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https://www.courtlistener.com/api/rest/v3/opinions/126271/ | 537 U.S. 1117
REYNOLDSv.WACKENHUT CORRECTION CORP. ET AL.
No. 02-6978.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/126275/ | 537 U.S. 1117
BROWNv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 02-7000.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3236304/ | Petition of Ignatius Weeks for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Weeks v. State (1 Div. 940), 132 So. 926.
Writ denied.
ANDERSON, C. J., and SAYRE, THOMAS and BROWN, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/126283/ | 537 U.S. 1118
PRUETTv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 02-7045.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3074758/ | Court of Appeals
Sixth Appellate District of Texas
JUDGMENT
Donald Joseph Benton, Appellant Appeal from the 6th District Court of
Lamar County, Texas (Tr. Ct. No. 24349).
No. 06-13-00138-CV v. Memorandum Opinion delivered by Justice
Carter, Chief Justice Morriss and Justice
The State of Texas, Appellee Moseley participating.
As stated in the Court’s opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, Donald Joseph Benton, has adequately indicated his inability
to pay costs of appeal. Therefore, we waive payment of costs.
RENDERED APRIL 4, 2014
BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE
ATTEST:
Debra K. Autrey, Clerk | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3224211/ | The contention of appellee that section 2012 of the Code is self-executing without the adoption of an ordinance prescribing reasonable building regulations cannot be sustained. If the submission was set aside so as to allow the appellee to submit his motion to dismiss the appeal, leave would be granted to appellants to amend their appeal, and this would merely delay a final disposition of the case without changing the result. Thornton, Adm'r, v. Moore, 61 Ala. 347. Moreover, the irregularity in taking the appeal was waived by the submission on the merits, without a submission on the motion, and this waiver cannot be withdrawn without the consent of the appellants. Robinson v. Murphy, 69 Ala. 543.
Application overruled. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3218617/ | Order Michigan Supreme Court
Lansing, Michigan
June 28, 2016 Robert P. Young, Jr.,
Chief Justice
151310 Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 151310
COA: 324096
Wayne CC: 05-010832-FH;
08-003200-FC;
08-003209-FC
ZOUELFIKAR MAHMOUD NEHMEH,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 12, 2015 order
of the Court of Appeals is considered and, it appearing to the Court that the case of
People v Roark (Docket No. 152562) is pending on appeal before this Court and that the
decision in that case may resolve an issue raised in the present application for leave to
appeal, we ORDER that the application be held in ABEYANCE pending the decision in
that case.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 28, 2016
p0620
Clerk | 01-03-2023 | 06-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2791673/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0244n.06
No. 14-1237 FILED
Apr 07, 2015
DEBORAH S. HUNT, Clerk
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
BAY CORRUGATED CONTAINER, INC., )
)
Plaintiff-Appellant, )
)
v. )
)
ON APPEAL FROM THE
GOULD, INC., )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
Defendant-Appellee, )
DISTRICT OF MICHIGAN
)
GOULD ELECTRONICS, INC., )
Intervenor-Appellee.
BEFORE: SILER, BATCHELDER, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. In 1999, Bay Corrugated Container filed a petition in federal
district court to force Gould, Inc. to comply with the terms of a 1994 consent judgment. In early
2000, the district court appointed a mediator to resolve the dispute. From then until 2009,
however, the district court heard nothing of the case. Rather than bringing the stalled
proceedings to the district court’s attention, Bay used the nine-year delay to negotiate a
settlement with a third-party and to wait out the result of a related bankruptcy proceeding.
When, in 2009, Bay finally moved the district court to resolve Bay’s still-pending petition to
enforce the consent judgment, the district court denied Bay’s motion and dismissed Bay’s
petition for—among other things—failure to prosecute. The district court could properly
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
attribute fault to Bay’s taking nine years to return to Court, and could also find prejudice to
Gould, Inc. from the resultant unavailability of evidence. The district court therefore did not
abuse its discretion in dismissing Bay’s petition under Rule 41(b).
In 1973, Gould, Inc. sold Bay a manufacturing plant in Monroe, Michigan. Eighteen
years later, Bay brought a CERCLA action against Gould, Inc. for contaminating the area around
the Monroe plant. Although GNB Batteries—one of Gould, Inc.’s corporate spinoffs—had
purchased Gould, Inc.’s battery division in 1984, GNB denied liability for the contamination, so
Gould, Inc. wound up defending the litigation. See GNB Inc. v. Gould, Inc., No. 90-C-2413,
1990 WL 207429, at *2 (N.D. Ill. Nov. 30, 1990). At the same time, Gould, Inc. engaged GNB
in litigation to determine whether and to what extent GNB had assumed Gould, Inc.’s
environmental liabilities when it purchased Gould, Inc.’s battery division. Id. at *1.
In 1994, Gould, Inc.’s litigation with Bay appeared to come to an end when Gould, Inc.
and its soon-to-be corporate successor, Gould Electronics, signed a Settlement Agreement and
Mutual Release. Bay Corrugated Container, Inc. v. Gould, Inc., No. 2:91-cv-70170 (hereafter
“Dist. Ct. R.”), doc. # 126-4. Pursuant to the Agreement, Gould, Inc. and Gould Electronics
agreed to pay for investigation and remediation of the contaminated site. Id. The district court
incorporated the terms of the Agreement into a consent judgment entered on August 2, 1994.
Dist. Ct. R., doc. # 126-3.
A year later, the Seventh Circuit resolved Gould, Inc.’s litigation with GNB, holding that
GNB assumed all of Gould, Inc.’s environmental liabilities when GNB purchased Gould, Inc.’s
battery division. GNB Battery Techs., Inc. v. Gould, Inc., 65 F.3d 615 (7th Cir. 1995).
Notwithstanding that decision, the 1994 consent judgment against Gould, Inc. and Gould
Electronics remained in effect. Neither Gould, Inc. nor Gould Electronics, however, completed
-2-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
the required investigation and remediation of the Monroe site. Thus, in 1999, Bay filed a
petition to force Gould, Inc.—but not Gould Electronics—to comply with the terms of the
consent judgment. Dist. Ct. R., doc. # 34, at 2 (sealed). In early 2000, after a status conference
and a hearing, the district court appointed a mediator to resolve the dispute. From then until
2009, however, the court heard nothing of the case—nothing from the mediator and nothing from
Bay or Gould, Inc. Bay Corrugated Container, Inc. v. Gould, Inc., No. 91-CV-70170, 2014 WL
256266, at *1 (E.D. Mich. Jan. 23, 2014).
While Bay was attempting to enforce the consent judgment against Gould, Inc., Bay was
also negotiating with GNB to determine whether GNB would undertake to conduct investigation
and remediation at the Monroe facility. Those negotiations concluded in October 2000 when
Bay and Exide Technologies—which had acquired and merged with GNB earlier that year—
completed an Outline of Settlement Agreement. Dist. Ct. R., doc # 120-6, at 5-7. The Outline of
Settlement Agreement provided that Exide would conduct additional investigation and
remediation at the Monroe facility, but did not mention the 1994 Settlement Agreement and
Mutual Release between Bay and Gould, Inc. and Gould Electronics. Id.
In 2002, Exide filed for Chapter 11 bankruptcy. In the course of the ensuing bankruptcy
proceeding, Exide rejected the 2000 Outline of Settlement Agreement it had entered into with
Bay. Exide’s rejection of the Outline of Settlement Agreement led Bay to file a proof of claim in
the bankruptcy proceeding, seeking damages from Exide based on Exide’s rejection of the
Outline of Settlement Agreement. See Dist. Ct. R., doc. # 122, at 4.
While awaiting the results of the Exide bankruptcy proceedings, Bay was simultaneously
negotiating with Gould Electronics, in hopes that Gould Electronics would assume Exide’s
obligations under the Outline of Settlement Agreement. According to Gould Electronics, Bay
-3-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
and Gould Electronics twice met with a mediator in 2002, but were unable to agree on the terms
of an assumption. Id. It also appears that, between 2002 and 2006, Bay and Gould Electronics
discussed, on a handful of occasions, Gould Electronics’ assuming Exide’s obligations under the
Outline of Settlement Agreement. Dist. Ct. R., doc. # 149-7, at 7-11. In early 2006, negotiations
between Gould Electronics and Bay ceased altogether. Id. at 11.
Bay took no further action in the matter until 2009, when it asked the district court to
resolve Bay’s still pending 1999 petition to enforce the 1994 consent judgment against Gould,
Inc. Dist. Ct. R., doc. # 118. The petition did not mention Gould Electronics. After asking Bay
and Gould, Inc. to explain “why the court has heard nothing from the parties over the course of
the past nine years,” Dist. Ct. R., doc. # 119, at 2, the district court eventually dismissed Bay’s
petition on two grounds. First, the district court concluded that Bay’s agreements with GNB had
absolved Gould, Inc. of any liability for contamination at the Monroe facility. Bay Corrugated
Container, Inc. v. Gould, Inc., No. 91-CV-70170, 2009 WL 3032723, at *3 (E.D. Mich. Sept. 18,
2009). Second, the district court held that, even were Gould, Inc. still liable under the 1994
consent judgment, Bay’s petition would be dismissed under Federal Rule of Civil Procedure
41(b). Id. The district court entered a judgment dismissing Bay’s case in September 2009, Dist.
Ct. R., doc. # 125, and subsequently denied Bay’s motion for reconsideration. Dist. Ct. R., doc.
