties in the other pending action. 5. The court can conceive of no significant harm in staying entry of judgment in this case pending mediation in the related action, particularly in light of the extensive delay by [Crockarell’s parents] in showing any interest in enforcing the Note at issue here. Accordingly, there is no reason to consider a bond or other security at this time. 6. It is appropriate to revisit the issue of continuing the stay and or requiring security following completion of the mediation process. 4 Although the deadline for completing mediation in the Shareholder Litigation was originally October 2016, the deadline has been extended several times and is now set for April 2017. The stay of entry of judgment in the Note Litigation remains in effect. Madison Equities petitioned the court of appeals for a writ of mandamus to compel the district court to vacate the stay and enter judgment in the Note Litigation, arguing that the court did not have authority under the Minnesota Rules of Civil Procedure (“Rules”) to order the stay. The court of appeals denied the petition, concluding that the district court had the discretion to stay proceedings pending the resolution of a related action and did not clearly abuse its discretion. In re Madison Equities v. Crockarell, No. A16-0769, Order at 2-3 (Minn. App. filed May 24, 2016). We granted Madison Equities’ petition for review. II. We review de novo “a decision on a writ of mandamus . . . based solely on a legal determination.” Breza v. City of Minnetrista, 725 N.W.2d 106 , 110 (Minn. 2006). “Mandamus is an extraordinary remedy.” N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485 , 491 (Minn. 2004) (citing State v. Pero, 590 N.W.2d 319 , 323 (Minn. 1999)). A writ of mandamus may issue “to compel the performance of an act which the law specially enjoins as a duty,” but not to “control judicial discretion.” Minn. Stat. § 586.01 (2016). Further, a writ of mandamus “shall not issue in any case where there is a plain, speedy, and adequate remedy in the ordinary course of law.” Minn. Stat. § 586.02 (2016). To obtain a writ of mandamus, Madison Equities must therefore show that (1) the district court “failed to perform an official duty clearly imposed by law,” (2) which caused 5 “a public wrong specifically injurious to [Madison Equities],” and (3) for which “there is no other adequate legal remedy.” N. States Power Co., 684 N.W.2d at 491. A. We must first determine whether the district court “failed to perform an official duty clearly imposed by law.” Id. at 491. Madison Equities argues that the Rules limit the court’s authority to stay the entry of judgment. We interpret the Rules de novo. Mingen v. Mingen, 679 N.W.2d 724 , 727 (Minn. 2004). “When interpreting a rule, we look first to the plain language of the rule and its purpose.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598 , 601 (Minn. 2014). Only if the rule is ambiguous, that is, “subject to more than one reasonable interpretation,” will we look beyond the plain language of the rule. Id. We do not read the Rules “in isolation,” but rather, “in light of one another.” Mingen, 679 N.W.2d at 727. Rule 58 governs the entry and stay of judgments. Rule 58.01, titled “Entry,” requires the court administrator to enter judgment “forthwith,” “[u]nless the court otherwise directs, and subject to the provisions of Rule 54.02.” We have stated that “the purpose of Rule 58.01 is to hasten the entry of judgment, thus achieving finality.” Erickson v. Nelson, 275 Minn. 561 , 562, 146 N.W.2d 768 , 770 (1966). Rule 58.02, titled “Stay,” permits the court to order a stay of entry of judgment for up to 30 days after the determination of specific post-judgment motions. Rule 58.02 also gives the court discretion to “impose such conditions for the security of the adverse party as may be deemed proper” for stays “exceeding 30 days after verdict or decision.” 6 Other rules allow the district court to defer the entry of judgment under specific circumstances. Rule 54.02 applies to decisions that encompass fewer than all of the claims or parties in an action. Under these circumstances, the court administrator’s duty under Rule 58.01 to enter judgment “forthwith” unless directed otherwise does not apply. Instead, under Rule 54.02, the court may not enter judgment unless all of the parties’ claims have been adjudicated or the court expressly directs the entry of judgment after determining “that there is no just reason for delay.” Further, several rules authorize stays of entry of judgment following a trial. See, e.g., Minn. Gen. R. Prac. 125 (providing for an automatic stay of 30 days after a trial “unless the court orders otherwise”); Minn. R. Civ. P. 49.02 (allowing the court to defer the entry of judgment pending the jury’s answers to interrogatories). Moreover, Rule 62 allows the district court to order a stay of proceedings to enforce an entered judgment pending the resolution of post-judgment motions or an appeal. Minn. R. Civ. P. 62.01, 62.03. Finally, Rule 62.05 specifically preserves an appellate court’s discretion to stay proceedings or make other necessary orders while an appeal is pending. The court of appeals held, and Crockarell argues, that the phrase “[u]nless the court otherwise directs” in Rule 58.01 grants the district court the general authority to order stays of entry of judgment. Madison Equities argues that this phrase merely refers to the court’s authority to order stays of entry of judgment under other rules, and that to hold otherwise would render superfluous these specific rules. We agree with Madison Equities. Rule 58.01 defines the duty of the court administrator to enter judgment. It specifies that the court administrator must generally 7 enter judgment “forthwith,” but may defer entry if “the court otherwise directs.” But Rule 58.01 is not an independent grant of authority to the district court. Other rules, such as Rule 58.02, define the court’s authority to “otherwise direct” the court administrator to stay the entry of judgment. Our interpretation of Rule 58.01 is consistent with our precedent. See Ginsberg v. Williams, 270 Minn. 474 , 135 N.W.2d 213 (1965). In Ginsberg, we held that a district court could not order a new trial “in the interests of justice,” but was constrained by the comprehensive list of reasons for granting a new trial in Rule 59.01. Id. at 483-84, 135 N.W.2d at 220 . To hold otherwise, we explained, “would invite an arbitrary exercise of power over which appellate review is not now available.” Id. at 484, 135 N.W.2d at 220 . We concluded that our carefully structured advisory-committee process is the appropriate method for amending the Rules. Id. at 484-85, 135 N.W.2d at 220-21 . Here, as in Ginsberg, the Rules provide a comprehensive list of circumstances and timeframes under which the district court may order a stay of entry of judgment. See, e.g., Minn. R. Civ. P. 58.02 (allowing the court to “order a stay of entry of judgment . . . for a period not exceeding the time required for the hearing and determination of a [post- decision] motion” plus 30 days). Further, Rule 62 enumerates the circumstances under which the court may order a stay of proceedings to enforce a judgment. And although Rule 62.05 expressly preserves an appellate court’s discretion to order a stay of proceedings pending an appeal, there is no similar provision granting the district court discretion to order a stay of entry of judgment. To interpret Rule 58.01 as providing independent authority for the district court to order a stay of entry of judgment would “invite an arbitrary 8 exercise of power over which appellate review is not now available.” Ginsberg, 270 Minn. at 484, 135 N.W.2d at 220 ; see also Minn. R. Civ. App. P. 103.03 (listing orders from which a party may appeal, not including judgments that have not yet been entered). We therefore hold that Rule 58.01 does not provide the district court independent authority to order a stay of entry of judgment. We must next determine whether the district court had the authority to order a stay of entry of judgment under any other rule. The court did not cite any rule in its order granting the stay; however, Crockarell’s motion relied on Rule 54.02. This rule applies only to situations in which “multiple claims for relief or multiple parties are involved in an action.” Minn. R. Civ. P. 54.02 (emphasis added); see also T.A. Schifsky & Sons, Inc. v. Bahr Constr., LLC, 773 N.W.2d 783 , 787 (Minn. 2009) (stating that “Rule 54.02 applies where the lawsuit is based on more than one legal theory or states more than one group of operative facts giving rise to relief”). Because neither Crockarell nor the district court consolidated the Note Litigation and Shareholder Litigation, they remain separate actions. The Note Litigation judgment encompassed all the claims and parties within that action. As such, the court did not have the authority under Rule 54.02 to order a stay of entry of judgment in the Note Litigation. Having been presented with no other rule that could have authorized the stay, the district court failed to perform its duty to allow entry of judgment “forthwith” when it 9 “otherwise direct[ed]” the court administrator to stay the entry of judgment without the authority to do so. See Minn. R. Civ. P. 58.01. 3 B. Madison Equities must next show that it “suffered a public wrong” that was “specifically injurious” to it as a result of the unauthorized stay order. N. States Power Co., 684 N.W.2d at 491. Madison Equities argues that the order harmed it by indefinitely suspending its right to appeal and enforce its award, without allowing it to obtain a bond or other security for its award. The district court stated that it would reconsider the stay after the mediation deadline for the Shareholder Litigation had passed. The mediation deadline, extended multiple times, is now set for April 2017, a full year after the court ordered the stay. Madison Equities continues to have no protection from the possibility that Crockarell may exhaust his resources before the stay is lifted and the award becomes enforceable. This exposure 3 The court of appeals also cited its decision in Green Tree Acceptance, Inc. v. Midwest Federal Savings & Loan Ass’n of Minneapolis for the proposition that district courts have the discretion to stay proceedings pending the resolution of related proceedings. 433 N.W.2d 140 , 141-42 (Minn. App. 1988) (holding that the district court had the discretion to stay proceedings pending the resolution of related federal proceedings); see also Rice Park Props. v. Robins, Kaplan, Miller & Ciresi, 532 N.W.2d 556 , 556 (Minn. 1995) (holding that the district court had the discretion to stay proceedings pending the resolution of a separate action involving the same parties and legal issue, “to avoid an unnecessary duplication of time, effort and expenditure”). Although we recognize a district court’s “considerable discretion in scheduling matters and in furthering . . . the interests of judicial administration and economy,” Rice Park Props., 532 N.W.2d at 556, the authority to control ongoing civil proceedings cannot negate the plain language of Rule 58.01 regarding the entry of judgment. Here, the stay was ordered after summary judgment was granted, pending the resolution of proceedings in another case involving substantially different legal issues. 10 is particularly troubling in this case because Crockarell based his motion to stay on the assertion that his ability to prosecute the Shareholder Litigation would be substantially impaired if the Note Litigation judgment were enforced. Although Crockarell argues that the Shareholder Litigation judgment may offset his liability to Madison Equities in the Note Litigation, it would be inappropriate at this juncture to speculate about whether Crockarell will prevail in the Shareholder Litigation and whether any award will equal or exceed Madison Equities’ award in the Note Litigation. Accordingly, Madison Equities has established that it has suffered a specific injury as a result of the unauthorized stay order. C. Finally, Madison Equities must show that there is no “plain, speedy, and adequate remedy in the ordinary course of law.” Minn. Stat. § 586.02 . The other remedy “must be one which is reasonably efficient and adequate to reach the end intended, and actually compel the performance of the duty refused.” State v. Dist. Ct. of Meeker Cty., 77 Minn. 302 , 307, 79 N.W. 960 , 962 (1899). It is undisputed that Madison Equities could not have appealed the unauthorized stay order. See Minn. R. Civ. App. P. 103.03. Crockarell argues that Madison Equities could have requested leave to make a motion to reconsider under Minn. Gen. R. Prac. 115.11. Madison Equities responds that a motion to reconsider is an inadequate remedy because it would not have compelled the district court to overturn its own ruling and lift the stay. 11 We conclude that a request for leave to make a motion to reconsider would not have been an adequate legal remedy to challenge the unauthorized stay order. “Motions to reconsider are prohibited except by express permission of the court.” Id. As such, there is no guarantee that the district court would have granted Madison Equities leave to file the motion. Under Rule 115.11, the court would have had to find “compelling circumstances” before allowing the motion to proceed. In any event, a motion to reconsider would not “actually compel the performance of the duty refused.” Dist. Ct. of Meeker Cty., 77 Minn. at 307, 79 N.W. at 962. The motion would have simply repeated the same legal arguments that Madison Equities had already made to the court. See Landis v. N. Am. Co., 299 U.S. 248 , 254 (1936) (“Disapproval of the very terms that have already been approved as reasonable is at best a doubtful outcome of an application for revision.”). As such, Madison Equities has established that it had no “plain, speedy, and adequate remedy in the ordinary course of law” to obtain relief from the unauthorized stay. Minn. Stat. § 586.02 . In sum, Madison Equities is entitled to mandamus relief because (1) the district court did not have the authority to order a stay of entry of judgment, (2) Madison Equities suffered a public harm that was specifically injurious to it, and (3) Madison Equities did not have any other adequate remedy in the ordinary course of law. We therefore hold that mandamus is the appropriate remedy to compel the district court to vacate a stay that the court did not have the authority to order, and the court of appeals erred in refusing to issue the writ. Reversed; writ of mandamus issued. 12
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Madison Equities, Inc. v. Robert L. Crockarell
| null |
MADISON EQUITIES, INC., Appellant, v. Robert L. CROCKARELL, Respondent
| null | null |
<parties id="b600-7">
MADISON EQUITIES, INC., Appellant, v. Robert L. CROCKARELL, Respondent.
</parties><br><docketnumber id="b600-10">
A16-0769
</docketnumber><br><court id="b600-11">
Supreme Court of Minnesota.
</court><br><decisiondate id="b600-12">
Filed: January 25, 2017
</decisiondate><br><attorneys id="b601-18">
<span citation-index="1" class="star-pagination" label="569">
*569
</span>
Kelly S. Hadac, Michael S. Mather, HKM, P.A., Saint Paul, Minnesota, for appellant.
</attorneys><br><attorneys id="b601-19">
Matthew P. Kostolnik, Kelly C. MeGinty, Moss & Barnett, P.A., Minneapolis, Minnesota, for respondent.
</attorneys>
| null | null | null | null | null | null | 4,576,133 |
A16-769
| 0 |
minn
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Supreme Court of Minnesota
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Supreme Court of Minnesota
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8,052,151 |
Memorandum Opinion BROCK, C.J. The defendant, Rosewood Realty Trust, appeals the decision of the Superior Court (Coffey, J.) awarding the plaintiff, Lawrence R McManus, an auctioneer’s commission for his services in the auction of the defendant’s property. We reverse and remand. On September 23, 1987, the plaintiff conducted an auction of a piece of commercial property that the defendant owned in Rye. The buyer never closed on the property, however, because he discovered that the soil and ground water were contaminated with toxic substances. The plaintiff sued the defendant to recover his auctioneer’s commission, relying on section eight of the auction contract: The seller has good and clear title to all property to be sold .... The property will be sold free and clear of all liens (recorded, unrecorded) and encumbrances at closing. If the Seller cannot clear property by and before closing, the full commission will be due and owing. The plaintiff maintained that because the property was contaminated with toxic waste, the defendant did not have “good and clear” title. The trial court agreed and awarded the plaintiff a $47,900 commission. This appeal followed. On appeal, we uphold “the findings and rulings of the trial court unless they are lacking in evidential support or tainted by error of law.” Public Serv. Co. of N.H. v. Town of Bow, 139 N.H. 105, 107, 649 A.2d 65, 66 (1994) (quotation omitted). The issue before us is whether the presence of contaminants on the defendant’s property destroyed “good and clear” title. “Good” title is synonymous with “marketable” title — one that is “free from any reasonable objection of a reasonable purchaser.” North Bay Council, Inc. v. Bruckner, 131 N.H. 538, 544, 563 A.2d 428, 431 (1989) (quotation omitted). Even if property is contaminated with toxic substances, the title to that property may be “free from any reasonable objection of a reasonable purchaser.” Id.; see also 14 R. *80Powell & P. Rohan, Powell on Real Property ¶ 881[6][e][v], at 81-179 to -180 (1996). Here, the trial court failed to perceive the distinction between the condition of the title to the property and the condition of the property itself. There is a difference between economic lack of marketability, which relates to physical conditions affecting the use of the property, [and] title marketability, which relates to defects affecting legally recognized rights and incidents of ownership. One can hold perfect title to land that is valueless; one can have marketable title to land while the land itself is unmarketable. Chicago Title Ins. Co. v. Kumar, 506 N.E.2d 154, 157 (Mass. App. Ct. 1987) (quotation omitted); accord HM Holdings, Inc. v. Rankin, 70 F.3d 933, 936 (7th Cir. 1995) (contaminated condition of property not breach of seller’s warranty of merchantable title); United States v. Allied Chemical Corp., 587 F. Supp. 1205, 1206 (N.D. Cal. 1984) (“term ‘encumbrance’ does not extend to the presence of hazardous substances” at the time of conveyance); see also Harbeson, Comment, Toxic Clouds on Titles: Hazardous Waste and the Doctrine of Marketable Title, 19 B.C. Envtl. Aff. L. Rev. 355, 356 (1991) (acknowledging refusal of courts to expand the marketable title doctrine to make the presence of hazardous waste an encumbrance on title). But see Jones v. Melrose Park Nat. Bank, 592 N.E.2d 562, 568 (Ill. App. Ct. 1992) (presence of hazardous waste renders title unmarketable). That the State was authorized by statute to recover the cost of any cleanup of the contaminants that it might undertake does not alter our conclusion. See RSA 147-A:9, II (1996). A civil engineer with the State Department of Environmental Services testified that the State had no such plans. “The mere possibility or suspicion of a defect, which according to ordinary experience has no probable basis, does not demonstrate an unmarketable title.” Powell & Rohan, supra ¶ 881[6][a], at 81-147 (quotation omitted); see Chicago Title Ins. Co. v. Kumar, 506 N.E.2d at 156-57. The trial court erred in ruling that the defendant did not have “good and clear” title to the property. Because it awarded the commission to the plaintiff on this ground, it did not reach the plaintiff’s alternative claim for damages for breach of the implied covenant of good faith and fair dealing. Consequently, we reverse and remand to the trial court for evaluation of this claim. Additionally, we offer guidance to the trial court regarding an issue that may arise on remand. If the court is persuaded by the *81plaintiff’s remaining argument, it must award damages “to put the injured party as nearly as possible in the same position he would have been had the injury not occurred.” Phillips v. Verax Corp., 138 N.H. 240, 248, 637 A.2d 906, 912 (1994) (quotation omitted). If the lost commission is a proper measure of the plaintiff’s damages, the trial court must determine “the actual understanding and intent of the parties” concerning the amount of that commission. Tsiatsios v. Tsiatsios, 140 N.H. 173, 178, 663 A.2d 1335, 1339 (1995). Reversed and remanded. BRODERICK, J., did not sit; BATCHELDER, J., sat by special assignment under RSA 490:3; HORTON, J., with whom THAYER, J., joined, dissented; the others concurred.
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opinion_xml_harvard
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020lead
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| 8,091,920 |
Batchelder, Brock, Broderick, Horton, Others, Rsa, Thayer
| null |
U
|
f
|
Published
| 0 |
McManus v. Rosewood Realty Trust
|
McManus
|
Lawrence P. McManus v. Rosewood Realty Trust, Patricia Larson-Kulak, Trustee
| null | null | null | null | null | null | null | null | null | 65,187,536 |
No. 94-513
| 0 |
nh
|
S
|
t
|
Supreme Court of New Hampshire
|
Supreme Court of New Hampshire
|
4,923,463 |
CHANDLER, Justice, specially concurring: ¶ 32. I concur with the Court’s holding that David Campbell was in a position of trust or authority over the minor victim. Section 97-5-23(2) proscribes the fondling of a person under the age of eighteen with or without the child’s consent when the perpetrator “occupies a position of trust or authority over the child.” Miss.Code Ann. § 97-5-23(2) (Rev.2006). I write separately to express my opinion that this Court should construe Section 97-5-23(2) prudently so that the statute’s reach is not over-inclusive. ¶ 33. The victim in this case was sixteen years old and above the age of consent. See Miss.Code Ann. § 97-3-65 (Rev.2006). While Campbell’s conduct was reprehensible, it was criminal only if Campbell was in a position of trust or authority over the victim. Under Section 97-5-23(2), “[a] person in a position of trust or authority over a child includes without limitation a child’s teacher, counselor, physician, psychiatrist, psychologist, minister, priest, physical therapist, chiropractor, legal guardian, parent, stepparent, aunt, uncle, scout leader or coach.” Id. A person in a position of trust or authority over a child has special access to the' child, and may use the position to exact the victim’s compliance. Therefore, a child over sixteen and under eighteen years of age cannot legally consent to sexual activity with a person in a position of trust or authority. Miss.Code Ann. § 97-5-23(2); Miss.Code Ann. § 97-3-95(2) (Rev.2006) (“a person is guilty of sexual battery if he or she engages in sexual penetration with a child under the age of eighteen (18) years if the person is in a position of trust or authority -”). But if the older person is not in a position of trust or authority over the sixteen-year-old when the sexual activity occurs, no crime has occurred. Because the statute does not limit the persons who may be considered to be in a position of trust or authority, that task is left to our appellate courts, considering the particular facts and circumstances of each case. It is vital that this Court prudently determine the limitations of the statute so that its reach is not over-inclusive. ¶ 34. I turn to the facts of this case. Campbell was an applicant for the status of foster parent, and he had accepted Lauren into his home with the approval of the Department of Human Services. DHS considered Lauren to be in the “physical custody” of the Campbells. She was to be “treated as one of their own children” until the placement was finalized. As outlined by the majority, Campbell and his wife made all decisions related to Lauren’s day-to-day care as if she was one of their own children. They controlled Lauren’s ability to come and go, decided if she could have visitors, gave her a curfew, limited her television, and paid for and monitored her cell-phone use. Under these circum*58stances, Campbell stood in loco parentis30 to Lauren. Certainly, a person standing in loco parentis to a child is in a position of trust or authority over that child under Section 99-5-23(2). I concur with the majority’s holding. DICKINSON, P.J., JOINS THIS OPINION. . The status of in loco parentis “exists when [one] person undertakes care and control of another in absence of such supervision by [the] latter's natural parents and in absence of formal legal approval, and is temporary in character and is not to be likened to an adoption which is permanent.” Smith v. Smith, 97 So.3d 43, 47 (Miss.2012) (quoting J.P.M. v. T.D.M., 932 So.2d 760, 780 (Miss.2006)).
|
opinion_xml_harvard
| 591 |
2021-09-22 04:22:40.30335+00
|
030concurrence
|
t
|
f
| 5,105,225 |
Chandler, Coleman, Dickinson, King, Kitchens, Lamar, Pierce, Randolph, Waller
| null |
U
|
f
|
Published
| 4 |
Campbell v. State
|
Campbell
|
David CAMPBELL v. STATE of Mississippi
| null | null | null | null | null | null | null | null | null | 60,411,991 |
No. 2011-CT-00272-SCT
| 0 |
miss
|
S
|
t
|
Mississippi Supreme Court
|
Mississippi Supreme Court
|
747,603 |
128 F.3d 122 UNITED STATES of America, Appellee, v. David J. CLARK, Jr., Defendant-Appellant. No. 97-1132. United States Court of Appeals, Second Circuit. Argued Oct. 21, 1997. Decided Nov. 6, 1997. Kent B. Sprotbery, Leslie & Sprotbery, Delmar, NY, for defendant-appellant. Sara M. Lord, Asst. U.S. Atty., Albany, NY (Thomas J. Maroney, U.S. Atty., Albany, NY, on the brief), for appellee. Before: NEWMAN, CALABRESI and CUDAHY, * Circuit Judges. JON O. NEWMAN, Circuit Judge: 1 This appeal presents a rare instance where uncertainty exists as to a sentencing judge's awareness of departure authority. David J. Clark, Jr., appeals from the February 21, 1997, judgment of the District Court for the Northern District of New York (Lawrence E. Kahn, Judge), sentencing him to 51 months' imprisonment, following his guilty plea to one count of unlawful possession of a firearm by a felon, in violation of 18 U.S.C. § 922 (g)(1) (1994). Contending that he had purchased the firearm as a gift for his brother, Clark sought and was denied a "lesser harm" downward departure pursuant to U.S.S.G. § 5K2.11 (1997). Because of our doubt whether the sentencing judge appreciated his arguably available departure authority, we remand. Background 2 On November 11, 1995, and again on November 12, Clark purchased a firearm from the Wal-Mart store in Plattsburgh, New York. At the time, he was on parole from an earlier attempted burglary for which he had been sentenced to one-and-a-third to four years in prison. In the process of executing a search warrant at his home, apparently while investigating unrelated crimes, state authorities discovered the firearm boxes and alerted federal authorities. Clark pleaded guilty to one count of unlawful possession of a firearm by a felon, based on the November 12 purchase. 3 The presentence report calculated a sentencing range of 51 to 63 months' imprisonment. Clark's primary argument at sentencing was that, even though it was unlawful for him to receive or possess the firearm, he had purchased it as a Christmas gift for his brother and was therefore entitled to a "lesser harms" downward departure pursuant to U.S.S.G. § 5K2.11. Additionally, he contended that the gun he had purchased on November 11 was also intended as a gift for his brother, but upon discovering that the gun first purchased was not suitable for hunting, he made the second purchase as an intended gift and planned to return the first purchase. 4 To support his claim that the firearm was to be a gift, Clark sought to admit the testimony of his wife, Kelly Clark, who had accompanied him to Wal-Mart on the day of the purchase. The Government objected to the admission of her testimony, arguing that it was irrelevant for several reasons, including the claim that the "lesser harms" downward departure applies only where a defendant commits a criminal act in order to avoid some greater harm. The District Judge allowed Mrs. Clark to testify, without indicating whether he disagreed with the Government's narrow view of section 5K2.11. 5 During its argument on the ultimate sentence, the prosecution renewed its contention that section 5K2.11 was inapplicable to Clark because he had not committed his crime to avoid a greater harm. The prosecution also contended that Clark's claim about a gift for his brother should not be credited. Immediately after the prosecution's combined legal and factual opposition to a departure, the Court stated: 6 The Court is aware of all the arguments, heard some proof and has read all the papers involved and at this time the Court is [going to] deny the defendant's motion for a downward departure adopting all the reasons legally set forth by the U.S. Attorney. 7 Judge Kahn then imposed a sentence of 51 months' imprisonment.Discussion 8 A District Court's refusal to grant a downward departure is generally not appealable. See, e.g., United States v. Martin, 78 F.3d 808 , 815 (2d Cir.1996); United States v. Sharpsteen, 913 F.2d 59 , 62-63 (2d Cir.1990). One narrow exception exists for those cases in which the sentencing judge mistakenly believes that he or she lacks authority to grant a given departure. See, e.g., United States v. Ekhator, 17 F.3d 53 , 55 (2d Cir.1994). 9 Normally, we presume that the District Court properly understood the scope of its authority. See, e.g., United States v. Brown, 98 F.3d 690 , 694 (2d Cir.1996). However, we have recognized that this presumption can be overcome where "the record provides a reviewing court with clear evidence of a substantial risk that the judge misapprehended the scope of his departure authority." Id. (footnote omitted). Though we expect such instances to be infrequent, we had previously found such a risk present in a case where the available ground for departure was not obvious and the sentencing judge's remarks made it unclear whether he was aware of his options. See United States v. Sweeney, 90 F.3d 55 , 58 (2d Cir.1996). 10 In the pending case, the Government incorrectly advised the District Court as to the scope of section 5K2.11. The prosecution's argument was based on the first paragraph of that section, permitting a departure where a crime is committed to "to avoid a perceived greater harm." However, the second paragraph permits a departure where "conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue." This paragraph gives an example of a war veteran possessing a machine gun as a trophy. Moreover, the District Court's statement that it was "adopting all the reasons legally set forth by" the prosecutor creates a distinct risk that the Court was agreeing with the contention that a departure was legally unavailable. 11 Whether the second paragraph of section 5K2.11 permitted a departure for Clark depends initially on whether the District Court credits his claim of purchasing the firearm as a gift, and, even then, whether the Court concludes that the policy statement is applicable to whatever factual circumstances the Court finds to have existed concerning the purchase. For example, application of the policy statement might well vary depending on whether the defendant was to retain possession of the gun for only a brief time necessary to deliver or send it to his brother and whether, prior to delivery, the gun would remain readily accessible to the defendant. Congress has required reviewing courts to give "due deference to the district court's application of the guidelines to the facts" of the case, 18 U.S.C. § 3742 (e), and the Supreme Court has instructed that a departure decision "will in most cases be due substantial deference," Koon v. United States, 518 U.S. 81 , ----, 116 S.Ct. 2035 , 2046, 135 L.Ed.2d 392 (1996). These requirements obviously contemplate an initial application decision by a district judge. We do not decide at this point whether a departure was available, but, since it might have been, depending on the circumstances found to exist, a remand is warranted to avoid the risk that a substantial sentence was imposed by a judge who might, under some circumstances, have made a downward departure. 12 Accordingly, we will remand for further consideration of the sentence. If the District Court determines that it would not depart even if the circumstances made a departure available, or concludes, after appropriate fact-finding, that a departure is not available, the sentence should not be disturbed. If the circumstances found to have existed make a departure available and appropriate, the sentence may be adjusted. * The Honorable Richard D. Cudahy of the United States Court of Appeals for the Seventh Circuit, sitting by designation
|
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| 1,263 |
2012-04-17 23:03:18+00
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010combined
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|
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| 747,603 |
Calabresi, Cudahy, Newman
| null |
RU
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Published
| 12 |
United States v. David J. Clark, Jr.
| null |
UNITED STATES of America, Appellee, v. David J. CLARK, Jr., Defendant-Appellant
| null | null |
<parties id="b170-11">
UNITED STATES of America, Appellee, v. David J. CLARK, Jr., Defendant-Appellant.
</parties><br><otherdate id="b170-15">
Argued Oct. 21, 1997.
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No. 97-1132.
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United States Court of Appeals, Second Circuit.
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<span citation-index="1" class="star-pagination" label="123">
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Kent B. Sprotbery, Leslie & Sprotbery, Delmar, NY, for defendant-appellant.
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Sara M. Lord, Asst. U.S. Atty., Albany, NY (Thomas J. Maroney, U.S. Atty., Albany, NY, on the brief), for appellee.
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Before: NEWMAN, CALABRESI and CUDAHY,
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Circuit Judges.
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The Honorable Richard D. Cudahy of the United States Court of Appeals for the Seventh Circuit, sitting by designation.
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| null | null | null | null | null | null | 567,747 |
97-1132
| 1 |
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F
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Second Circuit
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Court of Appeals for the Second Circuit
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2,186,271 |
785 F. Supp. 2d 1338 (2011) Marco Esteban Valdivia SALINAS, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Defendant. Case No. 10-20910-CIV. United States District Court, S.D. Florida, Miami Division. March 28, 2011. *1339 Elias Benzo Rudnikas, Mark Lee Stokes, Stokes & Gonzalez, Miami, FL, for Plaintiff. Scott P. Mebane, Valentina M. Tejera, Mase, Lara, Eversole P.A., John Maurice Mitchell, Carnival Cruise Lines, Miami, FL, for Defendant. ORDER JOSE E. MARTINEZ, District Judge. THIS CAUSE came before the Court upon Defendant's Motion to Dismiss and Compel Arbitration (D.E. No. 3). I. Background Plaintiff Marco Esteban Valdivia Salinas ("Plaintiff"), a seaman from Nicaragua, filed the above-captioned complaint in state court asserting claims for Jones Act negligence (Count I and V), unseaworthiness (Count II and VI), failure to provide prompt, proper and adequate medical treatment (Count III and VII), and failure to provide maintenance and cure (Count IV and VIII). Plaintiff has since dropped Counts III, IV, VII, and VIII, leaving only the Jones Act claims and the unseaworthiness claims. Defendant removed the case to this Court pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention") and its implementing legislation, 9 U.S.C. § 202 et seq. Plaintiff was working aboard the M/S Fascination, which flies a Bahamian flag, on September 23, 2007, when he was injured. Later in December 2008, Plaintiff was working aboard the M/V Valor, which flies a Panamanian flag, when he suffered a second injury. On May 21, 2007, and again on August 24, 2008, Plaintiff signed a Seafarer's Agreement with Carnival which governed the parties' employment relations during the relevant times. Both contained the same relevant arbitration provision: ... any and all disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, or Seafarer's service on the vessel, shall be referred to and finally resolved by arbitration under the American Arbitration *1340 Association/Internal Centre for Dispute Resolution International Rules, which Rules are deemed to be incorporated by reference to this clause.... Seafarer agrees to appear for medical examinations by doctors designated by CCL in specialties relevant to any claims Seafarer asserts, and otherwise the parties agree to waive any and all rights to compel information from each other. (D.E. No. 3-1.) The agreement went on to provide a separate choice-of-law provision as follows: This Agreement shall be governed by, and all disputes arising under or in connection with this Agreement or Seafarer's service on the vessel shall be resolved in accordance with, the laws of the flag of the vessel on which Seafarer is assigned at the time the cause of action accrues, without regard to principles of conflicts of laws thereunder. The parties agree to this governing law notwithstanding any claims for negligence, unseaworthiness, maintenance, cure, failure to provide prompt, proper, and adequate medical care, wages, personal injury, or property damage which might be available under the laws of any other jurisdiction. (D.E. No. 3-1.) Finally, the agreement contained a severability clause, as follows: If any provision, term, or condition of this Agreement is invalid or unenforceable for any reason, it shall be deemed severed from this Agreement and the remaining provisions, terms, and conditions of this Agreement shall not be affected thereby and shall remain in full force and effect. (D.E. No. 3-1.) II. Analysis "In deciding a motion to compel arbitration under the Convention Act, a court conducts a very limited inquiry." Bautista v. Star Cruises, 396 F.3d 1289 , 1294 (11th Cir.2005) (internal quotations and citations omitted). First, the Court must consider whether four jurisdictional prerequisites are met. Id. These four conditions are that "(1) there is an agreement in writing within the meaning of the Convention; (2) the agreement provides for arbitration in the territory of a signatory of the Convention; (3) the agreement arises out of a legal relationship, whether contractual or not, which is considered commercial; and (4) a party to the agreement is not an American citizen, or that the commercial relationship has some reasonable relation with one or more foreign states." Id. at 1294 n. 7. If those four conditions are met, the Court must then consider whether an affirmative defense under the Convention bars arbitration. Id. at 1294; Thomas v. Carnival Corp., 573 F.3d 1113 , 1117 (11th Cir.2009). In this case, it is undisputed that the arbitration agreement falls within the scope of the Convention. There is an agreement in writing. It provides for arbitration in the ships' flag states, Panama and the Bahamas, which are signatories to the Convention. It arises out of a legal relationship that is considered commercial, and a party to it is not an American citizen. Accordingly, this Court's review is limited to the affirmative defenses. The Convention provides the following affirmative defense [1] to arbitration: *1341 Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that ... [t]he recognition or enforcement of the award would be contrary to the public policy of that country. Article V(2)(b). In this case, Plaintiff argues that the prospective waiver doctrine bars enforcement of the arbitration agreement as contrary to public policy. The prospective waiver doctrine derives from Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 , 105 S. Ct. 3346 , 87 L. Ed. 2d 444 (1985). In a footnote in that case, the Supreme Court noted that "in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy." Id. at 637 n. 19, 105 S. Ct. 3346 . In Thomas v. Carnival Corp ., the Eleventh Circuit applied the prospective waiver doctrine to nullify an arbitration agreement that mandated arbitration in the Philippines and application of Panamanian law. Thomas, 573 F.3d at 1123. The Eleventh Circuit held that because the arbitration clause specified that the arbitrator had to apply Panamanian law, the arbitration clause effectively waived and foreclosed on the plaintiff's rights under the Seaman's Wage Act. Id. at 1123-24. In Thomas, the Eleventh Circuit explicitly stated that "[t]he important question... is choice of law: What law will apply in that arbitral forum?" Id. at 1121. The Supreme Court "has held that arbitration clauses should be upheld if it is evident that either U.S. law definitely will be applied or if, there is a possibility that it might apply and there will be later review." Thomas, 573 F.3d at 1123 (emphasis in original). This Court agrees with the numerous cases in this district that have held that the reasoning in Thomas also applies to Jones Act claims. See, e.g., Odom v. Celebrity Cruises, Inc., No. 10-cv-23086-AJ (S.D.Fla. Feb. 23, 2011); Meneses v. Carnival Corp., 731 F. Supp. 2d 1332 , 1335 (S.D.Fla.2010). Because the arbitration clause at issue here contains a choice-of-law provision that forecloses on the application of U.S. law, it is void under Thomas. In the alternative, Defendant asserts that the Court should sever the choice-of-law provision in the agreement and compel arbitration of Plaintiff's claims with the law to be determined by the arbitrator. [2] "Courts `faced with arbitration agreements proscribing statutorily available remedies ... have either severed the illegal provision and ordered arbitration, or held the entire agreement unenforceable.'" Krstic v. Princess Cruise Lines, Ltd., 706 F. Supp. 2d 1271 , 1280 (S.D.Fla. 2010) (quoting Perez v. Globe Airport Sec. Services, Inc., 253 F.3d 1280 , 1286 (11th Cir.2001), vacated on other grounds, 294 F.3d 1275 (11th Cir.2002)). In considering whether to sever a choice-of-law provision, the Court should consider both the strong federal interest in favor of arbitration, see Rent-A-Center, Inc. v. Jackson, U.S. , 130 S. Ct. 2772 , 177 L. Ed. 2d 403 (2010), and whether the unenforceable *1342 choice-of-law clause is embedded in the arbitration provision. Krstic, 706 F.Supp.2d at 1280-81; Dockeray v. Carnival Corp., 724 F. Supp. 2d 1216 , 1227 (S.D.Fla.2010). Choice-of-law provisions embedded within arbitration provisions that limit statutory remedies are problematic to sever. Id. On the other hand, it is appropriate to sever stand alone choice-of-law provisions in agreements that expressly provide for the severance of unenforceable provisions. Id. If the Court severs the choice-of-law provision, there is a possibility that U.S. law might apply. At issue then is whether there will be later review if this Court retains jurisdiction to enforce the award. In Thomas, the Eleventh Circuit noted that the Seaman's Wage Act statutory claim was the only claim and "[i]f, applying Panamanian law, Thomas receives no award in the arbitral forum a distinct possibility given the U.S. based nature of his claim he will have nothing to enforce in U.S. courts, which will be deprived of any later opportunity to review." Id. at 1124. The Court notes that, although there is a significant split of authority in this district regarding the application of Thomas, district courts analyzing whether or not there was a "subsequent opportunity for review" have often looked to whether there is a "distinct possibility" that the plaintiff would not recover anything due to the arbitrator applying foreign law to a U.S. claim. See, e.g., Meneses v. Carnival Corp., 731 F. Supp. 2d 1332 , 1335 (S.D.Fla. 2010); Cardoso v. Carnival Corp., No. 09-23442-CIV, 2010 WL 996528 , at *3 (S.D.Fla. Mar. 16, 2010). In this case, the Plaintiff's claims for unseaworthiness are based in common law, rather than United States statutory law. Thus, Plaintiff will have a claim to pursue through arbitration even if the arbitrator does not apply U.S. law. This Court will retain jurisdiction to enforce the award and, by doing so, to review whether or not the arbitrator applied U.S. law to Plaintiff's Jones Act claim. See Mitsubishi, 473 U.S. at 638, 105 S. Ct. 3346 ("While the efficacy of the arbitral process requires that substantive review at the award-enforcement stage remain minimal, it would not require intrusive inquiry to ascertain that the tribunal took cognizance of the [United States] claims and actually decided them.") (internal citations and quotations omitted). Moreover, as Judge Altonaga pointed out in Dockeray, if the arbitrator does not apply U.S. law and if the Plaintiff also does not prevail on his unseaworthiness claim, it will still be possible for him to obtain later review in the event that Carnival attempts to argue res judicata when Plaintiff later re-raises his statutory claims. Dockeray, 724 F.Supp.2d at 1227 n. 3 (citing Pike v. Freeman, 266 F.3d 78 , 90-91 (2d Cir. 2001)). Plaintiff's remaining argument against compelling arbitration is that amendments to the Jones Act that incorporate the Federal Employers' Liability Act ("FELA") serve to prohibit the arbitration agreement in this case. This argument has been considered and rejected by numerous courts in this district. See Hodgson v. Royal Caribbean Cruises, Ltd., 706 F. Supp. 2d 1248 , 1260 (S.D.Fla.2009) ("The repeal of the venue provision is no reason to conclude that Congress has intended to exempt the Jones Act where the Convention applies"); Vesuna v. C.S.C.S. Intern., N.V., No. 09-20286-CIV-SEITZ, 2009 WL 4543319 , *1 (S.D.Fla. Nov. 30, 2009) ("holding that the 2008 amendments to the Jones Act do not change existing law"); Allen v. Royal Caribbean Cruise, Ltd., No. 08-22014-CIV, 2008 WL 5095412 , at *6, aff'd 353 Fed.Appx. 360 (11th Cir.2009) (enforcing arbitration despite the Jones Act and FELA); Acosta v. Norwegian Cruise Line, Ltd., 303 F. Supp. 2d 1327 , 1331 (S.D.Fla.2003) (discussing application of FELA to the Jones Act and concluding it *1343 does not prevent removal). Accordingly, the Court concludes that the amendments do not prevent arbitration. After careful consideration, it is hereby: ORDERED AND ADJUDGED that 1. The choice-of-law provision in the parties' agreement is void and is severed. 2. Defendant's Motion to Dismiss and Compel Arbitration (D.E. No. 3) is GRANTED. 3. The Court shall retain jurisdiction to enforce the arbitral award. 4. This case is CLOSED, and all pending motions are DENIED AS MOOT. NOTES [1] Technically, Article V(2)(b) is codified as a defense to the enforcement of arbitration rather than as an affirmative defense to the arbitration itself. However, pursuant to the Supreme Court's language in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 , 105 S. Ct. 3346 , 87 L. Ed. 2d 444 (1985), see infra, the Eleventh Circuit has treated it as an affirmative defense. See Thomas, 573 F.3d at 1124 (holding pursuant to Article V(2)(b) that arbitration should not be compelled). [2] Defendant did not raise severance in its initial brief to compel arbitration, and the Court will not ordinarily consider arguments raised for the first time in a reply brief. Plaintiff, however, raised the possibility of severance in his response brief, also arguing in the alternative that the Court should sever the choice-of-law provision. The Court concludes that Plaintiff will not be prejudiced by the Court's consideration of the issue, given that Plaintiff raised it.
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| null |
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| 0 |
Salinas v. Carnival Corp.
| null |
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| null | null |
<parties id="b1378-3">
Marco Esteban Valdivia SALINAS, Plaintiff, v. CARNIVAL CORPORATION d/b/a Carnival Cruise Lines, Defendant.
</parties><br><docketnumber id="b1378-5">
Case No. 10-20910-CIV.
</docketnumber><br><court id="b1378-6">
United States District Court, S.D. Florida, Miami Division.
</court><br><decisiondate id="b1378-9">
March 28, 2011.
</decisiondate><br><attorneys id="b1379-9">
<span citation-index="1" class="star-pagination" label="1339">
*1339
</span>
Elias Benzo Rudnikas, Mark Lee Stokes, Stokes & Gonzalez, Miami, FL, for Plaintiff.
</attorneys><br><attorneys id="b1379-10">
Scott P. Mebane, Valentina M. Tejera, Mase, Lara, Eversole P.A., John Maurice Mitchell, Carnival Cruise Lines, Miami, FL, for Defendant.
</attorneys>
| null | null | null | null | null | null | 2,053,060 |
Case 10-20910-CIV
| 0 |
flsd
|
FD
|
t
|
S.D. Florida
|
District Court, S.D. Florida
|
4,228,145 |
In The Court of Appeals Seventh District of Texas at Amarillo No. 07-16-00005-CV PATRICK AND JODEE PENCE, APPELLANTS V. S&D BUILDERS, LLC, S&D DEVELOPMENT, LLC, LANGE CUSTOM BUILDERS, LLC, STEVEN M. LANGE, SUMMIT OAK HOMES, LLC AND DAVID C. OESTREICH, APPELLEES On Appeal from the 274th District Court Comal County, Texas Trial Court No. C2007-1311C; Honorable Dib Waldrip, Presiding December 11, 2017 MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ Appellants, Patrick and Jodee Pence, appeal from the trial court’s order dismissing their breach of contract case against Appellees, S&D Builders, S&D Development, LLC, Lange Custom Builders, LLC, Steven M. Lange, Summit Oak Homes, LLC, and David C. Oestreich (hereinafter collectively “S&D”). By a single issue, the Pences contend the trial court abused its discretion in dismissing their case for want of prosecution.1 We reverse and remand. BACKGROUND In 2005, the Pences and S&D entered into a contract for construction of a home. For the next few years, the Pences reported numerous problems with the home and eventually filed a complaint against S&D with the Texas Residential Construction Commission for not addressing defects with the new home. When the defects were not resolved, in late 2007, the Pences filed suit alleging numerous claims, including breach of contract against S&D. They also requested a jury. In 2009, the Pence’s suit was transferred to the trial court’s “drop docket” and notice was provided that the suit would be dismissed for want of prosecution on August 19, 2009. The notice instructed the Pences that a motion to retain the suit on the docket was required to be filed no later than August 17th. The Pences moved to retain the suit on the docket and the trial court signed an order setting the case for a nonjury trial to begin on November 17, 2009. Thereafter, S&D moved to abate the case and compel the Pences to arbitration pursuant to the terms of their contract. By order entered on November 9, 2009, the parties agreed to remove the case from the trial docket and submit the dispute to arbitration. 1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Third Court of Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R. APP. P. 41.3 2 However, no arbitration or activity occurred for several years and the case remained pending while the Pences were without legal counsel. On July 17, 2013, the case was again transferred to the trial court’s “drop docket” with a notice advising that a motion to retain setting forth good cause to avoid dismissal was required to be filed no later than August 26, 2013. This time the trial court ordered that the case be retained on the docket with a new trial setting of October 29, 2013. Again, for reasons unknown, trial did not proceed as scheduled. Meanwhile, between March 16, 2014, and May 16, 2014, counsel for the Pences sent three letters to S&D asking for its cooperation to move forward with arbitration. None of the letters were answered and S&D’s attorneys apparently withdrew from the case. In July 2014, the Pences filed a Motion to Enforce Order to Compel Arbitration. The next month, S&D filed a Suggestion of Bankruptcy that further stayed the proceedings. Due to the bankruptcy, the Pences asked the trial court to cancel a setting scheduled for August 20, 2014. In August 2015, after the automatic stay was lifted on S&D’s bankruptcy, the Pences amended their petition to add new parties and claims. S&D answered and filed a counterclaim on September 2, 2015. On September 22, 2015, counsel for S&D sent a facsimile to the Pences’ counsel confirming that the parties had agreed to litigate the case and waive their rights to enforce arbitration under their contract. However, the very next day, S&D filed its Motion to Dismiss for Want of Prosecution citing a violation of Rule 165a of the Texas Rules of Civil Procedure as well as the trial court’s inherent power to dismiss a case for want of prosecution. 3 On September 29, 2015, the Pences filed their motion to set the case for trial on the court’s jury docket for January 18, 2016. S&D then filed a motion to strike the Pences’ request for a jury trial based on their original contract which provided, in part, that the purchaser (here the Pences) “voluntarily and knowingly waives any right he/she may have to a jury trial.” Subject to its motion to strike the Pences’ request for a jury trial setting, S&D requested that the January 2016 jury trial setting be continued to a date that was mutually convenient to the parties and their counsel. On October 19, 2015, the Pences responded to S&D’s motion to dismiss by blaming S&D for the numerous delays and its refusal to cooperate with court-ordered arbitration. The Pences alleged that there was a jury trial setting for January 18, 2016, and that S&D had failed to comply with the procedural requirements of Rule 165a of the Texas Rules of Civil Procedure for seeking a dismissal for want of prosecution. Specifically, they complained that S&D failed to give adequate notice of the trial court’s intent to dismiss under either Rule 165a or the trial court’s inherent power. A hearing was held on October 21st. Following that hearing, on November 6, 2015, the trial court granted the motion for dismissal for want of prosecution without specifying whether it was based on a violation of Rule 165a or on its inherent power. APPLICABLE LAW A trial court’s authority to dismiss a case for want of prosecution stems from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure and (2) the court’s inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 , 620 (Tex. 1999). A party must be provided notice and an opportunity to be heard before a court may dismiss a case for want of prosecution. Id. 4 Under Rule 165a, the court may dismiss a case for want of prosecution on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.” TEX. R. CIV. P. 165a. Dismissal is also appropriate when a case is not disposed of within the time standards promulgated by the Supreme Court under its Administrative Rules. Id. at (2).2 The trial court has the inherent power to dismiss a case independently of Rule 165a when a plaintiff fails to prosecute his case with due diligence. Villarreal, 994 S.W.2d at 630 (citing Rizk v. Mayad, 603 S.W.2d 773 , 776 (Tex. 1980)). Notice to a party and an opportunity to be heard before dismissing a case for want of prosecution is essential whether dismissed under Rule 165a or the court’s inherent power. General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942 , 943 (Tex. 1991). Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record . . . .” (Emphasis added). TEX. R. CIV. P. 165a(1). Due process requires that adequate notice be given before an order is entered dismissing a suit for want of prosecution and failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal. Donnell v. Spring Sports, Inc., 920 S.W.2d 378 , 386 (Tex. App.—Houston [1st Dist.] 1996, writ denied). STANDARD OF REVIEW We apply an abuse of discretion standard when reviewing a dismissal for want of prosecution. James B. Bonham Corp. v. City of Corsicana, 528 S.W.3d 554 , at *2 (Tex. 2Rule 6.1(b) of the Rules of Judicial Administration provide that a civil case (other than family law) be disposed of within eighteen months from the appearance date for a jury trial or within twelve months for a nonjury trial. 5 App.—Texarkana 2016, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28 , 31 (Tex. 2010) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 , 241-42 (Tex. 1985)). Where the dismissal order does not specify the reason for dismissal, it will be affirmed on any proper ground. Seals v. Seals, 83 S.W.3d 870 , 873 (Tex. App.—Texarkana 2002, no pet.). ANALYSIS By its sole issue, the Pences maintain the trial court abused its discretion in dismissing their suit under the circumstances of this case. We agree. We acknowledge that the underlying case has a long and arduous history with numerous substitutions of counsel on both sides and that it had been pending on the docket of the trial court for an inordinate amount of time. The Pences blame the delays on S&D, its bankruptcy, and its dilatory practices. Twice before the trial court accepted the Pences’ explanations for delays and removed the case from its drop docket in 2009 and again in 2013. After the case was retained on the court’s docket in 2009, S&D moved to compel arbitration; however, S&D did not cooperate. When the court again retained the case on the docket in 2013 and set a new trial date, S&D’s counsel wrote the court administrator and requested that the case be removed from the trial docket so the matter could proceed to arbitration. Despite its request to remove the case from the trial docket to arbitrate the matter, S&D failed to answer three letters sent over a three-month period in 2014 when the Pences moved to enforce the prior order to compel arbitration. S&D then filed its 6 Suggestion of Bankruptcy resulting in an additional delay. On September 23, 2015, just one day after the parties agreed to waive the rights to enforce the arbitration provision in their contract and proceed to trial, S&D moved to dismiss the case for want of prosecution. The Pences then promptly set the case for trial and a Notice of Hearing showing a jury trial setting for January 18, 2016, was issued. At a hearing on October 21, 2015, S&D’s counsel indicated to the trial court that he was unavailable for the January 18 trial setting. At that same hearing, counsel for the Pences indicated that they would waive a jury trial if the case could just be tried. The trial court then set aside December 1, 2015, for a nonjury trial setting and both counsel announced that they would be available. On November 5, 2015, counsel for the Pences contacted the trial court’s staff and indicated that although he would be available on December 1, his clients would not be available until after December 16. The next day, without a hearing or further notice to the parties of its intent to dismiss the case, the trial court signed an order dismissing the Pences’ lawsuit. Although the order acknowledges the previous January 2016 jury trial setting and the December 1 non-jury trial alternative, the court noted: Yesterday, [the Pences’] counsel called the Court’s staff to inform the Court that although he would be ready on December 1st that his clients would not be available until after December 16th. This Court has no available 2015 dockets after the 15th, and considering the entire protracted history of the case, including this case’s complete dormancy from November 2009 through August 2014, the Court finds that eight years is in excess of sufficient time to try a two-day case. Thus, the Court further concludes the matter should not be carried over into a ninth year, and the case is DISMISSED. The tone of the order expresses the exasperation of the trial court in trying to get the matter to trial. When the apparently-agreed-to nonjury trial setting of December 1, 7 2015, was in jeopardy, the mere suggestion that a new ground for continuance was on the horizon was evidently more than the trial court could take. With a trial setting in place and without sending any notice of its new intent to dismiss the case for want of prosecution, the trial court sua sponte signed an order of dismissal. At that point, whether the Pences had exercised due diligence in the prosecution of their case was not the question. Instead, the disposition of this appeal turns on the lack of notice of the court’s newly-formed intent to dismiss the case for want of prosecution. Without notice, reversal is warranted. See Donnell, 920 S.W.2d at 386 . Accordingly, we find it was an abuse of discretion to dismiss the Pences’ claims for want of prosecution. General Elec. Co., 811 S.W.2d at 943 . The Pences’ sole issue is sustained. CONCLUSION The trial court’s Order Dismissing Cause for Want of Prosecution is reversed and the cause is remanded to the trial court for further proceedings. Patrick A. Pirtle Justice 8
|
opinion_html_with_citations
| 2,177 |
2017-12-12 22:29:34.453864+00
|
010combined
|
f
|
f
| 4,450,892 | null | null |
C
|
f
|
Published
| 0 |
Patrick Pence and Jodee Pence v. S&D Builders, LLC S&D Development, LLC Lange Custom Builders, LLC Steven M. Lange Summit Oak Homes, LLC And David C. Oestreich
| null | null | null | null | null | null | null | null | null | null | null | 6,240,495 |
07-16-00005-CV
| 0 |
texapp
|
SA
|
t
|
Court of Appeals of Texas
|
Court of Appeals of Texas
|
2,591,731 |
27 N.Y.2d 917 (1970) In the Matter of The Estate of Jesse Carll, Deceased. Dolly M. Wright, as Executrix of Jesse C. Wright, Deceased, Successor Trustee, et al., Respondents; Curtis P. Wright, Appellant. Court of Appeals of the State of New York. Argued November 16, 1970. Decided December 9, 1970. Sanford Solarz and Everett Frooks for appellant. Frank J. Mack for objectors-respondents. No appearance for petitioner-respondent. Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON. Order affirmed on the opinion at the Appellate Division, with costs to all parties appearing separately and filing separate briefs payable out of the estate.
|
opinion_html_with_citations
| 104 |
2013-10-30 10:58:10.563783+00
|
010combined
|
f
|
f
| 2,591,731 | null | null |
LU
|
f
|
Published
| 0 |
In Re the Estate of Carll
|
In re Carll
|
In the Matter of the Estate of Jesse Carll, Deceased. Dolly M. Wright, as Executrix of Jesse C. Wright, Deceased, Successor Trustee, Et Al., Respondents; Curtis P. Wright, Appellant
| null | null |
<parties id="b957-9">
In the Matter of the Estate of Jesse Carll, Deceased. Dolly M. Wright, as Executrix of Jesse C. Wright, Deceased, Successor Trustee, et al., Respondents; Curtis P. Wright, Appellant.
</parties><br><otherdate id="b957-12">
Argued November 16, 1970;
</otherdate><decisiondate id="AdP">
decided December 9, 1970.
</decisiondate><br><attorneys id="b959-4">
<span citation-index="1" class="star-pagination" label="919">
*919
</span>
<em>
Sanford Solarz
</em>
and
<em>
Everett Frooks
</em>
for appellant.
</attorneys><br><attorneys id="b959-5">
<em>
Frank J. Mack
</em>
for objectors-respondents.
</attorneys><br><attorneys id="b959-6">
No appearance for petitioner-respondent.
</attorneys>
| null | null | null | null | null | null | 2,465,558 | null | 0 |
ny
|
S
|
t
|
New York Court of Appeals
|
New York Court of Appeals
|
6,698,247 |
Per Curiam. Affirmed on authority of what was said in Smith v. Miller, 158 N. C., 98, 73 S. E., 118. Affirmed.
|
opinion_xml_harvard
| 22 |
2022-07-20 22:00:59.57295+00
|
020lead
|
t
|
f
| 6,811,721 | null | null |
U
|
f
|
Published
| 0 |
Hines v. Peedin
|
Hines
|
MILDRED BATTEN HINES v. PEARL ROSE PEEDIN
| null | null | null | null | null | null | null | null | null | 63,793,224 | null | 0 |
nc
|
S
|
t
|
Supreme Court of North Carolina
|
Supreme Court of North Carolina
|
9,719,932 |
DUNN, J., Concurring and Dissenting.—I concur in the reversal because of the trial court’s error in admitting defendant’s statements. However, I dissent from that part of the opinion that holds it was errqr for the trial judge to permit the testimony of Mrs. Parker regarding experiments. *438I also dissent from the publication of this opinion, because of rule 976(b), California Rules of Court (see my conc. opn. in People v. Reyes (1976) 62 Cal.App.3d 53 [132 Cal.Rptr. 848]). Regarding Mrs. Parker’s, testimony, a nonexpert witness is permitted by Evidence Code section 800 to testify concerning these matters: “(a) Rationally based on the perception of the witness; and (b) Helpful to a clear understanding of his testimony.” Permission so to testify properly may have been given by the trial court. (Nolan v. Nolan (1909) 155 Cal. 476, 480-481 [101 P. 520].) Mrs. Parker testified as follows: “A. Well, I tried to—from the outside I tried to reach around and take the chain off, just slide it off the hook. “Q. And did you try to do this by getting your arm in as far as you possibly could? “A. Yes, sir. It was impossible because the door would not close enough. You don’t have enough leeway to reach your hand in. “Q. Did you see me attempt it? “A. Yes, sir. “Q. Where were you when I did this? “A. I was watching also. “Q. Did you see if my entire arm got inside the door? “A. It was impossible because there’s—the space is very, very narrow. You can’t get a hand in.” To a juror not familiar with door chains, this would have been, and was, helpful evidence. The court, without any limitation, permitted cross-examination regarding the experiment. Furthermore, I cannot concur with the majority’s statement that “the credibility of Mrs. Parker relative to whether the chain had been placed on the door was subject to serious question because her testimony . . . *439was predicated upon habit. . . .” It was not; her testimony about the chain on the door was based upon recollection. She gave direct testimony to that effect. I would reverse the judgment but for the reasons stated, and not by virtue of the evidence regarding experimental matters. A petition for a rehearing was denied January 11, 1977, and respondent’s petition for a hearing by the Supreme Court was denied February 23, 1977.
|
opinion_xml_harvard
| 398 |
2023-08-26 08:09:34.015842+00
|
035concurrenceinpart
|
f
|
f
| 2,114,506 |
Jefferson (Bernard)
| null |
LU
|
f
|
Published
| 13 |
People v. Allen
|
Allen
|
The PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN, Defendant and Appellant
| null | null |
<docketnumber data-order="0" data-type="docketnumber" id="b428-3">
[Crim. No. 28111.
</docketnumber><court data-order="1" data-type="court" id="A0e">
Second Dist., Div. Four.
</court><decisiondate data-order="2" data-type="decisiondate" id="AET">
Dec. 28, 1976.]
</decisiondate><br><parties data-order="3" data-type="parties" id="b428-4">
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALLEN, Defendant and Appellant.
</parties><br><p data-order="4" data-type="attorneys" id="b431-6">
<span citation-index="1" class="star-pagination" label="429">
*429
</span>
Counsel
</p><br><p data-order="5" data-type="attorneys" id="b431-7">
Thomas M. Hagler, under appointment by the Court of Appeal, for Defendant and Appellant.
</p><br><p data-order="6" data-type="attorneys" id="b431-8">
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and James H. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
</p>
| null | null | null | null | null | null | 1,964,190 |
Crim. 28111
| 0 |
calctapp
|
SA
|
t
|
California Court of Appeal
|
California Court of Appeal
|
2,592,881 |
722 F. Supp. 709 (1989) Michael KING, Plaintiff, v. EASTERN CRUISE LINES, et al., Defendants. Civ. A. No. 88-495-AH. United States District Court, S.D. Alabama, S.D. March 10, 1989. As Corrected on Denial of Motion to Amend, Alter or Vacate June 30, 1989. Michael G. Huey, Mobile, Ala., for plaintiff. David M. O'Brien, Mobile, Ala., for defendants. ORDER HOWARD, Chief Judge. This matter is before the Court on the defendants' motion for summary judgment (# 5). The plaintiff filed a response to the motion (# 9½) and the defendants filed a reply to the response (# 10). The issue presented by the motion is whether the plaintiff's action is time-barred. To determine that issue the Court must decide whether the one year time limitation provision for bringing suit against the defendants as found in the passenger ticket issued to the plaintiff is reasonable as a matter of law. After due consideration the Court is of the opinion that the motion for summary judgment is due to be granted. The Court's findings of fact and conclusions of law are set forth as follows. FINDINGS OF FACT 1. The plaintiff, Michael King, alleges that he was injured while a passenger aboard one of the defendants' cruise ships, namely, the SS Emerald Seas. Mr. King is a citizen of the state of Alabama. It is undisputed that the plaintiff was a passenger on the SS Emerald Seas on December 30, 1985, the date of the alleged injury. It is undisputed that at all times relevant the SS Emerald Seas was owned and operated by defendant Eastern Steamship Lines, Inc. Eastern Cruise Lines and Eastern/Western Cruise Lines are trade names that were utilized by Eastern Steamship Lines, Inc. in the operation of the SS Emerald Seas. [1] The defendant is a corporation incorporated under the laws of the Republic of Liberia. Its principal place of business is Miami, Florida. 2. Plaintiff and three companions flew from Mobile, Alabama, to Miami, Florida, on December 30, 1985, and boarded the SS Emerald Seas approximately between *710 12:00 1:00 p.m. the same day. (King depo. p. 42). 3. Plaintiff took delivery of the airline and cruise tickets for each member of his party in Mobile and maintained possession of both the airline and cruise tickets of each member of his party until after they had boarded the SS Emerald Seas. ( Id., pp. 39-40.). 4. Prior to boarding the SS Emerald Seas, the plaintiff delivered to the Eastern Steamship Lines, Inc.'s agent at the dockside the package of documents containing the passenger ticket contracts for plaintiff and his party. After inspecting the documents, the agent detached the pier coupon and accounting coupon from each passenger ticket contract and returned the remaining portions of the passenger ticket contracts to plaintiff, including that portion of the ticket contracts containing the terms and conditions of the ticket contracts found on pages 6, 7, and 8 of said contracts. (King depo. p. 39; Walter L. Reinhart affidavit, pp. 1-2). 5. The plaintiff has not produced for the Court the actual passenger ticket contract issued to the plaintiff. In support of the motion for summary judgment the defendants have supplied a photocopy of the passenger ticket contract in use at the time of plaintiff's trip. (Reinhart affidavit, p. 2). The plaintiff does not allege that this ticket is unrepresentative of the ticket contract he was issued for the December 30, 1985 trip. 6. The face page of the ticket is aesthetically simple. There is (what is apparently) the defendants' logo symbol three rectangular blocks on top of each other approximately 1¾" high and the same measure wide, with rounded left edges, centered on the page. Below the logo is the defendant Eastern Cruise Lines' name in bold 1/8 " print. Immediately following the defendant's name is the defendant's Florida address and phone number in 1/16" print. The background of the ticket contract appears to be white. There is a very thin line running around the edges of the page. Other than this border, there is no other decoration or delineating markings. In the top right corner is the statement: ISSUED SUBJECT TO TERMS AND CONDITIONS PRINTED ON PAGES 6, 7 AND 8 OF THIS CONTRACT TICKET. NOT TRANSFERABLE This statement is over ½" in height and 1½" in width. It is in bold print. It is conspicuously set off from the logo. Indeed, there are only three items on the face page: the logo, the defendant's name and address, and the statement in question. Although the Court does not have the benefit of viewing the ticket in color, it is, nevertheless, clear that the statement is not hidden, nor is it crowded out by other items on the page. The statement is conspicuous, obvious, eye-catching and easy to understand. 7. The terms and conditions on pages 6, 7, and 8 to which the ticket contract holder is referred in the statement on the face page are in small, but legible, print. There are 23 numbered paragraphs of terms and conditions contained on pages 6-8. Paragraph 13 is the provision which informs the ticket contract holder that personal injury actions against the defendant must be brought within one year of the date of the alleged injury. [2] It is important that of the *711 23 numbered paragraphs, only paragraph 13 is in bold print. Additionally, of the 23 numbered paragraphs, only paragraph 13 is in all capital letters. Although the time limitation provision is not very large, it is not buried in an obscure position. To the contrary, its bold, capital letters make paragraph 13 stand out from the rest of the terms and conditions contained on those pages. CONCLUSIONS OF LAW 1. This Court has jurisdiction pursuant to 28 U.S.C. § 1332. 2. As other courts have noted, 46 U.S.C. App. § 183b(a) "allows owners, operators and agents of sea-going vessels to limit their liability for personal injury or death to cases in which suit has been instituted within one year of the date when the death or injury occurred." Strauss v. Norwegian Caribbean Lines, Inc., 1985 A.M.C. 1760 , 1762, 613 F. Supp. 5 , 7 (E.D.Penn. 1984) ( citing Barbachym v. Costa Line, Inc., 1984 A.M.C. 1484 , 1487, 713 F.2d 216 , 218 (6th Cir.1983); DeNicola v. Cunard Line, Ltd., 1981 A.M.C. 1388 , 642 F.2d 5 (1st Cir.1981); Catterson v. Paquet Cruises, Inc., 1981 A.M.C. 1924 , 1925-26, 513 F. Supp. 645 , 645-47 (S.D.N.Y.1981). 3. The former Court of Appeals for the Fifth Circuit stated the governing rules as follows: Conditions and limitations in contracts for the carriage of passengers by water have been held valid, and when placed in the body of a passage contract for an ocean voyage, so as to be a part thereof, they become binding on the passenger by his mere acceptance of the ticket within such a time as to give him an ample opportunity to examine its contents. It is not necessary that the passenger have actual knowledge of such conditions or limitations or that his attention be called to them. The failure or inability of the passenger to read his ticket does not preclude his being bound by such conditions and limitations, provided they are not unlawful in content. Conditions printed on the back of the passenger's contract ticket will bind a passenger in the same manner as those appearing on the face, if, on the face of the ticket and as part of the contract, it is stated that the ticket is issued subject to the conditions printed on the back thereof, or if sufficient reference to such conditions is made on the face of the ticket. In the absence of a reference in the passenger contract sufficient to incorporate as a part thereof conditions appearing on the back, stipulations or conditions so printed form no part of the contract and do not bind the passenger unless his attention has been called to them or it is shown that he knew or had reason to know of their existence. Carpenter v. Klosters Rederi A/S, 604 F.2d 11 , 13 (5th Cir.1979) ( quoting 80 C.J.S. Shipping § 182, p. 1098 et seq. ) 4. The court continued, stating, "The controlling principle is that there must be adequate notice to the passenger of the suit time limitation and that such limitation be a part of the contract of such passage by the inclusion or incorporation by reference of such limitation." Carpenter, 604 F.2d at 13. 5. For the defendant to be entitled to rely on the period of limitations provision as contained in the ticket contract, the defendant must establish that it "made reasonable efforts to bring the contract terms to the passenger's attention." Strauss, 1985 AMC at 1762, 613 F. Supp. at 7 . 6. As Judge Friendly noted in his review of the applicable caselaw, "the thread that runs implicitly through the cases sustaining incorporation is that the steamship line had done all it reasonably could to *712 warn the passenger that the terms and conditions were important matters of contract affecting his legal rights." Silvestri v. Italia Societa Per Azioni Di Navigazione, 388 F.2d 11 , 17 (2d Cir.1968). 7. More specifically, "courts [generally] have held that a carrier has not made a `reasonable' effort to warn passengers of its liability limitations unless the face of the ticket contains conspicuous language directing the passenger's attention to the contractual terms contained in other material furnished by the carrier." Barbachym, 713 F.2d at 219. 8. Whether the ticket contract in question meets the applicable "reasonableness" standard is a question of law to be decided by the Court. Hence, summary judgment on the issue is appropriate. Carpenter, 604 F.2d at 13; Barbachym, 713 F.2d at 218; DeNicola, 642 F.2d at 11. 9. After a review of the authorities and the passenger ticket contract in question in the instant action, the Court concludes that the notice on the face of the ticket contract is sufficiently eye-catching and conspicuous to communicate reasonably to the passenger that the terms and conditions found on pages 6, 7, & 8 were incorporated into the ticket contract. The plaintiff had possession of the ticket contract prior to his airplane trip to Miami (where the cruise trip began). At the time of boarding the SS Emerald Seas, the defendant's agent detached the pier coupon and the accounting coupon; the plaintiff retained possession of the remainder of the ticket contract, including the face page and the pages containing the terms and conditions of the ticket contract. As the Court listed in its findings of fact, the reference statement on the face page is conspicuous, eye-catching, and easy to understand. 10. The actual term and condition which sets forth the time period limitation cannot be said to be inconspicuous or hidden. There are (only) 23 paragraphs listed on pages 6, 7, & 8 noticeably less than the number involved in the Silvestri case. [3] Furthermore, the key paragraph, number 13, is, in contrast to the other 22 paragraphs, in bold print. Also in contrast to the other 22 paragraphs, paragraph 13 is in all capital letters. All of the terms and conditions are in legible, albeit small, print. Viewed in its entirety, the time period limitation paragraph cannot be said to be inconspicuous or hidden. 11. The ticket contract holder is clearly directed to the terms and conditions of the ticket contract by the conspicuous notice on the face page, and the holder is sufficiently informed that such terms and conditions are a part of the ticket contract. Plus, the ticket contract holder is informed of the precise pages on which the terms and conditions are located. The term and condition in question is eye-catching because of its bold, all-capital printing. The Court concludes that the notice by the defendant to the plaintiff of the time-period limitation for bringing suit for personal injury was reasonable, that the statement on the face page of the ticket contract reasonably communicated to the ticket holder (the plaintiff) that the ticket contract was subject to the terms and conditions listed on pages 6, 7, & 8, and that term and condition # 13 was sufficiently conspicuous to communicate to the holder that that provision was important. 12. For the foregoing reasons, the Court concludes that the defendant is entitled to summary judgment. Plaintiff's action is time-barred because of his failure to file suit against the defendant within the one-year limitation period as required by paragraph 13 of the ticket contract in question. It is ORDERED that the motion for summary judgment is GRANTED. Judgment shall be entered by a separate document. NOTES [1] Hence, the Court will refer to the named defendants in the singular. [2] Paragraph 13 states: NO SUIT SHALL BE MAINTAINABLE AGAINST THE CARRIER UPON ANY CLAIM IN CONNECTION WITH THIS TRANSPORTATION OR CONTRACT RELATING TO BAGGAGE OR ANY PROPERTY UNLESS WRITTEN NOTICE OF THE CLAIM, WITH FULL PARTICULARS, SHALL BE DELIVERED TO THE CARRIER OR ITS AGENT AT ITS OFFICE AT THE PORT OF SAILING OR AT THE PORT OF TERMINATION WITHIN THIRTY (30) DAYS AFTER TERMINATION OF THE VOYAGE TO WHICH THIS CONTRACT RELATES: AND IN NO EVENT SHALL ANY SUIT FOR ANY CAUSE AGAINST THE CARRIER WITH RESPECT TO BAGGAGE OR PROPERTY BE MAINTAINABLE UNLESS SUIT SHALL BE COMMENCED WITHIN ONE (1) YEAR AFTER THE TERMINATION OF THE VOYAGE. NO SUIT SHALL BE MAINTAINED AGAINST THE CARRIER FOR DELAY, DETENTION, PERSONAL INJURY, ILLNESS OR DEATH OF THE PASSENGER UNLESS WRITTEN NOTICE OF THE CLAIM WITH FULL PARTICULARS BE DELIVERED TO THE CARRIER OR ITS AGENT AT ITS OFFICE AT THE PORT OF SAILING OR AT THE PORT OF TERMINATION WITHIN SIX (6) MONTHS FROM THE DAY WHEN SUCH DELAY, DE- TENTION, PERSONAL INJURY, ILLNESS OR DEATH OF THE PASSENGER OCCURRED; AND IN NO EVENT SHALL ANY SUIT FOR ANY CAUSE AGAINST THE CARRIER WITH RESPECT TO DELAY, DETENTION, PERSONAL INJURY, ILLNESS OR DEATH BE MAINTAINABLE, UNLESS SUIT SHALL BE COMMENCED WITHIN ONE (1) YEAR FROM THE DAY WHEN THE DELAY, DETENTION, PERSONAL INJURY, ILLNESS OR DEATH OF THE PASSENGER OCCURRED, NOT WITHSTANDING ANY PROVISION OF LAW OF ANY STATE OR COUNTRY TO THE CONTRARY. [3] There were 35 terms and conditions involved in the Silvestri ticket contract. Silvestri, 388 F.2d at 14.
|
opinion_html_with_citations
| 2,389 |
2013-10-30 10:59:30.287494+00
|
010combined
|
f
|
f
| 2,592,881 |
Howard
| null |
LU
|
f
|
Published
| 0 |
King v. Eastern Cruise Lines
|
King
|
Michael KING, Plaintiff, v. EASTERN CRUISE LINES, Et Al., Defendants
| null | null |
<parties id="b793-6">
Michael KING, Plaintiff, v. EASTERN CRUISE LINES, et al., Defendants.
</parties><docketnumber id="AixN">
Civ. A. No. 88-495-AH.
</docketnumber><br><court id="b793-9">
United States District Court, S.D. Alabama, S.D.
</court><br><decisiondate id="b793-10">
March 10, 1989.
</decisiondate><br><otherdate id="b793-11">
As Corrected on Denial of Motion to Amend, Alter or Vacate June 30, 1989.
</otherdate><br><attorneys id="b793-12">
Michael G. Huey, Mobile, Ala., for plaintiff.
</attorneys><br><attorneys id="b793-13">
David M. O’Brien, Mobile, Ala., for defendants.