# 139.
Bay appealed the district court’s dismissal of its 1999 petition, prompting Gould
Electronics to move to intervene as a defendant. Dist. Ct. R., doc. # 130. The district court
granted Gould Electronics’ motion. Dist. Ct. R., doc. # 139, at 2. On appeal, this court reversed
the district court’s judgment, holding that, “it cannot be determined from the record whether
there has been a novation and whether, as the district court determined, Gould, Inc. is no longer
-4-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
liable to Bay. Likewise, the district court’s summary dismissal under Rule 41(b) does not allow
us to review the appropriateness of the decision.” Bay Corrugated Container, Inc. v. Gould, Inc.,
462 F. App’x 516, 517 (6th Cir. 2012).
On remand the district ordered Gould, Inc. and Bay to “submit briefs, supported by
whatever evidentiary materials they deem appropriate, on the issues of (1) whether plaintiff’s
‘petition to enforce consent judgment’ is moot; (2) whether a novation has occurred; and
(3) whether dismissal of the complaint is appropriate for plaintiff’s lack of prosecution and/or
under the doctrine of laches.” Dist. Ct. R., doc. # 146. The district court also requested that
Gould Electronics—which the district court treated as a third-party amicus on remand, despite its
earlier order granting Gould Electronics’ motion to intervene—“submit briefing as a non-party
amicus addressing plaintiff’s arguments without prejudice to, or waiver of, [Gould Electronics’]
rights, claims or defenses in the event [Bay] seeks to make [Gould Electronics] a party to this
action in the future.” Dist. Ct. R., doc. # 147.
After considering the briefing and factual submissions, the district court once more
dismissed Bay’s 1999 petition on the ground that, in waiting nine years to rekindle its petition at
the district court, Bay had failed to diligently prosecute its claim. Bay Corrugated Container,
2014 WL 256266, at *4. The district court held that dismissal under Rule 41(b) was proper
because: (1) Bay’s delay in prosecuting its claim extended “for an inexcusably long period of
time,” during which period the district court heard nothing from Bay; (2) Bay’s delay had
prejudiced Gould, Inc. and Gould Electronics, both because the passage of time is inherently
prejudicial, and because “four witnesses with knowledge of waste disposal at the site died . . .
while Bay took no action against Gould in Court and while Bay simply observed the Exide
bankruptcy”; and (3) imposing a lesser sanction would not “do any good.” Id. at *7-*8. The
-5-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
district court expressly declined to dismiss the complaint on the ground of novation, relying
exclusively on its Rule 41(b) holding. Id. at *8. The order and judgment dismissing Bay’s 1999
petition name only Gould, Inc. as a defendant. Id. at *1; Dist. Ct. R., doc. # 156.
Bay now appeals the district court’s holding that Bay failed to diligently prosecute its
claim. Gould, Inc.’s attorney has announced that, because Gould, Inc. no longer exists, it is not
participating in the appeal. Bay Corrugated Container, Inc. v. Gould, Inc. et al., App. No. 14-
1237, doc. # 18. Gould Electronics is the only defendant to have filed a brief in this matter.
In deciding whether a district court abused its discretion in dismissing a case for failure to
prosecute, under Rule 41(b), this court considers four factors:
(1) Whether the party’s failure is due to willfulness, bad faith, or fault;
(2) whether the adversary was prejudiced by the dismissed party’s conduct;
(3) whether the dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic sanctions were imposed or
considered before dismissal was ordered.
Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). In this case, all four of the Knoll
factors militate in favor of affirming the district court.
Bay’s failure to prosecute its petition diligently demonstrated “willfulness, bad faith, or
fault”—the first Knoll factor—because it showed a reckless disregard for the effect of delay on
the district court proceedings. By waiting years to recommence prosecution of its petition, Bay
allowed memories to fade, witnesses to move away or die, and documents to be lost or
destroyed. There is, moreover, no indication that the delay was not deliberate. Bay was
apparently waiting to see what would happen to its claim in Exide’s bankruptcy proceeding. We
have held that a plaintiff’s delay in prosecuting a claim evinces “willfulness, bad faith, or fault”
if it displays “a reckless disregard for the effect of [the plaintiff’s] conduct on [the district court]
proceedings.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005). It is true that this court
has distinguished between mere dilatory conduct and bad faith, willfulness, or fault, and that to
-6-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
fall into the latter category a plaintiff “must display either an intent to thwart judicial proceedings
or a reckless disregard for the effect of [his] conduct on those proceedings.” Kemp v. Robinson,
262 F. App’x 687, 691 (6th Cir. 2007) (quoting Mulbah v. Detroit Bd. of Educ., 261 F.3d 586,
591 (6th Cir. 2001)). Our unpublished holding in Kemp—that a three-year delay did not reflect
such a reckless disregard—was based on a number of factors, including that “opposing counsel’s
failure to return correspondence was part of the problem.” Id. Bay at oral argument emphasized
that it should not bear responsibility for the nine-year period during which the district court heard
nothing from the parties. But Bay, the party seeking relief in the action, could be expected to be
the party to take measures when things stall. That is particularly true in this case, where the
party against which Bay currently seeks relief was not a party to the case at all until 2010.
Moreover, while dilatory conduct under our case law is not inherently fatal, we have been
presented with no case coming anywhere near nine years during which the court heard nothing
from the parties. The first Knoll factor on balance weighs against Bay.
Under the second Knoll factor—prejudice to the defendant—delays are prejudicial when
they “make it difficult to secure relevant records and witnesses with sufficient memory of the
events at issue.” Carpenter v. City of Flint, 723 F.3d 700, 707 (6th Cir. 2013). At least four of
the eight witnesses Bay earlier identified as having information about Bay’s disposal practices at
the Monroe facility died between 2000 and 2009. See R. 151-9, PgID 1039; R. 151-10, PgID
1041; R. 151-11, PgID 1043; R. 151-12, PgID 1045. There is no way to reproduce these
witnesses’ recollections or to be sure that the information they would have supplied is elsewhere
available. The prejudice factor thus weighs at least somewhat against Bay.
Bay has waived any arguments it might make with respect to the third Knoll factor—
notice of the possibility of dismissal. In its brief on remand, Bay acknowledged that, “By setting
-7-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
a briefing schedule including the issue of whether this case should be dismissed pursuant to Rule
41(b), the Court has cured the defective notice condition present at the time of its prior decision.”
Dist. Ct. R., doc. # 149, at 16. Bay’s acknowledgment meant the district court never had cause
to address the sufficiency of the notice it had afforded. Issues not litigated in the trial court are
generally inappropriate for appellate consideration in the first instance. See Taft Broad. Co. v.
United States, 929 F.2d 240, 243 (6th Cir. 1991).
The fourth Knoll factor—the availability and use of less drastic sanctions—also supports
dismissal. We have said that, “in the absence of contumacious conduct, an alternate sanction that
would protect the integrity of pretrial procedures should be utilized rather than dismissal with
prejudice.” Freeland v. Amigo, 103 F.3d 1271, 1280 (6th Cir. 1997). At oral argument, however,
counsel for Bay identified only two sanctions that he believed the district court should have
utilized in lieu of dismissal with prejudice: (1) dismissal without prejudice; and (2) an order to
show cause. But, under the circumstances, neither of those “sanctions” would serve any real
purpose. Were this case dismissed without prejudice, Bay would simply re-file in district court
and start the process all over again, just as though nothing had ever gone wrong. Similarly, a
show cause order—in effect, an order from the district court admonishing Bay to file something
to expedite proceedings—gives Bay exactly what it wants in this case: an opportunity to
recommence the litigation it so long delayed, at the price of only a stern word from the district
court. Neither of the alternative sanctions Bay proposes penalizes Bay for wasting the district
court’s time and exacerbating the loss of evidence in this case. Because Bay has not suggested a
lesser sanction that would actually operate as a sanction, the district court reasonably found that
dismissal with prejudice was the only means of protecting the integrity of the judicial process at
this juncture.
-8-
No. 14-1237, Bay Corrugated Container, Inc. v. Gould, Inc., et al.
The Knoll factors reasonably support the district court’s decision to dismiss Bay’s case
under Rule 41(b). The district court’s decision was, thus, not an abuse of discretion, and that
court’s judgment is accordingly affirmed.
-9- | 01-03-2023 | 04-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2835934/ | Opinion issued October 9, 2003
In The
For The
waxed
NO. 01-02-01182-CR
JONATHAN JUDGE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 912141
MEMORANDUM OPINION
Appellant, Jonathan Judge, was indicted for the offense of murder. A jury
found appellant guilty andassessed hispunishment at 60years' confinement. Inone
issue, appellant claims that the court erred byadmitting extraneous-offense evidence
that appellant possessed a gun priorto the murder. We affirm.
Background
Michelle Millare and appellantdated for about one and one-halfyears. On the
day Michelle disappeared, appellant and Michelle eachvisited the home ofMichael
and Jamira Foster. Appellant took his car to Michael for repair of the radiator.
Michelle arrived separately in her 4Runnerto visit Jamira. While Michellewas in the
apartment with Jamira, the two men sat inside appellant's car and talked.
During their discussions, appellant displayed a .25-caliber gun and asked
Michael if he had bullets for it. Michael claimed that he did not. Appellant opened
the gun's clip, causing Michael to notice bullets inthe clip. Appellant asked Michael
whether the gun would kill if appellant used it to shoot someone in the head, and
Michael responded that it could. Michael leftappellant, went intohis apartment, and
called Michelle to appellant's car at appellant's request.
After he had been in his apartment for 15 to 30 minutes, Michael walked
outside and saw that Michelle and appellant were still together inside appellant's car.
Michelle was sitting on appellant's lap, hugging and kissing him. Later that
afternoon, Jamira saw Michelle leave in her4Runner, with appellant following in his
car.
When Michelle did not come home that night, her family calledhercell phone,
pager, and friends in an attempt to locate her, and reported Michelle's disappearance
to the police. Her family discoveredthat Michelle's ATM card was used to withdraw
money on the night she disappeared. When Michelle's father spoke to Michael,
Michael said that Michelle and appellant had been at his apartment on the night she
disappeared. Appellant, however, claimed that he had not seen Michelle for months.
Michelle's brother found her 4Runner parked at McGregor Parkwhen he was
posting flyers one day. Dried blood was found on the passenger seat, console and
floorboard. Her burned body was found on a dirt road near Lake Houston, and an
autopsy was conducted. The autopsy revealed that Michelle haddied from a contact
gunshot wound to her head caused by a .25 caliber bullet and that her body had been
burned with diesel fuel.
During the police investigation, officers went to the gas station nearest to the
location where Michelle' sbodywas found and spokewith Patricia Foster. Foster told
police officers that she saw a green 4Runner pulling up to the diesel pump on the
night Michelle was discovered missing. According to Foster, appellant entered the
store, paid a few dollars for diesel fuel, and pumped the fuel, butFoster did notknow
whether appellant put the fuel into a container or a vehicle. She saw the 4Runner
leave in the direction of the site where Michelle's body was found.
Officers obtained a warrant, arrested appellant, and received a written
statement from him. In the statement, appellant said that he had seen Michelle at the
Fosters' apartment, they separated at 3:00 P.M., and they reunited at 6:00 P.M. In a
written statement,appellant claimedthat Michelle drove himto an ATMmachineand
withdrew $140, which she gave to him. According to appellant, Michelle dropped
him off at a store near his home, and he spent the remainder of the night having his
hair braided and playing basketball. Contrary to appellant's written statement, two
inmates incarceratedwith appellant at the Harris County Jail, testified at appellant's
trial thatappellant told them thatheshot thevictim inthehead, burned thebody with
diesel fuel, and urinated on it.
Extraneous Offense Evidence
In his sole point of error, appellant contends that the trial court erred in
admitting evidence ofanextraneous offense because it wasnotprobative ofany issue
in the case and was undulyprejudicial in defending his charge of murder by firearm.
A single question and answer posed to Michael Foster during the State's re-direct
examination is the subject of this appeal:
Question by State: Prior to February 20th, had you seen the defendant,
Jonathan Judge, with a different gun than the one
you saw him with onFebruary 20th?
Answer: Yes, he had a -
Question: That's okay. Thank You.
In overruling appellant's trial objection, the court conducted a balancing test, found
that the evidence was more relevant than prejudicial, and ruled that the evidence was
admissible to correct a false impression that Michael would have been alarmed at
seeing appellant in possession of a gun and would have immediately contacted the
police.
An appellate court reviewing a trial court's ruling on the admissibility of
evidenceappliesthe abuse-of-discretion standardofreview. Weatherredv. State, 15
S.W.3d 540, 542 (Tex. Crim. App. 2000). The appellate court must uphold the trial
court's ruling if it was within the zone of reasonable disagreement. Id. All relevant
evidence is admissible unless its probative value is substantially outweighed by the
danger of unfair prejudice. TEX. R. EVID. 403. Evidence that is otherwise
inadmissible may be admitted to correct a false impression left by the questioning of
a witness. Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002).
To understandthe trial court's ruling, it must be examined in the context ofthe
evidence introduced at appellant's trial. During direct examination by the State,
Michael testified thatappellant showed hima gunand asked himifhe had bullets for
it. Michael deniedhaving any. Appellant asked Michael whether the gun could kill
someone, and Michael responded that it could. Michael further testified that when
Michelle's father called looking for his daughter, he said that he last saw Michelle
with appellant. During cross-examinationofMichael,appellant's attorneyattempted
to establish that Michael was not telling the truth about appellant's request for bullets
because bullets would be unnecessary if the gun's clip already contained bullets.
Appellant's attorney suggested it would have been nonsensical for appellant to ask,
"Would this gun kill somebody if I shot them in the head?" because the answer to
such a question is obvious. Appellant's attorney further established that Michael
admitted that he never mentioned the gun or the statements made by appellant about
the gun to Michelle's father when he called looking for Michelle.
The State contends that appellant's cross-examination left a false impression
with thejury that Michael would have been alarmed at seeing appellant with a gun,
wouldhave notified the police, and wouldhave told Michelle's fatheraboutthe gun
when he called. The State further contends that the evidence that Michael saw
appellant inpossession ofagun before Michelle's disappearance explains appellant's
lack ofreaction to seeing appellant in possession of a gun on the night of Michelle's
disappearance.
We conclude that the trial court did not abuse its discretion in admitting the
testimony ofappellant's previous gunpossession. TheState waslimited to testimony
in a single question and answer. No details of the previous possession were
introduced, and no mention was made of the type of firearm in the previous
possession, or whether the possession was legal or illegal. Finally, no correlation was
shown between the type offirearm appellant was previously seen possessing and the
firearm he carried on the night of Michelle's disappearance. We conclude that the
court did not abuse its discretion in ruling that the probative value ofthe evidence to
correct a false impression outweighed any prejudicial effect of the evidence.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
Do not publish. Tex. R. App. P. 47.4.
7 | 01-03-2023 | 09-02-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126297/ | 537 U.S. 1119
HORTONv.COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION.
No. 02-7067.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/126299/ | 537 U.S. 1119
MIMSv.MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL.
No. 02-7082.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/126311/ | 537 U.S. 1120
HONGv.ILLINOIS.
No. 02-7128.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE APPELLATE COURT OF ILLINOIS FOR THE SECOND DISTRICT.
2
App. Ct. Ill., 2d Dist. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3247575/ | A controversy arose between defendant and Mat Kirkland over a generator worth about $1.50. Defendant owned and sold the generator to Kirkland for $1.50; none of the purchase price being paid at the time. According to the state's evidence, this was a sale on credit without conditions. According to defendant's evidence, the generator was to remain the property of defendant until the $1.50 was paid. The amount was not promptly paid, but, after several months and much effort on the part of defendant to collect, Kirkland paid $1 of the amount, leaving a balance of 50 cents unpaid. Defendant made many efforts to collect this 50 cents, without success. One day defendant found Kirkland's truck, to which was attached the generator, standing in the road in front of the home of one Dago Ellison; he asked the inmates of the house for Kirkland, and was told he was not there. Defendant then, in the presence of the inmates of the house, openly and without any effort at concealment took the generator off of Kirkland's car and carried it away, and upon demand refused to replace it on Kirkland's car, claiming title by reason of the unpaid balance. Thereupon Kirkland swore out the warrant in this case.
If the sale of the generator was made on credit and the title passed to Kirkland on delivery, defendant had no right to repossess the property in the way he did, and the taking would be a civil trespass. A verbal mortgage of personal property is void under our statute. Code 1923, § 8033.
But, to constitute larceny there must be a felonious taking. If the defendant took *Page 287
the generator in the honest belief that he had a right to do so, although this belief was erroneous, there would be no felonious intent.
The whole evidence in this case, both for the state and defendant, rebuts any idea of felonious intent, and we think it would be wrong to allow the conviction to stand. Floyd v. State, 23 Ala. App. 216, 123 So. 103; Worrell v. State,24 Ala. App. 313, 136 So. 737.
The motion for a new trial should have been granted. Judgment is reversed, and cause is remanded.
Reversed and remanded. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2896459/ | NO. 07-08-0125-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 6, 2008
______________________________
IN THE INTEREST OF M.A.A., A CHILD
_________________________________
FROM THE 72ND DISTRICT COURT OF CROSBY COUNTY;
NO. 6,942; HON. KEVIN HART, PRESIDING
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Â
MEMORANDUM OPINION
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          Appellant, Tony Sarinana, Jr., is the natural father of M.A.A., who was the subject
of a parental rights termination suit filed by the Texas Department of Family and Protective
Services (Department). For the reasons expressed herein, we will reverse the trial courtâs
judgment and remand this case for a new trial.
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Factual and Procedural Background
          On October 17, 2006, the Department filed an original petition seeking immediate
possession of M.A.A. and requesting to terminate the parental rights of the parents. The
parents were alleged as Bertha Hinojosa, mother, and Alfredo Anzaldua, father. DNA
testing conducted after the filing of the original action excluded Anzaldua as the father. On
April 12, 2007, Hinojosa signed an affidavit of status naming Sarinana as the possible
father. On April 26, 2007, the Department filed an amended pleading alleging Sarinana
as the father and requesting his parental rights be terminated. Citation for service on
Sarinana was issued on May 15, 2007, and Sarinana was subsequently served with the
citation on that same day. Service was obtained on Sarinana at the Crosby County Jail,
where he was an inmate. Sarinana was transferred to the custody of the Institutional
Division of the Texas Department of Criminal Justice (TDCJ) two days prior to the deadline
for filing an answer. A final hearing was conducted by the Associate Judge on October 4,
2007, and a default order terminating Sarinanaâs parental rights to M.A.A. was entered on
February 14, 2008.
          On November 20, 2007, the clerk of the court received a letter from Sarinana
requesting information about the termination suit and requesting DNA testing. The letter
further asserts that, when Sarinana was transferred to TDCJ, all of his paperwork regarding
the termination suit was lost or misplaced and, therefore, he did not have access to it. By
a letter dated February 26, 2008, Sarinana requested the assistance of the clerk of the
court in obtaining the proper paperwork so that he might appeal the decision to terminate
his parental rights. This letter also contained information advising the clerk of the location
of Sarinana within the TDCJ system. By separate letter dated the same date, Sarinana
also filed a motion for a bench warrant and an original answer that contained a request for
an appointed lawyer based on Sarinanaâs indigence. In a letter dated February 27, 2008,
and filed with the clerk the same day as the other letter, Sarinana gave another notice of
appeal and request for DNA testing. This letter further contained a declaration of inability
to pay costs with an attached unsworn declaration that all of the facts stated in the
documents were true and correct. The trial court entered an order appointing an attorney
for purposes of appeal on March 4, 2008. The attorney filed a motion to set aside the
default judgment on March 10, 2008. The March 10, 2008, motion to set aside the default
judgment was filed outside the 15 day window established by the Texas Family Code and,
therefore, cannot be considered by this Court. See Tex. Fam. Code Ann. § 263.405(b)
(Vernon 2005).
A hearing was conducted by the trial court on Sarinanaâs motion to set
aside the default on March 14, 2008. During the hearing on the out-of-time motion to set
aside the default judgment, the trial court concluded that the letters from Sarinana to the
courtâs clerk made it clear he was attempting to set aside the default judgment and that the
trial court should hear the request. However, the trial court appeared to conduct the
hearing on the basis of the out-of-time motion filed by appointed counsel. At that hearing,
the trial court entered an order for DNA testing on Sarinana and a judgment nunc pro tunc
correcting the date of the original order terminating Sarinanaâs parental rights. Because
more than 30 days passed between the date the court signed its default order and the
courtâs ruling on the motion to set aside default judgment, the motion was overruled by
operation of law. § 263.405(d).