</attorneys>
| null | null | null | null | null | null | 239,857 |
Civ. A. 88-495-AH
| 1 |
alsd
|
FD
|
t
|
S.D. Alabama
|
District Court, S.D. Alabama
|
5,537,188 |
OPINION OF THE COURT Memorandum. The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts (CPL 470.40 [2] [b]; 470.25 [2] [d]). Defendant was present when his case was assigned to Trial Part and was made aware by the assigning judge’s instructions that should the parties run out of witnesses at the pretrial hearing, requiring that the hearing be adjourned, the trial was to begin at that point, or, in any event, immediately following the conclusion of the hearing. Thus, by absconding after the third day of the hearing, defendant forfeited his right to be present at trial (People v Sanchez, 65 NY2d 436). Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur. On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.
|
opinion_xml_harvard
| 168 |
2022-01-10 18:25:32.425754+00
|
020lead
|
t
|
f
| 5,688,022 | null | null |
U
|
f
|
Published
| 0 |
People v. Smith
| null |
The People of the State of New York v. Brunce Smith, Also Known as Bruce Smith, Nat Smith and Nathaniel Dickerson
| null | null | null | null | null | null | null | null | null | 62,041,466 | null | 0 |
ny
|
S
|
t
|
New York Court of Appeals
|
New York Court of Appeals
|
2,768,496 |
Case: 14-50015 Document: 00512894553 Page: 1 Date Filed: 01/08/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 14-50015 Fifth Circuit FILED Summary Calendar January 8, 2015 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff–Appellee, v. MARIO VEGA-RENOVA, also known as Arturo Vega Renova, Defendant–Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:13-CR-1450 Before PRADO, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * Mario Vega-Renova (Vega) pleaded guilty to illegal reentry of a deported alien, and he was sentenced to 41 months of imprisonment. Vega appeals the district court’s determination that his prior Illinois conviction for possession with intent to deliver cocaine qualified as a drug trafficking offense warranting a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). He argues that the Illinois statute criminalizes the “administering” and “dispensing” of * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 14-50015 Document: 00512894553 Page: 2 Date Filed: 01/08/2015 No. 14-50015 drugs, which is not covered by the Guidelines or 21 U.S.C. § 841 (a). Because Vega preserved his argument in the district court, our review is de novo. 1 Vega has identified no prior Illinois case applying the statute in an “administering” or “dispensing” situation. 2 A theoretical possibility that a statute might encompass types of conduct that would not qualify as a drug trafficking offense is insufficient. 3 Thus, the district court was correct in determining that Vega’s conviction was a drug trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. 4 In addition, even if Vega could establish error, any such error would be harmless because the district court stated that it would impose the same sentence regardless of any misapplication of the enhancement. 5 Vega’s argument that the district court erred in imposing an alternative, above- guidelines sentence is without merit. 6 The judgment of the district court is AFFIRMED. United States v. Teran-Salas, 767 F.3d 453 , 457 (5th Cir. 2014); see United States v. 1 Rodriguez, 711 F.3d 541 , 548 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). 2 See Teran-Salas, 767 F.3d at 460-61. 3 United States v. Carrasco-Tercero, 745 F.3d 192 , 197-98 (5th Cir. 2014). 4 See Teran-Salas, 767 F.3d at 461-62 & n.5. 5See United States v. Delgado-Martinez, 564 F.3d 750 , 752-53 (5th Cir. 2009); see also United States v. Richardson, 713 F.3d 232 , 237 (5th Cir.), cert. denied, 134 S. Ct. 230 (2013). 6 See United States v. Bonilla, 524 F.3d 647 , 656-59 (5th Cir. 2008). 2
|
opinion_html_with_citations
| 455 |
2015-01-09 01:00:52.84542+00
|
010combined
|
f
|
f
| 2,768,496 |
Graves, Owen, Per Curiam, Prado
|
Direct Criminal
|
CU
|
t
|
Unpublished
| 0 |
United States v. Mario Vega-Renova
| null |
UNITED STATES of America, Plaintiff-Appellee, v. Mario VEGA-RENOVA, Also Known as Arturo Vega Renova, Defendant-Appellant
| null | null |
<parties data-order="0" data-type="parties" id="b333-7">
UNITED STATES of America, Plaintiff-Appellee, v. Mario VEGA-RENOVA, also known as Arturo Vega Renova, Defendant-Appellant.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b333-10">
No. 14-50015
</docketnumber><p data-order="2" data-type="misc" id="AN7">
Summary Calendar.
</p><br><court data-order="3" data-type="court" id="b333-11">
United States Court of Appeals, Fifth Circuit.
</court><br><decisiondate data-order="4" data-type="decisiondate" id="b333-13">
Jan. 8, 2015.
</decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b333-14">
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b333-15">
Ruben Nunez, Esq., Law Office of Ruben Nunez, P.C., El Paso, TX, for Defendant-Appellant.
</attorneys><br><judges data-order="7" data-type="judges" id="b333-19">
Before PRADO, OWEN, and GRAVES, Circuit Judges.
</judges>
| null | null | null | null | null | null | 2,622,853 |
14-50015
| 0 |
ca5
|
F
|
t
|
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
8,578,434 |
WALLACE, JUDGE: This claim was filed by the claimants, Frances J. Larch and her husband, William E. Larch, against the Department of *292Natural Resources for injuries received by Mrs. Larch on May 30, 1976, in North Bend State Park. The park, maintained by the respondent, is located in Ritchie County, approximately two miles from Cairo, West Virginia. On the day of the accident, the claimants had gone to the park to fish along the banks of the North Fork of the Hughes River which meanders through the park. They had driven from their home in Vienna, West Virginia, and arrived at the park at 1:30 p.m. The weather was clear and calm. They parked their automobile beside a paved road within the park, and proceeded on foot around a locked gate some 12 feet from the road. The two then continued along the bed of an abandoned railroad, left the roadbed, and went through an open area, used by deer, to the river, a distance of some 400 to 600 yards. They traveled approximately 15 feet down the bank to the river. Along both sides of the roadbed were a natural growth of brush and small and large trees. The area was marked as a wildlife sanctuary. There were no signs indicating that it was a “no fishing” area. Mr. Larch testified that he had fished in the area many times over a period of four or five years, and that he had seen other people fishing there. The claimants fished beside the river for about three hours. Mrs. Larch was sitting on a gravel bar in the river while fishing, and her husband was a few feet up the stream. As she was sitting on the gravel bar, Mrs. Larch was injured when a dead limb or a portion of a dead tree on top of the river bank fell without warning, striking her on her left side and knocking her down. A small boy, in the area at the time, ran to the park lodge for help. After leaving instructions to notify the Harrisville Emergency Squad of the occurrence of an accident, the park superintendent, Robert F. Rogers, proceeded to find the area of the accident. The superintendent searched the area and located the claimants on the river bank. After advising the claimants that help was on the way, he returned to his vehicle to direct the emergency squad to the scene of the accident. When the emergency squad arrived, Mr. Rogers unlocked the *293gate to permit the vehicle to proceed as close as possible to the accident scene. The claimants proceded to the Camden-Clark Hospital in Parkersburg. Superintendent Rogers testified that the area in which the claimants were fishing was part of the area reserved as a wildlife sanctuary, and was not an area designated for fishing. He further stated that the area was not patrolled nor maintained as were other sections of the park. From the record, the Court finds that the respondent was not negligent in the maintenance of the area where the accident occurred, and that the injuries suffered by Mrs. Larch were not foreseeable. Accordingly, the claim is disallowed. Claim disallowed.
|
opinion_xml_harvard
| 528 |
2022-11-23 15:18:18.591032+00
|
020lead
|
t
|
f
| 8,600,253 |
Wallace
| null |
U
|
f
|
Published
| 0 |
Larch v. Department of Natural Resources
|
Larch
|
FRANCES J. LARCH and WILLIAM E. LARCH v. DEPARTMENT OF NATURAL RESOURCES
| null | null | null | null | null | null | null | null | null | 65,862,938 |
No. CC-77-120
| 0 |
wvctcl
|
ST
|
f
|
West Virginia Court of Claims
|
West Virginia Court of Claims
|
6,434,115 |
Loring, J. The defendant operates a private hospital for gain. The plaintiff went there to undergo an operation. She testified that "her physician made the arrangements for [Tier] entering into the hospital. . . . That she paid to the hospital $15 a week for attendance and $10 for the use of the operating room.” The operation was performed by a surgeon not connected with the defendant hospital. The plaintiff was etherized by her family physician and he was not connected with the defendant. In addition to the surgeon and the family physician two of the defendant’s nurses were present at the operation. When the plaintiff was on the operating table before she went under ether she had two rings on her hands. After the operation and while the plaintiff was still under the effects of ether she was carried from the operating room to her own room in the hospital by “one of the doctors assisted by the nurses.” When the plaintiff came out of the ether she noticed that the more valuable of the two rings (a ring which “would not come off without assistance”) was missing. At the trial the plaintiff put the surgeon and the family physician on the witness stand. Each of them testified that he did not take the ring. The defendant put on the stand the superintendent of the hospital, one of the two operating nurses and the plaintiff’s day nurse. Each of them testified that she did not take the ring. The operating nurse who was put upon the witness stand testified that the other operating nurse was in California “the last time she heard from” her. The plaintiff made many requests for rulings and now insists upon the first, fifth, eleventh and twelfth set forth above. These were refused and an exception taken. The judge instructed the jury that to recover the plaintiff must prove that she was in the exercise of due care and that the defendant was negligent. An exception was taken to this ruling. The case is here on these exceptions. *136On the evidence the jury were warranted in finding that the ring was forcibly removed from the plaintiff’s hand by the operating nurse who when last heard from was in California. If the absent nurse did steal the ring it is plain that the defendant is not liable on the ground that in stealing the ring the nurse was acting within the scope of her employment as a servant of the defendant. The first request for ruling therefore was properly refused. If the plaintiff had stood in the relation of a stranger to the defendant there would have been no error in the. trial. But the plaintiff did not stand to the defendant in the relation of a stranger. It is apparent from, the bill of exceptions that the case was not tried on the footing that the rights of the plaintiff in this action depended upon the contract made by her with the defendant. For this reason the terms of this contract do not appear as fully as they otherwise would have done. But from what does appear in the bill of exceptions the presiding judge was wrong in telling the jury that the defendant’s liability depended upon the plaintiff proving that it was negligent. .Under the contract entered into by the defendant corporation it was its duty not only (1) to give the plaintiff a room in the hospital before and after the operation and (2) to give her surgeon and family physician the use of the operating room for the operatian, but also (3) to give to the plaintiff the services of such nurses as were necessary for her care before, after and during the operatian. It expressly appeared at the trial that “she [the plaintiff] paid to the hospital $15 a week for attendance.” The services of the nurses which under the contract the defendant was bound to furnish the plaintiff included the services of nurses while she was unconscious from the effects of the ether, a condition which was a necessary part of the operation. And the question we have to decide is whether there was a violation of duty on the part of the defendant under this contract if the operating nurse in question stole the ring by forcibly pulling it off the plaintiff’s finger while she was under the effects of ether, or whether on the facts appearing at the trial the jury could have so found. We are of opinion that the jury could have so found. If for example a stranger had burst into the operating room, attacked the plaintiff and done her bodily harm or had attacked *137the plaintiff while the nurses were carrying her from the operating room to her own room and the defendant’s nurses had stood by and done nothing to protect the plaintiff from those attacks, it is plain in our opinion that there would have been a violation of the duty owed by the defendant under its contract with the plaintiff. It is equally plain in our opinion that the duty owed by the defendant under its contract with the plaintiff extended to the care of the rings on her fingers while she was unconscious from the effects of ether as well as to the security of her person. And finally it is equally plain in our opinion that there is as much a violation of the duty owed by the defendant under the contract where the attack upon the person or larceny of the ring is committed by one of the defendant’s own nurses (whose duty it was to protect the plaintiff) as well as in the case where the attack is made by a stranger and the nurses do not undertake to protect her from the attack. In its legal aspects the case is governed by the decision in Bryant v. Rich, 106 Mass. 180. In that case a dispute arose between a passenger on one of the defendant’s steamers and one of the defendant’s waiters as to whether the passenger had paid for his supper. The plaintiff, a cousin of the passenger in question, made a suggestion to which no exception could have been taken. Whereupon not only the waiter in question but the head steward and the other waiters knocked down the plaintiff and beat him. It was for this assault and battery that the action in Bryant v. Rich was brought. The presiding judge ruled (in accordance with a request made by the defendant) that “there is no evidence that the steward and waiters, in assaulting the plaintiff, were acting within the scope of any authority, or in the discharge of any duty, imposed upon them by the defendants.” But in spite of this he instructed the jury that the plaintiff was entitled to recover. This ruling was sustained on the ground that as matter of contract the plaintiff as a passenger had the right to receive proper treatment from the defendants and their servants and all of them. This decision has been followed in other cases- of carriers of passengers. Hayne v. Union Street Railway, 189 Mass. 551. Jackson v. Old Colony Street Railway, 206 Mass. 477. Gentile v. Boston Elevated Railway, 217 Mass. 113. In Levins v. New York, New Haven, & Hartford Railroad, 183 Mass. 175, it was held that a case was *138not made out under this rule where a purse had been accidentally-left on the window sill of the wash room of a car of the defendant company. In Fairbanks v. Boston Storage Warehouse Co. 189 Mass. 419, it was held that it did not apply where an assault was made by an attendant who under the rules of the defendant company accompanied the plaintiff when he went to examine goods stored by him in the warehouse of the defendant. The reason why the rule of Bryant v. Rich did not apply in the case of Fairbanks v. Boston Storage Warehouse Co. was because of the fact that the employee who made the assault was in attendance upon the plaintiff at the time in question for the plaintiff’s own purposes. He was not a servant of the defendant to whose services the plaintiff was entitled under his contract with the defendant. The decision in Bryant v. Rich does not depend upon the fact that the defendants in that case were common carriers. The decision would have been the same had the assault and battery occurred on an excursion steamer in place of upon a steamer operated by a common carrier. And the decision would have been the same if the steward and waiters had stolen rings from Bryant’s fingers in place of knocking him down as they did. The doctrine of Bryant v. Rich applies whenever there is a contract between the plaintiff and defendant by force of which the defendant is to furnish for the plaintiff’s comfort the services of its, the defendant’s, employees. Where the injury to the plaintiff is caused by an act of the defendant’s servants done in the course of their employment an action may be brought based on negligence of the defendant’s servants for which the defendant is liable because the act took place in the course of his servants’ employment, or an action may be brought in that case based on violation of the duty owed by the defendant to the plaintiff under the contract between the defendant and the plaintiff. But where (as was the case in Bryant v. Rich and in the case at bar) the injury done the plaintiff is caused by an act of the defendant’s servants outside of the servants’ duty as employees of the defendant but by an act of the defendant’s servants which while not in the course of the servants’ employment is none the less a violation of the duty owed by the defendant under the defendant’s contract with the plaintiff, the only action that can be brought is an action founded upon the duty arising out of the contract. *139The second count sufficiently sets forth a liability on the part of the defendant for violation of its duty under its contract with the plaintiff. It was held in Bryant v. Rich that “for a violation of such a contract either by force or negligence, the plaintiff may bring an action of tort, or an action of contract.” What has been said leaves open the defence which arises out of the testimony that the plaintiff when received into the hospital was asked to put into the custody of the defendant corporation all her “valuables.” The defendant’s agent who received the plaintiff when she came to. the hospital testified that that request was made to her at that time. The plaintiff on the other hand testified that she was asked to put her money into the custody of the hospital but that she was not asked to put anything else into its custody. If the defendant’s evidence is believed, a defence is made out. On the other hand if the plaintiff’s evidence on this matter is believed, her rights depend upon the rule of Bryant v. Rich, ubi supra. Exceptions sustained.
|
opinion_xml_harvard
| 1,863 |
2022-06-25 12:10:56.069492+00
|
020lead
|
t
|
f
| 6,560,366 |
Loring
| null |
U
|
f
|
Published
| 0 |
Vannah v. Hart Private Hospital
|
Vannah
|
Winona A. Vannah v. Hart Private Hospital
|
<p>Tort, originally with a single count as follows: “And now comes the plaintiff in the above entitled cause and says that the defendant is a corporation operating a private hospital in that part of Boston called Roxbury and that on the twenty-fourth day of December nineteen hundred and eleven the plaintiff was etherized in the operating room of the defendant and that the charge for operating expenses included the proper guarding of the plaintiff’s person while under the ether from any unwarrantable interference and this duty was so negligently performed that the plaintiff suffered great damage to wit: the loss of a diamond ring from her finger.” Writ in the Municipal Court of the City of Boston dated January 31,1912.</p> <p>. The case was removed to the Superior Court and. on November 24, 1913, the plaintiff was allowed to amend her declaration by adding a second count as follows: “ Second count: And now comes the plaintiff and says that the defendant is a corporation operating a private hospital for hire in that part of Boston known as Roxbury, in which the defendant was accustomed and undertook to provide the necessary care, attention, operating room and attendance of nurses for persons who wished to go there for medical or surgical treatment and who were ready and willing to pay for the same; that on or about the twenty-fourth day of December, 1911, the plaintiff was an inmate of the said hospital, paying a valuable consideration for board, room, nurses, use of operating room, attendance, and all necessary care incident to an operation to be performed on the plaintiff in said hospital, partly under the care of the said defendant and its nurses while in the operating room of said hospital and wholly under the care of the said defendant and its nurses outside of the operating room; that during the operation and for some time thereafter the said plaintiff was under the influence of ether; that at the said time the plaintiff possessed and wore on the ring finger of her left hand a valuable diamond ring; that the said ring was lost, stolen or in some way was removed or disappeared from the finger of the said plaintiff while the said plaintiff was under the care of the said defendant, its servants and agents; that the said disappearance or loss of the ring was due to the negligence of the defendant, its servants or agents or to the illegal acts of commission of the servants or agents of the defendant. And the plaintiff further, says that in all the premises she was in the exercise of due care.” .</p> <p>The case was tried before Morton, J. The facts which could have been found upon the evidence are stated in the opinion. At the close of the evidence the plaintiff asked the judge to make, among others, the following rulings:</p> <p>“ 1. The defendant being a corporation can act only through its officers, agents or servants; and therefore the defendant is liable for a theft committed by its agents or servants, while acting within the scope of their employment, precisely the same as though the theft had been committed by the defendant itself, provided you find that a theft was committed.”</p> <p>“5. Both the hospital and nurses were in the general control of the defendant, and, during the time that the plaintiff remained in the operating room, the nurses who assisted at the operation remained in the general control of defendant who paid them for their services, and subject to its orders and, therefore, as matter of law, they were not, for the time being, the servants of the operating physicians, but they were merely subject to their directions as to details, and therefore the defendant might be found liable for a theft committed by the nurses while the plaintiff was in the operating room, provided you find that a theft was in fact committed.”</p> <p>“11. Before the plaintiff was etherized the ring had been in the personal possession of the plaintiff and under her immediate care. After she was etherized a change was thereby made in the actual physical situation. After the plaintiff was etherized the ring was in the personal possession of the defendant and under its immediate care acting through its nurses. From the nature of the transaction, since the plaintiff had lost the use of her senses, the plaintiff had ceased to be in charge of the ring and the defendant had as matter of law assumed the entire charge of the ring as well as the plaintiff’s body and the clothing, if any, which covered her body.</p> <p>“ 12. The general control of the hospital was in the defendant. By the nature of the contract between the plaintiff and the defendant the custody of the plaintiff’s wearing apparel and adornments of the person must have been in the defendant when the plaintiff was under the influence of ether, and the consideration paid ought, as a matter of business, to secure some protection to the plaintiff where the condition of being under the influence of ether, to which she was expected to conform, put it out of her own power to look after her effects herself.”</p> <p>The judge refused to make any of these rulings, and submitted the case to the jury with the instructions described in the opinion. The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.</p>
| null | null |
<p>Actionable Tort, Founded on breach of contract. Contract, Implied in fact. Hospital, Private: contract to protect patient while helpless. ■</p> <p>Where a corporation conducting a private hospital agrees, for a stipulated pecuniary compensation, with a woman patient, who is about to have an operation performed there by her own surgeon after being etherized by her family physician, that it will give her a room in its hospital before and after the operation, that' it will allow her surgeon and her family physician to use its operating room and, that it also will give her the services of such nurses as may be necessary for her care before, after and during the operation, if, after the operation is performed and while the patient still is unconscious under the influence of ether, one of the two hospital nurses, who were present during the operation and assisted in carrying her to her room, forcibly pulls off a valuable ring from the patient’s finger and steals it, this is a violation by the corporation of its duty to the patient under its' contract, for which the patient may hold it liable in an action of tort. Following the principle of Bryant v. Rich, 106 Mass. 180.</p> <p>If the plaintiff in the case described above when received into the hospital had been asked to put all her “valuables” into the custody of the hospital and had failed to comply with the request in regard to her rings, this would have been a defence to the action, because then the duty owed by the corporation, under its contract: would not have extended to the care of the rings on the patient’s fingers.</p> <p>If, however, the plaintiff merely was asked to put her money into the custody of the. hospital but was not asked to put anything else into its custody, the defence would not be made out.</p>
| null | null | null | null | null | 63,490,373 | null | 0 |
mass
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S
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Massachusetts Supreme Judicial Court
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Massachusetts Supreme Judicial Court
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2,015,926 |
26 Ill. App. 3d 18 (1975) 324 N.E.2d 207 REINHARD J. MILLER et al., Plaintiffs-Appellees, v. GEORGE BLOOMBERG et al., Defendants-Appellants. No. 73-306. Illinois Appellate Court Second District (2nd Division). March 10, 1975. Rehearing denied March 25, 1975. Edward T. Graham, of Glen Ellyn, and John E. Waghorne, of Addison, for appellants. Cox, Lyle & Darrah, of Glen Ellyn (Delbert S. Lyle, of counsel), for appellees. Judgment affirmed. *19 Mr. JUSTICE DIXON delivered the opinion of the court: This is an action seeking specific performance of an agreement to sell real estate pursuant to an option contained in a lease. The plaintiff lessees moved for summary judgment, and the defendant lessors by answers to the motion admit that there is no material issue of fact in the cause and that the cause may be disposed of by a determination of the legal issue involved, to-wit: Whether the remedy of specific performance will lie to enforce the sale of real estate at the "then prevailing market price" when no method is specified in the contract by which such price is to be determined. The Circuit Court of Du Page County ordered specific performance and defendant lessors appeal. On June 26, 1969, the parties entered into a lease covering certain premises in Bloomingdale, Illinois. The tenant entered into possession and continued to occupy the premises and to pay rent therefor. Article 9 of the lease contained the following provision: "9. At any time during the original term of this lease or any extension thereof or any tenancy thereafter, lessee shall have the option to purchase the premises for the then prevailing market price." On February 3, 1972, the tenants gave written notice to landlords exercising their option to purchase as provided by the terms of the lease. Shortly thereafter the landlords, by their attorney, told the tenants that a market value appraisal of the premises had been ordered. The tenants also procured an independent market value appraisal on the property. On May 3, 1972, after receiving an appraisal report from the landlord, the tenants offered the sum of $80,000 for the property. The offer was rejected. The sole argument before the trial court and before this court is that the agreement is not capable of specific performance due to the lack of a definitive purchase price. In this regard we are called upon to determine whether or not the use of the "prevailing market price" as the method for computing the agreed upon purchase price is sufficiently definite to sustain an action for specific performance. 1-3 At the outset it should be noted that price is an essential ingredient of every contract for the transfer of property and must be sufficiently definite and certain or capable of being ascertained from the contract between the parties, in order to make the contract capable of enforcement. (71 Am.Jur.2d Specific Performance § 37 (1973); Hanlon v. Hayes, 404 Ill. 362 .) However, where a contract specifies that the price is to be measured by the "fair market value," "reasonable value" or "current market value" of the services or the property involved, courts have generally held that the price is sufficiently certain in order to have *20 an enforceable obligation. (See 1 Williston Contracts § 41 (3d ed. 1957); Annot., 2 A.L.R. 3d 701 (1965); Portnoy v. Brown (1968), 430 Pa. 401 , 243 A.2d 444 ; Frye, Treatise on Specific Performance of Contracts § 219 (Schuyler 2d Amer. ed. 1871).) Here the parties provided that the option price would be determined by the "prevailing market price." This provision, in our opinion means fair market value and meets the necessary standards required by law with respect to the certainty of the purchase price so as not to preclude specific performance of the agreement. As applied to this case we see no distinction between "prevailing market price," "fair valuation price," "fair market value," or "current market value." Ballentine's Law Dictionary, Third Edition, page 778, 55 C.J.S. Market Price 786-800 (1948). The earliest Illinois case on point appears to be Estes v. Furlong, 59 Ill. 298 , where the term "fair valuation price" was held sufficient. The court said: "The contract provided that there should be a fair valuation of the dwelling and stable. This implied a reasonable estimate, to be made by the parties; or, if they could not agree, to be determined by the court upon proof. The purchaser acted in a reasonable manner, and was willing to abide a fair valuation. He even incurred the expense of the services of a builder to ascertain the price. On the contrary, the conduct of the vendor was reprehensible and unreasonable. After having agreed to take a fair valuation, he obstinately assumed a gross sum, as the value, and refused to yield to the opinion or appraisement of other persons. Here, then, was a substantial contract for the sale of this land, at a fair price. The time of payment is specifically fixed, the quantity of land easily ascertained, and the price thereof determined. The mode of ascertainment of the value of the buildings, though indicated in the agreement, is not definitely settled, and did not become an essential ingredient in the contract. It is entirely subsidiary. The purchaser did everything which was required of him. He tendered in apt time a fair price, which was refused. Upon a bill filed for specific performance, under such circumstances, the court must determine the value upon proof. * * * * * * Specific performance of a contract, to sell at a fair price or fair valuation, will be enforced. * * *" 59 Ill. 298 , 303-304. Thereafter in Hayes v. O'Brien, 149 Ill. 403 , 414, the term "the same price per acre as any other person or purchaser might have offered *21 therefor" was held not void for uncertainty. The court cited Estes v. Furlong as authority. In Folsom v. Harr, 218 Ill. 369 , 372, the lease contained the following language: "Should said party of the first part conclude to sell this property, then said second party is to have the first chance to buy the same." The landlord had thereafter contracted to sell the property to a third party for a definite price. The tenant offered the same amount, was refused and brought his complaint for specific performance. The court found that the contract did not appoint any method by which the price should be determined and was therefore unenforceable. The court in no way overruled Hayes v. O'Brien , as was pointed out in Scheidecker v. Westgate, 164 Ill. App. 389 , 390, where the language was, "the privilege to purchase said premises at the price for which the same could be sold to other parties." The court followed Hayes v. O'Brien and distinguished Folsom v. Harr . In Wilson v. Singleton, 410 Ill. 611 , a lease provided that the lessee was granted an option to purchase the premises in case a sale of them should become desirable. The lease provided for notice to the tenant of any bona fide offer, and he had 30 days to meet the offer if he so desired. The lease stated specifically that the intent and purpose of the lease was to give the tenant the first opportunity to purchase whenever any sale was contemplated. The court specifically recognized the rule of Hayes v. O'Brien and followed the law of that case. In the case at bar, both parties used the most common method of determining prevailing market price, a certified real estate appraiser, and the option was exercised on the basis of the highest appraisal obtained, that of the landlord. 4 We are of the opinion that specific performance of the contract should be enforced. The judgment of the Circuit Court of Du Page County is therefore affirmed, and the cause is remanded for taking of proof to establish the "then prevailing market price" and for further proceedings in the case. Affirmed. RECHENMACHER, P.J., and T. MORAN, J., concur.
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opinion_html_with_citations
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2013-10-30 08:03:28.766753+00
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010combined
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Dixon
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LU
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Published
| 9 |
Miller v. Bloomberg
|
Bloomberg
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Reinhard J. Miller Et Al., Plaintiffs-Appellees, v. George Bloomberg Et Al., Defendants-Appellants
| null | null |
<parties id="b44-4" pgmap="44">
Reinhard J. Miller et al., Plaintiffs-Appellees, v. George Bloomberg et al., Defendants-Appellants.
</parties><br><docketnumber id="b44-5" pgmap="44">
(No. 73-306;
</docketnumber><br><court id="b44-6" pgmap="44">
Second District (2nd Division)
</court><decisiondate id="A4" pgmap="44">
March 10, 1975.
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Rehearing denied March 25, 1975.
</otherdate><br><attorneys id="b44-18" pgmap="44">
Edward T. Graham, of Glen Ellyn, and John E. Waghorne, of Addison, for appellants.
</attorneys><br><attorneys id="b44-19" pgmap="44">
Cox, Lyle & Darrah, of Glen Ellyn (Delbert S. Lyle, of counsel), for appellees,
</attorneys>
| null | null | null | null | null | null | 1,862,289 |
73-306
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illappct
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SA
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Appellate Court of Illinois
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Appellate Court of Illinois
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2,068,354 |
499 N.W.2d 832 (1993) John F. NIESZNER, Relator, v. MINNESOTA DEPARTMENT OF JOBS & TRAINING, Commissioner of Jobs & Training, Respondents. No. C5-92-2204. Court of Appeals of Minnesota. May 11, 1993. *834 Randall D.B. Tigue, Minneapolis, for relator. Kent E. Todd, Dept. of Jobs and Training, St. Paul, for respondents. Considered and decided by PETERSON, P.J., and HUSPENI and RANDALL, JJ. OPINION HUSPENI, Judge. By writ of certiorari, relator John F. Nieszner contends that (1) employer Minnesota Department of Jobs and Training failed to make a timely appeal from the initial claims adjudicator's determination that relator was not disqualified from receiving unemployment benefits; (2) further review by a different adjudicator violated provisions of Minn.Stat. ch. 268 and his right to due process; and (3) the Commissioner's representative erroneously decided employer discharged relator for misconduct. We reverse. FACTS Relator, a 24-year employee of the Minnesota Department of Jobs and Training (employer), was a senior employment counselor at employer's south Minneapolis office. Employer suspended and later discharged relator in October 1991. Prior to discharge, employer imposed a ten-day suspension on relator in March 1990 for unprofessional and harassing behavior toward employees of another social service agency, and a 30-day suspension in May 1990 for sexually harassing a female client he had counseled. Employer gave relator a written reprimand in March 1991 for failing to provide services to a client. Commencing in August 1991, a series of interactions took place between relator and *835 a Capitol Security guard staffed at relator's place of work. On one occasion the guard went to relator's office and interrupted relator to deliver a message to a client that a ride was waiting. The guard and relator disagreed about whether the guard's behavior was appropriate. However, instead of bringing the incident to the office manager, Bonnie Grussing, relator wrote a complaint letter about the guard to Ralph Church, Commissioner of Public Safety. Two days later, relator saw the guard, who did not have clearance to log-on the computer, looking at a screen at the receptionist's desk to obtain information about a client who had threatened a claims adjudicator. Relator told the receptionist she had violated the Data Practices Act. Grussing later advised relator that the guard's actions were appropriate when a client threatens an adjudicator. After Grussing became aware of the letter to Church, she informed relator he had violated the "chain of command" and directed him that in the future he was to bring concerns directly to her. He agreed to do so. Grussing also told relator the guard had not violated the Data Practices Act. In September 1991, relator complained in writing to Grussing and a Capitol Security advisor that the guard sexually harassed a woman employee, did not enforce the no smoking rule in the facility, and allowed a client to fill out an application in a secured area where employer kept client files and confidential testing materials. Grussing took the allegation of sexual harassment seriously, and relator's supervisor, Conrad Derus, interviewed all women employees, each of whom denied the guard had harassed them. Later in September 1991, relator wrote to the Governor claiming employer's management was obstructing justice and retaliating against him for complaining. He wrote again to Church, reasserting his position that the guard had sexually harassed a female employee. Both letters were forwarded to Grussing. On September 20, 1991, relator took photographs of the guard, who felt harassed by this action. At a meeting with his union representative and employer a short time later to discuss relator's continued violations of the chain of command, relator stated he had a camera on the premises for a retirement party and to document his safety and hygiene concerns at the office. He denied taking pictures of the guard. Grussing testified that when relator was asked to disclose the name of the woman the guard had allegedly harassed, he refused. Prior to October 4, 1991, relator repeatedly telephoned Ron Treet, employer's Director of Employee and Consumer Affairs, to report alleged violations of law. Upon being notified of these calls, Grussing ordered relator to cease and desist the calling, which he did. However, relator wrote to Treet alleging "fraud, waste, abuse (ethics violations) etc.," and to the Commissioner of Jobs and Training, complaining, among other things, that Grussing favored some employees and that she allowed the sale of Avon, Tupperware, Christmas wreaths, and Happenings books for the benefit of a local church. On Friday, October 11, 1991, Grussing and Derus met with employer's Director of Labor Relations in St. Paul, and decided that relator's failure to follow the chain of command required a suspension pending an investigation into the relevant issues raised by and about him. The investigatory suspension was to be effective October 14, 1991. At approximately 3:55 p.m. on October 11, 1991, Grussing telephoned relator to arrange a meeting. Relator informed Grussing that he would not remain past 4:30 p.m.; Grussing replied that relator would be paid overtime if he remained past that time. When Grussing and Derus arrived at the office at 4:20 p.m., Grussing went to her office. Derus advised relator that Grussing wanted to see him immediately to "interview [him] right now." When relator said he needed to sign off the computer, Derus told him he would take care of it. When relator ignored Derus *836 and continued working, Derus informed Grussing that relator did not appear willing to meet with her. At about 4:29, Grussing and Derus went to relator's work area. Relator ignored them both and left. Grussing followed relator out of the building and called his name. Relator yelled "leave me alone" and "don't touch me" as he ran across the street. Relator testified that, sensing impending discipline, he attempted unsuccessfully to reach his union representative after receiving Grussing's telephone call. He claims that under the terms of the collective bargaining agreement, he was not required to meet with Grussing without a representative present. Relator, however, neither attempted to inform employer that he had tried to contact a union representative nor offered to meet with Grussing the following Monday. Employer discharged relator, according to Grussing, based solely upon the last incident of insubordination on October 11, 1991. Upon relator's claim for unemployment benefits, the chief adjudicator, John Van Steenwyk, issued a determination November 29, 1991, that relator was discharged for reasons other than misconduct and was qualified to receive benefits. The determination contained notice of the right to appeal within 15 days. See Minn.Stat. § 268.10, subd. 2(3) (1990). Employer did not appeal the initial determination. Rather, within the appeal period, employer sought and received a second determination from a different adjudicator, T.L. Clark, employer's Director of Benefits. Based upon "receipt of a signed statement from [relator's] manager that was not previously provided by the [employer]," Clark determined on December 7, 1991, that relator was insubordinate, failed to follow the chain of command, refused to meet with his manager on October 11, 1991, and was discharged for misconduct. Relator appealed Clark's determination on December 14, 1991. A referee concluded employer had discharged relator for misconduct. On appeal from the referee's decision, the Commissioner's representative affirmed. ISSUE Does the Minnesota Jobs and Training Law allow an employer aggrieved by an adverse initial determination of qualification to obtain a redetermination in lieu of appealing, and did employer's failure to make a timely and formal appeal from the initial determination that relator was not disqualified from receiving benefits preclude further review by the Department of Jobs and Training? ANALYSIS The Minnesota Department of Jobs and Training is both employer and adjudicator in this matter. This court recently answered the concerns about apparent bias, prejudice and partiality by stating that the "rule of necessity" allows the Commissioner of Jobs and Training to adjudicate because she is the only official authorized by statute to determine entitlement to unemployment benefits. Ginsberg v. Minnesota Dep't of Jobs & Training, 481 N.W.2d 138 , 141 (Minn.App.1992), pet. for rev. denied (Minn. Apr. 9, 1992). However, when the employer is also the adjudicator, the reviewing court "probably should review with special intensity." 3 Kenneth C. Davis, Administrative Law Treatise § 19:9 (2d ed. 1980), quoted in Ginsberg, 481 N.W.2d at 141. Relator argues that employer failed to make a proper and timely appeal from the initial determination by Van Steenwyk, and the failure to appeal made the initial determination final precluding further review of his claim by the Department of Jobs and Training. We agree. An initial determination becomes final unless an appeal is taken. Minn.Stat. § 268.10, subd. 2(3) (1990) provides: A determination * * * shall be final unless an appeal therefrom is filed by a claimant or employer within 15 days after mailing of the notice. * * * Every notice of determination shall contain a prominent statement indicating in clear language the method of appealing the determination, the time within which *837 such an appeal must be made, and the consequences of not appealing the determination. (Emphasis added.) Minn.Stat. § 268.10, subd. 2(3) does not provide for extensions or exceptions to the 15-day appeal period. Cole v. Holiday Inns, Inc., 347 N.W.2d 72 , 73 (Minn.App.1984). The time limit set for appeal is "absolute." Baldinger Baking Co. v. Stepan, 354 N.W.2d 569 , 571 (Minn. App.1984), pet. for rev. denied (Minn. Dec. 20, 1984). A department referee must dismiss an untimely appeal for lack of jurisdiction. Cole, 347 N.W.2d at 73. Employer did not appeal from the initial determination in favor of relator. Instead, employer sought a redetermination of that decision and obtained a decision favorable to itself. We agree with relator that the Minnesota Jobs and Training statutes and regulations do not allow an employer to "adjudicator-shop" and seek a second determination on the issue of disqualification rather than appealing the adverse determination. The Commissioner, after the initial filing of a claim and establishment of a benefit year, must give notice to the last employer. Minn.Stat. § 268.10, subd. 2(1) (1990). If the employer, within seven days, makes an allegation of disqualification, the official must promptly make a determination of qualification, as well as validity and eligibility, and notify the parties. Id.; Minn.R. 3310.2700, subpt. 2, 3310.2800, subpt. 2 (1991). [1] The determination then becomes final unless appealed. Minn.Stat. § 268.10, subd. 2(3). Thus, section 268.10, subd. 2(1) provides the mechanism by which an employer raises an issue of disqualification when a claim is initially filed. Employer's reliance upon Minn. Stat. § 268.10, subd. 2(2) (1990) in arguing that it may obtain a second determination in lieu of appealing the initial determination is misplaced. Minn.Stat. § 268.10, subd. 2(2) states: At any time within 24 months from the date of the filing of a valid claim for benefits by an individual * * * any official of the department or any interested party or parties or benefit year employer raises an issue of disqualification in accordance with the rules of the commissioner, a determination shall be made thereon and a written notice thereof shall be given to the claimant and such other interested party or parties or benefit year employer. A determination issued under this clause which denies benefits for weeks for which the claimant has previously been paid benefits is an overpayment. (Emphasis added.) This statute, read literally, conflicts with the seven-day period during which an employer may initially allege disqualification. Furthermore, the rules of the Commissioner are silent on enumerating how and under what circumstances the department, an interested party, or a benefit year employer may raise an issue of disqualification within 24 months. See Minn.R. chs. 3305, 3310 (1991). [2] *838 Interpreting Minn.Stat. § 268.10, subd. 2(2) to allow an employer within 24 months, in essence, to "reopen" or to "revisit" the issue of disqualification where that issue was determined initially and not appealed leads to an absurd or unreasonable result. Minn.Stat. § 645.17(1) (1990). When an employee has been found entitled to receive unemployment benefits, an employer must appeal that determination under Minn.Stat. § 268.10, subd. 2(3) and may thereby attempt to prove the discharge was for misconduct. See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519 , 523 (Minn.1989) (employer has burden to show by the greater weight of evidence that it discharged employee for misconduct). Minn.Stat. § 268.10, subd. 2(2) does not provide an employer who received an adverse initial determination a second opportunity to determine the issue of disqualification for unemployment benefits. Subdivision 2(2) addresses "determination," not "redetermination" of the issue of disqualification. [3] We conclude the legislature could not have intended that subdivision 2(2) allows the department or an employer to engage in the conduct resorted to in this case. Employer contends the department has the inherent power to correct an erroneous initial determination. We conclude it had no such power here. Administrative agencies, like the Department of Jobs and Training, have inherent or implied power to correct erroneous decisions, so long as the rights of the parties are not prejudiced. Pfalzgraff v. Commissioner of Economic Sec., 350 N.W.2d 458 , 460 (Minn.App.1984). Relator was prejudiced by the reversal made by the department. See id. Reviewing this case with special intensity, see Ginsberg, 481 N.W.2d at 141, we conclude employer received a result no other employer could have obtained: submission of additional evidence to a second adjudicator and reversal of an adverse decision without taking an appeal from the initial determination within 15 days. The failure to appeal made the initial determination "final." See Minn.Stat. § 268.10, subd. 2(3). The Department of Jobs and Training was without jurisdiction to consider the matter further, and its decisions are vacated. See Cole, 347 N.W.2d at 73. [4] If we were to conclude the Department of Jobs and Training had jurisdiction to consider the matter, we would agree that employer discharged relator for misconduct. Misconduct is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards or behavior which the employer has the right to expect of his employee. Tilseth v. Midwest Lumber Co., 295 Minn. 372 , 374-75, 204 N.W.2d 644 , 646 (1973), quoted in Markel v. City of Circle Pines, 479 N.W.2d 382 , 384 (Minn.1992). The supreme court has expanded this definition to include "conduct demonstrating a lack of concern by the employee for her job." Feia v. St. Cloud State College, 309 Minn. 564 , 565, 244 N.W.2d 635 , 636 (1976). A single incident may constitute misconduct if the employee sufficiently disregards his or her employer's expectations. Ress, 448 N.W.2d at 524. *839 At the hearing, relator's manager testified the discharge was based solely upon his refusal to meet with her as ordered on October 11, 1991. Generally, where an employer makes a reasonable request that does not impose an undue burden on the employee, the employee's refusal to comply with the request constitutes misconduct. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89 , 91 (Minn.App.1985). Relator made no attempt to explain to employer that he felt he had a right to union representation at the October 11, 1991, meeting. He did not allow employer to offer the "opportunity for association representation" or advise relator "of the nature of the investigation prior to questioning" as provided in the department's collective bargaining agreement. Instead, relator continued working on his computer until 4:29 p.m. When Grussing attempted to hand him the envelope containing the investigatory suspension, relator disregarded her and left the building screaming "get away from me" repeatedly. Relator deliberately disregarded the standard of behavior employer had a right to expect, see Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646 , and demonstrated a lack of concern for his job, see Feia, 309 Minn. at 565, 244 N.W.2d at 636 . The evidence in the record reasonably sustains the misconduct finding of the Commissioner's representative. See Markel, 479 N.W.2d at 383-84. DECISION Minnesota Department of Jobs and Training lacked jurisdiction to review the initial determination that relator was not disqualified from receiving unemployment benefits where employer failed to appeal in accordance with Minn.Stat. § 268.10, subd. 2(3). Reversed. NOTES [1] An employer may raise disqualification when it returns the request for wage and separation information. Minn.R. 3310.2700, subpt. 2(F) (1991). Upon receipt of the information: the department shall make an initial determination as to the validity of such claim and deliver or mail a notice thereof to the claimant and other interested parties. The claimant or any other interested party may appeal such initial determination to an appeal tribunal designated by the commissioner to hear and determine such matters. Minn.R. 3310.2700, subpt. 5 (1991) (emphasis added). When an employer challenges qualification, the department must make a determination on the issue of disqualification in writing and provide notice to the claimant and the employer. Minn.R. 3310.2800, subpt. 2 (1991). "The claimant or other interested party may appeal said initial determination to an appeal tribunal." Id. [2] The legislature amended the unemployment law in 1951 to include the provision that allows the issue of disqualification to be raised under the rules of the Commissioner. 1951 Minn. Laws ch. 442, § 4. The statute reads: If within the benefit year * * * any official of the department or any interested party or parties or benefit year employer raises an issue of disqualification in accordance with the regulations of the commissioner, a determination shall be made thereon and a written notice thereof shall be given. Minn.Stat. § 268.10, subd. 2(4) (1953). Research of Minnesota and Jobs and Training regulations from the 1950s forward reveals that no rules have been promulgated to make specific this statutory provision. Administrative failure to promulgate rules is without constitutional significance where the statute itself is clear and specific. See Kibler v. Colorado, 718 P.2d 531 , 536 (Colo.1986). It is notable here that the statute provides no procedural guidance. [3] Minn.Stat. § 268.10, subd. 2(4) (1990) provides that the Commissioner sua sponte may reconsider a determination of validity of a claim and make a redetermination "on finding that an error in computation or identity or the crediting of wage credits has occurred." This statute, however, provides no basis for a redetermination as to the issue of disqualification. [4] Unemployment benefits are entitled to procedural due process protection under the Fourteenth Amendment. Schulte v. Transportation Unlimited, Inc., 354 N.W.2d 830 , 832 (Minn. 1984). Because we conclude the conduct of the department failed to conform with the Minnesota Jobs and Training Law, we need not address whether the conduct violated realtor's right to due process.
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opinion_html_with_citations
| 3,088 |
2013-10-30 08:13:57.605198+00
|
010combined
|
f
|
f
| 2,068,354 |
Huspeni, Peterson, Randall
| null |
LU
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f
|
Published
| 5 |
Nieszner v. Minnesota Department of Jobs & Training
|
Nieszner
|
John F. NIESZNER, Relator, v. MINNESOTA DEPARTMENT OF JOBS & TRAINING, Commissioner of Jobs & Training, Respondents
| null | null |
<parties id="b868-13">
John F. NIESZNER, Relator, v. MINNESOTA DEPARTMENT OF JOBS & TRAINING, Commissioner of Jobs & Training, Respondents.
</parties><br><docketnumber id="b868-16">
No. C5-92-2204.
</docketnumber><br><court id="b868-17">
Court of Appeals of Minnesota.
</court><br><decisiondate id="b868-18">
May 11, 1993.
</decisiondate><br><attorneys id="b870-22">
<span citation-index="1" class="star-pagination" label="834">
*834
</span>
Randall D.B. Tigue, Minneapolis, for relator.
</attorneys><br><attorneys id="b870-23">
Kent E. Todd, Dept, of Jobs and Training, St. Paul, for respondents.
</attorneys><br><judges id="b870-24">
Considered and decided by PETERSON, P.J., and HUSPENI and RANDALL, JJ.
</judges>
| null | null | null | null | null | null | 1,912,680 |
C5-92-2204
| 0 |
minnctapp
|
SA
|
t
|
Court of Appeals of Minnesota
|
Court of Appeals of Minnesota
|
7,741,880 |
FARMER, J. We deny the petition seeking disqualification, but not because of any categorical rule requiring prohibition when the trial judge makes a disclosure and solicits a response from the affected party, as argued by petitioner. We find that the issue has been waived. The transcript shows that at the beginning of the hearing on plaintiffs motion to amend its already twice amended complaint, the judge made a disclosure about a friendly relationship with the father of the opposing party’s lawyer and asked whether it caused plaintiff a problem. Plaintiffs counsel responded that it was not a problem if the trial judge was not influenced by it, and the trial judge replied that he would have no problem. Because of counsel’s response, the court proceeded to hold a hearing that lasted an hour and at the end of the hearing announced a decision to deny the motion. Two days after this ruling, petitioner filed a motion to disqualify the trial judge, which he denied. Petitioner now seeks prohibition on the grounds that, having made the disclosure, the judge is not free to deny disqualification. Disqualification is not required in this case because plaintiff waived any protest against the trial judge. When the judge made the disclosure, he all but invited plaintiff to object if there was any doubt in plaintiffs mind about the judge’s impartiality. Counsel did not request additional time to confer with his client, and his response was unequivocal that there was no problem. We cannot escape the belief that if counsel had voiced an objection to the judge continuing to participate he would have immediately recused himself. As it happened, however, plaintiffs response led the judge to stay with the case and spend an hour of his finite hearing time deciding the issue.1 We therefore decline to address the merits issue and instead hold that coun*459sel’s waiver ends the matter. If the client is unhappy with his lawyer’s decision, the remedy is to take it up with him. GUNTHER, J., concurs. KLEIN, J., concurs specially with opinion. . The real problem probably has less to do with the impartiality of the judge and more to do with his ruling.
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opinion_xml_harvard
| 362 |
2022-07-30 20:03:32.074782+00
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020lead
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t
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| 7,801,385 |
Farmer, Gunther, Klein
| null |
U
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f
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Published
| 0 |
Cousins Restaurant Associates, L.P. v. TGI Friday's Inc.
| null |
COUSINS RESTAURANT ASSOCIATES, L.P., a Florida limited partnership v. TGI FRIDAY'S INC., a Texas corporation
| null | null | null | null | null | null | null | null | null | 64,806,689 |
No. 4D01-1206
| 0 |
fladistctapp
|
SA
|
t
|
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
8,738,424 |
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO COMPEL [13-1] AND PLAINTIFF’S CROSS-MOTION FOR A PROTECTIVE ORDER [19-1] STIVEN, United States Magistrate Judge. I. INTRODUCTION ' On May 27, 2004, Defendants brought the instant motion against the Plaintiff. Plaintiff filed his opposition brief on June 9, 2004. In conjunction with the opposition, Plaintiff filed his own motion for a protective order relating to the subjects of Defendants’ motion. Defendants filed a reply brief on June 18, 2004. The hearing on these matters was conducted on June 25, 2004. The parties have been before this Court for an Early Neutral Evaluation and a Case Management Conference. They are next scheduled to appear for a Mandatory Settlement Conference on August 20, 2004. II. BACKGROUND On October 8, 2003, Plaintiff Jarek Molski brought a complaint against Defendants for discrimination and violations of the Americans with Disabilities Act (“ADA”) Accessibility Guidelines and/or California’s Title 24 Building Code requirements. Plaintiff seeks an injunction under the ADA and monetary damages under state law. Plaintiff, who is confined to a wheelchair, claims to have visited Defendants’ premises, a gas station, to utilize their goods and services. Plaintiff alleges that he was discriminated against because Defendants’ facility was inaccessible to wheelchair users. Further, Plaintiff alleges he was denied full and equal access to other portions of the property, including but not limited to: inaccessible paths of travel, inaccessible parking, and inaccessible amenities, including the restroom. As Defendants have purportedly failed to make readily achievable modifications to provide disabled access, P contends he is entitled to relief. Defendants bring the instant motion to compel discovery responses that Defendants claim will help to determine whether or not Plaintiff has standing to bring this lawsuit in federal court. Defendants contend that Plaintiff, in truth, is attempting to act as a private attorney general, purposely visiting establishments just to be denied access. Defendants assert this is not the basis for establishing a “case” or “controversy” for federal standing purposes. They argue that Plaintiff brings this lawsuit for damages and injunc-tive relief, without ever intending to return to the subject establishment. Thus, Defendants argue that Plaintiff does not have standing in federal court because the ADA only provides the private remedy of injunc-tive relief, which remedy is not available to Plaintiff here because he does not intend to return to the Defendants’ establishment. To prove their argument, Defendants have requested the total sum of settlement monies Plaintiff has received in the past five years from similar lawsuits and file-stamped copies of all complaints Plaintiff has filed in federal or state court since January 1, 2002. Plaintiff has refused to provide this information. To compromise, Defendants offered to Plaintiff that they would only require copies of the *435first few pages of the complaints filed by Plaintiff in the last year. This compromise was rejected by Plaintiff. Consequently, Defendants brought this motion. III. DISCUSSION A. STANDARD OF LAW Federal Rule of Civil Procedure 26(b) allows a party to seek discovery for any relevant matter to a claim or defense of any party that is not privileged. The requested information does not have to be admissible at trial; however, the information must be reasonably calculated to lead to admissible evidence. Rule 33(a) allows a party to serve written interrogatories on any other party to an action. Rule 33(b)(5) allows the submitting party to move for an order from the court for any improper objection or failure to answer by the responding party. The party opposing the discovery, whether contention or fact interrogatories, has the burden to justify not responding to those interrogatories. Cable & Computer Tech. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 652 (C.D.Cal. 1997). Rule 34(a) allows a party to serve a request for production of documents on any other party to an action. Rule 34(b) also allows the requesting party to “move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.” Fed. R.Civ.P. 34(b). Rule 37(a)(2)(B) and Local Rule 26.1(b) require that the moving party provide a certificate of compliance for attempting to resolve the discovery dispute with the other party in good faith.1 B. ANALYSIS 1. Copies of the Complaints Defendants’ discovery request reads as follows: Request for Production.No. 6: A file-stamped copy of each and every Complaint which Plaintiff Molski has field in any state or federal court within the last three (3) years in which he alleges that a particular place of public accommodation violated state and/or federal statutes, regulations, or guidelines governing accessibility by disabled persons at any time from January 1, 2002, through to the present. (Erb.Decl., Ex. B.) Plaintiff responded to this request with general objections that the request was vague, ambiguous, overly broad, not relevant, and unduly burdensome. In addition, Plaintiff objected to this document request because the complaints are public record and Defendants can obtain them as easily as Plaintiff, who claims not to retain copies of complaints filed on his behalf. Defendants argue that these objections are “boilerplate” and imply an unwillingness to respond. They contend that the number of eases, the geographic diversity of the business establishments sued by Plaintiff, the dates of the visits, and the aggregate financial benefit to the Plaintiff all are relevant to their defense that the Court has no federal subject matter jurisdiction because Plaintiff lacks standing, and the Court should decline to exercise supplemental jurisdiction over the state claims. Specifically, Defendants argue that Plaintiff can demonstrate only a “hypothetical or conjectural” threat of future imminent injury because of the remote likelihood that he will return to the 240 or so business premises that he has sued, let alone the 200 to 400 places he testified in his deposition that he intends to sue. Thus, Defendants state that Plaintiff has not met the standing requirement to be in federal court. See Lu-jan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (“First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” (internal citations *436and quotation omitted)); see also Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1137 (9th Cir.2002) (“In the context of the ADA, we understand that to mean that [the Plaintiff] must himself suffer an injury as a result of the... store’s noncompliance with the ADA.”). Defendants contend that if they can prove that Plaintiffs have no standing in federal court, then they can move to have the case dismissed, even if the claims would be valid in state court, see Lee v. Am. Nat’l Ins. Co., 260 F.3d 997, 1001-02 (9th Cir.2001) (“So a plaintiff whose cause of action is perfectly viable in state court under state law may nonetheless be foreclosed from litigating the same cause of action in federal court, if he cannot demonstrate the requisite injury.”), and they would seek sanctions under FRCP 11. Defendants further claim that the rest of Plaintiffs cases should probably be dismissed from the federal courts for the same reasons2 and that even if this case had been brought in state court, the state court would have to determine whether there’s an actual injury under California Civil Code Sections 52 and 54.3 (under which statutes Plaintiff also filed suit) and would find no injury. Plaintiff opposes Defendants’ Motion and seeks a protective order from the Court preventing the production of the documents and information that Defendants seek. First, Plaintiff argues that the request for the copies of the complaints is burdensome. Plaintiff alleges that the 200 + complaints filed on his behalf each consist of a minimum of ten pages each, with an estimate of 2,400 pages that would have to be produced. Plaintiff also argues that the complaints filed are a matter of public record and are accessible to the Defendants. Plaintiff contends that they are available either through an electronic service or directly from the courts. This method would avoid unduly burdening the Plaintiff. Accordingly, Plaintiff requests a protective order that prohibits Defendants from requiring Plaintiff to provide entire file-stamped copies of all complaints filed on his behalf. More importantly, Plaintiff contends that his burden is not justified because the burden outweighs any relevance of the information contained in the complaints. Plaintiff alleges that he has made a sufficient showing that he has standing in this case such that the burdensome production of the complaints would be pointless. “[A] disabled individual who is currently deterred from patronizing a public accommodation due to a defendant’s failure to comply with the ADA has suffered ‘actual harm.’ Similarly, a plaintiff who is threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA suffers ‘imminent harm.’” Pickem, 293 F.3d at 1138. Thus, as Plaintiff has proffered uncontroverted evidence of accessibility barriers at the subject premises, Plaintiff claims that he has suffered an injury in fact, the first standing requirement under Lujan. Aso, Plaintiff argues that the second and third requirements for standing are met as he personally encountered architectural barriers to access, which an injunction would redress by requiring the removal of the barriers. See id. at 1137 (stating that the second and third elements of the Lujan standard are met in ADA cases when the defendant’s non-compliance caused the injury and an injunction for compliance would redress it.) Plaintiff has alleged that he could not access the Defendants’ premises or use the restrooms because of non-compliance with the ADA and has testified in deposition that he will in the future continue to pass by the premises on trips to Mexico and would stop for services at the facility if it were wheelchair accessible. In the Ninth Circuit, a plaintiff has sufficient standing for an injunction against an imminent harm when he or she knows of the architectural barriers and alleges that he or she would return to the premises if they were accessible. Id. at 1138. Indeed, “a single past incident of discrimination can provide... grounds for a plaintiffs standing, as long as the lack of accommodation continues to exist.” Id. (quoting Dudley v. Hannaford Bros. Co., 146 F.Supp.2d 82, 86 (D.Me.2001)); compare Parr v. L & L Drive-Inn Restaurant, 96 *437F.Supp.2d 1065, 1080-81 (D.Haw.2000), with Moreno v. G & M Oil Co., 88 F.Supp.2d 1116 (C.D.Cal.2000). Thus, Plaintiff has made at least a prima facie showing for standing under the Article III “ease” or “controversy” requirement.3 In Defendants’ Reply brief, they argue that only the first few pages of the complaints need to be produced, thus minimizing the burden on Plaintiff. They also offer to limit the production to complaints filed in the last year. While tacitly acknowledging that the factual inquiry relating to standing in this case is limited to whether Plaintiff can show a likelihood of future injury because the continuing presence of architectural barriers would dissuade Plaintiff from returning to this facility, Defendants contend that the other complaints are relevant for discovery purposes to determine whether Plaintiff actually visits or revisits any of the locations himself or sends someone else to visit. Defendants argue the complaints may also reveal whether Plaintiff creates his own denial of access by going out of his way to find non-compliant ADA facilities, and has no real interest in continuing patronage. Defendants state that the burden on them is greater as many of the complaints have been filed in the Central District of California, where the complaints are not available by electronic means and most of the files have closed, making the documents difficult to obtain and copy. Defendants argue that the burden would be much easier on Plaintiff or Plaintiff’s attorneys to make the necessary copies. The Court agrees that the information Defendant seeks is at least marginally relevant and seemingly less burdensome for the Plaintiff to produce. However, the relevancy is weakened by this Circuit’s deference towards ADA plaintiffs in interpreting the Article III standing requirements. The Court finds that the relevance of this information is remote, but that Defendants have made a sufficient showing of relevance to their standing defense that a limited discovery response is warranted, and the burden on Plaintiff to produce will be limited. The Court will not rule on the admissibility at trial of this information at this time. Accordingly, The Court GRANTS Defendants’ Motion to Compel a response to Request for Production Number 6. Plaintiff4 is ordered to produce copies of excerpts of all complaints that have been filed in federal or state court in California since January 1, 2003 on his behalf that allege violations of the Americans with Disabilities Act.5 However, Plaintiff is only required to produce the pages of the complaint, starting with the first page and progressing up until the page that includes the information on the identity and location of the named defendant(s), facility(ies), and the date(s) of visits, and Defendants must reimburse Plaintiff for the reasonable cost of this production. Plaintiff must produce the documents to Defendants’ counsel no later than July 16, 2004. Additionally, Plaintiffs cross-motion for a protective order is DENIED as to Request for Production of Documents Number 6. 2. Settlement Proceeds Information Defendants’ Interrogatory No. 7, propounded on Plaintiff, reads: *438State the total sum of money Plaintiff Mol-ski has received in settlements of lawsuits filed during the past five (5) years in which he alleged violations of state and/or federal law and regulations regarding the denial of accessibility of public aceommodation(s) to mobility-impaired disabled individuals. (Erb Decl., Ex. A.) Defendants claim that the financial information from prior settlements is relevant on the standing issue and to demonstrate that Plaintiff has not suffered any emotional distress from his visit to the Defendants’ premises because Plaintiff has been benefiting from, not suffering from businesses that do not comply with the ADA. Plaintiff responded to this interrogatory with general objections that the interrogatory was vague, ambiguous, overly broad, not relevant, and unduly burdensome. Plaintiff further objected to Interrogatory Number 7 as annoying and a tool to harass Plaintiff, serving to chill Plaintiffs exercise of his civil rights, see, e.g., Rivera v. Nibco, Inc., 364 F.3d 1057, 1064 (9th Cir.2004) (upholding a protective order granted for plaintiffs to prevent a chilling effect that would happen on their rights if they revealed their immigration status), and violative of his right to financial privacy that is protected under Article 1, Section 1 of the California Constitution. See Valley Bank of Nevada v. Super. Ct., 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977 (1975) (stating that the privacy protections of California Constitution, Article 1, Section 1 “extend[] to one’s confidential financial affairs”). In addition, Plaintiff opposes the disclosure of the settlement amounts of cases filed on his behalf because Plaintiff contends that the amount of the settlements is not financial gain, but legally-based compensation for discrimination provided in California law. Plaintiff argues that the amount of a prior settlement award has no bearing on whether Plaintiff suffered discrimination at the Defendants’ business premises in this particular ease. For standing purposes a disabled person “who is currently deterred from patronizing a public accommodation due to a defendant’s failure to comply with the ADA has suffered ‘actual harm.’ ” Pickem, 293 F.3d at 1138. Plaintiff asserts he is entitled to an award of statutory damages provided for in California Civil Code Section 52 for the Defendants’ acts of discrimination. Nonetheless, at the June 25, 2004 hearing, Plaintiffs counsel stipulated on the record that Plaintiff was not seeking to recover an award of actual damages based on claims of emotional distress beyond the amounts provided for in the statute. Accordingly, Plaintiff requests a protective order that prohibits Defendants from obtaining private, constitutionally-protected financial information regarding any or all of the settlement proceeds Plaintiff has recovered in other cases. This Court agrees with Plaintiff that Defendants’ document request is not relevant.6 Consequently, the Court DENIES Defendant’s Motion to Compel concerning Interrogatory Number 7, and GRANTS Plaintiffs cross-motion for a protective order as to Interrogatory Number 7. IY. CONCLUSION The Court GRANTS IN PART and DENIES IN PART Defendants’ Motion to Compel and Plaintiffs cross-motion for protective order. IT IS SO ORDERED. . Defendants submitted the certificate of compli-anee on May 27, 2004. . The Court cannot address this argument as these other cases are not before this Court. . Nonetheless, Plaintiff also alleges that Defendants have or are still in the process of converting the gas station into an auto repair shop. Indeed, Defendants state in their Answer that the facility has been converted into an auto repair shop and a U-haul rental facility. Because an injunction is the only private remedy under the ADA, Pickern v. Stanton’s Rest. & Woodsman Room, 2002 WL 143817, *2, 2002 U.S. Dist. LEXIS 1587, *7 (N.D.Cal.2002), Plaintiff may not have standing for an injunction under Title III of the ADA because the Court has no knowledge of whether the barriers Plaintiff encountered still exist after the conversion. This is a different basis for a lack of standing defense than Defendants argued in their motion. The Court, however, is not making any ruling at this time as to whether Plaintiff actually has standing in this case. This Order only rules that some limited discovery on that issue is permissible. . Plaintiff is responsible for producing copies of all complaints in either his or his attorneys’ possession. . In the alternative to the production of copies of excerpts of the complaints, the Defendants may request from Plaintiff a verified statement from the Plaintiff that lays out the identity and locations of all business premises that he has sued and the dates of visits since January 1, 2003. . Defendants may have a legitimate interest in the settlement information. However, they seek the information for the incorrect forum. Here, the information will not help establish any defense as Plaintiff has made a prima facie showing for an action under the ADA. The Court must look to the facts of this case to determine whether Plaintiff is entitled to any damages or an injunction. The better forum to address the issues raised in Defendants' motion would be the state legislature and/or Congress where changes in the applicable laws could be made, if necessary.
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opinion_xml_harvard
| 3,124 |
2022-11-26 10:32:53.500124+00
|
020lead
|
t
|
f
| 8,755,149 |
Stiven
| null |
U
|
f
|
Published
| 0 |
Molski v. Franklin
|
Molski
|
Jarek MOLSKI v. Eugene L. FRANKLIN and Michelle R. Franklin, d/b/a Gene's Auto Service Tosco Corporation and Does 1-10, inclusive
| null | null | null | null | null | null | null | null | null | 66,021,215 |
No. CIV. 03CV1997 L (JFS)
| 0 |
caed
|
FD
|
t
|
E.D. California
|
District Court, E.D. California
|
8,068,350 |
No opinion. Order affirmed, with $10 costs and disbursements.
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opinion_xml_harvard
| 9 |
2022-09-09 11:09:41.453717+00
|
020lead
|
t
|
f
| 8,107,683 | null | null |
U
|
f
|
Published
| 0 |
Quinn v. Onondaga County Milk Ass'n
|
Quinn
|
QUINN v. ONONDAGA COUNTY MILK ASS'N
|
<p>Action by Thomas Quinn, an infant, etc., against the Onondaga County Milk Association.</p>
| null | null | null | null | null | null | null | null | 65,203,428 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
3,365,257 |
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION The above case, in which a judgment entered on April 11, 1986, came before the court on a contempt motion filed on July 27, 1990 and on a motion to modify filed on May 11, 1990. In the contempt motion, the plaintiff claims that the defendant has failed to pay the agreed upon installments of $100.00 per week toward the lump sum alimony of $52,000.00 awarded in the judgment. The parties have stipulated that the arrearage as to alimony was $1,600.00 as of September 9, 1990. The plaintiff raises as a further ground for a finding of contempt that the defendant has failed to pay child support as required pursuant to a modification entered into upon an agreement of the CT Page 1717 parties on June 19, 1990. The parties stipulated that the defendant was in arrears to the extent of $200.00 as of July 15, 1990. The judgment requires the defendant to pay $150.00 per week for the support of his sixteen year-old son. By agreement of the parties, these support payments were suspended from May 29, 1990 to July 17, 1990. While it is undisputed that the defendant has failed to make the payments in question, the court finds that he lacked the ability to pay the amounts ordered during the periods at issue. While the defendant's financial affidavit included a stipend in the amount of $112.79 per week, his testimony established that this stipend will not commence until late in September 1990. As to the motion to modify, the court finds that a substantial change in the circumstances of the parties has occurred since the entry of the judgment. The defendant's business ventures have failed and his earnings have diminished. A major asset which the defendant expected to receive as a result of litigation has not been received by him to date. In addition, the parties' son has left school and is partially self-supporting, and the plaintiff has increased her income. While the lump sum alimony payment, which is to be paid in weekly installments of $100.00, is not modifiable, Miller v. Miller, 16 Conn. App. 412 , 416 (1988); 46b-86 (a) C.G.S., modification of the child support amount is warranted. Considering all of the factors set forth at 46b-84 (b) C.G.S. in conjunction with the child support guidelines promulgated pursuant to P.A. 89-203 1, including the earning capacity of the defendant, who has made only desultory attempts to pursue employment in occupations in which he had past success, the court finds that the order as to child support should be and hereby is reduced to $100.00 per week, retroactive to July 17, 1990, the last date of the agreed suspension of payments. The court finds the alimony arrearage to be $1,600.00 and orders that sum to be paid by January 30, 1991. BEVERLY J. HODGSON, JUDGE.
|
opinion_html_with_citations
| 485 |
2016-07-05 18:07:06.741105+00
|
020lead
|
f
|
f
| 3,369,717 |
HODGSON, JUDGE.
| null |
Z
|
t
|
Unpublished
| 0 |
Messina v. Messina, No. Fa 85-239617 (Sep. 19, 1990)
|
Messina
|
Sandra Messina v. John Messina
| null | null | null | null | null | null | null | null | null | 3,241,838 |
No. FA 85-239617
| 0 |
connsuperct
|
SA
|
t
|
Connecticut Superior Court
|
Connecticut Superior Court
|
5,143,016 |
Lawrence, J. Defendant in error lias filed motion in this court for an order dismissing the writ of error herein, on the ground that all the defendants below, and against whom the judgment was rendered, have not been made parties to the writ. The record shows that defendant in error brought an action of ejectment against Allen Wright and O. D. Argo to recover the possession of a lot, with house thereon, in the now city of South McAloster, and for damages for use and occupation by defendants. Said defendants Wright and Argo answered the complaint, denying the plaintiff's right of ownership, possession, and to recover damages. Thereafter the plaintiff in error Lewis, moved the court for an order making him a party defendant, upon the ground that he had purchased, for a good and valuable consideration, all the interest of said Wright in the premises in controversy. The order was granted, and Lewis filed his answer. Cause was tried to a jury, which returned a verdict for defendant in error and for $425 damages. July 13, 1905, judgment was rendered on this verdict against all of said defendants, Allen Wright, O. D. Argo, and Yancey Lewis, for the possession of the real estate described in the complaint, and for the sum of $425 damages, and the costs of suit, and that all the necessary process to issue. Thereupon defendants prayed an appeal, which was granted, and 60 days given to file bill of exceptions, and the supersedeas bond-fixed at $2,000. July !l2, 1905, there was filed in the United States District Court the petition of defendants Allen Wright and Yancey Lewis only for a writ of error, and it was thereupon allowed by William H. H. Clayton, judge of that court. Thereupon said defendants, Wright and Lewis, filed their assignment of errors. At same time, the said Wright and Lewis filed therein their supersedeas bond in the sum of $2,000, which was allowed by said William H. H. Clayton, judge. There issued a writ of error, directed to said judge, which recited “the rendition of the judgment of a plea which is in the United States Court before you, at the *604Maj1- term, 1905, thereof, between Ed. D. Sittle, plaintiff, and Allen Wright, O. W. Argo, and Yancey Lewis, defendants, a manifest error hath happened, to the great damage of said Yancey Lewis, as by their complaint appears.” Said writ being duly allowed by said judge, the citation issued in pursuance thereof directed to this defendant in error, admonishing him to appear, “pursuant to a writ of error * * * wherein Yancey Lewis is plaintiff in error and you are defendant in error.” The transcript of record was filed in this court November 1, 1905. The question is whether or not the foregoing statement of the record justifies the court in sustaining the motion to dismiss the writ of error. It involves the consideration of the law regulating the practice relating to a writ of error. Prior to March 1, 1905, the act of Congress creating this court (approved March-1, 1895) provided that it should have such general superintendency and control over the courts of the Indian Territory as is conferred on the Supreme Court of Arkansas over the courts thereof by the laws of said state, as provided by chapter 40 of Mansfield’s Digest. This act was repealed by act of Congress approved March 3, 1905 (chapter 1479, § 12, 33 Stat. 1081 [U. S. Comp. St. Supp. 1905, p. 150]), which provides that "all appeals and writs of error shall be taken from United States Courts in the Indian Territory to the United States Court of Appeals of the Indian Territory in same manner as provided for taking appeals and writs of error from United states Circuit Courts to United States Circuit Court of Appeals for the Eighth Circuit.” Act Cong. March 3, 1891, c. 517, § 11, 26 Stat. 829, 1 Supp. Rev. St. (2d Ed.) p. 904 [U. S. Comp. St. 1901, p. 552], creating the Circuit Court of Appeals, provides 'that all writs of error must be sued out within six months of, entry of judgment to be reviewed. And all provisions of law now in force regulating the methods and system of review through appeals and writs of error shall regulate *605same in Circuit Court of Appeals. Such rules and regulations-appear in section 997, Rev. St. U. S. (2d Ed.) 1878 [U. S. Comp. St. 1901, p. 712]: “There shall be annexed to and returned with any writ of error for removal of a cause, at the dill'- and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and prayer for reversal, with a citation to the adverse party, * * * and the adverse party shall have at least twenty days' notice.” The foregoing constitute all of the statutory provisions relating to the writ of error in this case. They were in full force and effect when it was sued out. Proceedings thereunder are in the main as they are at common law, under which it is considered as a new action, and as such all the parties must be brought into the court by regular proceedings, with all the particularity of the original proceeding in the trial court. The Arkansas statute, adopted in this jurisdiction by act of Congress, provides: “If there be several persons against whom any judgment may have been rendered, and who are entitled to bring writ of error or appeal thereon, living at the time of bringing the same, they shall all join therein, except where it may be ótherwise provided by law; and if any are omitted the appeal shall be dismissed, on motion of appellee, upon due proof of the facts, unless one or more of such persons be allowed to proceed.” Section 782, Carter's Ind. Ter. Ann. St. 1899. There is a further provision that, where it is shown by affidavit that the nonjoinder of the necessary parties is because of the incapability of their giving consent by reason of imbecility of mind, insanity, or absence from the state, the plaintiff in error may be allowed to prosecute the writ without- the joinder of such parties. The plaintiffs in error, in their verified reply to the motion to dismiss the writ of error, doubtless had this statute in view when they stated the reason for not joining therein Argo, defendant below, was because of his absence from this jurisdiction at the time of the trial, rendition of the judgment *606and the filing of the petition for writ of error,' and his residence at all such dates being unknown to plaintiffs in error, whereby his consent to such joinder could not be had. In said reply thejr conclude with prayer that the record be so amended as to now let in said Argo as a joint plaintiff in error with them. This statute .had been, by implication, repealed by the act of March 3, 1905, as above set forth, and had no application to the case at bar, for the record shows that this writ of error had been sued out subsequent to the passage of said act. And the writ, in contemplation of law, was sued out when filed in the office of the clerk of the trial court (July 22, 1905). It was decided in Brooks vs Norris, 11 How. (U. S.) 204, 13 L. Ed. 665, that “the writ of error is not brought, in the legal meaning of the term, until it is filed in the court. It is the filing of the writ that removes the record from the inferior to the Appellate Court.” And the same court, in Credit Co. vs Ark. Central Ry., 128 U. S. 258, 9 Sup. Ct. 107, 32 L. Ed. 448, say: “This decision has always been adhered to.” Says Chief Justice Fuller: “The distinction between writ of error and appeal has always been observed by this court, and has been recognized by the legislation of Congress from the foundation of the government,” —in Elliott vs Toeppner, 187 U. S. 327, 23 Sup. Ct. 133, 47 L. Ed. 200, citing Dower vs Richards, 151 U. S. 663, 14 Sup. Ct. 452, 38 L. Ed. 305; Wiscart vs Dauchy, 3 Dall. (Pa.) 321, 1 L. Ed. 619, in which last-named case Ellsworth, C. J., speaking for the majority of the court, says: “The judicial statute speaks of appeal and writ of error, but it does not confound the terms or use them promiscuously. They are to be understood, when used, aceording'to their ordinary acceptation, unless something appears in the act itself to control, modify, or change the fixed technical sense which they have previously borne. An appeal is a process of civil law origin, and removes a cause entirely, subjecting the fact, as well as the law, to a review and retrial, but a writ of error is a process of common-law origin, *607and it removes nothing for examination but the law. Does the statute observe these obvious distinctions? I think it does.'' The common law treats the writ of error as a new action, and not as the continuation of one already commenced, as we have observed. 2 Tidd's Practice, 1141; 7 Ency. Pl. & Pr. 822-860; Bank vs Jenkins, 104 111. 143; Bank vs Kerby, 9 Ark. 347; Miller vs Hoard, 6 Ark. 73; Wilson vs Life Ins. Co., 12 Pet. (U. S.) 140, 9 L. Ed. 1032. The reason for this rule is that the judgment of the trial court, being at law, is final between the parties, and the only matters for consideration under á writ of error are those of lawr and not of fact — errors of law upon the part of the court in omitting to rule in the progress of the trial as required by the law to do, or ruling contrary to the law. In an appeal the court of review considers the facts, as -well as the law, that appear in the record. Hence the' writ of error “is matter of substance, and not of form, and the parties cannot by stipulation, in the absence of the writ, confer jurisdiction.” See 7 Ency. Pleading & Practice, 822. This court is controlled by the same law, in this regard, as the Supreme Court of the United States, as shown by the statute and decisions herein quoted. In the case of Wilson vs Ins Co., supra, where the question now before us was considered, it was .said: “The rule of this court, therefore, is that, where there is a substantial defect in the appeal or writ of error, the objection may be taken at any time before judgment, on the ground that the case is not legally before us, and that we have not jurisdiction to try it.” The attempt to cure the defect in the writ of error by the entry of appearance of Argo by R. S. Smith, his alleged attorney at law in this action, as set forth in the reply to the motion, does not confer jurisdiction, because of the rule above quoted from 7 Ency. Pl: & Pr., and the further reason that Argo did not undertake the cure until the time for prosecuting the writ of error had elapsed. The entry of judgment was entered July 13, 1905, and the motion to be joined as a plaintiff in error *608was filed in this court June 14, 1906; the limit under the statute being six months. The motion to dismiss the writ of error is sustained, and the same is dismissed. Gill, C. J., and Townsend, J., concur.