          Through two issues, Sarinana alleges that the trial court committed reversible error.
We find the allegations in Sarinanaâs first issue to control the disposition of this matter and
will only address that issue.
Motion to Set Aside Default Judgment
          Through his first issue, Sarinana alleges that he presented sufficient evidence to
require the trial court to set aside the default judgment and, consequently, the failure to do
so requires that we reverse the judgment. The first question we must determine is what
motion was the trial court attempting to hear on March 14, 2008. A review of the record
demonstrates that the trial court considered Sarinanaâs letters filed with the clerk on
February 28, 2008, as being a request for a new trial.
Further, the letters alleged the
same grounds formalized in counselâs motion of March 10, 2008. Because the original
order terminating the parental rights of Sarinana was based upon his perceived default, we
can only conclude that the trial court was hearing evidence to set aside the default
judgment. Accordingly, even though counselâs motion to set aside default was outside the
statutory 15 day period, the trial court still had the issue before it by virtue of Sarinanaâs
pro se filings.
          We review the denial of a motion for new trial under an abuse of discretion standard.
See Dir., State Employees Workersâ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex.
1994). The test for reviewing the entry of a default judgment was first enumerated in the
Craddock case. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d
124, 126 (1939). The Texas Supreme Court ruled that a default judgment should be set
aside when 1) the failure to answer was not intentional or the result of conscious
indifference but was due to a mistake or accident, 2) the movant sets up a meritorious
defense, and 3) the motion is filed at such time that granting a new trial would not result
in delay or otherwise injure the other party. Id. This test for setting aside a default has
been applied to termination cases by the Texas Supreme Court. See In re R.R., 209
S.W.3d 112, 114-15 (Tex. 2006). We will address each element in turn.
          The record reflects that Sarinana was not the first person alleged to be the father.
After the initial party was excluded by DNA testing, the mother of M.A.A. filed an affidavit
of status. This resulted in Sarinana being served on May 15, 2007. At the hearing to set
aside the default judgment, Sarinanaâs appointed counsel presented to the court evidence
showing that Sarinana had been transferred from the Crosby County Jail to a TDCJ unit
two days prior to his answer date. Through Sarinanaâs letters to the clerk of the court, it
was further established that all of his paperwork regarding the termination action had been
lost or misplaced at the time of transfer. Further, beginning with his letter of November 20,
2007, Sarinana continuously tried to determine the status of the case and seek assistance
in fighting the termination. In the hearing on the motion to set aside the default judgment,
the Department raised the question of why Sarinana had not contacted their office during
this period. The record reflects that Sarinana had been furnished an address for the
Department, however, the address was not correct. There was no further evidence
regarding that matter before the court. It is further established in the record that Sarinana
consistently requested that he undergo DNA testing to determine if he was the father. The
failure to file an answer has been held to have been intentional or due to conscious
indifference when âthe defendant knew it was sued but did not care.â Id. at 115 (citing Fid.
and Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex. 2006)). Based on
this record, Sarinanaâs failure to file an answer was not intentional nor the result of
conscious indifference.
          Turning to the question of a meritorious defense, we begin by reviewing the
amended pleadings filed by the Department regarding Sarinana. Those pleadings alleged,
in addition to the statutory default provisions of Ch. 161, that Sarinana: 1) knowingly placed
or knowingly allowed the child to remain in conditions or surroundings which endangered
the physical or emotional well-being of the child and 2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangered the physical or
emotional well-being of the child.
As to the allegations in the amended petition, the record
contains only vague references to Sarinana and what he knew or did not know about the
child. Further, in his affidavits and letters, which were made part of this record, Sarinana
averred that he had no knowledge of the child until he was served. Sarinana also states
that it was never his desire to abandon the child nor to avoid his responsibilities. This
evidence raises a meritorious defense to the allegations contained in the Departmentâs
amended pleadings.
          Regarding the third issue under Craddock, the record reflects that the child, M.A.A.,
continues to reside in the same foster home. There is nothing in the record that would
indicate that the childâs situation will be, in any way, harmed by granting a new trial. It is
true that the foster parents have indicated a desire to adopt the child, however, we do not
view the delay in the adoption process as being any harm to the child. Further, the
attorney appointed to represent Sarinana has indicated that she is ready to go to trial
immediately.
          Based on the record before us, we find that Sarinana met the requirements to obtain
a new trial. Accordingly, the trial court erred when the new trial was not granted.
Conclusion
          Having determined that a new trial should be granted, we reverse the judgment of
termination as to Sarinana and remand this case for a new trial.
Per Curiam
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NO. 07-10-0003-CR
NO. 07-10-0004-CR
Â
IN THE
COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL D
Â
AUGUST
17, 2010
Â
Â
MANUEL FRANCO,
Â
                                                                                        Appellant
v.
Â
THE STATE OF TEXAS,
Â
                                                                                        Appellee
____________________________
Â
FROM THE 137TH DISTRICT COURT OF LUBBOCK
COUNTY;
Â
NOS. 2009-425,411 & 2009-425,412;
HONORABLE CECIL G. PURYEAR, PRESIDING
Â
Â
Memorandum
Opinion
Â
Â
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
          Manuel Franco was convicted of possession
with intent to deliver methamphetamine in an amount of less than 400 grams but
at least 200 grams and possession with intent to deliver cocaine in an amount
of less than 200 grams but at least four grams.  He seeks reversal of those convictions by
contending that the trial court erred in failing to grant his motion to
suppress on the basis that the affidavit in support of the search warrant did
not show probable cause. We disagree and
affirm the judgments.
           Rather than
delve into the factual background of the cause, we simply note that when the
contraband was tendered into evidence via exhibits 7 through 14, the trial
court asked defense counsel: Â Â. . . do
you have any objections to . . . them.ÂÂ Counsel
responded, Â[n]o . . . except for the confirmation by DPS for what the
controlled substances are.ÂÂ Appellant
stating, through counsel, that he had no objection (save for verification of
the type of drug involved) effectively forfeited the complaints now urged on appeal
and regarding the means by which those drugs were secured. Brown
v. State, 183 S.W.3d 728, 741 (Tex. App.ÂHouston [1st Dist.]
2005, pet. refÂd). Accordingly, we
overrule the issue before us.
           The judgments
of the trial court are affirmed.
Â
                                                                                   Per
CuriamÂ
Do
not publish.
          Â
          Â
Â
 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4003661/ | This action was instituted in the Circuit Court of Mingo County by Dovie Arrowood, administratrix of her deceased husband, against the Norfolk Western Railway Company to recover damages for his death. At the conclusion of plaintiff's testimony the trial court, over plaintiff's objection, sustained defendant's motion to strike all plaintiff's evidence, directed the jury to return a verdict for defendant, overruled a motion to set aside the verdict, and entered judgment that plaintiff take nothing by her action. Plaintiff prosecutes this writ of error.
Plaintiff's decedent, Frank Arrowood, was instantly killed by the first section of defendant's westbound passenger train No. 3, while driving an automobile over a public crossing at the Village of Borderland. Although generally known as a westbound train, it actually approached the crossing from a westerly direction due to curvature and location of the railway line. Borderland lies between Tug River on the north and defendant's railway tracks on the south. U.S. Route 52 at the point the accident occurred is south of and generally parallel with defendant's tracks, so that to enter and depart from the village it is necessary to use the crossing on which plaintiff's decedent was fatally injured. The crossing approached from the north, as Arrowood did, consists of three tracks: the eastbound main track, the westbound main track, on which deceased was struck, and a siding for the storage of railway cars. It was marked by a sign reading "Railroad Crossing. Look out for the locomotive", there being no crossing lights or other safety devices. The general level of the Village of Borderland is approximately seven and a half feet lower than the level of the crossing, and the road leading up to the crossing is located on a rather steep ascending grade. At the time of the accident two concrete piers three and a half to four feet high, each with a base five by nine feet, were located on the northwesterly side of the crossing. Near the piers and immediately west of the road is an accumulation of gravel forty-two inches high, which marks the end of a spur track. The piers and *Page 312
gravel were to the right of decedent as he approached the crossing from the north. The track in the direction from which the train approached the crossing is almost straight for a distance of approximately twelve hundred feet. The view from the road over which deceased was travelling just prior to the accident is obstructed in part by three houses and at certain points by the concrete piers above mentioned, and in some slight degree by the gravel. At a point approximately twenty-six feet from the center of the westbound main line there is a clear view of the track for a distance of twelve hundred feet.
Plaintiff's decedent was a taxi-cab driver, with a station at or near defendant's passenger depot in Williamson, West Virginia, at which he received calls for his services. Shortly after two o'clock A. M. on the day of the accident, he was engaged to transport three persons from Williamson to the Village of Borderland. The three passengers were carried safely into Borderland, the vehicle having been operated in a careful manner. Decedent turned the vehicle and started on his return to Williamson. On arriving at the north-end of the crossing with his front wheels on the ascending grade, he stopped momentarily, immediately resumed motion, and while passing over the crossing was struck by defendant's train on the westbound main track.
It is established by six witnesses, who were at or near the scene of the accident and who testified with varying degrees of certainty, that the whistle and bell of the locomotive which struck deceased were not sounded or rung before the accident. Two of these witnesses were passengers of the taxi-cab who had just alighted from decedent's automobile, two others were travelling in a motor vehicle on U.S. Route 52 about three hundred feet from the crossing, another was standing at or near the crossing on Route 52, with the intention of hailing decedent and riding with him to Williamson, and another was in an automobile parked near the crossing.
No evidence was introduced by defendant, and the only error assigned is the action of the trial court in directing *Page 313
a verdict for defendant, overruling plaintiff's motion to set aside the verdict, and in entering judgment thereon.
It is alleged in the declaration and the undisputed evidence of plaintiff tends to show that defendant was guilty of primary negligence in failing to give the warning signal by bell or whistle as required by statute. Code, 31-2-8. Although the record does not so show, it is evident that the trial court was of the opinion that plaintiff's evidence established that her decedent was guilty of contributory negligence as a matter of law, and defendant in brief and oral argument so contends in this Court. Plaintiff contends with equal vigor that her decedent exercised the necessary care and prudence in using the crossing, and that his death resulted solely from the negligence of defendant. It is therefore obvious that the only question to be resolved is whether the evidence establishes as a matter of law that deceased's conduct proximately contributed to the accident which caused his death. The controlling rule of law in determining the question of contributory negligence in cases of this kind is aptly stated thus: "Whether a traveler upon a highway is guilty of contributory negligence in entering upon a crossing is a question for the jury, where the facts are in dispute, or where from the conceded facts two conclusions may be drawn with equal plausibility, one of which would make such injured party guilty of contributory negligence, and the other indicate that he was in the exercise of due care."Canterbury v. Director General, 87 W. Va. 233, 104 S.E. 597. As indicated above, the facts are not in dispute, and, therefore, we must determine whether the evidence before us so clearly established deceased's negligence that no other plausible conclusion may be reached save that his own negligent conduct proximately caused or contributed to the fatal accident.
Code, 31-2-8, requires that a bell or steam whistle be rung or sounded at least sixty rods from the public crossing. The only evidence before us is that the warning signals required by the statute aforesaid were not given, and the failure to do so constitutes negligence on the part *Page 314
of the defendant. Canterbury v. Director General, supra.
Notwithstanding defendant's negligence, if deceased's contributory negligence is established as a matter of law, plaintiff can have no recovery. Robertson v. Railway Co., 99 W. Va. 356,128 S.E. 829; Cline v. McAdoo, 85 W. Va. 524,102 S.E. 218. The duties incumbent upon travellers using a public railroad crossing have been variantly defined in this jurisdiction. It has been held that failure of a person to stop and also look and listen before crossing a railway track constituted contributory negligence per se. Cline v. McAdoo,supra. It is not negligence per se in all cases where a traveller does not stop before passing over a railway track at a public crossing. Bonar v. Railway Co., 91 W. Va. 462,113 S.E. 766; City of Elkins v. Railway Co., 76 W. Va. 733,86 S.E. 762. It has also been held that failure on the part of a traveller to look and listen before passing over a railway track at a public grade crossing amounted to such contributory negligence as to bar recovery. Gray v. Railway Co., 99 W. Va. 575,130 S.E. 139. See Robertson v. Railway Co., supra;Krodel v. Railroad Co., 99 W. Va. 374, 128 S.E. 824. In some instances the rule has been approved and applied that where required by circumstances, it was the duty of the traveller to stop, as well as look and listen before crossing the railroad track. Maynard v. C. O. R. R. Co., 111 W. Va. 372, 374,162 S.E. 171; Gulf Transportation v. Virginian Ry., 111 W. Va. 544,163 S.E. 7; Lester v. N. W. Ry., 111 W. Va. 605,163 S.E. 434. But failure on the part of a traveller to look and listen before passing over a railway track does not in every instance show lack of ordinary care as a matter of law. Morris v.Railroad Co., 107 W. Va. 97, 147 S.E. 547. "The duty of the decedent to look and listen depended on whether 'it would have availed him had he looked and listened.' Whether decedent would have comprehended the danger of the situation had he looked and listened was a jury question." Morris v. Railroad Co., supra.
It is without dispute that decedent stopped his vehicle before he attempted to pass over the railway tracks. It is presumed, there being no evidence to the contrary, that *Page 315
decedent looked and listened, and we cannot say that he did not do all that the law required him to do to avoid the fatal accident. Carnefix v. Railroad Co., 73 W. Va. 534, 538,82 S.E. 219. The deceased had the right to assume that the statutory warning signals would be given, but such failure did not excuse him from exercising ordinary care, and taking the necessary precautions for his safety. Canterbury v. Director General,supra; Gray v. Railway Co., supra.
The undisputed fact that plaintiff's decedent stopped the automobile just before attempting to cross the railway track, together with the presumption that plaintiff's decedent looked and listened, establishes a sufficient compliance with the requirements of law on the part of plaintiff's decedent so as to absolve him from the charge of contributory negligence.
Is the presumption above mentioned rebutted by the fact that the track was almost straight for a distance of twelve hundred feet in the direction from which the train approached the crossing? The approximate speed of the train is not shown, except that one witness said it was going "pretty fast". We cannot say how much time elapsed between the time it came in view and the time of the collision at the crossing.
It is pertinent to note that the view of plaintiff's decedent was obstructed at certain points by three houses, the two concrete structures and, in a measure, by the pile of sand and gravel. It is also an important and material fact that the road on which he travelled just before reaching the crossing was seven and a half feet lower than the railroad tracks.
Plaintiff's decedent is shown to have been familiar with the road from Borderland to Williamson and that portion of the road passing over the railway tracks at Borderland, where he lost his life, but there is no showing that he knew the location of the houses and the structures above mentioned which obstructed his view at some points along the road he travelled just before he was struck. Moreover it is well to observe that the accident occurred at night. *Page 316
In view of the foregoing can we say that any other conclusion can be reached except that deceased failed to efficiently look and listen for the approach of the defendant's train? We think not. It is plausible to conclude that plaintiff's decedent, when he stopped was unaware of the obstructions to his view, and being located seven and a half feet below the level of the railway tracks his senses of sight and hearing may not have apprised him of his danger. The fact that plaintiff's decedent was struck on the crossing alone is not sufficient to establish his contributory negligence, and on motion to direct a verdict in defendant's favor "* * * every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence."Fielder v. Cab Company, 122 W. Va. 522, 11 S.E.2d 115; Boyce v.Black, 123 W. Va. 234, 15 S.E.2d 588.
We think that this record presents a case in which it was error on the part of the trial court to direct a verdict for the defendant.
Accordingly, the judgment of the trial court is reversed, the verdict set aside, and a new trial awarded.
Judgment reversed; verdict set aside; new trial awarded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1230173/ | 869 P.2d 323 (1994)
Mary Lou PACK, Ann E. Watts, Robert E. Stevens and Jo E. Stevens, Husband and Wife, Appellees,
v.
SANTA FE MINERALS, A DIVISION OF SANTA FE INTERNATIONAL CORPORATION, Southland Royalty Company, a Delaware Corporation, and Deck Oil Company, an Oklahoma corporation, Appellants,
John V. BALZER, an individual, Jake F. Balzer and Lydia Balzer, Husband and Wife, Appellees,
v.
SANTA FE MINERALS, A DIVISION OF SANTA FE INTERNATIONAL CORPORATION, a Delaware corporation, Hamon Operating Company, a Texas corporation, Frontier Fuels, Inc., a Delaware corporation, Southland Royalty Company, a Delaware Corporation, and Deck Oil Company, an Oklahoma corporation, Appellants.
Nos. 74605, 74606.
Supreme Court of Oklahoma.
February 22, 1994.
Gary W. Davis, Mark D. Christiansen, Crowe & Dunlevy, Oklahoma City, James R. Fletcher, Guymon, for appellants, Santa Fe Minerals and Southland Royalty Co.
H. Wayne Cooper, Charles Greenough, Tulsa, for appellant, Deck Oil Co.
George S. Corbyn, Jr., J. Michael DeYong, Joe M. Hampton, Ryan, Corbyn & Geister, Oklahoma City, David K. Petty, Guymon, for appellees.
Eugene Kuntz, Norman, Joseph W. Morris, Gable & Gotwals, Tulsa, John S. Lowe, Dallas, TX, A.P. Murrah, Jr., Murrah & Davis, Oklahoma City, for amicus curiae.
Clifford K. Cate, Jr., Muskogee, for amicus curiae, Atlantic Richfield Co.
Rick A. Mayer, Houston, TX, for amicus curiae, Chevron U.S.A., Inc.
Gary E. Baker, Houston, TX, for amicus curiae, Exxon Corp.
James M. Peters, Gayle Freeman Cook, Monnet, Hayes, Bullis, Thompson & Edwards, Oklahoma City, for amicus curiae, Fina Oil and Chemical Co., Oryx Energy Co., Oxy U.S.A. Inc., Union Pacific Resources Co.
Charles L. Puckett, Houston, TX, for amicus curiae, Conoco, Inc.
Brent Alan Helms, Dallas, TX, for amicus curiae, Fina Oil and Chemical Co.
Charles E. Holmes, New Orleans, LA, for amicus curiae, Freeport-McMoRan Oil & Gas Co.
Steven R. Mackey, Cathy L. Cheney, Tulsa, for amicus curiae, Helmerich & Payne, Inc.
Hugh A. Stowe, Denver, CO, for amicus curiae, Mobil Oil Corp.
Patricia A. Moore, Dallas, TX, for amicus curiae, Oryx Energy Co.
William G. Paul, John L. Williford, Bartlesville, Joe Cochran, Susan L. Heady, Amarillo, TX, for amicus curiae, Phillips Petroleum Co.
William D. Watts, John J. Breathwit, G. Babette Patton, Andrews, Davis, Legg, Bixler, Milsten & Price, Oklahoma City, for amicus curiae, Marathon Oil Co.
David O. Cordell, Oklahoma City, for amicus curiae, Mustang Fuel Corp.
*325 Brenton B. Moore, Tulsa, for amicus curiae, OXY U.S.A., Inc.
Randle G. Jones, Jimmy E. Shamas, Jr., Denver, CO, for amicus curiae, Texaco, Inc.
Baxter Brown, Fort Worth, TX, for amicus curiae, Union Pacific Resources Co.
*324 SIMMS, Justice:
Appellants, Santa Fe Minerals and other oil and gas companies, (lessees) appeal the judgments entered by the district court in the quiet title actions instituted by appellees, Mary Lou Pack, Ann E. Watts, Robert E. Stevens, Jo E. Stevens, John V. Balzer, Jake F. Balzer, and Lydia Balzer (mineral rights owners/lessors). These separate actions instituted by Pack, Watts and Stevens (No. 74,605), and by the Balzers (No. 74,606) were consolidated for trial, and are consolidated for purposes of this opinion. The trial court entered judgment in favor of the mineral rights owners, canceling oil and gas leases and quieting title in the lessors.