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opinion_xml_harvard
| 1,941 |
2022-01-01 17:20:45.558119+00
|
020lead
|
t
|
f
| 5,314,453 |
Gill, Lawrence, Townsend
| null |
U
|
f
|
Published
| 2 |
Lewis v. Sittle
|
Lewis
|
Lewis v. Sittle
|
<p>Error to the United States Court for the Central District of the Indian Territory; before Justice W. H. H. Clayton, July 13, 1905.</p> <p>Action by Edward D. Sittle against Yancey Lewis and others. Judgment for plaintiff. Defendants Lewis and another bring error.</p>
| null | null |
<p>1. Parties to Mrrit of Error.</p> <p>In order that a writ of error to a Ufaited States District Court of the Indian .Territory be valid all the defendants against whom a judgment was rendered must be made parties thereto. Act March 3, 1905, c. 1479 § 12, 23 Stat. 1081 (U. S. Comp. St. Supp. 1905, p. 150) made Rev. St. IT. S. § 997 (U. S. Comp. St. 1901, p. 712) and Act March 3, 1891, c. 517, § 11, 26 Stat. 829 (U. S. Comp. St. 1901, p. 552) applicable to such courts.</p> <p>2. Same — Defect.</p> <p>When one of the defendants against whom judgment was rendered is not made a party to the writ of error, the defect is not cured by entry of appearance of this party after the writ has been filed and the time fo.- suing it out has expired.</p>
| null | null | null |
Dismissed.
| null | 61,655,591 | null | 0 |
ctappindterr
|
F
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f
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Court Of Appeals Of Indian Territory
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Court Of Appeals Of Indian Territory
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2,832,035 |
NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 14-1562 UNITED STATES OF AMERICA v. RONALD J. MOON, a/k/a Ronald Johnson, Ronald J. Moon, Appellant On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-12-cr-00502-001) District Judge: Hon. Michael M. Baylson Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 7, 2015 Before: FUENTES, SLOVITER, and ROTH, Circuit Judges (Filed: August 28, 2015) OPINION* * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge: A jury found Ronald Moon guilty of bank robbery in violation of 18 U.S.C. § 2113 . After the District Court sentenced him to a 240-month prison term, Moon filed this appeal. For the following reasons, we affirm the District Court’s judgment. On August 20, 2012, a person wearing a Muslim burka entered a branch of Sovereign Bank in Philadelphia. The individual handed the bank teller a note saying, “Give me the money, I have a gun.”1 Although the robber was wearing female Muslim garb, and the robber’s body and head were covered, the teller believed the robber was actually a man. After receiving $4,750 from the teller, the robber placed the money in a multicolored bag and fled the bank to a nearby parking lot. At that time, an eyewitness in the parking lot noticed that an individual wearing a burka who appeared to be a man was walking quickly towards a Ford Winstar minivan while carrying a multicolored bag. Suspecting the bank may have just been robbed, the witness photographed the license plate of the minivan as it left the lot, walked over to the bank, and provided this information to the police. The police then ran the license plate and determined the minivan was registered to Ronald Moon at 2410 Patane Avenue in Abington, Pennsylvania. A search of Moon’s history quickly revealed he had previously been involved in a bank robbery. About one hour after the incident, the police located the minivan as it pulled into the parking lot of Moon’s apartment complex at the 2410 Patane Avenue address, which 1 App. 157 . 2 was eight miles away from the bank. After ordering the minivan to stop, the officers arrested Moon, who was driving the vehicle, and his girlfriend, Naijah Glenn, who was a passenger. The officers did not find money, weapons, a burka, or a multicolored bag on Moon’s person or in the minivan, but they did find Glenn in possession of $4,194—$556 short of the amount stolen from the bank. Following his arrest, Moon admitted to the police that he robbed the bank while disguised as a Muslim woman, he tossed the burka out of the minivan while fleeing the bank, and he gave the stolen money to Glenn. Moon also confirmed that photographs of the perpetrator taken from the bank surveillance cameras were, in fact, pictures of him. Moon filed a motion to suppress the evidence taken after his arrest as well as his statements and photo identification. Finding that the police had probable cause to arrest Moon, the District Court denied the motion following an evidentiary hearing. At trial, the defense advanced the theory that Glenn, along with other uncharged individuals, committed the robbery. The defense also maintained that Moon falsely confessed to the robbery to protect Glenn. After the jury returned a guilty verdict, the District Court sentenced Moon to 240 months in prison.2 Moon raises four issues on appeal. First, Moon argues the police did not have probable cause to arrest him and, therefore, his motion to suppress should have been granted.3 The thrust of Moon’s argument is that the arrest “was without probable cause, 2 The District Court had jurisdiction under 18 U.S.C. § 3231 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . 3 “This Court reviews the District Court’s denial of a motion to suppress for clear error as 3 because police had no reason to believe that the driver of the van was the same person who robbed the bank, since no identifying information about the robber had been provided, the van was seen an hour after the robbery and several miles away from the bank, and the van was being driven responsibility.”4 We find no merit to Moon’s argument. An arrest is supported by probable cause if “at the moment the arrest was made . . . the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that [the suspect] had committed . . . an offense.”5 Here, the police had eyewitness testimony from the bank teller, who said the robber was a man wearing a burka; another eyewitness saw a man wearing a burka fleeing the scene in a minivan; the police determined, based on a photograph of the license plate, that the getaway vehicle was registered to Moon; and the police located the minivan at Moon’s residence just one hour after the robbery. Moreover, the police knew Moon had a history of bank robbery.6 In sum, the police had ample reason to suspect Moon had just committed the robbery. Second, Moon claims the District Court erred when it instructed the jury: “You may not speculate about Nijah Glenn or any other person being involved or not involved to the underlying factual findings and exercises plenary review of the District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318 , 336 (3d Cir. 2002). 4 Moon Br. at 12. 5 Beck v. Ohio, 379 U.S. 89 , 91 (1964). 6 United States v. Conley, 4 F.3d 1200 , 1207 (3d Cir. 1993) (“The use of prior arrests and convictions to aid in establishing probable cause is not only permissible . . . but is often helpful. This is especially so where . . . the previous arrest or conviction involves a crime of the same general nature as the one which the warrant is seeking to uncover.”) (internal 4 in this robbery. The only issue for you to decide is whether the Government has proved Ronald Moon is guilty beyond a reasonable doubt.”7 Moon contends that this instruction denied him a meaningful opportunity to present a defense because it undermined his theory that someone else committed the robbery and that he confessed only to protect his girlfriend.8 According to Moon, the District Court effectively instructed the jury to ignore his defense by casting aside his arguments about third-party guilt as speculation.9 We disagree. The District Court did not tell the jury to ignore Moon’s theory of the case. It instructed the jury not to speculate about other uncharged individuals who might share culpability and, instead, focus on its singular task, namely, deciding whether the government proved its case against Moon beyond a reasonable doubt. In any event, even if the instruction constitutes error, it was harmless. The evidence against Moon at trial, which included eyewitness testimony and his confession, was overwhelming. Third, Moon takes issue with a statement made by the government about the $556 stolen from the bank that was never found. In its closing argument, the government offered the following rhetorical question: “Where that $556 is is a good question, but there’s only one person who can answer it, and that’s Ronald Moon.”10 The defense citations omitted). 7 App. 434 -35. 8 See Holmes v. South Carolina, 547 U.S. 319 , 324 (2006) (“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”) (internal citations and quotation marks omitted). 9 “In reviewing whether a District Court in its charge to the jury correctly stated the appropriate legal standard, our review is plenary.” United States v. Hernandez, 176 F.3d 719 , 728 (3d Cir. 1999) (internal quotation marks omitted). 10 App. 407 . 5 objected to this statement, arguing that the Fifth Amendment bars the prosecution from commenting on a defendant’s silence. The District Court initially overruled the objection, but it later switched course and instructed the jury to ignore the government’s statement.11 Moon argues the District Court’s instruction came too little, too late.12 Even assuming the government’s statement was error, we are satisfied that the District Court’s later instruction to ignore the comment cured any harm. “[I]t is a basic tenet of our jurisprudence that a jury is presumed to have followed the instructions the court gave it.”13 Moon has offered no reason to believe the jury did not fully understand and follow the District Court’s instruction to disregard the government’s statement. In light of the overwhelming evidence against Moon and the District Court’s curative instruction, we have no doubt the government’s comment on Moon’s silence did not contribute to the jury’s verdict. Finally, Moon argues the District Court erred by imposing a fine of $5,000 without 11 The District Court gave the following instruction to the jury: Now, in the prosecutor’s rebuttal statement at the very end he made a statement that I instruct you to ignore when he said that only Ronald Moon can answer that. I instruct you to ignore that statement and – because that’s inconsistent with what I tell you, that the defendant has no burden or obligation of coming forward with any evidence or answering anything. So you will ignore that statement that [the government] made. App. 422. 12 We review the government’s comment on Moon’s silence to see whether the constitutional trial error was harmless beyond a reasonable doubt. See United States v. Shannon, 766 F.3d 346 , 354-55 (3d Cir. 2014). 13 United States v. Givan, 320 F.3d 452 , 462 (3d Cir. 2003). 6 considering whether the fine would impair his ability to make restitution.14 The Guidelines range fine for Moon was $17,500 to $175,000. Moon’s presentence report stated he may not able to make anything other than nominal restitution payments on a monthly installment basis, in part, because he owed $8,044 in restitution from a prior federal offense as well as $560 in restitution for this offense. Concluding that Moon would be unable to pay a fine within the Guidelines range, the District Court imposed a $5,000 fine, explaining that it would help him get a job while in prison. The District Court further ordered that Moon participate in the Bureau of Prisons Inmate Financial Responsibility Program and make a payment of $25 per quarter while in custody, and then $25 per month following his release. Moon argues this fine violates 18 U.S.C. § 3572 (b), which provides that a court “shall impose a fine or other monetary penalty only to the extent that such fine or penalty will not impair the ability of the defendant to make restitution.” In Moon’s view, the District Court violated this provision because it did not discuss whether the fine would interfere with his ability to make restitution. We find that the District Court did not abuse its discretion when it imposed this modest, below- Guidelines fine. The District Court acknowledged that Moon had no money, but found that imposing this minimal fine would help him secure a job in prison. Thus, the fine may actually facilitate rather than hinder his ability to make restitution. For all these reasons, we affirm the District Court’s judgment. 14 We review the procedural and substantive reasonableness of Moon’s sentence for an abuse of discretion. See United States v. Begin, 696 F.3d 405 , 411 (3d Cir. 2012). 7
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opinion_html_with_citations
| 1,911 |
2015-08-28 20:00:24.532585+00
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010combined
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f
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| 2,832,035 |
Fuentes, Roth, Sloviter
| null |
CU
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Unpublished
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United States v. Ronald Moon
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UNITED STATES of America v. Ronald J. MOON, A/K/A Ronald Johnson, Ronald J. Moon, Appellant
| null | null |
<parties id="A1d">
UNITED STATES of America v. Ronald J. MOON, a/k/a Ronald Johnson, Ronald J. Moon, Appellant.
</parties><br><docketnumber id="b154-18">
No. 14-1562.
</docketnumber><br><court id="b154-19">
United States Court of Appeals, Third Circuit.
</court><otherdate id="Asm">
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 7, 2015.
</otherdate><br><decisiondate id="b154-21">
Filed Aug. 28, 2015.
</decisiondate><br><attorneys id="b155-22">
<span citation-index="1" class="star-pagination" label="137">
*137
</span>
Yvonne O. Osirim, Esq., Office of United States Attorney, Philadelphia, PA, for United States of America.
</attorneys><br><attorneys id="b155-23">
Sarah S. Gannett, Esq., James' J. McHugh, Jr., Esq., Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, for Appellant.
</attorneys><br><judges id="b155-24">
Before: FUENTES, SLOVITER, and ROTH, Circuit Judges.
</judges><footnote label="1">
<p id="b156-6">
. App, 157.
</p>
</footnote>
| null | null | null | null | null | null | 2,688,966 |
14-1562
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Third Circuit
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Court of Appeals for the Third Circuit
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100,374 |
264 U.S. 292 (1924) RADICE v. PEOPLE OF THE STATE OF NEW YORK. No. 176. Supreme Court of United States. Argued January 17, 18, 1924. Decided March 10, 1924. ERROR TO THE CITY COURT OF BUFFALO, STATE OF NEW YORK. Mr. Henry W. Hill, with whom Mr. Dean R. Hill was on the briefs, for plaintiff in error. Mr. Walter F. Hofheins and Mr. Irving I. Goldsmith, Deputy Attorney General of the State of New York, with *293 whom Mr. Carl Sherman, Attorney General, and Mr. John A. Van Arsdale were on the briefs, for defendant in error. MR. JUSTICE SUTHERLAND delivered the opinion of the Court. Plaintiff in error was convicted in the City Court of Buffalo upon the charge of having violated the provisions of a statute of the State of New York, prohibiting the employment of women in restaurants in cities of the first and second class, between the hours of 10 o'clock at night and 6 o'clock in the morning. Laws of New York, 1917. c. 535, p. 1564. [1] An appeal was prosecuted through intermediate appellate courts to the Court of Appeals, where the judgment was affirmed without an opinion. The record having been remitted to the City Court, the writ of error was allowed to that court. Aldrich v. AEtna Co., 8 Wall. 491 , 495; Hodges v. Snyder, 261 U.S. 600 , 601. The validity of the statute is challenged upon the ground that it contravenes the provisions of the Fourteenth Amendment, in that it violates (1) the due process clause, by depriving the employer and employee of their liberty of contract, and (2) the equal protection clause, by an unreasonable and arbitrary classification. 1. The basis of the first contention is that the statute unduly and arbitrarily interferes with the liberty of two *294 adult persons to make a contract of employment for themselves. The answer of the State is that night work of the kind prohibited, so injuriously affects the physical condition of women, and so threatens to impair their peculiar and natural functions, and so exposes them to the dangers and menaces incident to night life in large cities, that a statute prohibiting such work falls within the police power of the State to preserve and promote the public health and welfare. The legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women. We cannot say that the conclusion is without warrant. The loss of restful night's sleep can not be fully made up by sleep in the day time, especially in busy cities, subject to the disturbances incident to modern life. The injurious consequences were though by the legislature to bear more heavily against women than men, and, considering their more delicate organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women. Testimony was given upon the trial to the effect that the night work in question was not harmful; but we do not find it convincing. Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state legislature here determined that night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative *295 determination. Holden v. Hardy, 169 U.S. 366 , 395. The language used by this Court in Muller v. Oregon, 208 U.S. 412 , 422, in respect of the physical limitations of women, is applicable and controlling: "The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her." Adkins v. Children's Hospital, 261 U.S. 525 , is cited and relied upon; but that case presented a question entirely different from that now being considered. The statute in the Adkins Case was a wage-fixing law, pure and simple. It had nothing to do with the hours or conditions of labor. We held that it exacted from the employer "an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract or the work" of the employee; but, referring to the Muller Case, we said (p. 553) that "the physical differences [between men and women] must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly taken them into account." See also Riley v. Massachusetts, 232 U.S. 671 ; Miller v. Wilson, 236 U.S. 373 ; Bosley v. McLaughlin, 236 U.S. 385 ; and compare Truax v. Raich, 239 U.S. 33 , 41. and Coppage v. Kansas, 236 U.S. 1 , 18-19. *296 2. Nor is the statute vulnerable to the objection that it constitutes a denial of the equal protection of the laws. The points urged under this head are (a) that the act discriminates between cities of the first and second class and other cities and communities; and (b) excludes from its operation women employed in restaurants as singers and performers, attendants in ladies' cloak rooms and parlors, as well as those employed in dining rooms and kitchens of hotels and in lunch rooms or restaurants conducted by employers solely for the benefit of their employees. The limitation of the legislative prohibition to cities of the first and second class does not bring about an unreasonable and arbitrary classification. Packard v. Banton, ante, 140; Hayes v. Missouri, 120 U.S. 68 . Nor is there substance in the contention that the exclusion of restaurant employees of a special kind, and of hotels and employees' lunch rooms, renders the statute obnoxious to the Constitution. The statute does not present a case where some persons of a class are selected for special restraint from which others of the same class are left free ( Connolly v. Union Sewer Pipe Co., 184 U.S. 540 , 564); but a case where all in the same class of work, are included in the restraint. Of course, the mere fact of classification is not enough to put a statute beyond the reach of the equality provision of the Fourteenth Amendment. Such classification must not be "purely arbitrary, oppressive or capricious." American Sugar Refining Co. v. Louisiana, 179 U.S. 89 , 92. But the mere production of inequality is not enough. Every section of persons for regulation so results, in some degree. The inequality produced, in order to encounter the challenge of the Constitution, must be "actually and palpably unreasonable and arbitrary." Arkansas Natural Gas Co. v. Railroad Commission, 261 U.S. 379 , 384, and cases cited. Thus classifications have been sustained which are based upon differences between fire insurance and other kinds of insurance, Orient Insurance *297 v. Daggs, 172 U.S. 557 , 562; between railroads and other corporations, Tullis v. Lake Erie & Western R.R. Co., 175 U.S. 348 , 351; between barber shop employment and other kinds of labor, Petit v. Minnesota, 177 U.S. 164 , 168; between "immigrant agents" engaged in hiring laborers to be employed beyond the limits of a State and persons engaged in the business of hiring for labor within the State, Williams v. Fears, 179 U.S. 270 , 275; between sugar refiners whom produce the sugar and those who purchase it, American Sugar Refining Co. v. Louisiana, supra . More directly applicable are recent decisions of this Court sustaining hour of labor for women in hotels but omitting women employees of boarding houses, lodging houses, etc., Miller v. Wilson, supra, at p. 382; and limiting the hours of labor of women pharmacists and student nurses in hospitals but excepting graduate nurses. Bosley v. McLaughlin, supra, at pp. 394-396. The opinion in the first of these cases was delivered by Mr. Justice Hughes, who, after pointing out that in hotels women employees are for the most part chambermaids and waitresses; that it cannot be said that the conditions of work are the same as those which obtain in the other establishments; and that it is not beyond the power of the legislature to recognize the differences, said (pp. 383-384): "The contention as to the various omissions which are noted in the objections here urged ignores the well-established principle that the legislature is not bound, in order to support the constitutional validity of its regulation, to extend it to all cases which it might possibly reach. Dealing with practical exigencies, the legislature may be guided by experience. Patsone v. Pennsylvania, 232 U.S. 138 , 144. It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be dearest. As has been said, it may `proceed cautiously, step by step,' and `if an evil is *298 specially experienced in a particular branch of business' it is not necessary that the prohibition `should be couched in all-embracing terms.' Carroll v. Greenwich Insurance Co., 109 U.S. 401 , 411. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. Keokee Coke Co. v. Taylor, 234 U.S. 224 , 227. Upon this principle which has had abundant illustration in the decisions cited below, it cannot be concluded that the failure to extend the act to other and distinct lines of business, having their own circumstances and conditions, or to domestic service, created an arbitrary discrimination as against the proprietors of hotels." The judgment below is Affirmed. NOTES [1] "3. In cities of the first and second class no female over the age of sixteen years shall be employed, permitted or suffered to work in or in connection with any restaurant more than six days or fifty-four hours in any one week, or more than nine hours in any one day, or before six o'clock in the morning or after ten o'clock in the evening of any day. This subdivision shall, however, not apply to females employed in restaurants as singers and performers of any kind, or as attendants in ladies' cloak rooms and parlors, nor shall it apply to females employed in or in connection with the dining rooms and kitchens of hotels, or in or in connection with lunch rooms or restaurants conducted by employers solely for the benefit of their own employees."
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| 100,374 |
Sutherland
| null |
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Published
| 151 |
Radice v. People of New York
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Radice
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Radice v. People of the State of New York
| null | null |
<parties id="b342-3">
RADICE
<em>
v.
</em>
PEOPLE OF THE STATE OF NEW YORK.
</parties><docketnumber id="Agd">
No. 176.
</docketnumber><otherdate id="Aoh">
Argued January 17, 18, 1924.
</otherdate><decisiondate id="Abk">
Decided March 10, 1924.
</decisiondate><br><attorneys id="b342-12">
<em>
Mr. Henry W. Hill,
</em>
with whom
<em>
Mr. Dean R. Hill
</em>
was on the briefs, for plaintiff in error.
</attorneys><br><attorneys id="b342-13">
<em>
Mr. Walter F. Hofheins
</em>
and
<em>
Mr. Irving I. Goldsmith,
</em>
Deputy Attorney General of the State of New York, with
<span citation-index="1" class="star-pagination" label="293">
*293
</span>
whom
<em>
Mr. Carl Sherman,
</em>
Attorney General, and
<em>
Mr. John A. Van Arsdale
</em>
were on the briefs, for defendant in error.
</attorneys>
| null | null | null | null | null | null | 1,004,853 |
176
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F
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t
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Supreme Court
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Supreme Court of the United States
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677,943 |
35 F.3d 553 Johnson v. Derwinski NO. 93-6251 United States Court of Appeals, Second Circuit. Aug 12, 1994 1 Appeal From: D.Conn. 2 AFFIRMED.
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| 24 |
2012-04-17 01:25:20+00
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010combined
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f
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f
| 677,943 | null | null |
R
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f
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Published
| 0 |
Johnson v. Derwinski
|
Derwinski
| null | null | null | null | null | null | null | null | null | null | 2,119,751 |
93-6251
| 0 |
ca2
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F
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t
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Second Circuit
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Court of Appeals for the Second Circuit
|
4,834,246 |
GERBER, J. The borrower appeals from the trial court’s final judgment of foreclosure in the bank’s favor. The borrower argues the evidence was insufficient to establish the bank’s standing as the owner or holder of the borrower’s note at the time the bank filed the original complaint. We disagree with the borrower’s argument and affirm. We write to distinguish this case from Lewis v. U.S. Bank Nat’l Ass’n, 188 So.3d 46 (Fla. 4th DCA 2016), where we held, without a detailed explanation, that a bank’s reliance on a pooling and servicing agreement was insufficient to establish the bank’s standing to bring suit at the time the suit was filed. Our review of Lems indicates that the bank in that case could not prove that the pooling and servicing agreement at issue included the note at issue. Here, however, the bank’s pre-com-plaint pooling and servicing agreement and corresponding mortgage loan schedule expressly indicated that the agreement included the borrower’s loan in this case. That evidence, plus the other evidence in this case, was sufficient to establish the bank’s standing as the owner or holder of the borrower’s note at the time the bank filed the original complaint. We present this opinion in three parts: 1. the procedural history; 2. the evidentiary basis for our decision; and 3. why this case is distinguishable from Lewis. 1. Procedural History In 2005, the borrower executed and delivered a note and mortgage to the original lender. In 2009, the borrower defaulted on the loan. Shortly thereafter, the bank filed its foreclosure complaint against the borrower. In its complaint, the bank alleged that it owns and holds the note and mortgage. However, the copy of the note which the bank attached to the complaint remained payable to the original lender, and did not contain any endorsements. In 2014, the bank filed a verified amended complaint. The bank alleged it “is the holder of the Note and entitled to enforce the terms thereof as [the bank] is in possession of the original Note endorsed in blank.” Attached to the verified amended complaint was an allonge containing the original lender’s undated blank endorsement of the note. The borrower filed an answer alleging the affirmative defense of lack of standing. At trial, the bank presented the testimony of its servicer’s loan analyst. The analyst testified that in 2005, the borrower’s loan was transferred to the bank’s trust. In 2006, the servicer began servicing the borrower’s loan on the trust’s behalf. The servicer sent a welcome letter to the borrower, advising the borrower to direct payments to the servicer. The bank moved the welcome letter into evidence without objection. The analyst then identified the trust’s pooling and servicing agreement and corresponding mortgage loan schedule. The bank moved both of those documents into evidence without objection. The analyst explained that the trust’s pooling and servicing agreement, entered into in 2005, “houses [the borrower’s loan] within the trust,” and the mortgage loan schedule listed the loans maintained in the trust, *693including the borrower’s loan. The analyst further testified that the bank, as trastee, was the plaintiff in this action, and that a limited power of attorney from the bank as trustee allowed the servicer to act on the trust’s behalf. The bank moved the limited power of attorney into evidence over the borrower’s objection. The analyst next identified the allonge containing the original lender’s undated blank endorsement of the note. The analyst did not know the date when the original lender endorsed the allonge. The bank moved the note and the allonge into evidence over the borrower’s objection. The bank next moved the default letter and the complete loan payment history into evidence without objection. The loan payment history showed that the servicer began receiving the borrower’s payments from 2006 until the borrower defaulted on the note. After the parties rested, the borrower argued the bank failed to prove standing, because the note attached to the original complaint was not endorsed, the later-filed blank-endorsed allonge was undated, and the bank’s witness did not know when the allonge was created. The trial court entered its final judgment of foreclosure in the bank’s favor, This appeal followed. The borrower argues the evidence was insufficient to establish the bank’s standing as the owner or holder of the borrower’s note at the time the bank filed the original complaint. Our review is de novo. See Caraccia v. U.S. Bank, Nat. Ass’n, 185 So.3d 1277, 1278 (Fla. 4th DCA 2016) (appellate court reviews the sufficiency of the evidence to prove standing to bring a foreclosure action de novo.). 2. The Evidentiary Basis for Our Decision We conclude the borrower’s argument lacks merit. We recognize that the note attached to the original complaint was not endorsed, the later-filed blank-endorsed allonge was undated, and the bank’s witness did not know when the allonge was created. However, the bank’s other evidence established that the bank was the owner or holder of the note before it filed the original complaint, and thus had standing to foreclose. The analyst testified that in 2005, the borrower’s loan was transferred to the bank’s trust, and in 2006, the servicer began servicing the borrower’s loan on the trust’s behalf. The bank also moved into evidence, without objection, the 2005 pooling and servicing agreement identifying the bank as trustee, and the corresponding mortgage loan schedule listing the loans maintained in the trust, including the borrower’s loan. We emphasize in more detail the terms of the pooling and servicing agreement. The pooling and servicing agreement stated, in pertinent part: “The parties hereto intend to effect an absolute sale and assignment of the Mortgage Loans to the Trustee for the benefit of Certificatehold-ers under this Agreement.” Additionally, section 2.01 of the pooling and servicing agreement, titled “Conveyance of Trust Fund,” stated in pertinent part: (a) The Depositor hereby sells, transfers, assigns, delivers, sets over and otherwise conveys to the Trustee in trust for the benefit of the Certificateholders, without recourse, the Depositor’s right, title and interest in and to ... the Mortgage Loans listed in the Mortgage Loan Schedule.... (b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Custodian *694for the benefit of the Certificateholders, the documents and instruments with respect to each Mortgage Loan as assigned: ... the original Mortgage Note bearing all intervening endorsements and including any riders to the Mortgage Note, endorsed “Pay to the order of _, without recourse” and signed in the name of the last named endorsee by an authorized officer. We conclude that the pooling and servicing agreement’s terms and corresponding mortgage loan schedule identifying the borrower’s loan at issue, along with the other evidence presented through the analyst, was sufficient to demonstrate that the bank was the owner or holder of the borrower’s note at the time the bank filed the original complaint. 3. Why This Case is Distinguishable from Lems In Lewis v. U.S. Bank Nat’l Ass’n, 188 So.3d 46 (Fla. 4th DCA 2016), a one-paragraph opinion, we stated: In 2008, appellee bank filed a foreclosure action and included a count seeking to reestablish a lost note. No copy of the original note was attached to the complaint. The case went to trial in 2014. The endorsements on an allonge to the note were undated and the bank’s witness could not testify when the endorsements were placed on the allonge. The bank’s reliance on a pooling and servicing agreement was insufficient to establish the bank’s standing to bring suit at the time the suit was filed. Id. at 47 (emphasis added; citations omitted). Our review of Lewis indicates that the bank in that case could not prove that the pooling and servicing agreement at issue included the note at issue. Here, however, the 2005 pooling and servicing agreement identified the bank as trustee, and the corresponding mortgage loan schedule listed the loans maintained in the trust, including the borrower’s loan. We are not the first Florida court to reassess the possible evidentiary weight of a pooling and servicing agreement. In Deutsche Bank Nat’l Trust Co. v. Marciano, 190 So.3d 166 (Fla. 5th DCA 2016), the Fifth District found that a similar section 2.01 of a pooling and servicing agreement was sufficient to establish that the plaintiff possessed the borrower’s promissory note at the time it filed the foreclosure action. We examine Marciano in more detail. In Marciano, the plaintiff did not attach a copy of the note to its foreclosure complaint. Id. at 167. The plaintiff later filed the original note containing an undated blank endorsement. Id. At trial, the plaintiff moved into evidence a pooling and servicing agreement containing a closing date which pre-dated the complaint. Id. The plaintiff also presented its loan servi-cer’s testimony that the pooling and servicing agreement’s corresponding master loan schedule showed that the plaintiff possessed the borrowers’ note before the pooling and servicing agreement’s closing date. Id. Despite this evidence, the trial court concluded that the plaintiff lacked standing to foreclose. Id. at 167-68. The Fifth District reversed. Our sister court concluded that the plaintiff had standing to foreclose, as the pooling and servicing agreement demonstrated that the plaintiff possessed the blank-endorsed note at the time the complaint was filed. Id. at 168. Section 2.01 of the pooling and servicing agreement provided: The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, sell, set over and otherwise convey to the Trustee without recourse all the right, title and interest of the *695Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule[ ] .... In connection with such transfer and assignment, the Depositor has caused the Sponsor, with respect to each Mortgage Loan, to deliver to, and deposit to or at the direction of the Trustee, as described in the Mortgage Loan Purchase Agreement, with respect to each Mortgage loan, the following documents or instruments: ... (a) the original Mortgage Note endorsed without recourse to the order of the Trustee or in blank.... Id. at 167. Significantly, the Fifth District also noted: We have not overlooked our decision in Schmidt v. Deutsche Bank, 170 So.3d 938, 940 (Fla. 5th DCA 2015), or the Fourth District’s recent decision in Lewis v. U.S. Bank Nat’l Ass’n, 188 So.3d 46 (Fla. 4th DCA 2016). In each case, the court determined that the lender failed to prove standing despite the admission of a [pooling and servicing agreement]. However, neither decision discussed any particular provisions of the respective [pooling and servicing agreements]. Our independent research has found no Florida decision discussing comparable language in a [pooling and servicing agreement] within the context of a lender’s standing to foreclose. Id. at 168 n. 1 (emphasis added; other internal citations omitted). Our decision today, following Marciano, appears to be the second Florida decision now discussing language in a pooling and servicing agreement which supports an evidentiary basis for a lender’s standing to foreclose. Conclusion In sum, the pooling and servicing agreement’s terms, along with its corresponding mortgage loan schedule and the other evidence presented through the analyst, was sufficient to demonstrate that the bank was the owner or holder of the note at the time it filed the original complaint. Therefore, we affirm. Affirmed. WARNER and CONNER, JJ., concur.
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Conner, Gerber, Warner
| null |
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Published
| 5 |
Bolous v. U.S. Bank National Ass'n
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Bolous
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Meranda W. BOLOUS v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for Credit Suisse First Boston Mortgage Securities Corp., CSFB Mortgage-Backed Pass-Through Certificates, Series 2005-12, Regent Park Condominium Association, Inc., and Mortgage Electronic Registration Systems, Inc.
| null | null | null | null | null | null | null | null | null | 60,261,828 |
No. 4D15-2608
| 0 |
fladistctapp
|
SA
|
t
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District Court of Appeal of Florida
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District Court of Appeal of Florida
|
1,951,555 |
716 A.2d 1063 (1998) 123 Md. App. 44 Vaughan D.GITTIN v. Jan Marie HAUGHT-BINGHAM. No. 1561, Sept. Term, 1997. Court of Special Appeals of Maryland. August 31, 1998. *1064 Janis R. Harvey, Baltimore, for appellant. Francis J. Ford (Ford & Chervenak on the brief), Rockville, for appellee. Argued before MOYLAN and KENNEY, JJ., and JOHN J. BISHOP, Judge (retired), Specially Assigned. KENNEY, Judge. Appellant, Vaughn D. Gittin, filed suit in the Circuit Court for Prince George's County against appellee, Jan Marie Haught-Bingham, alleging that she operated her automobile in a negligent manner causing injury to his person and damage to his motorcycle. Appellee denied any negligence and also invoked the defense of contributory negligence. After a trial that lasted less than one day, the jury returned a verdict in favor of appellee, finding that appellee was not negligent and that appellant was contributorily negligent. Appellant filed a timely appeal in which he raises two questions for our review, which we have rephrased as follows: I. Was the evidence sufficient to prove that appellant was contributorily negligent under the circumstances of the case? II. Was the evidence sufficient to sustain the jury's verdict that appellee was not primarily negligent? Finding that appellant failed to preserve his challenges for our consideration, we will affirm the trial court's judgment. FACTS On May 11, 1994, at approximately 5:00 to 5:30 p.m., appellant was riding his motorcycle eastbound on Cherry Hill Road in Beltsville, headed toward the intersection of that road and Route 1. As appellant approached the intersection, the single eastbound travel lane widened to form a left turn only lane. Appellant intended to continue traveling east on Cherry Hill Road to make a right turn onto Route 1. According to appellant, the traffic in front of him began to merge toward the left turn only lane. He proceeded "straight" past the left-turning traffic that was now stopped. Meanwhile, appellee was in the westbound lane of Cherry Hill Road, attempting to turn left at the intersection of that road and Autoville Road. Appellee was moving slowly between two cars that were stopped in the eastbound lane, waiting to turn left onto Route 1. Appellant noticed appellee's car when he was approximately 20 to 30 yards away. He recalled that he "started to slow down" when he saw her and attempted to make eye contact with her. He noticed that she had furniture in the car that appeared to obstruct her view of oncoming traffic. According to appellant's testimony, appellee continued to complete the turn, hitting appellant's foot with the left front bumper of her car. He testified that the bumper "creamed all the way down the motorcycle ... kicking the rear wheel out to the right." Appellant maintained that he was the favored driver, *1065 that he was not speeding, and that he was in a legitimate travel lane when the accident occurred. Appellee testified that there is only one eastbound travel lane on Cherry Hill Road, but that, on previous occasions, she had seen drivers maneuver around stopped traffic near that intersection. She observed that traffic in the eastbound lane was "backed up" as far as she could see. As she proceeded to move slowly between two stopped cars, she heard the sound of a motorcycle engine. According to appellee, she had made a partial turn and was stopped when she saw appellant's motorcycle approximately two to three car lengths away. She did not perceive that he changed speeds as he approached. Rather, she saw appellant drive directly into the front of her stopped vehicle. She admitted that there was furniture in the car, but denied that her view was obstructed. Appellant did not make a motion for judgment at the close of evidence, nor did he note exceptions to the trial court's jury instructions. ANALYSIS Appellant asks this Court to reverse the judgment of the trial court and to determine, as a matter of law, that he was not contributorily negligent and that appellee was negligent. In support of the requested relief, he argues several points related to the sufficiency of the evidence to sustain the jury's verdict. In response, appellee states that appellant failed to preserve his questions for appellate review. Ordinarily, an appellate court will review an issue other than jurisdiction only if it plainly appears from the record that the issue was raised in or decided in the trial court. Md. Rule 8-131(a); Duckworth v. District Court of Maryland, 119 Md.App. 73 , 75, 703 A.2d 1350 (1998). See Beeman v. Department of Health & Mental Hygiene, 107 Md.App. 122 , 666 A.2d 1314 (1995) (holding that extraordinary but limited exception may occur when case is to be remanded for further proceedings). In limited circumstances, the appellate court in its discretion may rule on issues not raised at trial. State v. Bell, 334 Md. 178 , 188, 638 A.2d 107 (1994) (declining to review probable cause for search); Bowman Group v. Moser, 112 Md. App. 694 , 698, 686 A.2d 643 (1996), cert. denied, 344 Md. 568 , 688 A.2d 446 (1997) (declining to review standing in rezoning case). See Sider v. Sider, 334 Md. 512 , 639 A.2d 1076 (1994) (exercising discretion to consider issue of paternity in custody case); and Alexander & Alexander, Inc. v. Evander & Associates, Inc., 88 Md.App. 672 , 596 A.2d 687 (1991), cert denied 326 Md. 435 , 605 A.2d 137 (1992) (exercising discretion to consider punitive damages with regard to due process violation). The decision of when to review an issue not raised at trial, however, is within the discretion of the appellate court. Davis v. DiPino, 337 Md. 642 , 648, 655 A.2d 401 (1995); Bowman, 112 Md.App. at 698 , 686 A.2d 643 . Appellant argues that as a matter of law he was not contributorily negligent and that appellee was negligent; therefore, the evidence was not sufficient to support the jury's verdict. In order to preserve for appellate review the evidentiary sufficiency issues he now raises, appellant was required specifically to make a motion for judgment pursuant to Md. Rule 2-519 at the close of all evidence. In that motion, he would have to state with particularity all reasons why the motion should be granted. Fearnow v. Chesapeake & Potomac Telephone Co., 104 Md. App. 1 , 655 A.2d 1 (1995), aff'd in part and rev'd in part, 342 Md. 363 , 676 A.2d 65 (1996); Larche v. Car Wholesalers, Inc., 80 Md.App. 322 , 328, 562 A.2d 1305 (1989). As we stated in Fearnow, "These procedural safeguards are necessary to ensure that the opposing party is not `sandbagged.'" Id. at 27, 655 A.2d 1 . Had appellant done as the rule requires, the trial court could have ruled on some or all of the legal issues in the case, thus removing them from the jury's consideration. He made no such motion. In order to preserve his contentions concerning the law that should have governed the jury's deliberations, appellant was required to note exceptions to the trial court's jury instructions. Md. Rule 2-520(e); Podolski v. Sibley, 12 Md.App. 642 , 280 A.2d 294 (1971). Instead, appellant approved of *1066 the instructions as delivered. Maryland Rule 2-520(e) states: (e) Objections. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. Having neither moved for judgment nor objected to the jury instructions, appellant is precluded from arguing that the jury's verdict was in error. Appellant concedes that he did not preserve for review either of the errors he now alleges. Nevertheless, he asserts that we should entertain his appeal on the basis of "plain error" in order to avoid a "manifest miscarriage of justice." Appellant urges that this Court has the discretion to consider a "plain error" appeal in the civil context, although he admits that there is "little precedent in the Maryland appellate courts for his claim." Appellant's acknowledgment is especially true in regard to jury instructions, the context in which the "plain error" concept is most often discussed. In Nesbitt v. Bethesda Country Club, Inc., 20 Md.App. 226 , 233, 314 A.2d 738 (1974) (quoting Md. Rule 756(g) [now Md. Rule 4-325(e) ]), we clarified that while "[i]n criminal matters we are permitted to `... take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided ... [,]' [s]uch discretion is not applicable in civil matters." A "plain error" exception is clearly provided for in Md. Rule 4-325(e), which states: "An appellate court, on its own initiative or on the suggestion of a party, may however take cognizance of any plain error in the instruction, material to the rights of the defendant, despite a failure to object." Significantly, there is no corresponding provision in Md. Rule 2-520(e). While there is some support for the imposition of a "plain error"-type doctrine in civil cases reported by the Fourth Circuit Court of Appeals and other federal courts, [1] no Maryland court has adopted the "plain error" approach urged by appellant and no Maryland procedural rule provides the relief appellant seeks. As the Court of Appeals said in Bell: This Court has stated often that the primary purpose of Rule 8-131(a) is `to ensure fairness for all parties in a case and to promote the orderly administration of law.' The interests of fairness are furthered by `requir[ing] counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.' Although it is clear that an appellate court does have the discretion to affirm a decision on a ground not raised below, this discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or to the court. Id. at 189, 638 A.2d 107 (citations omitted, footnote omitted). Whatever limited discretion an appellate court may have to consider unpreserved issues pursuant to Md. Rule 8-131 (a) such discretion should be exercised only in extraordinary circumstances and within the bounds of fairness to both parties and to the court, not just to the party seeking the exercise of that discretion. We are not persuaded *1067 that the circumstances and facts of this case require a departure from established precedent. The requirements of the applicable rules are long standing and clear. The applicable law is not in transition. Therefore, as no error was preserved for our review, we will affirm the judgment of the trial court. JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT. NOTES [1] See Bristol Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182 (4th Cir.1994) (An absolute failure to move for judgment as a matter of law limits appellate review "to whether there was any evidence to support the jury's verdict irrespective of its sufficiency, or whether plain error was committed, which, if not noticed, would result in a `manifest miscarriage of justice.' "); Singer v. Dungan, 45 F.3d 823 (4th Cir.1995) (where appellant failed to move for judgment as a matter of law, federal courts "may consider an issue for the first time on appeal "if the error is `plain' and if ... refusal to consider such would result in the denial of fundamental justice"); Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228 (4th Cir.1996) (failure to renew motion for judgment limits federal court's remedial power but not its ability to review the alleged error); In re Celotex Corp., 124 F.3d 619 (4th Cir.1997) (judicially created civil version of "plain error" doctrine grants federal courts discretion "to correct an error not raised below in a civil case").