The Court of Appeals affirmed, holding the leases terminated of their own terms under the provisions of the "cessation of production" clause. Certiorari was granted to consider the first impression question of whether a lease, held by a gas well which is capable of producing in paying quantities but is shut-in for a period in excess of sixty (60) days but less than one year due to a marketing decision made by the producer, expires of its own terms under the "cessation of production" clause unless shut-in royalty payments are made. We find that under such circumstances, the lease does not expire of its own terms. The opinion of the Court of Appeals is vacated, the judgment of the district court is reversed, and this cause remanded with directions to enter judgment in favor of the lessees.
The stipulated facts disclose that in both cases the mineral owners of their predecessors in interest entered into oil and gas leases with the lessees. Each of the leases contained similar provisions including a habendum clause, a shut-in or minimum royalty clause, and a 60-day cessation of production clause.
The habendum clause provides for the primary term of the lease to be for ten (10) years and "as long thereafter as oil, gas, casinghead gas, casinghead gasoline or any of them is produced." The shut-in royalty clause provides for a fifty dollar ($50.00) royalty payment per year for each well from which gas is not sold. When the royalty payment is paid, the well is deemed a producing well for purposes of the habendum clause. The cessation of production clause provides for the lease to continue after the expiration of the primary term as long as production does not cease for more than sixty (60) days without the lessee resuming operations to drill a new well.
The primary terms of each of the leases expired, and the leases continued pursuant to the habendum clause due to the wells' capability to produce in paying or commercial quantities.[1] Each of the wells continued to be capable of producing in paying quantities up until the time of trial, but lessees have chosen at times not to market gas from the wells for periods exceeding sixty (60) days. The lessees stipulated that they chose to overproduce the wells during the winter months when the demand for gas is higher and the price for gas increases. Because the Oklahoma Corporation Commission imposed annual allowable limitations as to how much gas may be produced from the wells, the lessees curtailed the marketing of gas from the wells during the summer months when prices were lower so as not to exceed the annual allowable limits. The intention and result of this practice was to obtain the highest price for the gas and still stay within the allowable production limits set by the Oklahoma Corporation Commission. Such a practice was common with most of the gas producers in the state.[2]
*326 Although some marketing of the gas continued during the warmer months, such sales were exceeded by the monthly expenses, so the wells were not profitable during that period. Additionally, the Pack well was shutin for one month during this period in order to build up pressure in preparation for an annual well test to determine its annual allowable limit.
The mineral owners filed suit in district court asserting the leases terminated by their own terms when the wells failed to produce for a sixty (60) day period and the lessees neither commenced drilling operations nor paid shut-in royalty payments. The trial court determined that an interruption in the sale and marketing of gas from the wells in excess of sixty (60) days constituted a cessation of production within the meaning of the cessation of production clause resulting in a termination of the leases. Judgment was entered accordingly, and the lessees/producers appealed that judgment.
I.
The term "produced" as used in the lease clauses means "capable of producing in paying quantities" and does not include marketing of the product.
A.
The Habendum Clause
This Court has long held that the terms "produced" and "produced in paying quantities" have substantially the same meaning. State ex rel. Commissioners of the Land Office v. Carter Oil Co. of West Virginia, 336 P.2d 1086 (Okla. 1958). Therein, we construed a typical habendum clause which extended the lease past its ten-year primary term as long thereafter as oil or gas is produced in paying quantities. We held that in order to extend the fixed term of ten years "and acquire a limited estate in the land covered thereby the lessee must have found oil or gas upon the premises in paying quantities by completing a well thereon prior to the expiration of such fixed term." 336 P.2d at 1094. The Court then rejected the lessors' argument that production in paying quantities required the lessees to not only complete a well capable of producing in paying quantities but also remove the product from the ground and market it. Thus, where a well was completed and capable of producing in paying quantities within the primary term, the lease continued, so far as the habendum clause was concerned, as long as the well remained capable of producing in paying quantities, regardless of any marketing of the product.[3]
This rule of law has been consistently upheld. See, e.g., Gard v. Kaiser, 582 P.2d 1311 (Okla. 1978) and McVicker v. Horn, Robinson and Nathan, 322 P.2d 410 (Okla. 1958). Perhaps one of the best explanations for the rule was given in McVicker where we stated:
"To say that marketing during the primary term of the lease is essential to its extension beyond said term, unless the lease contains additional provisions indicating a contrary intent, is to not only ignore the distinction between producing and marketing, which inheres in the nature of the oil and gas business, but it also ignores the difference between express and implied terms in lease contracts." 322 P.2d at 413 (Emphasis in original).
More recently, in Stewart v. Amerada Hess Corp., 604 P.2d 854 (Okla. 1979), we reaffirmed the rule that an oil and gas lease could not be terminated under the habendum clause merely because the subject well ceased producing in paying quantities. Rather, the finder of fact must also look into the circumstances surrounding the cessation, including the "[d]uration and cause of the cessation, as well as the diligence or lack of diligence exercised in the resumption of production." 604 P.2d at 858, fn. 18. In so holding we affirmed our rejection of a literal construction of the habendum clause stating:
*327 "Under a literal or strict interpretation of the `thereafter' provision in a habendum clause, uninterrupted production following expiration of primary term would be indispensable to maintain a lease in force. This would mean, of course, that any cessation of production [in the paying-quantities sense of the term], however slight or short, would put an end to the lease. Oklahoma has rejected that literal a view. Our law is firmly settled that the result in each case must depend upon the circumstances that surround cessation. Our view is no doubt influenced in part by the strong policy of our statutory law against forfeiture of estates. The terms of 23 O.S. 1971 § 2 clearly mandate that courts avoid the effect of forfeiture by giving due consideration to compelling equitable circumstances.[4]
* * * * * *
In short, the lease continues in existence so long as the interruption of production in paying quantities does not extend for a period longer than reasonable or justifiable in light of the circumstances involved. But under no circumstances will cessation of production in paying quantities ipso facto deprive the lessee of his extended-term estate.
A decree of lease cancellation may be rendered where the record shows that the well in suit was not producing in paying quantities and there are no compelling equitable considerations to justify continued production from the unprofitable well operations." 604 P.2d at 858 (Emphasis in original) (Citations omitted).
Finally, in State ex rel. Comm'rs of the Land Office v. Amoco Production Co., 645 P.2d 468 (Okla. 1982), we held:
"The provision about paying quantities adds little to the term production since it is settled that production must be in paying quantities even though a lease contains no such provision ... It is the ability of the lease to produce that is the important factor rather than the actual production applied, as an example of ability to produce a shut-in gas well will hold a lease as long as the operator seeks a market with due diligence." 645 P.2d at 470 (Citations omitted) (Emphasis added).[5]
Therefore, the lease in the case at bar cannot terminate under the terms of the habendum clause because the parties stipulated that the subject wells were at all times capable of producing in paying quantities. The habendum clause of these leases is satisfied.
B.
The Cessation of Production Clause
The cessation of production clause of the subject leases provides:
"If, after the expiration of the primary term of this lease, production on the leased premises shall cease from any cause, this lease shall not terminate provided lessee resumes operations for drilling a well within sixty (60) days from such cessation, and this lease shall remain in force during the prosecution of such operations and, if production results therefrom, then as long as production continues."
The lessors/mineral interest owners argue the term "production" used in this clause includes removal and marketing of the product. They would require the lessee to continually market the gas from the well, and any cessation of such marketing for a period of sixty days or more would result in termination of the lease. We cannot accede to such a constrained construction of the clause as it discounts the intended meaning of production as this Court has determined in numerous cases, a few of which are cited above. *328 In construing the provisions of a contract we are bound to consider all the provisions thereof and use each provision to help interpret the others. Panhandle Cooperative Royalty Co. v. Cunningham, 495 P.2d 108 (Okla. 1971). Thus, our understanding of the term in the cessation of production clause is influenced by how we have interpreted it in other provisions of oil and gas leases such as the habendum clause. In Hoyt v. Continental Oil, 606 P.2d 560 (Okla. 1980), we noted our commitment "to the principle that production means production in paying quantities in Oklahoma when the term appears in the habendum clause of an oil and gas lease." 606 P.2d at 563. We then held:
"After the primary term, the effect of the cessation of production clause is to modify the habendum clause and to extend or preserve the lease while the lessee resumes operations designed to restore operations. If the lessee fails to resume operations within the 60-day period provided in this clause neither the cessation of production clause or the habendum clause is satisfied and the lease terminates upon the expiration of the given time period."
* * * * * *
"[W]here, as here, the primary term has expired and the effect of the [cessation of production] provision is to modify the habendum clause ... there is a cessation of production if the habendum clause requires production in paying quantities and such requirement is not met." 606 P.2d at 563 (Emphasis added).
Therefore, the cessation of production clause serves the purpose of modifying the habendum clause to cause the lease to continue for the stated time period to give the lessee an opportunity to begin drilling a new well. The term "production" as used in the cessation of production clause must mean the same as that term means in the habendum clause. Any other conclusion would render the habendum clause useless after the primary term expires, a conclusion clearly not intended by the parties to the lease. If we were to conclude that the term "production" as used in the cessation of production clause means removal and marketing of the product as the mineral interest owners assert, then after the primary term expires, the lessee must not only keep the well in working order so that it is capable of producing in paying quantities as would be required under our well-settled understanding of the habendum clause, but gas would have to be removed and marketed in order to meet the requirements of the cessation of production clause. Any cessation of marketing for a sixty day period, under the lessors' interpretation of the clause, would constitute a violation of the clause resulting in termination of the lease. Such a result ignores the express terms of the habendum clause which provide for the lease to continue after the primary term as long as the well is capable of production in commercial quantities regardless of marketing.
Such a construction further disregards the express provisions of the cessation of production clause which are intended to come into play in the event that production from the well shall cease, i.e. the well becomes incapable of producing in paying quantities. The clause allows the lessee the opportunity to begin drilling another well on the leased premises within sixty (60) days so that production in paying quantities may be realized in another well. In other words, the lease terminates when the habendum clause is no longer satisfied, but the cessation of production clause is a saving clause which gives the lessee sixty (60) days to get the lease producing again. This is seen in French v. Tenneco Oil Co., 725 P.2d 275 (Okla. 1986), where we stated:
"`[T]he provision is construed as giving the lessee a fixed period of time within which to resume production or commence additional drilling or reworking operations in order to avoid termination of the lease ...' Restoration of production in paying quantities within that period obviates the need to drill ..." 725 P.2d at 277 (quoting Greer v. Salmon, 82 N.M. 245, 479 P.2d 294 (1970) (Emphasis in original).
Thus, the clause does not require the lessee to market oil or gas actually extracted from the well. If the well was capable of production in commercial quantities at all times, but for a short period had less than commercial quantities marketed from it, the *329 lessors would require the lessees to begin drilling operations for another well that under the facts would be unnecessary and uneconomical.
Contrary to the argument of lessors and the decision of the trial court, Hoyt v. Continental Oil, supra, and French v. Tenneco Oil Co., 725 P.2d 275 (Okla. 1986), do not support termination of the lease under the cessation of production clause. In both cases, this Court affirmed termination of the lease based upon the terms of the cessation of production clause. However, we did so because at the time of expiration of the primary terms of those leases, the subject wells were not capable of production in paying quantities, i.e. they were not "producing" wells under either the habendum clause or the cessation of production clause. The trial court in the case at bar mistakenly concluded that "production in paying quantities" required the wells to be making a profit during the relevant months. Neither Hoyt nor French require such.
Likewise, our holding in Hamilton v. Amwar Petroleum Co., Inc., 769 P.2d 146 (Okla. 1989), terminating a gas lease pursuant to the terms of the cessation of production clause does not control here. The well in Hamilton was capable of production in paying quantities at the time it was completed, but the evidence indicated that it was not capable of producing in paying quantities upon the expiration of the primary term. Unlike the wells in Hoyt, French, and Hamilton, the wells in the instant case have at all times been capable of producing in paying quantities.
In his treatise, Professor Kuntz observed that in jurisdictions such as Texas "where marketing is required as a part of production for purposes of the habendum clause," the shutting in of a gas well from which gas had been marketed could be a cessation of production under the cessation of production clause.[6] 4 Kuntz, The Law of Oil and Gas, § 47.3(b) at p. 106 (1990) Id. However, the result is the opposite in jurisdictions such as Oklahoma that do not require marketing.
"In a jurisdiction where marketing is not required to satisfy the habendum clause and the effect of the cessation of production clause is to modify that clause, the effect of a shut-in well from which neither oil nor gas has been marketed would be the same [no cessation of production] as in a jurisdiction where marketing is required, but the reason would be different. In this instance there would be production for purposes of the habendum clause and therefore no cessation of production. If a well is shut-in after oil or gas has been marketed, the result would be different from the result reached in a jurisdiction that requires marketing for production, for the reason that production has not ceased and the cessation of production clause is not invoked." (Emphasis added).
The cessation of production clause only requires the well be capable of producing gas in paying quantities. A gas lease does not terminate under the cessation of production clause for failure to market gas from the subject wells for a sixty (60) day period. Therefore, the lease will continue as long as the well is capable of production in paying quantities subject, of course, to any violation of any other express provisions such as the shut-in royalty clause or implied covenants such as the covenant to market.
C.
The Shut-in Royalty Clause
As noted in Part B above, the shut-in royalty clause plays a specific role in the continuation of the lease where the well is shut-in for a period of one year. In Gard v. Kaiser, 582 P.2d 1311 (Okla. 1978), this Court looked at the effect such a clause has where the subject gas well was shut-in for three years due to low gas pressure. Prior to being shut-in, the well was completed and *330 began production before the primary terms expired. Thus, the term of the lease was extended under the habendum clause as long as the well was capable of producing in paying quantities. However, because of low pressure, gas from the well could not enter a pipeline without additional equipment which lessee failed to install. Thus, gas was not marketed during the shut-in period. The lessors brought an action to cancel the leases on the grounds that the lessees failed to pay the shut-in royalty payments. They argued that according to the language of the lease, as soon as production ceased and the well was shut in, the lease automatically terminated.
The Court noted that in Oklahoma the shut-in royalty clause is "`not required as an additional special limitation to extend the term'" of an oil and gas lease after a commercial discovery of gas satisfies the habendum clause. 582 P.2d at 1313 (quoting 4 Kuntz, The Law of Oil and Gas, § 46.3). Such a commercial discovery (capable of producing in paying quantities) extends the lease with or without the shut-in royalty clause, and the lease continues "subject to forfeiture for failure to comply with the implied obligation to market the product." Id.
We then held that "shut-in gas provisions are not to be construed as limitations or conditions which would affect termination of the leases," 582 P.2d at 1314-15. Thus, the failure to pay shut-in royalties in and of itself does not operate to cause a termination of the lease. Rather, it is the failure to comply with the implied covenant to market which results in lease cancellation.
In the situation at bar, lessors/mineral owners did not receive any royalty payments because gas was not being sold from the wells for a short period of time. The well, for all practical purposes, was shut-in for a period less than one year. Thus, if the well stayed in this shut-in state for one full year, the mineral owners would be entitled to the minimum shut-in royalty payment of fifty dollars ($50.00) as they agreed to be bound to in the lease. If the lessees chose to market gas from the wells, the mineral owners would receive royalty payments just as they have during the winter months. Either way, the mineral owners get paid what they are entitled to under the terms of the lease.
If we were to interpret the cessation of production clause to require marketing, then the shut-in royalty clause would be rendered meaningless. The lessees would not be able to shut-in the well and pay shut-in royalties to keep the lease viable because the cessation of production clause would mandate continuous marketing of gas. Thus, such a construction of the cessation of production clause would nullify the provisions of the shut-in royalty clause. The cessation of production clause cannot be interpreted in the manner asserted by the mineral owners.
II.
The Implied Covenant to Market (Doctrine of Temporary Cessation)
To this point we have held that the express provisions of the subject oil and gas leases do not require the lessees to remove and market oil or gas from the leases in order to keep the lease from terminating. However, our inquiry does not stop there for the longstanding rule is that typical oil and gas leases contain an implied covenant to market oil and gas from the subject wells. In State ex rel. Commissioners of the Land Office v. Carter Oil Co. of West Virginia, supra, we affirmed the rule of law set down in Cotner v. Warren, 330 P.2d 217 (Okla. 1958) and stated:
"In other words in the absence of a specific clause requiring marketing within the primary term fixed in the lease, the completion of a well, as provided therein, capable of producing oil or gas in paying quantities will extend such term, provided that within a reasonable time the actual length of which must of necessity depend upon the facts and circumstances of each case, a market is obtained and oil or gas is produced and sold from such well. In such event if the producing and marketing thereof in such quantities from the well so completed is continued, the lease will extend until the economic exhaustion of the product." 336 P.2d at 1095.
In State v. Carter Oil, the evidence showed that due diligence was exercised in the seeking *331 and obtaining of a market and, under the circumstances, such market was found within a reasonable time. Consequently, the lease was not terminated where the lessees completed the well which was capable of producing in paying quantities but were unable for over one year past the expiration date of the primary term to market the product due to not having a pipeline in the area in which to transport the product.
In Cotner, we adopted the rule concerning the implied covenant to market holding that the controlling factual finding is whether or not the temporary cessation of marketing was for an "unreasonable length of time." 330 P.2d at 219.[7] We concluded that five to six months of voluntary cessation of marketing was not unreasonable under the circumstances because the operator was attempting to work out a problem with the lessees. The facts indicated that the problem was resolved when Warren bought out the rest of the partners becoming the sole lessee and immediately attempted to enter the premises to resume operations and drill another well. The lease had not expired under the facts and circumstances presented. Compare Hunter v. Clarkson, 428 P.2d 210 (Okla. 1967) in which this Court affirmed the trial court's cancellation of an oil and gas lease where production and marketing from the well had been voluntarily ceased by the lessee for a period of five months without any circumstances to justify the cessation.
It, therefore, follows that the lessees in the cases at bar may voluntarily cease removal and marketing of gas from the subject wells for a reasonable time "where there are equitable considerations which justify a temporary cessation." Townsend v. Creekmore-Rooney Co., 332 P.2d 35, 37 (Okla. 1958). If the temporary cessation is reasonable, the lease will continue, and the burden of proving that the lessees failed to use reasonable diligence in the operation of the well squarely rests with the lessors. Durkee v. Hazan, 452 P.2d 803, 814 (Okla. 1968); State ex rel. Comm'rs of the Land Office v. Amoco Production Co., 645 P.2d 468, 470 (Okla. 1982). The lessors have failed to meet that burden. We find that under the facts and circumstances of the case at bar the lessees' temporary cessation was for a reasonable time and justified by equitable considerations.
III.
Conclusion
In Rist v. Westhoma Oil Co., 385 P.2d 791, 792 (Okla. 1963), the syllabus by the Court reads:
"Where a cause is submitted upon an agreed statement of facts, it is the duty of this court on appeal to apply the law to such facts as a court of first instance and direct judgment accordingly."
We conclude, based upon the stipulated facts presented to us, that the leases did not terminate under the terms of the habendum clause, the cessation of production clause, or the shut-in royalty clause. Furthermore, under the circumstances of this case, the lease should not be canceled under the doctrine of temporary cessation because such temporary cessation was for a reasonable time.
For the above and foregoing reasons, the opinion of the Court of Appeals is VACATED, the judgment of the district court is REVERSED, and this cause is REMANDED with directions to enter judgment for the appellant lessees.
HODGES, C.J., LAVENDER, V.C.J., and HARGRAVE, OPALA, KAUGER, SUMMERS and WATT, JJ., concur.
ALMA WILSON, J., dissents.
NOTES
[1] See, infra, Part I.A. where we discuss the longstanding rule that the term "production" as used in the habendum clause means "capable of producing in paying quantities."
[2] In the public interest to prevent the waste of natural gas, the Legislature amended 52 O.S. 1981. § 29 to limit the amount of natural gas which could be produced from a well each year. See 1992 Sess.Laws, Ch. 14, §§ 1 and 2. Therein, the Legislature recognized that greater quantities of gas must be produced from the wells during the winter months due to the greater demand for natural gas for heating purposes. Thus, statutory law sanctions the gas industry's greater production during the colder months up to the established limit.