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Moylan and Kenney, Jj., and John J. Bishop, Judge (Retired), Specially Assigned
| null |
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| 8 |
Gittin v. Haught-Bingham
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Gittin
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Vaughn D. GITTIN v. Jan Marie HAUGHT-BINGHAM
| null | null |
<citation data-order="0" data-type="citation" id="b70-4">
716 A.2d 1063
</citation><parties data-order="1" data-type="parties" id="As">
Vaughn D. GITTIN v. Jan Marie HAUGHT-BINGHAM.
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No. 1561,
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Sept. Term, 1997.
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Court of Special Appeals of Maryland.
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Aug. 31, 1998.
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<span citation-index="1" class="star-pagination" label="45">
*45
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Janis R. Harvey, Baltimore, for appellant.
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Francis J. Ford (Ford & Chervenak on the brief), Rockville, for appellee.
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Argued before MOYLAN and KENNEY, JJ., and JOHN J. BISHOP, Judge (retired), Specially Assigned.
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| null | null | null | null | null | null | 1,775,604 |
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4,178,220 |
C-Track E-Filing The Supreme Court of Nevada Appellate Case Management System C-Track, the browser based CMS for Appellate Courts Case Search Participant Search
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Unpublished
| 0 |
Stovall v. the Second Jud. Dist. Ct.
|
Stovall
| null | null | null | null | null | null | null | null | null | null | 6,075,529 |
71730
| 0 |
nev
|
S
|
t
|
Nevada Supreme Court
|
Nevada Supreme Court
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7,363,044 |
DENSON, J This is an action of detinue, commenced on the 3rd day of November, 1903, by J. J. Johnson against J. D. Wilson, to recover a mule. The plaintiff had never had actual possession of the mule. His right to recovery is based on title under a mortgage executed to him by T. M. Skinner, on the 31st day of December, 1902, to secure a recited indebtedness of $450. The law day of the mortgage was October 1, 1903, and the instrument stipulates for the retention of possession by Skinner until default in the payment of the debt secured. “Where the plaintiff in detinue bases his right of recovery, not on prior possession, but upon the strength of his title, he must prove his title; and the defendant, unless estopped, may show any fact in derogation of such alleged title, and may therefore prove that the title is not in the plaintiff, but in a stranger. It is immaterial that the defendant fails to connect himself with such outstanding title. It is enough that the plaintiff has none, and cannot recover without it.” — Foster v. Chamberlain, 41 Ala. 158; McIntosh v. Parker, 82 Ala. 238, 3 South. 19; Russell v. Walker, 73 Ala. 315; Draper v. Walker, 98 Ala. 310, 13 South. 595 On this principle, it was competent to show, in defense, prior outstanding mortgages on the mule executed by Skinner, whether defendant connected himself with them by a legal transfer or not. However, as shown by the record, there was evidence tending to show that the defendant purchased the debts and mortgages, and that they *617were delivered to him with the mule; and this was sufficient connéction of defendant with them to authorize their use to defeat plaintiff’s right of recovery by showing an outstanding title.- — 20 Am. & Eng. Ency. Law, 1028; O’Neal v. Seixas, 85 Ala. 80, 4 South. 745; Garham v. Newman, 21 Ala. 497. Defendant offered in evidence three mortgages antedating those of the plaintiff, all of which were past due when plaintiff’s mortgage was taken. They were admitted by the court against the plaintiff’s objection. The mortgage from Skinner to Folmar, Walden & Byrd Avas purchased by the firm of Tillis & Byrd, which latter firm succeeded the former in business, and the evidence shows that the mortgage to Tillis & Byrd was given as additional security for the debt secured by the mortgage to Folmar, Walden & Byrd. The contention of the plaintiff after the admission of the mortgages in evidencé, was that they Avere fully paid before the commencement of the suit. In respect to this issue the evidence Avas sharply in conflict. The court al-loAved the plaintiff to offer in evidence the mortgage record in which the mortgage to Tillis & Byrd was recorded, for the purpose, as the bill of exceptions recites, of shoAving that it had been marked satisfied by B. E. Byrd. This entry was shown on the margin of the record : “Satisfied in full by order of B. E. Byrd, this Jan. 30th, 1903. Ed Roach, Judge of Probate.” It was shown that A. B. Jernigan, a clerk in the probate office, made the entry; but the bill of exceptions recites that it was not shown by what authority the entry was made. It is not a duty imposed by law upon the judge of probate to make such entries on the margin of mortgage records; and, in the absence of proof of authority on the part of Jernigan or of the probate judge to make the entry, the *618record should not have been admitted, and the court committed reversible error in admitting it. Nor is the error cured or rendered harmless by the fact that the court, in overruling defendant’s objection to the record, stated that, unless it was shown that the entry was made by the direction of the holder of the mortgage, it would amount to nothing, and that he would so instruct the jury. The bill of exceptions purports to set out all of the evidence, and it does not appear that any evidence of authority to make the entry was given, nor does it appear that the court instructed the jury that, in consequence of a failure to show that the entry was made by direction of the holder of the mortgage, it should not be considered. On the contrary, it appears that the court, over the objection of the defendant, permitted the plaintiff’s counsel to comment on the entry on the record as a circumstance tending to show payment of . the mortgage debt, and refused a request in writing by the defendant to the effect that the jury could not regard the entry on the record as evidence of payment. It follows that the errors in admitting the entry on the margin of the mortgage record, and in refusing charge 2 requested by defendant, must work a reversal of the judgment. — Bolton v. Cuthbert et al., 132 Ala. 403, 31 South. 358, 90 Am. St. Rep. 914. Charge 1, requested by the defendant, was properly refused. One contention of the plaintiff was that the payment by defendant of the debt due Tillis & Byrd was to be in extinguishment of the mortgage security, and that defendant was to hold the debt against Skinner without the mortgage, and allow him to pay it in work on defendant’s farm; Skinner being defendant’s tenant at the time. We cannot say that there is not a tendency in the evidence supporting the contentions. There*619fore charge 1 was bad for pretermitting this contention of the plaintiff. As the evidence will in all probability be different on another trial, we shall not consider the error assigned in respect to the refusal of charge 3, the general affirmative charge. For the errors pointed out, the judgment is' reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Haralson and Anderson, JJ., concur.
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opinion_xml_harvard
| 994 |
2022-07-27 23:48:56.251012+00
|
020lead
|
t
|
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| 7,442,949 |
Anderson, Denson, Haralson, Tyson
| null |
U
|
f
|
Published
| 0 |
Wilson v. Johnson
|
Wilson
|
Wilson v. Johnson
|
<p>
Detinue.
</p> <p>Appeal from Geneva County Court.</p> <p>Heard before Hon. P. N. Hickman.</p> <p>Detinue by J. J. Johnson against J. D. Wilson. From a judgment for plaintiff, defendant appeals.</p> <p>This was an action of detinue for the recovery of a mule. The facts sufficiently appear in the opinion of the court. The following charge was requested by the defendant and refused by the court: “(1 )The court charges the jury that, unless they believe from the evidence that Skinner paid Wilson the amount due on the Tillis & Byrd mortgag, then you will find for the defendant.”</p> <p>Counsel discusses assignments of error but cites no authority.</p> <p>The record was admissible. — Hartón v. Barlow, 108 Ala. 417; Gay, et ah v. Rogers, 109 Ala. 624; 80 Ala. 45; 70 Ala. 469. At any rate the objection is general. — 88 Ala. 193; 42 Ala. 456 ; 3 Mayf. 575.</p>
| null | null |
<p>1. Chattel Mortgages; Recovery of Possession; Defenses. — Where the plaintiff claimed title through a chattel mortgage, but was not in possession of the property, it was competent for defendant to show ■outstanding pior mortgages and to connect himself with title under said prior mortgage, and where the evidence tended to show that defendant had purchased such outstanding prior debts and mortgages, which were delivered to defendant together with the property, this was sufficient connection to authorize their use by defendant to defeat plaintiff’s right of recovery.</p> <p>2. Same; Instructions. — A charge asserting that unless the mortgagor paid defendant the amount due on the prior mortgage, they ■should find for defendant was properly refused, since there was evidence to sustain defendant’s contention that the payment by defendant of a prior debt was to be an extinguishment of the mortgage security, and that mortgagee was to hold the debt against the mortgagor without the mortgage security.</p> <p>3. Evidence; Record; Appeal; Entry on liy Judge of Prolate.— ’Since it is not the judge of probate’s legal duty to enter satisfaction of the mortgage on the margin of the record, the record showing such an entry was inadmissible to show that a prior mortgage had satisfied, in the absence of proof of authority in the judge of probate or his clerk to make such an entry.</p> <p>4. Appeal; Review; Prejudicial Error. — The admission of the record as to unauthorized entries of satisfaction of mortgages was not cured by a statement of the court that unless it was shown that the ■entry was made by the direction of the holder of the mortgage, it would amount to nothing and that he would so instruct the jury, where it appeared that no such evidence was given, and the court failed to so instruct the jury and permitted plaintiff’s counsel to comment on the entry of satisfaction as a circumstance in the case.</p>
| null | null | null |
Reversed and remanded.
| null | 64,440,413 | null | 0 |
ala
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S
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t
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Supreme Court of Alabama
|
Supreme Court of Alabama
|
4,399,938 |
Matter of Attorneys In Violation of Judiciary Law § 468-a. (Brown) ( 2019 NY Slip Op 04081 ) Matter of Attorneys In Violation of Judiciary Law § 468-a. (Brown) 2019 NY Slip Op 04081 Decided on May 23, 2019 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: May 23, 2019 [*1]In the Matter of ATTORNEYS IN VIOLATION OF JUDICIARY LAW § 468-a. COMMITTEE ON PROFESSIONAL STANDARDS, Now Known as ATTORNEY GRIEVANCE COMMITTEE FOR THE THIRD JUDICIAL DEPARTMENT, Petitioner; JEFFREY R. BROWN, Respondent. (Attorney Registration No. 2940336 ) Calendar Date: April 15, 2019 Before: Garry, P.J., Lynch, Aarons, Rumsey and Pritzker, JJ. Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany, for petitioner. Jeffrey R. Brown, East Brunswick, New Jersey, respondent pro se. Per Curiam MEMORANDUM AND ORDER Per Curiam. Respondent was admitted to practice by this Court in 1999, having previously been admitted in New Jersey in 1988. He lists a business address in East Brunswick, New Jersey with the Office of Court Administration. By September 2009 order, this Court suspended respondent from the practice of law in New York for conduct prejudicial to the administration of justice arising from his noncompliance beginning in 2001 with the attorney registration requirements of Judiciary Law § 468-a and Rules of the Chief Administrator of the Courts (22 NYCRR) § 118.1 ( Matter of Attorneys in Violation of Judiciary Law § 468 , 65 AD3d 1447, 1452 [2009]; see Rules of Professional Conduct [22 NYCRR 1200.0] rule 8.4 [d]). Respondent now seeks his reinstatement ( see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [a]). The Lawyers Fund for Client Protection indicates that it has no objection to respondent's application, and petitioner advises that it defers to the Court's discretion with respect to respondent's application. In light of the length of his suspension, respondent properly submits a sworn form affidavit applicable to attorneys suspended for longer than six months ( see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [b]; part 1240, appendix C; see e.g. Matter of Attorneys in Violation of Judiciary Law § 468-a [Freedman] , 166 AD3d 1161 [2018]). Office of Court Administration records demonstrate that respondent has cured the delinquency that [*2]resulted in his suspension and that he is now current with his biennial registration requirements ( see Judiciary Law § 468-a; Rules of the Chief Admin of Cts [22 NYCRR] § 118.1). Respondent has also submitted the required documentation in support of his application, including proof that he successfully completed the Multistate Professional Responsibility Examination, as is required for all attorneys seeking reinstatement following suspensions of six months or more ( see Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [b]; compare Matter of Attorneys in Violation of Judiciary Law § 468-a [Castle] , 161 AD3d 1443, 1444 [2018]). Moreover, having reviewed the submitted materials and respondent's affidavit, we are satisfied that he has sufficiently complied with the order of suspension and the rules of this Court, that he has the requisite character and fitness for the practice of law and that it would be in the public's interest to reinstate him to the practice of law in New York ( see Matter of Attorneys in Violation of Judiciary Law § 468-a [Obele] , 169 AD3d 1154, 1155 [2018]; Matter of Attorneys in Violation of Judiciary Law § 468-a [Ettelson] , 161 AD3d 1478, 1480 [2018]; Rules for Attorney Disciplinary Matters [22 NYCRR] § 1240.16 [a]). Accordingly, we grant respondent's motion. Garry, P.J., Lynch, Aarons, Rumsey and Pritzker, JJ., concur. ORDERED that respondent's motion for reinstatement is granted; and it is further ORDERED that respondent is reinstated as an attorney and counselor-at-law in the State of New York, effective immediately.
|
opinion_html_with_citations
| 645 |
2019-05-23 16:41:29.169553+00
|
010combined
|
f
|
f
| 4,622,685 | null | null |
C
|
f
|
Published
| 0 |
Matter of Attorneys In Violation of Judiciary Law § 468-a. (Brown)
| null | null | null | null | null | null | null | null | null | null | null | 15,666,740 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
5,691,029 |
Proceeding pursuant to article 78 to review a determination of the New York State Office of Temporary and Disability Assistance dated February 12, 2004, which, after a hearing, affirmed the denial of the petitioner’s application for the payment of a housing allowance for reimbursement, inter alia, of a broker’s fee and a security deposit. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, without costs or disbursements. *555In September 2003 the petitioner, a recipient of public assistance, requested the assistance of the Human Resources Administration (hereinafter the HRA), in finding a new residence for her family. On or about October 15, 2003, the petitioner’s case manager took her to see an available apartment, which the petitioner declined to accept. Thereafter, without first consulting the case manager, the petitioner, in an attempt to secure an apartment on her own, borrowed the sum of $4,650 from a friend to pay, inter alia, a broker’s fee and a security deposit. Subsequently, the petitioner requested that the HRA provide her with a housing allowance for reimbursement, inter alia, of the broker’s fee and security deposit so that she could repay the loan. The HRA denied the application and the denial was affirmed following a fair hearing. The petitioner subsequently commenced this CPLR article 78 proceeding to challenge the determination affirming the denial of the application. As a threshold matter, the respondents contend that this proceeding is barred by Social Services Law § 106-b because the petitioner no longer receives public assistance payments and, thus, is not entitled to payment. Under these circumstances, where review is limited to the record made at the hearing, this contention is improperly raised for the first time on appeal (see Block v Magee, 146 AD2d 730, 732 [1989]). In any event, the petitioner’s application was properly denied. Pursuant to 18 NYCRR 352.6 (a) (2), “[a] security deposit and/or brokers’ or finders’ fees shall be provided only when an applicant or recipient is unable to obtain a suitable vacancy without payment of allowances.” The record in this case reveals that the petitioner rejected such a suitable vacancy, and that, only as a consequence of that decision, incurred the additional expenses for which she has sought an allowance. Therefore, the petitioner’s application was properly denied. The petitioner’s remaining contentions are without merit. Schmidt, J.E, S. Miller, Santucci and Spolzino, JJ., concur.
|
opinion_xml_harvard
| 395 |
2022-01-12 15:26:23.814513+00
|
020lead
|
t
|
f
| 5,835,241 | null | null |
U
|
f
|
Published
| 0 |
Jeune v. Doar
|
Jeune
|
In the Matter of Florence Jeune v. Robert Doar
| null | null | null | null | null | null | null | null | null | 62,193,075 | null | 0 |
nyappdiv
|
SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
6,986,849 |
Tanner, P. J. This was an action of assumpsit, instituted by the appellee upon a promissory note, executed by the appellant, and payable to oue O. P. Baker, or bearer. The general issue was filed and several special pleas. The second plea avers “ that the maker of the note was unable to read writing in the language in which the note was written; and that in signing the said note, he was told and induced to believe that he was executing a contract entered into between him and the payee of the note, for the purchase of lightning rods, and the paying therefor by feeding and taking care of a certain number of horses, then owned by the payee of the note.” The third special plea avers that “ the payee in the note represented that he was the conductor of a lightning rod company, which owned a large number of horses; and he then proposed to appellant to give him the sum of seven dollars per head for the feeding and taking care of thirty horses per month, and to continue to do so for five months; that he accepted this proposition, whereupon the payee in the said note proposed to put up lightning rods to appellant’s dwelling house and barn, and to apply the cost thereof to the payment in part for the keeping and' feeding of said thirty head of horses. To this proposition he also assented; and that the said Baker, the payee in the said note, then put up the lightning rods at the price of one hundred and seventy dollars. And thereupon the said Baker drew up and presented to him a paper, partly printed and partly written, in the English language; and that he could neither read nor write the said language. That said Baker read and represented said instrument to be a promissory note, conditioned for the payment of money, but to be paid wholly in keeping and feeding of horses, as aforesaid; and it was not to become due and payable until the amount thereof was discharged in the feeding and keeping of said horses. And that he, in full confidence in the truth of the statements so made, signed the said instrument, and thereby he was fraudulently induced to sign the same:” Issue was joined on the several pleas, and the cause was submitted to a jury, and verdict returned for the appellee. A motion for a new trial was overruled, and judgment was rendered upon the verdict. The appellant brings the cause to this court, and assigns as error, first, the giving of the first and second instructions for the plaintiff below. We think both instructions should have been refused. In the first instruction the j ury are directed to find for the plaintiff if they believe, from the evidence, the defendant knew at the time he was signing the contract spoken of by him, that there was a note attached to it, and that the agreement spoken of by defendant in his evidence was that the note attached to it was to be paid by horse-feed; and that the plaintiff purchased the note for value before it was due, without notice, actual or constructive, of any defense to the note.” The fault in this instruction consists in not having any testimony upon which it can rest. The appellant is the only witness that testifies in reference to the contract, and he does not at any time state that he signed a contract with a note attached to it, but that he signed a contract or note which was conditioned to be paid in feeding and taking care of horses; that he was sure he never signed such a paper as the note sued on; that the paper he signed was twice as large as the note. There is another reason why these instructions should have been refused. The note is payable to O. P. Baker or bearer, and was passed to the appellee by delivery. Under Sec. 4, Chap. 98, B. S. 1874, promissory notes must be indorsed thereon under the hand of the payee, in order to vest the right of property absolutely in the assignee. And where suit is brought upon a promissory note by a person not the payee, and who becomes the owner thereof without its having been assigned, the maker can present his defense to the same extent that he could in case it was brought by the payee. Both instrucstructions are based upon the theory that if the appellee purchased the notes before maturity, without notice of any defense to the same, he stands in the position of an innocent holder. The rule of law is otherwise. Sturges v. Miller, 80 Ill. 241. We are asked, also, to reverse the judgment, upon the authority of the case of Elliott v. Levings & Co. 54 Ill. 213. In that case the'court says: “ There is however a defect, in the proof, for which the judgment must be reversed. The bill of exceptions, which professes to contain all the evidence, sets out the note, but shows no assignment of it by the payee to the plaintiff, and the counsel for the appellant ask a reversal on this ground.” It is so in the case before us; and the judgment, if there was no other error, would have to be reversed for this. But the counsel for the appellee urges that the rule laid down in this case has been changed by the 8th section of chap. 98, R. S. 1874. This section was enacted in 1874, and went into force on the 1st day of July of that year, and so far as we are now informed, has in nowise been construed by the courts. The note in the case before us, as has already been observed, is made payable to “ O. P. Baker or bearer.” In Hilborn v. Artus, 3 Scam. 344; and Roosa v. Crist. 17 Ill. 450, it is held that a note payable to A. B. or bearer, cannot be transferred by mere delivery, so as to vest the legal title in the holder or bearer. These cases are familiar to the bar, and we need make no quotations therefrom, in order to show the grounds upon which they rest. It is sufficient to say, such is the law. The note in suit before us has a definite payee. The term bearer is mere surplusage; and being made payable to a person by name, the title can only pass from him by his indorsement, in pursuance of the provisions of the statute in reference to this character of paper. To apply the rule for which the counsel for the appellee contends, in the case now under consideration, we would have to reverse the order of reasoning adopted by the Supreme Court, as the basis for rule in the cases before cited upon this point. The payee would be entirely ignored—his name regarded as mere surplusage. This view is not supported by reason or authority, To hold that by the 8 th Sec. of the Chap, on negotiable instruments, the legal title to this note p>assed to the appellee by mere delivery, would be assuming that the 4th Sec. of said Chap, has been repealed by implication. The doctrine of the repeal of existing statutes by implication is not favored, and is never applied where statutes are in pari materia, except where there is an irreconcilable repugnancy. This ruléis without exception and too well understood to demand, the citation of authority. These several provisions of the statute are not repugnant, and we hold that section 8 does not in the least affect the provisions of section 4, as construed by our court, in the cases to which we have already referred. Section 4 was re-enacted by the General Assembly in 1874 without alteration, and long after it had been repeatedly construed by out Supreme Court, and its re-enactment must be presumed to have been done with the intention of continuing it in force, as construed by the courts. Other errors are assigned, but as they are of such character as would likely he corrected if another trial was had, it is unnecessary to notice them. For the errors already indicated, the judgment must be reversed and the cause remanded. Reversed and remanded.
|
opinion_xml_harvard
| 1,393 |
2022-07-24 03:17:49.301215+00
|
020lead
|
t
|
f
| 7,081,594 |
Tanner
| null |
U
|
f
|
Published
| 0 |
Rabberman v. Muehlhausen
|
Rabberman
|
Frederick Rabberman v. Bernhard W. Muehlhausen
|
<p>Appeal from the Circuit Court of St. Clair county; the Hon. Amos "Watts, Judge, presiding.</p>
| null | null |
<p>1. Pbomissoby note—Transfer.—A promissory note payable to A. or bearer cannot be transferred, by mere delivery, so as to vest the legal title in the holder or bearer.</p> <p>2. Defenses.—Where suit is brought upon such a note, by a person not the payee, and who becomes the owner thereof without its having- been assigned, the maker can present his defense to the same extent that he could if suit was brought by the payee.</p>
| null | null | null | null | null | 64,069,943 | null | 0 |
illappct
|
SA
|
t
|
Appellate Court of Illinois
|
Appellate Court of Illinois
|
9,273,434 |
C. A. 4th Cir. Certiorari denied.
|
opinion_xml_harvard
| 6 |
2022-11-28 21:14:46.535986+00
|
020lead
|
t
|
f
| 9,278,600 | null | null |
U
|
f
|
Published
| 0 |
Stevens v. Meacham
|
Stevens
|
Stevens v. Meacham
| null | null | null | null | null | null | null | null | null | 66,546,589 |
No. 04-5691
| 0 |
scotus
|
F
|
t
|
Supreme Court
|
Supreme Court of the United States
|
6,898,444 |
HOLMES, Circuit Judge. The facts in this case, as established by the verdict of the jury, are these: The appellee bought a Tennessee walking horse from appellant with the express agreement that the purchaser would be permitted to keep the horse for a trial period of ninety days with the right to return the animal within that period and get back *392$5500 of the purchase money. The price was $7500, which was paid before delivery of the horse. Under the contract, the hujier was to take a loss of $2000 if he returned the horse. The horse was returned in good condition within the trial period, but the appellant failed and refused to return any part of the purchase money. The jury returned a verdict for appel-lee for $5500 plus attorney’s fees in the sum of $1000. All controverted questions of fact having been resolved in favor of the plaintiff by the jury’s verdict, we deem it necessary to discuss only the matter of attorney’s fees. The law of Georgia governs, and Section 20-1404 of the 1933 Code of that state provides as follows: “EXPENSES of Litigation. — The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecssary trouble and expense, the jury may allow them.” The bad faith mentioned in the statute refers to the transaction out of which the cause of action arose, rather than to the motive with which the defense is made. In Chambers & Co. v. Harper, 83 Ga. 382, 9 S.E. 717, where a horse was sold for cash with an express warranty, the evidence showing that the sellers acted in bad faith in refusing to return the money, the court held that the jury were justified in allowing the buyer his counsel fees; but this case has been criticised, and we prefer to place our decision upon later Georgia authorities, which hold the rule to be as stated at the beginning of this paragraph. Traders’ Ins. Co. v. Mann, Trustee, 118 Ga. 381, 45 S.E. 426; Edwards v. Kellogg, 121 Ga. 373, 49 S.E. 279; West v. Haas, 191 Ga. 569, 13 S.E.2d 376; Grant v. Hart, 197 Ga. 662, 30 S.E.2d 271. We think the jury were warranted in finding bad faith on the part of the seller in making this sale. It appears from his own testimony that, at the time of delivering the horse to appellee, he had no intention of refunding any part of the money if the horse were returned in accordance with the original agreement. He claimed, by a conversation with the buyer over the telephone, to have abrogated the option for the latter to return the horse, and to have written a letter dated July 5, 1946, which clearly indicated his intent to rescind the original agreement. The appellee denied having agreed to any such change in the terms of sale, and produced the letter, which contained no such modification of the original contract. On the contrary, the letter stated that appellant “would be delighted if the mare did not suit, under our ninety day agreement to send her back at a loss of $2000 to you.” Yet, according to appellant’s own testimony, although “the letter may not have been as clear as it could be,” the intent and purpose of appellant was to abrogate the option permitting the buyer to return the horse as originally stipulated. This intention was not disclosed to the appellee. From that and much other testimony, the jury were amply justified in awarding attorney’s fees to the appellee. We find no reversible error in the record, and the judgment appealed from is affirmed.
|
opinion_xml_harvard
| 626 |
2022-07-23 21:52:23.785865+00
|
020lead
|
t
|
f
| 6,999,380 |
Holmes
| null |
U
|
f
|
Published
| 0 |
Shemwell v. Graham
|
Shemwell
|
SHEMWELL v. GRAHAM
| null | null | null | null | null | null | null | null | null | 63,987,677 |
No. 12150
| 0 |
ca5
|
F
|
t
|
Fifth Circuit
|
Court of Appeals for the Fifth Circuit
|
9,857,577 |
VILLANTI, Judge, Dissenting. I respectfully dissent because I do not agree that the trial court erred in its jury instruction regarding section 627.7073. The standard of review applicable to a trial court’s decision to give or withhold a jury instruction is abuse of discretion. Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). “Trial courts are generally accorded broad discretion in formulating jury instructions.” Id.; see also Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA 2005) (noting that decisions regarding jury instructions rest within the trial court’s discretion and will not be reversed absent a showing of prejudicial error). In this case, the statute stated that the findings, opinions, and recommendations of the experts were presumed correct. See § 627.7073(l)(c). I fail to see how a trial court can abuse its discretion by giving an instruction that merely tracks the governing law. In fact, it would have been an abuse of discretion for the trial court to deny giving the requested instruction, since it was undisputed that Universal met its obligations under the new legislation and that Mr. Warfel’s claim both arose and was filed after the statute’s effective date. See, e.g., Barkett, 908 So.2d at 1086-87 (holding that failure to give jury instruction which tracked statutory language and which was warranted by the evidence or arguments required a new trial). *141Furthermore, the parties do not dispute that social policy concerns drove the legislative changes at play in this case. They only disagree as to whether the presumption that accompanied these changes was one shifting the burden of proof or one that merely vanished once countervailing evidence was adduced. I contend that because the statutory sections at issue in the case were enacted to advance social or public policy, a burden-shifting presumption applies. Section 90.303, Florida Statutes (2005), provides: Presumption affecting the burden of producing evidence defined. — In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence. (Emphasis added.) Section 90.304 then provides: Presumption affecting the burden of proof defined. — In civil actions, all re-buttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof. (Emphasis added.) Section 90.304 applies to presumptions implementing public policy and, therefore, applies in this case. Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438, 439 (Fla.1979), provides a useful analytic framework. In Caldivell the supreme court analyzed presumptions where the relevant statute did not expressly create a burden-shifting presumption. The ease involved section 112.18(1), Florida Statutes (1975), which provided that a fireman’s disability or death caused by heart disease was presumed to have been suffered in the line of duty unless the contrary was shown by competent evidence. Id. In Caldwell, there was conflicting expert testimony as to the cause of the fireman’s injury. Id. The supreme court concluded that the presumption created by the statute “embodie[d] the social policy of the state” which recognized that firemen are subjected to certain hazards which could cause heart disease. Id. at 440. Therefore, the statutory presumption was intended to shift the burden of proof/persuasion, even though the statute did not expressly so state. The court reasoned that the presumption would be meaningless and would negate the statutory language if it simply vanished following testimony from the employer’s expert regarding causation. Id. at 440-41. Similar public policy considerations are evident in this case. In 2004, in response to the increase in sinkhole claims and policy cancellations, the Florida Legislature commissioned a study by Florida State University on matters related to the affordability and availability of sinkhole insurance. See Fla. S. Banking & Ins. Comm., CS for SB 1488 (2005) Staff Analysis 18 (Apr. 7, 2005) (on file with comm.) [hereinafter SB 1488 Staff Analysis]. The study found that sinkhole claims had dramatically increased in a five-year period, from 348 in 1999 to 1108 in 2003, and that payments for sinkhole claims had almost tripled, from $22.4 million in 1999 to $65 million in 2003. Id. As a result of the increase in sinkhole claims and the high costs associated with investigating those claims, many private insurers withdrew from Florida, forcing residents to obtain property insurance through Citizens Property Insurance Company, Florida’s insurer of last resort. Cassandra R. Cole, Ph. D., et al., Potential Solutions to the Sinkhole Problem in Florida, CPCU eJOUR-NAL (CPCU Society, Malvern, PA), Dec. 2005, at 2. This situation resulted in substantial rate increases for Citizens’ policyholders in sinkhole-prone counties. Id. at *1422. The 2005 study made several recommendations to address the “sinkhole problem.” Id. at 1. These recommendations included creating uniform procedures for adjusting sinkhole claims utilizing experts and establishing a database with sinkhole claims information. Id. The study recognized the high cost of sinkhole testing8 and the fact that accurate testing requires a certain level of “geotechnical expertise.” Id. at 3. One of the problems with sinkhole testing was the lack of standardized methods for identifying sinkholes, which caused a large number of disputed claims. Id. The 2005 report recommended the creation of a uniform approach to identify sinkholes, in an effort to “provide consistency in claims handling” and a reduction in the number of disputed sinkhole claims. Id. at 4. It was obvious, based upon the study, that a collapse of the sinkhole insurance market was imminent without legislative reform. Against this critical economic background, the legislature revised the statutes at issue in this case “in response to a continuing crisis regarding the availability and affordability of sinkhole coverage.” Fla. S. Banking & Ins. Comm., CS for SB 286 (2006) Staff Analysis 3 (Apr. 11, 2006) (on file with comm.). Specifically, section 627.707, Florida Statutes (2005), was amended to revise the standards for investigating sinkhole claims. See SB 1488 Staff Analysis at 24. Section 627.707(2) requires an insurer who receives a sinkhole claim to engage an engineer or professional geologist to conduct testing as set forth in section 627.7072, to determine the cause of loss. Section 627.7072 sets forth specific standards to test for the presence or absence of sinkholes. The testing must conform to the Florida Geological Survey Special Publication No. 57 (2005). § 627.7072(2). Section 627.707(2) then requires that a report be issued as provided in section 627.7073. Id. Section 627.7073 specifies what must be included in that report. Section 627.7073(l)(c) then clearly states: The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct. (Emphasis added.) As in Caldwell, it is clear that these statutory sections were enacted with a common social policy: to address the critical sinkhole insurance problem in Florida. Presumptions based on social policy are not “vanishing” presumptions; they do not automatically disappear. See Caldwell, 372 So.2d at 440. Rather, they are presumptions shifting the burden of proof. Id. (holding that presumption could be overcome only by clear and convincing evidence and that, in the absence of such cogent proof, public policy must be given effect). The majority points out that the legislature knows how to expressly create burden-shifting presumptions under section 90.304. While this may be true, as illustrated by Caldwell, the fact that the statute does not expressly state that it contains a burden-shifting presumption is not always dispositive of the issue. In fact, this case illustrates why section 627.7073’s presumption ought to be a burden-shifting presumption. Upon receiving Mr. Warfel’s claim, Universal hired experts whose qualifications met the requirements of the relevant statute and had those experts conduct the type of testing required by the statute. The experts then prepared a report as required by section 627.7073. This was all done at Universal’s expense. At trial Mr. Warfel offered his own experts, who simply reviewed Univer*143sal’s report and visited the property; they did not conduct independent testing consistent with the standards set forth in section 627.7072. Mr. Warfel’s experts then simply disagreed with the report’s conclusions and opined that a sinkhole contributed to the damage to Mr. Warfel’s property. To apply a “vanishing” presumption under these facts effectively negates the presumption of correctness conferred upon the report by section 627.7073(l)(c). It is inconceivable that the legislature would enact a statute containing extensive detail regarding sinkhole testing and expert reports and that it would express its intent that the report “be presumed correct,” only to have this presumption “vanish” when an expert hired by the insured simply testifies that he disagrees with the conclusions contained in the report. Allowing Mr. War-fel’s experts to “vanish” the presumption created by the statute by simply testifying that they disagree with the report negates the statute’s efforts to provide consistency in claims handling and reduce the number of disputed sinkhole claims. This type of ipse dixit logic from the insured’s experts is not consistent with the history and intent of the statute. . In 2005, the cost of testing for sinkhole losses ranged from $4000 to $8000 and higher. Cassandra R. Cole, Ph.D., et. al., supra at 3.
|
opinion_xml_harvard
| 1,544 |
2023-09-24 15:45:54.376961+00
|
040dissent
|
f
|
f
| 1,555,435 |
LaROSE, Villanti, Wallace
| null |
LU
|
t
|
Published
| 2 |
Warfel v. Universal Insurance Co. of North America
|
Warfel
|
Michael WARFEL, Appellant, v. UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, Appellee
| null | null |
<parties id="b224-3">
Michael WARFEL, Appellant, v. UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, Appellee.
</parties><br><docketnumber id="b224-6">
No. 2D08-3134.
</docketnumber><br><court id="b224-7">
District Court of Appeal of Florida, Second District.
</court><br><decisiondate id="b224-8">
May 12, 2010.
</decisiondate><br><attorneys id="b224-17">
Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa; and Jonathan Hall, Joshua E. Burnett, and Marshall Thomas Burnett, Tampa, for Appellant.
</attorneys><br><attorneys id="b224-18">
Alicia Lopez and Karl Forrest of Groelle & Salmon, P.A., Tampa, for Appellee.
</attorneys>
| null | null | null | null | null | null | 1,639,037 |
2D08-3134
| 0 |
fladistctapp
|
SA
|
t
|
District Court of Appeal of Florida
|
District Court of Appeal of Florida
|
8,997,003 |
ORDER PER CURIAM. Pursuant to Rule 42(b), Fed.R.App.P., and the stipulation submitted by the parties, this appeal is dismissed as moot. The case is remanded to the district court with instructions to vacate its judgment and dismiss the complaint. United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950); Beattie v. United States, 949 F.2d 1092, 1095 (10th Cir.1991); Tosco Corp. v. Hodel, 826 F.2d 948 (10th Cir.1987). Each party shall bear its own costs and the mandate shall issue forthwith.
|
opinion_xml_harvard
| 81 |
2022-11-27 12:49:48.374497+00
|
020lead
|
t
|
f
| 9,004,298 |
Baldock, Moore, Seymour
| null |
U
|
f
|
Published
| 0 |
Russell v. Turnbaugh
|
Russell
|
William Carroll RUSSELL, Jr., an individual, doing business as Weekly Register-Call v. Kay TURNBAUGH and Ruth Ann Andere, individuals KLT Communications, Inc., a Colorado corporation, also known as KLT Communications, Inc.
| null | null | null | null | null | null | null | null | null | 66,270,514 |
No. 91-1121
| 0 |
ca10
|
F
|
t
|
Tenth Circuit
|
Court of Appeals for the Tenth Circuit
|
8,254,761 |
See Iowa R. App. P. 6.904 AFFIRMED AND REMANDED.
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opinion_xml_harvard
| 9 |
2022-10-16 11:39:50.411679+00
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020lead
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f
| 8,288,658 | null | null |
U
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f
|
Published
| 0 |
Timmons v. Timmons (In re Marriage of Timmons)
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Timmons
|
IN RE the MARRIAGE OF Kari TIMMONS and Matthew Timmons Upon the Petition of Kari Timmons, And Concerning Matthew Timmons
| null | null | null | null | null | null | null | null | null | 65,466,807 |
No. 18-1213
| 0 |
iowactapp
|
SA
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t
|
Court of Appeals of Iowa
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Court of Appeals of Iowa
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3,155,820 |
People v Roberson (2015 NY Slip Op 08444) People v Roberson 2015 NY Slip Op 08444 Decided on November 18, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 18, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. THOMAS A. DICKERSON LEONARD B. AUSTIN JOSEPH J. MALTESE, JJ. 2013-03116 (Ind. No. 206/12) [*1]The People of the State of New York, respondent, v Frederick Roberson, appellant. Lynn W. L. Fahey, New York, N.Y. (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Jeanette Lifschitz, and Josette Simmons McGhee of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered March 13, 2013, convicting him of burglary in the second degree, criminal mischief in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence. ORDERED that the judgment is affirmed. The defendant contends that he was deprived of a fair trial because the People, in violation of the Supreme Court's suppression order, elicited testimony from the complainant that she recognized the defendant as the burglar at the scene of the arrest. This contention is unpreserved for appellate review ( see CPL 470.05[2]; People v Romero , 7 NY3d 911, 912). In any event, the subject testimony, which was elicited during the redirect examination of the complainant, did not deprive the defendant of a fair trial, since defense counsel opened the door to this issue on cross-examination ( see People v Massie , 2 NY3d 179, 180; People v Melendez , 55 NY2d 445; People v Wende , 122 AD3d 884; People v Prowse , 60 AD3d 703). Moreover, we reject the defendant's contention that his trial counsel's decision to open the door to the admission of this previously suppressed evidence denied him the effective assistance of counsel. The defendant failed to show that his trial counsel's tactics lacked a legitimate strategic purpose and that the risks of opening the door to such evidence outweighed its tactical advantages ( see People v Caban , 5 NY3d 143, 152; People v Trovato , 68 AD3d 1023, 1024; People v Pennington , 27 AD3d 269, 270; People v Taylor , 300 AD2d 746, 748]). "The fact that trial counsel's tactics were unsuccessful does not constitute ineffective assistance of counsel" ( People v Trovato , 68 AD3d at 1024; see People v Henry , 95 NY2d 563, 565). Indeed, viewing the record as a whole, we find that the defendant received meaningful representation ( see People v Benevento , 91 NY2d 708, 713-714; People v Baldi , 54 NY2d 137). The defendant's contention that he was deprived of a fair trial by certain remarks made by the prosecutor during summation is unpreserved for appellate review ( see CPL 470.05[2]; People v Clemente , 84 AD3d 829, 830-831; People v Charles , 57 AD3d 556, 556; People v Gill , 54 [*2]AD3d 965, 966). In any event, the challenged remarks were either fair comment on the evidence, responsive to the arguments presented in defense counsel's summation, reasonable inferences drawn from the evidence, or within the broad bounds of permissible rhetorical comment ( see People v Ashwal , 39 NY2d 105, 109-110; People v McDonald , 82 AD3d 1125). The defendant's contention that the evidence was legally insufficient to support the conviction of criminal mischief in the fourth degree is also unpreserved for appellate review ( see CPL 470.05[2]; People v Hawkins , 11 NY3d 484; People v Wende , 122 AD3d 884; People v Judge , 101 AD3d 902; People v McDaniel , 84 AD3d 1410). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to support that conviction ( see People v Douglas , 291 AD2d 455; People v Bodine , 231 AD2d 840; see generally Matter of Carlos M ., 32 AD3d 686, 687). Moreover, upon our independent review of the evidence pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on that count was not against the weight of the evidence ( see People v Romero , 7 NY3d 633; People v Douglas , 291 AD2d 455; cf. People v Terborg, 35 AD3d 1169). MASTRO, J.P., DICKERSON, AUSTIN and MALTESE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court
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opinion_html_with_citations
| 779 |
2015-11-18 21:06:51.395801+00
|
010combined
|
f
|
f
| 3,155,820 | null | null |
CU
|
f
|
Published
| 0 |
People v. Roberson
|
Roberson
|
The People of the State of New York, Respondent, v. Frederick Roberson, Appellant
| null | null |
<parties id="AcW">
The People of the State of New York, Respondent, v Frederick Roberson, Appellant.
</parties><citation id="ATq">
[20 NYS3d 383]
</citation>
| null | null | null | null | null | null | 3,013,824 |
2013-03116
| 0 |
nyappdiv
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SA
|
t
|
Appellate Division of the Supreme Court of New York
|
Appellate Division of the Supreme Court of the State of New York
|
7,256,145 |
Petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit denied.
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opinion_xml_harvard
| 17 |
2022-07-25 06:36:10.566598+00
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020lead
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t
|
f
| 7,338,223 | null | null |
U
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f
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Published
| 0 |
Walker v. Jarriel
|
Walker
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Derrick Kingsley Walker v. Don Jarriel, Warden
| null | null | null | null | null | null | null | null | null | 64,326,715 |
No. 09-11430
| 0 |
scotus
|
F
|
t
|
Supreme Court
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Supreme Court of the United States
|
3,898,583 |
Honorable Joe Hubenak Chairman, Committee on Agriculture and Livestock House of Representatives Austin, Texas Re: Constitutionality of H.B. 11 in ratifying actions taken to participate in the National Flood Insurance Program. Dear Chairman Hubenak: You have requested our opinion concerning the effect and constitutionality of section 2 of House Bill 11, which ratifies the proceedings and actions of any political subdivision `with respect to participation in and compliance with the National Flood Insurance Program.' Acts 1977, 65th Leg., 1st Called Session, ch. 4, at 58. This portion of House Bill 11 was passed as a curative act to validate actions taken in such regard without proper authority. See Attorney General Opinion H-1011 (1977). Your questions are essentially as follows: (1) Does the Texas Legislature have the power to ratify, confirm, approve, and validate past, unauthorized actions taken between June 30, 1970 and September 1, 1977, supposedly under Article 8280-13, V.T.C.S., by those counties and political subdivisions which had not qualified for participation in the National Flood Insurance Program by June 30, 1970? (2) Does House Bill No. 11 destroy all those causes of action for damages, injunctive relief and/or taxpayer relief which may have arisen since June 30, 1970 against those counties and other political subdivisions which took unauthorized actions, as described above in question (1)? (3) Does House Bill No. 11 violate Article I , Section 16 of the Constitution of the State of Texas, which reads: No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made. It is well established that the Legislature may validate a statute or act of a political subdivision so long as it originally had power to enact or authorize it. Perkins v. State, 367 S.W.2d 140 , 145 (Tex. 1963); State v. Bradford, 50 S.W.2d 1065 (Tex. 1932); Anderson County Road Dist. No. 8 v. Pollard, 296 S.W. 1062 (Tex. 1927); Nolan County v. State, 17 S.W. 823 (Tex. 1891). Such statutes of course must be consistent with the Constitution. Article 1, section 16 has been construed to prohibit the enactment of only those retroactive laws which impair vested rights. Deacon v. City of Euless, 405 S.W.2d 59 , 62 (Tex. 1966); Cox v. Robison, 150 S.W. 1149 , 1156 (Tex. 1912); Attorney General Opinion H-634 (1975). Curative statutes are necessarily retroactive, since they are `intended to act upon past transactions. . . .' Hunt County v. Rain County, 7 S.W.2d 648 , 649 (Tex.Civ.App.-Texarkana 1925, no writ). Texas courts have upheld a number of curative statutes without discussion of article 1, section 16, including statutes which validate the formation of districts and their issuance of bonds and collection of taxes. Matlock v. Dallas County Arcadia Fresh Water Supply Dist. No. 1, 12 S.W.2d 181 (Tex. Comm'n App. 1929, opinion adopted); Anderson County Road Dist. v. Pollard, supra; Brown v. Truscott Independent School Dist., 34 S.W.2d 837 (Tex. Comm'n App. 1931, jdgmt adopted). Similarly, want of authority to annex property has been held cured by validation. Hunt v. Atkinson, 17 S.W.2d 780 (Tex. Comm'n App. 1929, jdgmt adopted). In Matlock v. Dallas County Arcadia Fresh Water Supply Dist. No. 1, supra , the court held that taxes levied by an invalidly established water district had been validated by the Legislature and could be collected from the individual defendant. To the extent that the Texas courts have spoken on the subject, they have upheld curative statutes against claims based on article 1, section 16. Brown v. Truscott Independent School Dist., supra ; Louisiana Ry. Nav. Co. v. State, 298 S.W. 462 , 466 (Tex.Civ.App.-Dallas 1927), aff'd, 7 S.W.2d 71 (Tex. Comm'n App. 1928, jdgmt adopted) (dicta). The failure of the courts to discuss the impact of article 1, section 16 on curative statutes suggests that it does not prohibit them. One court has, however, indicated that a validating statute cannot divest a private right acquired under a final judgment. Inman v. Railroad Comm'n, 478 S.W.2d 124 , 129 (Tex.Civ.App.-Austin 1972, writ ref'd n.r.e.). In our opinion, the courts would probably find that validating statutes may constitutionally cut off causes of actions and defenses which have not yet been secured in a final judgment. This determination would be consistent with the implications of the cases upholding curative statutes. The courts have stated that validating statutes should be liberally construed. Perkins v. State, 367 S.W.2d 140 (Tex. 1963); City of Mason v. West Texas Utilities Co., 237 S.W.2d 273 (Tex. 1951). They have also recognized that private persons may in good faith invest money in reliance on unauthorized actions of counties. City of Mason v. West Texas Utilities Co., supra at 275; see also Hunt County v. Rain County, supra at 654. In view of the public interests served by validating statutes, the courts may be reluctant to recognize new kinds of vested rights that would interfere with the implementation of such statutes. In our opinion, the courts would find that House Bill 11 destroys the causes of action you mention without violating article 1 , section 16 of the Texas Constitution. SUMMARY Section 2 of House Bill 11, 65th Legislature, First Called Session, which ratifies past unauthorized actions by political subdivisions with respect to participation in the National Flood Insurance Program, is a valid exercise of legislative authority. It does not violate article 1 , section 16 of the Texas Constitution and destroys any cause of action based on lack of legislative authority for the actions ratified. Very truly yours, John L. Hill Attorney General of Texas APPROVED: David M. Kendall First Assistant C. Robert Heath Chairman Opinion Committee
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opinion_html_with_citations
| 935 |
2016-07-06 09:29:57.15435+00
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020lead
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f
|
f
| 4,135,841 |
JOHN L. HILL, Attorney General of Texas
| null |
Z
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f
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Published
| 0 |
Opinion No.
|
Opinion No.
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Joe Hubenak
| null | null | null | null | null | null | null | null | null | 4,007,983 | null | 2 |
texag
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SAG
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t
|
Texas Attorney General Reports
|
Texas Attorney General Reports
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6,405,417 |
Wilde J. _ _ delivered the opinion of the Court. It appears by the report of the case, that only two questions of law were raised at the trial: — 1. Whether the consideration proved, were sufficient to support the promise ; — 2. And if so, whether the note subsequently given amounted to payment, and discharged the promise. That the note was given subsequently to the promise de • dared on, seems to be sufficiently proved, and we consider the fact as established by the verdict. It was not questioned at the trial; on the contrary, the defendant then contended that the note, being negotiable, discharged the promise, and was a payment of the balance now claimed. And t would have been, but for the avoidance of it by the defendant. That this avoidance lets the plaintiff into his previously existing demand against the defendant, is proved by the case of Johnson v. Johnson, 11 Mass. R. 359.1 As to the question of consideration, it appears that the plaintiff discharged his accounts and gave up his notes against the estate of the deceased; which the defendant was bound to pay, having given bond to pay debts and legacies without returning an inventory. This is a sufficient consideration, whether the plaintiff’s security on the bond were extinguishe 1 or not. There seems, however, to be no doubt that the plaintiff’s remedy on the bond was extinguished by the discharge of the debt. The suggestion that the promise is void by the statute of frauds is clearly unfounded. It is not a promise by an executor “ to answer damages out of his own estate for the bond given to the judge of probate is an admission of sufficient assets, which the defendant is estopped to deny.2 Judgment according to verdict. See Edgell v. Stanford, 6 Vermont R. 551; Rice v. Welling, 5 Wendell, 595; Hughes v. Wheeler, 8 Cowen, 77; Hammond v. Hoppings 13 Wendell, 505; Fugate v. Ferguson, 1 Blackford, 366; Turner v. Calvert, 12 Serg. & Rawle, 46; Ramsdell v. Soule, 12 Pick. 128. See 2 Stark. Ev. (5th Amer, ed.) 346, n. (2).
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opinion_xml_harvard
| 356 |
2022-06-25 11:48:32.164503+00
|
020lead
|
t
|
f
| 6,531,711 |
Wilde
| null |
U
|
f
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Published
| 0 |
Stebbins v. Smith
|
Stebbins
|
Miner Stebbins versus Samuel Smith
|
<p>Assumpsit for money paid, on insimul computassent, and other money counts.</p> <p>At the trial, before Morton J., the plaintiff proved, that the defendant and Alexander Smith were residuary legatees and executors of Jonathan Smith ; that on the 13th of April, 1820, they gave a bond to the judge of probate to pay the debts and legacies of the deceased; that on the 22d of Janu ary, 1821, the plaintiff and defendant made an examination of all the plaintiff’s demands against the estate of the de ceased, and found due 1186 dollars, which the defendant agreed to pay, and for which he then gave a negotiable note for 1286 dollars, payable on demand with interest; that the plaintiff then discharged his accounts and gave up his notes ; that the sum of 1186 dollars was made up of one note against the deceased and Alexander Smith as surety, given to Seth and Enoch Smith for 651 dollars, one note signed by Alexander Smith and the deceased as surety, given to Rodney Day for about 100 dollars, one or two other small notes, and fne plaintiff’s account against the deceased. It was admitted that the defendant received some estate by devise from the deceased, and that the note for 1286 dollars, after having been partly paid, had been avoided by the defendant on account of usury. It was proved that before this adjustment between the plaintiff and defendant, the plaintiff had, at the request of Alexander Smith, paid to Seth and Enoch Smith he amount due on their note, and they had assigned it to him.</p> <p>Upon this evidence it was contended, that the defendant was not liable in this action, because the promise made by him was void for want of a sufficient consideration, or, if not void, that giving the note for 1286 dollars ,was a payment and discharge of the debt. But the jury were instructed, that the promise was valid and sufficient to support the action, and that the above mentioned note, being entirely void, was not payment of the debt. The jury returned a verdict for the plaintiff accordingly. If the instructions were wrong, a new trial was to be granted ; otherwise judgment was to be rendered upon the verdict.</p>
| null | null |
<p>A promise to pay a debt of a testator, by an executor who has given a bond to the judge of probate to pay the testator’s debts and legacies, is not within the statute of frauds, for the bond is an admission of assets.</p> <p>Giving up securities against the testator’s estate, is a «efficient consideration for such a promise.</p> <p>It seems that the creditor’s remedy on the bond is extinguished by such discharge of his demands.</p> <p>Where one of two executors, who had given such a bond, promised to pay the sum due to a creditor, and gave his negotiable note therefor, and the creditor then gave, up his securities against the testator’s estate, and afterwards the' note was avoided for usury, it was keld9 that the creditor might maintain an action on the paroi promise of the executor.</p>
| null | null | null | null | null | 63,461,718 | null | 0 |
mass
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S
|
t
|
Massachusetts Supreme Judicial Court
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Massachusetts Supreme Judicial Court
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1,216,629 |
358 S.E.2d 791 (1987) CALHOUN COUNTY ASSESSOR, et al. v. CONSOLIDATED GAS SUPPLY CORP., etc., et al. No. 17003. Supreme Court of Appeals of West Virginia. May 29, 1987. Rehearing Denied July 16, 1987. *793 Lewis, Ciccarello & Friedberg, (Brickford Y. Brown) Charleston, for appellant. Robinson & McElwee, Charleston, Richard A. Hayhurst, Parkersburg, Kenneth Coleman, Ashland, Ky., Lawrence Nydes, Pittsburgh, Pa., Thomas N. Hanna, Charleston, for appellee. *792 MILLER, Justice: This appeal involves the narrow issue of whether a county tax assessor (assessor) has the authority to require utility companies conducting operations within the county to provide information relating to property owned by third parties with whom the utilities have oil and gas leases. The circuit court generally concluded that the assessor did not have such authority. The assessor relied on W.Va.Code, 11-3-2 (1983), and W.Va.Code, 11-3-3 (1961), when he requested the respondents to furnish information regarding their oil and gas operations within the county during the 1983 tax year. When the respondents refused to provide the information, the assessor instituted an action in the Circuit Court of Calhoun County seeking to compel the disclosure of the requested information. [1] I. We begin our analysis by noting that statutes governing the imposition of taxes are generally construed against the government and in favor of the taxpayer. E.g., Consolidation Coal Co. v. Krupica, 163 W.Va. 74, 80, 254 S.E.2d 813 , 816 (1979); Ballard's Farm Sausage, Inc. v. Dailey, 162 W.Va. 10, 246 S.E.2d 265 (1978); In Re Evans' Estate, 156 W.Va. 425, 194 S.E.2d 379 (1973); N. Singer, 3A Sutherland Statutory Construction § 66.01 (4th ed. 1986). However, an opposite rule of construction is recognized for statutes governing assessment procedures: "[A]s a general rule, courts have been tolerant in construing statutes prescribing the procedure for assessments ... [and] [t]he factor of administrative convenience in the enforcement and collection of taxes is taken into consideration by the courts." N. Singer, supra at § 66.06. The Supreme Court of Arkansas in Ragland v. Alpha Aviation, Inc., 285 Ark. 182 , 184, 686 S.W.2d 391 , 392 (1985), recently recognized this important distinction and stated: "It is a general rule of construction that statutes establishing procedures for collection and assessment of taxes will be construed in favor of the government.... see also 84 C.J.S. Taxation, § 393 [(1954)]; R.J. Reynolds Tobacco v. Carson, 187 Tenn. 157 , 213 S.W.2d 45 (1948); Southern Pac. Ry. Co. v. State, 34 N.M. 479 , 284 P. 117 (1930)." We addressed the question of a county assessor's authority to require a taxpayer to answer questions relevant to an assessment of property in In Re Shonk Land Co., 157 W.Va. 757, 204 S.E.2d 68 (1974). There two coal companies refused to answer questions that had been asked by the county assessor on a standardized form designed to elicit information relevant to an assessment of their coal properties at true and actual value. The assessor placed a value on the coal properties without the benefit of the information requested, and the coal companies sought to challenge the valuation before the county commission, sitting as a board of equalization and review. The board refused to consider the application for review based on W.Va.Code, 11-3-10, which generally provides that a taxpayer *794 forfeits any right to challenge the correctness of an assessment, if the taxpayer has refused to answer any question asked by the assessor or has failed or refused to submit any statement required by law. The companies appealed unsuccessfully to the circuit court and we affirmed. They contended among other things, just as the respondents have here, that the assessor lacked statutory authority to promulgate the standardized form and, as a ministerial officer, could not demand any information other than that prescribed by the State tax commissioner. The Court rejected these arguments and upheld the assessor's authority to design a reporting form and require its completion and submission, holding in Syllabus Point 1 of Shonk Land Co. : "An assessor, in the fulfillment of his legal obligation to assess property at its true and actual value, may prepare and submit to taxpayers forms which constitute a request for information which he deems necessary in determining a proper valuation of the properties and so long as the information requested is reasonable such information constitutes a statement required by law as contemplated by Code, 1931, 11-3-10, as amended." We explained in Shonk Land Co., 157 W.Va. at 761-62, 204 S.E.2d at 70 , that the assessor's obligation was independent of the duties of the tax commissioner: "The county assessor, a constitutional officer, is charged with the responsibility of assessing properties in the county at their true and actual value. Code, 1931, 11-3-1, as amended. See George F. Hazelwood Company v. Pitsenbarger, Assessor, 149 W.Va. 485, 141 S.E.2d 314 (1965). In the accomplishment of that required endeavor it is incumbent upon the assessor to seek out all information which would enable him to properly fulfill his legal obligation. See Younger v. Meadows, 63 W.Va. 275, 59 S.E. 1087 (1907).... Code, 1931, 11-3-10, as amended, clearly provides that the taxpayer shall answer any question `asked by the assessor or by the tax commissioner'. (emphasis supplied).... "Each county has its own problems and circumstances which may require the assessor to make inquiries which would not occur to the state tax commissioner.... In view of the foregoing we are of the firm opinion that Form KCM 170 contains reasonable and lawful questions by the assessor, that such questions are contemplated in the fulfillment of his duties and that Form KCM 170 constitutes a statement required by law as contemplated by Code, 1931, 11-3-10, as amended." Shonk Land Co. dealt with the primary obligation of the assessor to secure relevant information by way of forms. It established that this right was independent of any authority vested in the State tax commissioner. It did not deal with the assessor's right to seek information from third parties. The obligation of a third party to disclose information was discussed in Hannis Distilling Co. v. Berkeley County Court, 69 W.Va. 426, 71 S.E. 576 (1911). There, we construed the term "trustee" in the 1905 version of W.Va.Code, 11-3-3, [2] to include a warehouseman who held several thousand *795 barrels of whiskey as a bailee. Because the company had refused to list the names of the owners of the whiskey barrels stored in its warehouse, this Court affirmed the assessor's action in assessing the value of the personal property against the warehouse company and held in Syllabus Point 2: "Under section 55 of chapter 35 of the Acts of 1905, it was the duty of every agent, having the custody of personal property, to list the same for taxation in the name of the owner. A warehouseman is a trustee within the meaning of clause `d' of said section." In interpreting the statute in this manner, this Court stated: "Neither of these two provisions, found in clauses `a' and `g' of said section 55 [now W.Va.Code, 11-3-3, set out in note 2, supra ], covers the case we have here in express terms, but they disclose the spirit and purpose of the section. Clause `d' of that section says property held in trust must be listed by the trustee if in possession thereof, otherwise by the party for whose benefit it is held. Giving effect to the presumed intention of the Legislature, we must give the word `trustee' its broadest and fullest meaning. While the applicant was a bailee, and not technically a trustee, a bailment involves a trust in the broad sense of the term. The bailee is a custodian of property which clearly embraces a trust." 69 W.Va. at 431, 71 S.E. at 578-79 . The historical significance of Hannis is this Court's willingness to construe the statute in favor of disclosure to effectuate the legislature's objective that all real and personal property be assessed and taxed. Furthermore, Hannis concluded that the legislature did not intend the statutory designations of who must list property owned by another person to be viewed restrictively. In considering the term "trustee," the Court stated: "[W]e have a word here, which, taken in its broad, nontechnical sense, expresses the intent of the old statute, and makes the new one accord with it as well as the mandate of the Constitution requiring taxation of all property." 69 W.Va. at 432, 71 S.E. at 578 . We note that the information requested by the assessor is limited to real property or leasehold and royalty interests on real property located in Calhoun County in which the respondents have some ownership or operational interest with others. [3] They have some control of the property to the extent of these interests which they may share with third parties. Under W.Va.Code, 11-3-2, assessors have the right to have those in control or possession of property to report such interest where there is a "representative or fiduciary character" involved. [4] Furthermore, it appears that assessors may inquire as to property of third *796 parties in the possession of another under W.Va.Code, 11-3-11, which enables the assessor to "require any person having possession, charge or control of any property in the county to permit him to examine the same in order that a fair valuation thereof may be made, and if any person refuse to do so, he shall forfeit not less than ten nor more than fifty dollars." [5] We do not consider the phrase "to examine" to be limited to a physical examination, but would enable the assessor, by way of a reasonable form, to have the property described in order to ascertain who owns it and its value. If this Court some seventy-five years ago in Hannis could conclude that the term "trustee" could be expanded to include a bailee, we have no difficulty in saying that the respondents' lease relationships are of a representative or possessory character sufficient to impose upon them a duty to disclose their lessors and other reasonable information as the assessor has sought. In view of the foregoing, we conclude that an assessor may make reasonable inquiry to parties in those relationships identified in W.Va.Code, 11-3-2 and -3, which include the lessees of real property or the owners of other interests in real property who may be asked reasonable questions relating to the interest of other persons in the property and the value of property itself. This principle follows not only from the foregoing statutes and Hannis, but also flows from our recognition of the taxability of a leasehold interest, which we stated in Syllabus Point 1 of Great A & P Tea Co., Inc. v. Davis, 167 W.Va. 53, 278 S.E.2d 352 (1981), to be: "The assessor of a county may assess the value of a leasehold as personal property separately in an amount such that when the value of the freehold subject to the lease is combined with the value of the leasehold the total reflects the true and actual value of the real property involved." See also In Re Maier, W.Va. , 319 S.E.2d 410 (1984). In order for an assessor to make such a determination, it is apparent he needs to obtain relevant information from the lessee with regard to the leasehold and the lessor's interest. II. A. The respondents have advanced several theories that they believe should obviate or bar the necessity of any disclosure as requested by the assessor. One is that the tax commissioner has already supplied the assessor with this information for the tax year 1983 in connection with the State-wide reappraisal program and, therefore, the question of the assessor's discovery power is now moot. The petitioners contend that the information sought was neither obtained by the tax commissioner nor provided to them. The information allegedly obtained by the tax commissioner and supplied to the assessor has not been made a part of the record in this proceeding and consequently no factual showing has been made that the assessor already has the information sought. We, therefore, cannot conclude the issue is moot. [6] B. The respondents next challenge the assessor's authority on the ground that public *797 service corporations are assessed almost entirely by the Board of Public Works under W.Va.Code, 11-6-1, et seq. They point out that their primary reporting duty is to the Board of Public Works, with the limited exception of where they own real property and do not use it for public service purposes. We agree with the respondents' general statement of the law in this area. In Petition of Hull, 159 W.Va. 363, 222 S.E.2d 813 (1976), this Court held that a county assessor lacked authority to assess ad valorem taxes on personal property that was currently being incorporated into the construction of an electric power generating facility. [7] The respondents' argument is flawed, however, because it fails to distinguish between the power to assess and the authority of the assessor to engage in limited discovery to determine the existence of taxable property in their control in which third parties may have an ownership interest. Here, the assessor is not seeking to assess property used by the respondents in their public service operations. What the assessor is seeking is information concerning the respondents' nonutility operations in the county involving real property interests to determine the identity and interest of third parties who have a taxable interest in the same property. The fact that the legislature has given the tax commissioner and the Board of Public Works certain powers does not lead to the conclusion that the assessor has no authority to obtain information to fulfill his duties as was pointed out in Shonk Land Co. Furthermore, W.Va.Code, 11-3-10, which was the linchpin of Syllabus Point 2 of Shonk Land Co., states that "any person, firm or corporation, including public service corporations" who refuse to list their taxable property or refuse to answer "any question asked by the assessor or by the tax commissioner" may be subject to certain penalties. This provision gives a clear indication that an assessor may ask questions to a public service corporation about its taxable property located in the assessor's county. C. An argument is made that the confidentiality provisions of W.Va.Code, 11-1A-23, [8] which relate to the confidentiality of property tax returns and prohibit the tax department, county assessors, or county commissions from disclosing returns subject to certain exceptions, are applicable. *798 In this case, we do not deal with the disclosure of property tax returns, but with an attempt by the assessor to obtain information by way of a form. There is nothing to suggest that the assessor is intending to disclose the form, but merely to utilize it for his own internal purposes. We do not believe W.Va.Code, 11-1A-23(a), is applicable to the facts of this case. Much the same answer applies to W.Va. Code, 11-1-4a, which permits the tax commissioner to publish statistical data, but precludes the making public of "the tax return, or any part thereof, of any individual, firm, or corporation, nor [disclosing] in any manner statistics or information concerning the personal affairs of any individual or the business of any single firm or corporation." Moreover, this section does not apply to the assessor. The respondents' noncompetitive and antitrust arguments are not buttressed by any relevant authority. We stress again that the data sought to be obtained is limited in scope and is not sought in order to be made public, but is sought for internal use only. For the reasons stated, the judgment of the Circuit Court of Calhoun County is reversed and the case is remanded for further proceedings. Reversed and Remanded. NOTES [1] The Calhoun County Commission does not argue its position on appeal and we, therefore, do not consider it. See, e.g., Syllabus Point 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981); Quackenbush v. Quackenbush, 159 W.Va. 351, 222 S.E.2d 20 (1976). [2] This same provision exists in W.Va.Code, 11-3-3 (1961), which provides: "The list required in the preceding section [§ 11-3-2] shall be made and information furnished: (a) With respect to property of a minor, by his guardian, if he has one, and if he has none, by his father, if living, or, if not, by his mother, if living, and if neither be living or be a resident of this State, by the person having charge of the property; (b) with respect to the separate property of a married woman, by herself or her husband in her name; (c) with respect to the property of a husband, who is out of the State or incapable of listing such property, by his wife; (d) with respect to the property held in trust, by the trustee, if in possession thereof, otherwise by the party for whose benefit it is held; (e) with respect to the personal property of a deceased person, by the personal representative; (f) with respect to the property of an insane person, or a person sentenced to confinement in the penitentiary, by his committee; (g) with respect to the property of a company, whether incorporated or not, whose assets are in the hands of an agent, factor or receiver, by such agent, factor or receiver, otherwise by the president or proper accounting officer, partner or agent within the State; (h) with respect to credits or investments, in the possession or under the charge of a receiver or commissioner, by such receiver or commissioner; and (i) with respect to shares in a banking institution or national banking association, by the cashier, secretary or principal accounting officer of such banking institution or national banking association, as provided in section fourteen [§ 11-3-14] of this article." (Emphasis added). [3] The assessor sought the following information to update his records in regard to oil and gas properties located within the county: "Names of lessors Number of acres in lease Number of wells API number for each well, company well numbers Names of oil & gas purchasers Names & addresses of all royalty & override payees Lease book reference Location of Lease by district & local description Name of agent Name of operator Contract number for gas sales Farm number & tank numbers for oil production "In addition we need to know the number of unoperated acres to hold, by district, in the county as well as API numbers of new wells not yet turned into the line. Part of the above information is to be used to make up a cross reference list to avoid double assessment of leaseholds as has happened on occasion in the past. Enclosed find an example of the information we need. Thank you for your cooperation." [4] The relevant portion of W.Va.Code, 11-3-2, is: "The assessor or a deputy shall also obtain from such person separate, full and true statements... a correct description of all property, real and personal, held, possessed or controlled by him as executor, administrator, guardian, trustee, receiver, agent, partner, attorney, president or accounting officer of a corporation, consignee, broker, or in any representative or fiduciary character...." [5] The complete text of W.Va.Code, 11-3-11, provides: "If any person fail to furnish a proper list, or if the list furnished be, in the judgment of the assessor, incomplete or erroneous in any respect, the assessor shall proceed to list the property and assess its value, or to supply the omission and correct the errors, upon the best information he can obtain, and for that purpose the assessor may call upon any officer of the State, county or district for such proper information as it may be in his power to give, and may require any person having possession, charge or control of any property in the county to permit him to examine the same in order that a fair valuation thereof may be made, and if any person refuse to do so, he shall forfeit not less than ten nor more than fifty dollars." [6] We considered the mootness doctrine in State ex rel. Ayers v. Cline, W.Va. , 342 S.E.2d 89 (1985), a case involving whether a circuit court can enjoin a sheriff's sale of real property for nonpayment of taxes until the court rules on the underlying merits of the taxpayer's challenge to the assessment. After we agreed to decide this issue, the circuit court decided the real property had been overvalued and the taxpayer urged us to dismiss the proceeding. We decided the case was not moot because of the recurrent nature and important public interest in resolving this tax revenue question and applied the rule established in Syllabus Point 1 of State ex rel. M.C.H. v. Kinder, W.Va. , 317 S.E.2d 150 (1984): "A case is not rendered moot even though a party to the litigation has had a change in status such that he no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review." See also Christie v. W.Va. Health Care Cost Review Authority, W.Va. , 345 S.E.2d 22 (1986); Marshall v. Casey, W.Va. , 324 S.E.2d 346 (1984). [7] In Syllabus Points 1 and 2 of Petition of Hull, supra , we stated: "1. All buildings and real estate used and occupied by any public service corporation for purposes directly related to the public service function of the corporation shall be assessed by the Board of Public Works, but if such buildings and real estate are not so used and occupied they may be assessed by the proper county authorities. "2. The authority to assess all personal property of a public service corporation, regardless of the situs or use of such property, rests solely with the Board of Public Works." No challenge has been made in this appeal to the circuit court's ruling as to the county assessor's authority to pose questions to a public service corporation relevant to ownership of nonutility real property situate within the county. [8] The relevant confidentiality language is found in W.Va.Code, 11-1A-23(a): "Property tax returns and return information filed or supplied pursuant to this article and articles three, four, five and six ... shall be confidential and except as authorized in this section, no officer or employee of the state tax department, county assessors, county commissions and the board of public works shall disclose any return or return information obtained by him...."
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opinion_html_with_citations
| 3,726 |
2013-10-30 05:03:42.75603+00
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010combined
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f
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f
| 1,216,629 |
Miller
| null |
LU
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f
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Published
| 6 |
Calhoun County Assessor v. Consolidated Gas Supply Corp.
| null |
CALHOUN COUNTY ASSESSOR, Et Al. v. CONSOLIDATED GAS SUPPLY CORP., Etc., Et Al.
| null | null |
<citation id="b252-12">
358 S.E.2d 791
</citation><br><parties id="b252-13">
CALHOUN COUNTY ASSESSOR, et al. v. CONSOLIDATED GAS SUPPLY CORP., etc., et al.
</parties><br><docketnumber id="b252-15">
No. 17003.
</docketnumber><br><court id="b252-16">
Supreme Court of Appeals of West Virginia.
</court><br><decisiondate id="b252-17">
May 29, 1987.
</decisiondate><br><otherdate id="b252-18">
Rehearing Denied July 16, 1987.
</otherdate><br><attorneys id="b254-5">
<span citation-index="1" class="star-pagination" label="232">
*232
</span>
Lewis, Ciccarello & Friedberg, (Brickford Y. Brown) Charleston, for appellant.
</attorneys><br><attorneys id="b254-6">
Robinson & McElwee, Charleston, Richard A. Hayhurst, Parkersburg, Kenneth Coleman, Ashland, Ky., Lawrence Nydes, Pittsburgh, Pa., Thomas N. Hanna, Charleston, for appellee.
</attorneys>
| null | null | null | null | null | null | 601,413 |
17003
| 1 |
wva
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S
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t
|
West Virginia Supreme Court
|
West Virginia Supreme Court
|
6,783,561 |
Board of Tax Appeals, No. 01-A-209. This cause is pending before the court as an appeal from the Board of Tax Appeals. It appears from the records of this court that appellant has not filed a merit brief, due November 13, 2001, in compliance with the Rules of Practice of the Supreme Court and therefore has failed to prosecute this case with the requisite diligence. Upon consideration thereof, IT IS ORDERED by the court that this cause be, and hereby is, dismissed, sua sponte.
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opinion_xml_harvard
| 84 |
2022-07-21 00:58:57.267854+00
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020lead
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t
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f
| 6,889,583 | null | null |
U
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f
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Published
| 0 |
Gammarino v. Hamilton Cty. Bd. of Revision
|
Gammarino
|
Gammarino v. Hamilton Cty. Bd. of Revision
| null | null | null | null | null | null | null | null | null | 63,871,517 |
01-1594
| 0 |
ohio
|
S
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t
|
Ohio Supreme Court
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Ohio Supreme Court
|
7,044,144 |
Bicknell, C. The city of Greencastle had an ordinance to prevent certain animals from running at large in the city. The ordinance required the city marshal to take up and impound such animals, and to give immediate notice thereof by posting ; and, if the owner should fail to appear within forty-eight hours after the posting, then to sell the animals, etc. Under this ordinance, the city marshal took up and impounded the appellee’s mare, and kept her in the city pound, from Monday until the next Friday morning, without any posting or offer to sell; and then the mare jumped over the pound fence and broke her leg, and thereby became valueless, and was killed by the marshal. No question is made as to the authority of the city to enact ;and enforce said ordinance. The complaint seeks to recover damages from the city for the alleged negligence of the marshal. It contains three paragraphs ; the appellee concedes that the third paragraph was bad. The first paragraph charges negligence; the second paragraph charges a conversion. Demurrers to the first and second paragraphs were overruled. A motion to strike out from the first paragraph all the allegations of negligence, except as to the alleged improper construction of the potfnd,'was overruled. The appellee answered in two paragraphs, the first of which was the general denial. A demurrer to the second paragraph of the answer was overruled ; and a reply was filed in denial of said second paragraph.' The issues were tried by a jury, who returned a verdict for the appellee. The appellant’s motion for a new trial was overruled, and judgment was rendered upon the verdict. The appellant assigns errors as follows : *452First. The court erred in overruling the demurrers to the-first and second paragraphs of the complaint. Second. The court erred in overruling the motion to strike out part of the first paragraph of the complaint. Third. The court erred in overruling the motion for a new trial. The appellant urges that, for such injuries as are set forth in the first paragraph of the complaint, cities are not liable. There are conflicting authorities upon the liability of municipal corporations for the acts of their servants, but the law of Indiana is as follows: “Municipal corporations are responsible to the same extent, and in the same manner, as natural persons, for injuries occasioned by the negligence or unskilfulness of their agents in the construction of works for the benefit of the cities or towns under their government.” Ross v. The City of Madison, 1 Ind. 281; Stackhouse v. The City of Lafayette, 26 Ind. 17; Brinkmeyer v. The City of Evansville, 29 Ind. 187. The material averments of the first paragraph of the complaint are : “That said injury to said mare was caused by the negligence and unskilfulness of the defendant and its servants, in this, to wit: The defendant so negligently and unskilfully constructed the said fence, surrounding said inclosure or pound, that the same was not sufficient in height to prevent animals therein confined from jumping out, or attempting to jump out; .that the defendant, by its servants, negligently tied said mare next to said fence, and with rope-sufficiently long to enable the mare to jump over said fence, without breaking said rope at its fastening; that said defendant, by its servants, negligently failed to give notice of the taking up and impounding of said mare immediately thereafter, as by said ordinance required to do; that said defendant, by its servants, negligently failed to offer said mare for sale, within the time by said ordinance required. And the plaintiff further says, that said injury to said mare *453was not caused by any fault or negligence on his part, and that, by reason of such injury, so caused by the negligence and unskilfulness of the defendant and its servants, he is damaged,” etc. So far as this paragraph alleges that the fence was not high enough, and that the mare was improperly tied, and that thereby, without fault of the appellee, the damages were sustained, it contains a good cause of action, under the authorities hereinbefore referred to. See, also, Mayor, etc., v. Furze, 3 Hill, 612; The Rochester W. L. Co. v. The City of Rochester, 3 N. Y. 463; Lloyd v. Mayor, etc., 5 N. Y. 369. Eor any negligence of its agents in the construction of the pound, or in any purely ministerial duty under the pound ordinance, the city is liable, just as a private person would be for the acts of his agents. Cooley Torts, 122, 379. There was, therefore, no error in overruling the demurrer to the first paragraph of the complaint. The second paragraph of the complaint alleges a conversion, as follows : “That the defendant, on,” etc.,“at,” etc., “wrongfully converted to its own use one sorrel mare, the property of the plaintiff, of the value of one hundred and fifty dollars, to the plaintiff’s damage one hundred and fifty dollars.” It is claimed that the particulars of the conversion ought to be given ; but that objection is not ground of demurrer. There was no error in overruling the demurrer to the second paragraph. Hon v. Hon, 70 Ind. 135. As to the motion to strike out part of the first paragraph -of the complaint, this court holds that overruling such a motion is not available as error on appeal. Brinkmeyer v. Helbling, 57 Ind. 435; Hon v. Hon, 70 Ind. 135. But the motion to strike out was rightly overruled. Negligence is a question of fact for the jury. The matters objected to were parts of the transaction ; they are charged as negligence. It was for the jury to determine upon the evidence, whether the *454acts and omissions charged as negligence amounted to negligence or not. As to the motion for a new trial, the fourth, fifth and sixth reasons alleged therefor relate exclusively to the admission of testimony, and these reasons can not be considered,, because the bill of exceptions fails to show any exception taken to the admission of testimony. The first, second, third and seventh reasons alleged for a. new trial relate exclusively to the instructions to the jury. The third reason is that the court erred in giving to the jury instructions asked for by the appellee and marked 1, 2 and. 6. The objections to those instructions marked 1 and 2. are not argued in the brief nor supported by authority. They are therefore waived. Payne v. McClain, 7 Ind. 139. Instruction No. 6, given to the jury at the request of the appellee, is as follows: “The city ordinance providing for the impounding of horses is penal in its nature, and in such cases there must be a strict compliance with the terms, conditions and provisions of such ordinance, and any deviation from such ordinance can not be justified.” The ordinance is not penal; it is a police regulation authorizing summary proceedings, and, therefore, like a penal ordinance, it must be strictly adhered to ; but the slight inaccuracy in the phrase, “penal in its nature,” could do no harm,, and ought to be disregarded. The seventh reason for a new trial is not argued in the-brief nor supported by authority, and it is therefore waived. The first and second reasons for a new trial allege error-of the court in giving certain instructions of its own motion, and in refusing to give certain instructions asked for by appellant, and these errors, says the appellant, are shown “by reasons given before in the brief.” No other allusion is made in the brief to these alleged errors. The only “reasons given before in the brief” were in support of the demurrer to the complaint, and in support of the motion to-. *455strike out part of the complaint. These reasons were not sufficient for the purposes for which they were presented, and it follows that they are not sufficient for the purposes for which the appellant refers to them in regard to the instructions. The complaint being sufficient, and the motion to strike out having been rightly overruled, the instructions given by, the court of its own motion were correctly given, and the instructions asked for by the appellant were properly refused. The only remaining reasons alleged for a new trial are, that the verdict was not sustained by sufficient evidence, and is contrary to law. There was no evidence to warrant a finding for the appellee upon the second paragraph of the complaint, which charged a conversion. There was no proof of wrongful appropriation, or of intent to make a wrongful appropriation. Wilson v. McLaughlin, 107 Mass. 587. In the first paragraph of the complaint, negligence is charged in four particulars : First, in building the pound fence too- low ; second, in tying the mare with a rope too long ; third, in failing to post up notice of the impounding ; fourth, in failing to offer the mare for sale at the end of forty-eight hours after the posting. The averment is that these acts of negligence caused the injury. But upon the trial no witness testified that the fence was too low; no witness testified that the mare was improperly tied, or that the failure to post notices, or the failure to sell, produced the injury Complained of, or had any tendency to produce it. The only testimony upon these points was as follows : Messer B. Welch, the city marshal, a witness for the appellee, testified : “I know something about horses: have built fences for confining horses; I am acquainted with the fence and enclosure around the city pound, and I consider it sufficient for ordinary purposes, for confining horses and other animals that áre to be impounded under the impounding law; I don’t know of any other stock jumping'out of *456the pound ; I did not post up any notices for the sale of said mare ; I did not offer the mare for sale; * * * the city pound fence was five plank high, seven or eight inches apart; fence about as high as my chin, five feet five inches; good care and attention given to the mare.” William Bosson, a witness for appellant, testified : “I was a member of the common council of Greencastle, and a member of the police committee and fire committee; the police board had the city pound constructed; it was constructed according to plans furnished by police board: pound thirty feet square, five feet high; am seventy years old, have had a good deal of experience with stock, especially horses ; think the pound was sufficient to impound stock, especially horses ; no special order for building pound; the city paid for building the pound ; the pound was constructed in a good workmanlike manner; I consider the pound good for ordinary purposes ; think it prudent to tie horse with a rope long enough to jump out ,• more danger with á short rope than with a long one.” James M. Hays, a witness for the appellant, testified: “I was a member of the common council of Greencastle, and a member of the police board and fire committee; I am acquainted with the nature of cows and horses ; police board had the pound constructed, and it was constructed according to plans furnished by police board; common council intended to build an ordinary plank fence ; I think the pound sufficient to impound stock such as horses and cows, the kind of stock required to be impounded by the city ordinance.” The appellee seems to have supposed that the mere fact that the mare jumped the fence warranted the inference that the fence was too low ; but there is no room for such an inference against the uncontradicted testimony that the fence was sufficient. The failure to post up notices, and the failure to offer to sell, were undoubtedly such negligence as might make the city liable for any injury caused thereby; *457the duty of the marshal, in relation to these matters, is a duty to the owner of the animal, and these are matters of a ministerial nature, within the scope of the actual and ostensible authority of the officer, and within the power of the city. But the question remains, was the injury in this case caused by the failure to post notice, and the failure to sell? It followed those failures, but mere sequence amounts to nothing. The appellee, in his brief, puts the argument thus: “If said mare had been advertised and sold, she would have had two days advantage of the calamity;” but the same might have been said if some stranger had poisoned or shot the mare in the pound on the fourth day. There must be some connection between the negligence and the injury in the way of cause and effect; and the negligence which creates liability must be the proximate cause of the injury. In 2 Greenleaf on Evidence, sec. 256, it is said : “The damage to be recovered must always be the natural and proximate consequence of the act complained of.” Proximate cause is a cause from which a man of ordinary experience and sagacity could foresee that the result might probably ensue. Shearman & Redfield Negligence, p. 11. Sometimes the injury is prima facie evidence of negligence, as in case of fire from the sparks of a railway engine. Piggot v. The Eastern, etc., R. W. Co., 3 C. B. 229. So, in case of a railway engine running off the track. Carpue v. London, etc., R. W. Co., 5 Q. B. 747. But, even in such cases, there can be no recovery, unless the negligence was the proximate cause of the injury. The Pennsylvania Co. v. Hensil, 70 Ind. 569. In the case of Fent v. The Toledo, etc., R. W. Co., 59 Ill. 349, Lawrence, C. J., delivering the opinion of the court, said: “If loss has been caused by the act, and it was, under the circumstances, a natural consequence which any reasonable person could have anticipated, then the act is a proximate cause.” The defendant is to be held responsible, “if *458the loss is a natural consequence of its alleged carelessness, which might have been foreseen by any reasonable person, but is not to be held responsible for injuries which could not have been foreseen, or expected, as the results of its negligence.” These authorities are applicable to the present case. The fence being sufficient in itself, as shown by the testimony, it could not have been foreseen or expected that a failure to. post notices would produce the wild act of the animal, which caused its death. "When a fence is shown to be sufficient, it is as good for four days as for two. In Marble v. The City of Worcester, 4 Gray, 395, a horse, running away, threw down and hurt the plaintiff ; the horse was frightened by a vehicle striking against a defect in the highway. It was held that the city was not liable. So, although there be negligence in the defendant, enough to warrant a recovery if there were no fault on the side of the plaintiff, yet the plaintiff can not recover, if the injury were really the result, in part, of “the blind violence of his. animal, acting without guidance or discretion.” Davis v. Inhabitants of Dudley, 4 Allen, 557; Titus v. Inhabitants of Northbridge, 97 Mass. 258. The principle is, that, where a duty imposed is manifestly intended for the protection of individuals, the law will give a remedy; but nobody is bound to protect a man against his own fault or against the wild and breachy action of his own domestic animals. There was no negligence in this case which was the proximate cause of the injury. The animal ruined herself by a wild and vicious effort to overleap a fence sufficient to confine any ordinary animal of the horse kind. The verdict was not sustained by sufficient evidence, and was contrary to law. The motion for a new trial ought to have been granted, and the judgment below ought to be. reversed. *459Per Curiam. — It is therefore ordered, upon the foregoing-opinion, that the judgment below be, and the same is hereby,, in all things reversed, at the costs of the appellee.
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opinion_xml_harvard
| 2,735 |
2022-07-24 06:53:19.311598+00
|
020lead
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t
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f
| 7,136,479 |
Bicknell
| null |
U
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f
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Published
| 0 |
City of Greencastle v. Martin
|
Martin
|
The City of Greencastle v. Martin
|
<p>From the Putnam Circuit Court.</p>
| null | null |
<p>Cities and Towns. — Negligence.—Impounding Animals Running at Large„ —Ordinance.—Complaint.—A complaint against a city, alleging that its pound fence was not high enough, that an animal impounded by the city was improperly tied, and that thereby, without the plaintiff's fault, the animal sustained injuries, contains a good cause of action. Municipal corporations are responsible, to the same extent, and in the same manner, as natural persons, for injuries caused by the negligence or unslrilfulness of their agents in the construction of works for the benefit of the cities or towns under their government.</p> <p>Same. — For any negligence of its agents in the construction of a pound, or in any purely ministerial duty under a pound ordinance, a city is liable, just as a private person would be for the acts of his agents.</p> <p>Same. — Conversion.—Particulars.—Demurrer.—That a paragraph of complaint, alleging conversion, does not give the particulars of the conversion, is not a ground of demurrer.</p> <p>Practice. — Motion to Strike Out. — Overruling a motion to strike out part of a complaint is not available error on appeal. Where the matters objected to were parts of the transaction charged as negligence, a motion to strike them out was correctly overruled.</p> <p>Sam:e. — Instructions.—Waiver.—Objections to instructions not argued in the brief, nor supported by authority, are waived.</p> <p>Same. — Pound Ordinance. — Police Regulation. — Harmless Inaccuracy. — A pound ordinance is a police regulation authorizing summary proceedings, and must be strictly adhered to; but a statement in an instruction that it is “penal in its nature,” is but a slight inaccuracy, could do no harm, and ought to be disregarded.</p> <p>Evidence. — Conversion.—Where there was no proof of a wrongful appropriation, or of intent to make a wrongful appropriation, of an animal impounded by a city marshal under a city ordinance, a finding against the city, upon a paragraph of complaint charging such a conversion by the city, is not sustained by the evidence.</p> <p>Same. — Negligence.—A paragraph of complaint charging a city with negligence in four particulars: 1st, building the pound fence too low; 2d, tying the animal of plaintiff with a rope too long; 3d, failing to post up notice of impounding; and 4th, failing to offer the animal for sale at the end of forty-eight hours after the posting, is not sustained by sufficient evidence, where no witness testified that the fence was too low, or that the animal was improperly tied, or that the failure to post notices or to sell produced the injury complained of, or had any tendency to produce it.</p> <p>Same. — A city is not shown to have been guilty of the negligence which was the proximate cause of an injury to an animal confined in a pound, when it appears that the animal ruined itself by a wild and vicious effort to overleap a fence sufficient to confine any ordinary animal of the horse kind.</p> <p>Same. — PoundFence.—When a pound fence intended to confine horses and cattle is proved to be sufficient for its purpose by competent and credible witnesses, and no testimony is introduced to the contrary, such proof settles the question as to the sufficiency of the fence, and the mere fact that an animal confined in such pound, and properly cared for there, kills itself by rushing against such fence, or by kicking against it, or by trying to clear it in leaping, does not impair the testimony of those witnesses, and has no tendency to prove the’insufficiency of the fence.</p>
| null | null | null | null | null | 64,124,841 |
No. 7578
| 0 |
ind
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S
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t
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Indiana Supreme Court
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Indiana Supreme Court
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301,124 |
454 F.2d 363 1971 Trade Cases P 73,774 MILSEN COMPANY, a corporation, et al., Plaintiffs-Appellants, v. The SOUTHLAND CORPORATION, a corporation, et al., Defendants-Appellees. No. 71-1413. United States Court of Appeals, Seventh Circuit. Dec. 13, 1971. Rehearing Denied Jan. 25, 1972. Barbara B. Hirsch, Chicago, Ill., for plaintiffs-appellants. Kenneth J. Glick, Libertyville, Ill., for intervenor. G. Duane Vieth, Washington, D. C., Earl E. Pollock, Donald E. Egan, Chicago, Ill., for defendants-appellees. Before DUFFY and HASTINGS, Senior Circuit Judges, and SPRECHER, Circuit Judge. SPRECHER, Circuit Judge. 1 This is an appeal from the trial court's denial of a preliminary injunction against termination of franchise agreements pending the trial of an antitrust suit against the franchisor. 1 2 Plaintiffs operate various Open Pantry Food Marts, which are "convenience" grocery stores in the Chicago area. The Open Pantry defendants signed franchise agreements with plaintiffs at different times between December 1965 and January 1969. Defendant Southland, which sponsors a system of convenience stores under the name "7-Eleven," acquired Northern Illinois Open Pantry on November 18, 1970, and assumed control of the regional Open Pantry system. Southland bought defendant Wanzer, a dairy producer, in 1969. Defendant M. Loeb is a grocery wholesaler. 3 On March 8, 1971, plaintiffs filed their complaint, alleging that defendants had violated sections of the Sherman and Clayton Acts. 2 On April 15, defendants answered the complaint; Northern Illinois filed a counterclaim for franchise fees and rents allegedly in arrears. On the same day, Northern Illinois served notices of default on plaintiffs and on the owners of six other franchised stores. The notices stated that the franchise agreements would be terminated in 15 days if the outstanding fees and rents were not paid. 4 Five days later, plaintiffs filed an emergency motion for preliminary injunction, in which they sought to enjoin defendants from terminating their franchises for failure to pay rents and franchise fees. Plaintiffs presented documentary evidence and testimony at the hearing on the motion to support their claims that defendants were guilty of antitrust violations and that the violations were effectuated by the franchise fees defendants sought to collect from the plaintiffs. 5 Plaintiffs alleged and offered evidence to prove the following violations: 6 1. Combining to restrain trade through tie-ins and price fixing (15 U.S.C. Sec. 1). The franchise agreement requires the store owner to stock items designated and in quantities specified by the franchisor. The franchisor's agreement to replace stock which is not sold in a reasonable time does not apply to items not recommended by the franchisor. In another clause of the agreement, the store owner agrees to sell only those products which are approved by the franchisor's merchandising service. He agrees to buy equipment under the direction of the franchisor. The plaintiffs who took the stand testified that Open Pantry required them to buy groceries from defendant M. Loeb, to buy dairy products from defendant Wanzer, and to enter into leases and insurance and loan agreements with Open Pantry or companies designated by it. 7 The franchise agreement states that Open Pantry will not replace merchandise marked at a price higher than its recommended maximum price. The "Store Owners' Manual" is more explicit: "The maximum retail price of all merchandise sold will be established by the regional office." 8 Reprisals for failure to follow Open Pantry's "recommendations" came in the form of letters or telephone calls. Open Pantry officers warned plaintiffs to bring their pricing and merchandising practices into line or risk losing their franchises. 9 2. Attempting to monopolize the wholesale and retail grocery businesses through the above practices (15 U.S.C. Sec. 2). 10 3. Requiring the store owners not to buy goods from competitors of the designated suppliers (15 U.S.C. Sec. 14). The basis for this alleged violation is described above. In addition, Open Pantry forbade the store owners to display merchandise, set up in-store promotions or talk to salesmen from food distributors except when authorized by the franchisor. 11 4. Acquiring corporations with the effect of lessening competition (15 U.S.C. Sec. 18). Southland offered Open Pantry store owners inducements to convert their store to the "7-Eleven" chain, also owned by Southland. In some instances plaintiffs' primary competitors were 7-Eleven stores. Also, Open Pantry required its franchisees to buy their dairy products from another Southland subsidiary, Wanzer & Sons. 12 Plaintiffs also alleged but did not attempt to prove discrimination in prices, discounts and services (15 U.S.C. Secs. 13 and 13a). 13 There is little doubt that plaintiffs have established at least a prima facie case of antitrust violations under the four categories enumerated above. Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495 , 89 S. Ct. 1252 , 22 L. Ed. 2d 495 (1969) (tying prefabricated houses to loans); F T C v. Texaco, Inc., 393 U.S. 223 , 89 S. Ct. 429 , 21 L. Ed. 2d 394 (1968) (tying leases and gasoline contracts to tires, batteries and accessories); Siegel v. Chicken Delight, Inc., 311 F. Supp. 847 (N.D.Cal.1970), aff'd except on damages issue, 448 F.2d 43 (9th Cir. 1971) (tying trademarks to supplies). Price-fixing violations were found in Albrecht v. Herald Co., 390 U.S. 145 , 88 S. Ct. 869 , 19 L. Ed. 2d 998 (1968); Simpson v. Union Oil Co., 377 U.S. 13 , 84 S. Ct. 1051 , 12 L. Ed. 2d 98 (1964); and United States v. Parke, Davis & Co., 362 U.S. 29 , 80 S. Ct. 503 , 4 L. Ed. 2d 505 (1960). The Brown Shoe cases are examples of exclusive dealing in violation of 15 U.S.C. Sec. 14 (F T C v. Brown Shoe Co., 384 U.S. 316 , 86 S. Ct. 1501 , 16 L. Ed. 2d 587 (1966)), and vertical and horizontal mergers which lessen competition (Brown Shoe Co. v. United States, 370 U.S. 294 , 82 S. Ct. 1502 , 8 L. Ed. 2d 510 (1962)). 14 Under the district judge's view of the case, he did not need to (and did not) make any finding on whether antitrust violations were shown. It is necessary for us to review the record and the law to determine the probability of plaintiffs' success on the merits, 3 to evaluate the equities between the parties, and to provide a background for considering the relationship between the alleged antitrust violations and the threatened terminations of the franchise agreements. 15 Many courts have held that defendants who are or may be guilty of anticompetitive practices should not be permitted to terminate franchises, leases or sales contracts when such terminations would effectuate those practices. 4 Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970); Sahm v. V-1 Oil Co., 402 F.2d 69 (10th Cir. 1968); Broussard v. Socony Mobil Oil Co., 350 F.2d 346 (5th Cir. 1965); Bergen Drug Co. v. Parke, Davis & Co., 307 F.2d 725 (3d Cir. 1962); Bateman v. Ford Motor Co., 302 F.2d 63 (3d Cir. 1962); Interphoto Corp. v. Minolta Corp., 295 F. Supp. 711 (S.D.N.Y.), aff'd, 417 F.2d 621 (2d Cir. 1969); Wurzberg Brothers, Inc. v. Head Ski Co., 276 F. Supp. 142 (D.N.J.1967); Madsen v. Chrysler Corp., 261 F. Supp. 488 (N.D.Ill.1966), vacated as moot, 375 F.2d 773 (7th Cir. 1967); McKesson and Robbins, Inc. v. Charles Pfizer & Co., 235 F. Supp. 743 (E.D.Pa.1964). 5 16 The most common situation is a suit by an automobile dealer under the "Dealer's Day in Court Act," 6 which provides for damages only. In reversing the denial of a preliminary injunction against termination of one such dealership, the Third Circuit Court of Appeals said: "A judgment for damages acquired years after his franchise has been taken away and his business obliterated is small consolation to one who . . . has had a . . . franchise since 1933." Bateman, supra , 302 F.2d at 66. The Second Circuit expressed a similar sentiment in Semmes, supra , 429 F.2d at 1205: "[Franchisees] want to sell automobiles, not to live on the income from a damages award." These cases recognize the vested interest a franchisee builds in his business through years of effort and expenditure, as noted by this court in Beloit Culligan Soft Water Service, Inc. v. Culligan, Inc., 274 F.2d 29 , 34 (7th Cir. 1959). 17 Courts which have entered injunctions against terminations have weighed the equities and found the plaintiffs' side more substantial, even though in each case the plaintiff had violated the terms of the franchise or sales agreement and had given defendant a contractual basis for termination. The public interest in encouraging antitrust prosecutions by private parties (Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481 , 494, 88 S. Ct. 2224 , 20 L. Ed. 2d 1231 (1968)) and the need for such parties to continue in their businesses while the legal claims are tried have persuaded courts to restrain terminations pendente lite. 18 The Open Pantry store owners have presented an appropriate case for preliminary injunction. They have fulfilled the requirements stated recently in American Family Life Assurance Co. v. Aetna Life Ins. Co., 446 F.2d 1178 , 1180 (5th Cir. 1971): (1) plaintiffs have no adequate remedy at law and will be irreparably harmed if the injunction does not issue, because they will lose their stores and may not be able to finance the trial on their legal claims if they lose their businesses now; (2) the balance of hardships tilts toward plaintiffs, because defendants risk little in allowing plaintiffs to continue operating their stores; and (3) plaintiffs have at least a reasonable likelihood of success on the merits, because they have proved on a prima facie basis a number of serious antitrust violations. 19 Despite the persuasive factual situation and the legal precedents outlined above, the district judge denied the preliminary injunction because he deemed controlling a line of cases exemplified by Kelly v. Kosuga, 358 U.S. 516 , 79 S. Ct. 429 , 3 L. Ed. 2d 475 (1959). He found that defendants desired to terminate the franchises because plaintiffs' franchise fees and rents were in arrears, and that the franchisor had no other motive. He correctly concluded from the Kelly cases that charges of antitrust violations cannot be a defense to a breach-of-contract suit. Therefore he found that the franchise fees and rents were legitimate debts which plaintiffs had to pay or forfeit their franchises. 20 The Kelly cases, however, are all instances of a buyer receiving goods and reselling them. When the original seller sued or counterclaimed for the price of the goods, the buyer defended on grounds that the seller was guilty of antitrust violations. The earliest case is Bruce's Juices, Inc. v. American Can Co., 330 U.S. 743 , 67 S. Ct. 1015 , 91 L. Ed. 1219 (1947). The buyer's defense was that the seller had given illegal quantity discounts to other buyers. Because the sale to defendant was legal, the Court could find a violation of the Robinson-Patman Act only by looking at other sales. The Court enforced the sales contract and said: "The Court does not give its approval to transactions between one of the litigants and a third party just because it holds them irrelevant to this litigation." 330 U.S. at 756 , 67 S.Ct. at 1021. 21 In Kelly v. Kosuga, 358 U.S. 516 , 79 S. Ct. 429 , 3 L. Ed. 2d 475 (1959), defendant (an onion grower) bought 50 carloads of onions at a fair price. The defendant alleged that plaintiff (another onion dealer) had coerced him and others into buying the onions to prevent plaintiff from dumping 600 carloads of onions on the futures market. The Court held for the plaintiff because, again, it could enforce the sales contract without enforcing the precise conduct made illegal by the antitrust statutes. Shoaf v. Triangle Publications, Inc., 43 F.R.D. 10 (E.D.Pa.1967), followed Kelly in awarding a counterclaim to the seller of newspapers, where the defense was that the seller's resale price maintenance policy violated the Sherman Act. 22 These cases do not control the Open Pantry situation for the following reasons: 23 1. Plaintiffs did not owe franchise fees for goods which they resold. The rationale of the Kelly cases does apply to rent, however, since plaintiffs used the premises leased to them by Open Pantry. The interlocutory order of this court required plaintiffs to keep rent payments current as a condition for continuing their franchises. 24 2. What plaintiffs did receive in exchange for the franchise fees (merchandising, bookkeeping and advertising services) were services designed to effectuate defendants' scheme. The franchise-fee arrangement financed Open Pantry's alleged antitrust violations. Defendants, more than plaintiffs, benefited from the franchisor's services. 25 3. Buyers in the other cases did not risk losing their businesses by refusing to pay their debts; all that was at stake was a possible loss of profit. Plaintiffs here will lose their stores if they refuse to cooperate with defendants' anticompetitive practices. 26 4. Most important, if a court allows defendants to collect the franchise fees or terminate the franchises, it must in effect approve the possible antitrust violations. Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227 , 29 S. Ct. 280 , 53 L. Ed. 486 (1909), limited in Wilder Mfg. Co. v. Corn Products Refining Co., 236 U.S. 165 , 35 S. Ct. 398 , 59 L. Ed. 520 (1915); and Farbenfabriken Bayer, A. G. v. Sterling Drug, Inc., 307 F.2d 207 (3d Cir. 1962), cert. denied, 372 U.S. 929 , 83 S. Ct. 872 , 9 L. Ed. 2d 733 (1963). 27 The district judge's reliance on the Kelly cases led him to a finding that there was no connection between the franchise fees and the antitrust violations. Since those cases are not controlling upon this record, that finding was clearly in error. 28 Open Pantry charged its franchisees 3 1/2 to 4 percent of gross sales for the very "services" which permitted Open Pantry to enforce its alleged policies of fixing prices, limiting product competition and tying equipment and services. Southland attempted to use the franchise fees to persuade some plaintiffs to convert their stores to the 7-Eleven system, by offering to refinance the debt at 1 percent interest if they converted. 29 Even more convincing evidence of the connection between the franchise fees and the antitrust violations is the arrangement for selling dairy products. Open Pantry required its franchisees to buy and resell dairy products from defendant Wanzer, and from no other dairy. Wanzer's price for a gallon of milk was as much as 32 cents higher than other brands. The resale price dictated by Open Pantry was higher than resale prices for other brands, but so low in comparison with the wholesale price that plaintiffs lost as much as 9 cents on each sale of a gallon of milk. Various plaintiffs testified that the high Wanzer prices jeopardized their competitive positions against other grocery stores. Since dairy products constituted 15 to 20 percent of the volume in their stores and were a primary attraction to get customers into the convenience groceries, business as a whole suffered. 7 Declining sales made it difficult for plaintiffs to pay their franchise fees. 30 The franchisor promoted Wanzer as the exclusive supplier of dairy products because Wanzer rebated 14 percent of Open Pantry outlet sales proceeds to Northern Illinois Open Pantry. Supposedly, the franchisor applied these rebates against the franchise fees due from plaintiffs. 8 But the rebates were not enough to cover the monthly accumulation of franchise fees. 31 The franchisor then allowed the store owners to fall farther and farther behind in their payments of franchise fees. Open Pantry tried to collect fees only when a store owner began buying a different brand of dairy products or raised the resale price above the franchisor's maximum. Open Pantry's practice in effect locked plaintiffs into a situation where their franchises were safe as long as they cooperated with the franchisor's merchandising program. A single deviation brought the threat that the franchise would be terminated because of the unpaid fees. The fee-rebate system became both carrot and stick. 32 The inequities of this arrangement prove the wisdom of courts which have refused to permit a party to benefit from contractual rights when the contract is an instrument of restraint of trade. Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir. 1963); Wurzberg Brothers, Inc. v. Head Ski Co., 276 F. Supp. 142 (D.N.J.1967). If the agreement violates antitrust laws, "it follows that the reasons for defendant's refusal to renew [or termination of] the plaintiff's franchise become immaterial and irrelevant." Wurzberg, supra at 146. 33 We recognize the general rule that a reviewing court will reverse the grant or denial of an interlocutory injunction only where the district court's order abuses its discretion. But "where it is plain that the disposition was in substantial measure a result of the lower court's view of the law, which is inextricably bound up in the controversy, the appellate court can, and should review such conclusions." Societe Comptoir etc. v. Alexander's Dept. Stores, Inc., 299 F.2d 33 (2d Cir. 1962). 9 Where the lower court's conclusions and applications of law are erroneous, as we have found here, even the denial of a preliminary injunction should be reversed if necessary to protect the parties' rights. Ring v. Spina, 148 F.2d 647 (2d Cir. 1945); see also Bateman v. Ford Motor Co., 302 F.2d 63 (3d Cir. 1962); Perry v. Perry, 88 U.S.App.D.C. 337, 190 F.2d 601 (D.C.Cir. 1951). 34 We therefore reverse and remand to the district court for entry of a preliminary injunction and trial on the merits. The order should substantially follow this court's order of June 11 in granting relief against defendants Southland and Northern Illinois Open Pantry, conditional upon the continuance of the bonds posted under that order and the order of June 21. Plaintiffs should continue to pay rent for their stores. The district court may also consider enjoining termination of the franchises of all plaintiffs rather than the collection of franchise fees, since termination was the evil against which plaintiffs' motion was directed. 35 Plaintiffs state in their brief that Northern Illinois took possession of two stores on August 2, 1971, after their owners failed to post the bonds required by our June 11 order. These plaintiffs (Mr. and Mrs. Sipek and #70 OPFM) now seek a preliminary injunction restoring the two groceries to their ownership. 36 Northern Illinois took this ejectment action in the midst of the appeal at its own risk. But we believe the trial on the merits is the more appropriate forum for a determination of whether the risk was a permanent injunction returning the stores to the plaintiffs' possession, or treble damages for their losses. See Ramsburg v. American Investment Co., 231 F.2d 333 (7th Cir. 1956). 10 37 Certain plaintiffs also ask us to return franchise fees paid to defendants during the lawsuit to prevent termination of their franchises. This is another subject better reserved for the trial court's initial determination. The preliminary injunction will protect these plaintiffs from improper termination of their franchises, which is all they are entitled to at this preliminary stage of the proceedings. 38 Our opinion does not compel a holding that plaintiffs owe no franchise or other fees to defendants. Siegel v. Chicken Delight, Inc., 311 F. Supp. 847 (N.D.Cal.1970), did not allow as an offset against damages a reasonable value for the Chicken Delight license or the value of the tied products. The Ninth Circuit remanded the case for a limited trial on the damages issue and said: "To ascertain whether an unlawful arrangement for the sale of products has caused injury to the purchaser, the cost or value of the products involved, free from the unlawful arrangement, must first be ascertained." 448 F.2d 43 , 52 (9th Cir. 1971). If the district court finds plaintiffs entitled to treble damages, it should award defendants an offset of the reasonable value of services which benefited plaintiffs and were not bound up with any illegal practices by defendants. 39 Reversed and remanded for further proceedings consistent with this opinion. 11 1 This court on June 11, 1971, granted plaintiffs' motion for injunction pending appeal. The order enjoined Southland and Northern Illinois Open Pantry from collecting franchise fees from plaintiffs who posted appropriate bonds 2 15 U.S.C. Secs. 1 and 2; 15 U.S.C. Secs. 13, 14 and 18 3 Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir. 1970), suggests in a similar case that because of the imbalance of hardship, a plaintiff need not show a likelihood of success. A temporary injunction should be granted if the questions raise "a fair ground for litigation." 429 F.2d at 1205-06 . Under either standard, plaintiffs in this case have met their burden 4 See also Wilson, "An Emerging Enforcement Policy for Franchising," 15 New York Law Forum 1 (1969) 5 Contra, Miller Plymouth Center, Inc. v. Chrysler Motors Corp., 286 F. Supp. 529 (D.Mass.1968). The court appeared to conclude that money damages would be proper and adequate relief because the court could not order the parties to continue their relationship indefinitely. But the court could nevertheless have enjoined termination for anticompetitive purposes 6 15 U.S.C. Sec. 1222 7 Plaintiffs were able to come to this conclusion by comparing gross sales and profits with those during the period of the milk strike in 1970, when they were allowed to buy other brands of dairy products 8 A franchisee received no credit against his fees for purchases of other brands of dairy products 9 Misapplication of the law to particular facts is itself an abuse of discretion. United States v. Beaty, 288 F.2d 653 (6th Cir. 1961); Clemons v. Board of Education, 228 F.2d 853 (6th Cir.), cert. denied, 350 U.S. 1006 , 76 S. Ct. 651 , 100 L. Ed. 868 (1956) 10 The Ramsburg case was settled following the 1956 opinion denying the motion to dismiss the appeal 11 Defendants Open Pantry Food Marts and Open Pantry Development Corp. challenge the district court's jurisdiction under the antitrust statutes. They claim plaintiffs have shown no effect on interstate commerce. Their objection is untenable, according to similar cases involving antitrust complaints against national franchises. Siegel v. Chicken Delight, Inc., 311 F. Supp. 847 at 850 (N.D.Cal.1970), aff'd except on damages issue, 448 F.2d 43 (9th Cir. 1971); Susser v. Carvel Corp., 206 F. Supp. 636 at 651 (S.D.N.Y.1962), aff'd, 332 F.2d 505 (2d Cir.), cert. granted, 379 U.S. 885 , 85 S. Ct. 158 , 13 L. Ed. 2d 91 (1964), cert. dismissed, 381 U.S. 125 , 85 S. Ct. 1364 , 14 L. Ed. 2d 284 (1965) The Open Pantry system has stores in at least 15 states. It provides its franchisees with advertising and promotional services from its national office. Franchisees must pay a 1 percent fee for these services and another 1 percent for use of the national trademark. The Open Pantry stores supposedly carry more than 3,000 nationally advertised products which the store owners buy from interstate distributors. Defendants rely primarily on two cases of local price wars, where the courts found no effect on interstate commerce. Uniform Oil Co. v. Phillips Petroleum Co., 400 F.2d 267 (9th Cir. 1968); Atlantic Co. v. Citizens Ice & Cold Storage Co., 178 F.2d 453 (5th Cir. 1949), cert. denied, 339 U.S. 953 , 70 S. Ct. 841 , 94 L. Ed. 1365 (1950). But those cases appear to conflict with the Supreme Court's holding in Moore v. Mead's Fine Bread Co., 348 U.S. 115 , 75 S. Ct. 148 , 99 L. Ed. 145 (1954).
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Duffy, Hastings, Sprecher
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Milsen Company, a Corporation v. The Southland Corporation, a Corporation
| null |
MILSEN COMPANY, a Corporation, Et Al., Plaintiffs-Appellants, v. the SOUTHLAND CORPORATION, a Corporation, Et Al., Defendants-Appellees
| null | null |
<parties data-order="0" data-type="parties" id="b425-16">
MILSEN COMPANY, a corporation, et al., Plaintiffs-Appellants, v. The SOUTHLAND CORPORATION, a corporation, et al., Defendants-Appellees.
</parties><br><docketnumber data-order="1" data-type="docketnumber" id="b425-19">
No. 71-1413.
</docketnumber><br><court data-order="2" data-type="court" id="b425-20">
United States Court of Appeals, Seventh Circuit.
</court><br><decisiondate data-order="3" data-type="decisiondate" id="b425-21">
Dec. 13, 1971.
</decisiondate><br><otherdate data-order="4" data-type="otherdate" id="b425-22">
Rehearing Denied Jan. 25, 1972.
</otherdate><br><attorneys data-order="5" data-type="attorneys" id="b426-15">
<span citation-index="1" class="star-pagination" label="364">
*364
</span>
Barbara B. Hirsch, Chicago, 111., for plaintiff s-appellants.
</attorneys><br><attorneys data-order="6" data-type="attorneys" id="b426-16">
Kenneth J. Glick, Libertyville, 111., for intervenor.
</attorneys><br><attorneys data-order="7" data-type="attorneys" id="b426-17">
G. Duane Vieth, Washington, D. C., Earl E. Pollock, Donald E. Egan, Chicago, 111., for defendants-appellees.
</attorneys><br><p data-order="8" data-type="judges" id="b426-18">
Before DUFFY and HASTINGS, Senior Circuit Judges, and SPRECHER, Circuit Judge.
</p>
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71-1413
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Seventh Circuit
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Court of Appeals for the Seventh Circuit
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