[3] See, infra, Part II concerning the implied covenant to market.
[4] Title 23 O.S. 1971, § 2, has not changed since its enactment in 1910. It provides:
"Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful or fraudulent breach of duty."
[5] This rule has been affirmed as recently as 1990 where the majority opinion as well as the dissenters agreed that temporary cessation of production will not result in termination of an oil and gas lease. Ludwig v. William K. Warren Foundation, 809 P.2d 660 (Okla. 1990).
[6] Lessors cite numerous cases which they assert support their argument that a cessation of production occurs whenever the lessee fails to remove and sell gas. We have reviewed the cases and find the majority of them come from jurisdictions which require marketing as a part of production for purposes of the habendum clause. For that reason, they carry little weight with this Court. The remaining cases are distinguishable on their facts, and we decline to discuss them in this opinion.
[7] This rule of law is often referred to as the doctrine of temporary cessation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/126329/ | 537 U.S. 1121
ARMSTRONGv.IOWA.
No. 02-7155.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE COURT OF APPEALS OF IOWA.
2
Ct. App. Iowa. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1801995/ | 48 Cal. 4th 446 (2010)
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS OF CALIFORNIA, INC., et al., Plaintiffs and Respondents,
v.
CITY OF LOS ANGELES et al., Defendants and Appellants.
No. S164272.
Supreme Court of California.
March 25, 2010.
*449 Rockard J. Delgadillo and Carmen A. Trutanich, City Attorneys, Kelly Martin, Managing City Attorney, D. Timothy Dazé, Deputy City Attorney; Law Offices of John Werlich and John M. Werlich for Defendants and Appellants.
Dennis J. Herrera, City Attorney (San Francisco), Danny Chou, Chief of Complex and Special Litigation, Mara Rosales, Chief Airport Counsel, Burk E. Delventhal, Ellen Forman and Rafal Ofierski, Deputy City Attorneys; Patricia B. Heilbron, Deputy Port Attorney (Oakland); and Breton Lobner for City and County of San Francisco, League of California Cities, California State Association of Counties, Port of Oakland and San Diego County Regional Airport Authority as Amici Curiae on behalf of Defendants and Appellants.
Kent S. Scheidegger and Maritza B. Meskan for Criminal Justice Legal Foundation as Amicus Curiae on behalf of Defendants and Appellants.
Law Offices of David M. Liberman, David M. Liberman; Law Offices of Robert C. Moest and Robert C. Moest for Plaintiffs and Respondents.
Peter J. Eliasberg; Julia Harumi Mass, Alan L. Schlosser; and David Blair-Loy for American Civil Liberties Union of Southern California, American Civil Liberties Union of Northern California and American Civil Liberties Union of San Diego and Imperial Counties as Amici Curiae on behalf of Plaintiffs and Respondents.
OPINION
MORENO, J.
In 1997, the City of Los Angeles enacted an ordinance prohibiting persons from soliciting funds at Los Angeles International Airport. The International Society for Krishna Consciousness of California, Inc., sought an injunction in federal district court, which ruled that the ordinance violated the free speech clause of the California Constitution. The city appealed and, following protracted litigation, the Ninth Circuit Court of *450 Appeals requested that this court decide the following question: "Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution?" California Rules of Court, rule 8.548 provides that this court may decide a question of California law upon which there is no controlling precedent at the request of a federal court of appeals if "[t]he decision could determine the outcome of a matter pending in the requesting court ...."
(1) We granted the Ninth Circuit's request and directed the parties to address the following questions: "1) Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution? 2) If so, does the ordinance at issue violate the California Constitution?" For the reasons that follow, we conclude that whether or not Los Angeles International Airport is a public forum for free expression under the California Constitution, the ordinance is valid as a reasonable time, place, and manner restriction of expressive rights to the extent that it prohibits soliciting the immediate receipt of funds. Accordingly, we do not determine whether Los Angeles International Airport is a public forum under the liberty of speech clause of the California Constitution, because the resolution of that question could not determine the outcome of the present matter.
FACTS[1]
Former section 23.27(c) of the Los Angeles Administrative Code (hereafter section 23.27(c)), which became effective on May 15, 1997, provided that "[n]o person shall solicit and receive funds" "in a continuous or repetitive manner" "inside the airport terminals" at Los Angeles International Airport (LAX), "in the parking areas at the Airport," or "on the sidewalks adjacent to the airport terminals or the sidewalks adjacent to the parking areas at the Airport."[2] (Intern. Soc. for Krishna v. City of Los Angeles (9th Cir. 2008) 530 F.3d 768, 770.)
*451 LAX occupies 3,550 acres of land, approximately 93 acres of which is occupied by nine passenger terminals that include 195,000 square feet of space for concession and retail establishments for the benefit of travelers and their guests. In 2005, LAX served nearly 60 million passengers, making it one of the largest airports in the world. "The upper level of the airport contains commercial concessions and amenities, including four duty free shops, five fast food restaurants, five full service restaurants, 18 gift shops/newsstands, 19 cocktail lounges, five cafeterias, eight snack bars, three coffee shops, two food courts, six business centers, two bookstores, three postal facilities, and four specialty stores. [¶] At LAX, there are areas open to the public where people may come and go freely and engage in a variety of activities for which facilities are provided, including those mentioned above."
On May 13, 1997, the International Society for Krishna Consciousness of California, Inc., and others (hereafter ISKCON) filed a complaint for declaratory and injunctive relief against the City of Los Angeles and others (hereafter City) in the United States District Court for the Central District of California, alleging that section 23.27(c) violates article I, section 2 of the California Constitution and the First Amendment of the United States Constitution. ISKCON practices the Krishna consciousness religion, a basic tenet of which involves an evangelical activity known as sankirtan, which requires members of ISKCON to approach people in public places in order to proselytize, solicit donations, sell and distribute literature, and disseminate information about Krishna consciousness programs and activities. Sankirtan has four purposes: to spread religious truth; to proselytize and attract new members; to distribute Krishna consciousness literature; and to generate funds.
On June 6, 1997, the district court issued a preliminary injunction enjoining the City from enforcing section 23.27(c) against ISKCON. On May 27, 1998, the district court granted summary judgment in favor of ISKCON, declaring section 23.27(c) unconstitutional and permanently enjoining the City from enforcing the ordinance. The district court held "that solicitation is not basically incompatible with the normal activity of the airport or the primary use of the airport, to facilitate air travel. Any difficulties caused by solicitation can be addressed by the use of less restrictive measures." The court found "that `the Ordinance is inconsistent with the Liberty of Speech Clause of the California Constitution' and that the airport is a public forum in relation to solicitation." The district court further held that section 23.27(c) *452 was a prohibited content-based regulation of speech because it "regulates solicitation but not other equivalent forms of speech." The court noted, however, that "the California Supreme Court has never addressed whether regulation directed solely at solicitation of money violates the California Liberty of Speech Clause ...." The City appealed on June 26, 1998.
While the appeal was pending, this court issued its decision in Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal. 4th 352, 357 [93 Cal. Rptr. 2d 1, 993 P.2d 334], which held that an ordinance "that is directed at activity involving public solicitation for the immediate donation or payment of funds should not be considered content based or constitutionally suspect under the California Constitution, and should be evaluated under the intermediate scrutiny standard applicable to time, place, and manner regulations, rather than under the strict scrutiny standard." The Ninth Circuit vacated the summary judgment and remanded this case back to the district court for reconsideration in light of this decision.
On August 2, 2001, the district court again granted summary judgment in favor of ISKCON on the grounds that LAX was a public forum under California law and section 23.27(c) was not a reasonable time, place, and manner restriction of the solicitation of funds at LAX. The court stated: "The Ordinance, in the present case, bans all solicitation for the immediate receipt of funds in the LAX terminals, parking lots and adjacent sidewalks.... [T]he court finds that the Ordinance constitutes a content-neutral restriction on expressive activity." The court further found, however, "that LAX is a public forum for purposes of California's Liberty of Speech clause," and "[t]he Ordinance does not constitute a reasonable restriction on the time, place and manner of solicitation activities," in part because the ordinance's "ban on all solicitation for the immediate receipt of funds at all timesnot just during peak hours or in overcrowded locationsplaces a substantial burden on several forms of lawful solicitation, such as solicitation of immediate donations for lawful charitable, religious, political and protest activities." The City again appealed, two weeks before the terrorist attacks on September 11, 2001. (Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 771.)
While the present appeal was pending, the City enacted section 171.07 of the Los Angeles Municipal Code, which became effective on December 16, 2002, and permits organizations to apply for a permit to "solicit and receive funds" in designated locations at LAX. This ordinance provides that: "`Solicit and receive funds' shall mean any oral or written request for funds conducted by a person to or with passers-by in a continuous and repetitive manner where funds are immediately received." (Ibid.) This ordinance states that its provisions are "temporary and provisional pending the outcome" of the present litigation. (Id., § 171.07(G)(1), quoted in Intern. Soc. for Krishna v. *453 City of Los Angeles, supra, 530 F.3d at p. 772.) ISKCON filed a suit challenging this new ordinance on January 13, 2003. (C.D.Cal. No. CV 03-00293.)
On March 21, 2003, the Ninth Circuit announced in the present appeal that it intended to ask this court to decide "`[w]hether the Liberty of Speech Clause of the California Constitution should be interpreted more expansively than the federal First Amendment,'" but first remanded the present case to the district court "for the limited purpose of allowing the parties to supplement the record with post-9/11 evidence that would aid the California Supreme Court in its deliberations." (Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 772, italics omitted.) The parties informally agreed that the discovery then being conducted in the related case challenging section 171.07 of the Los Angeles Municipal Code (C.D.Cal. No. CV 03-00293) would be used in the present appeal as well.
Ultimately, the parties stipulated that 62 documents filed in the related case be deemed to have been filed in the present appeal. These documents establish the following. The nine passenger terminals in LAX are located on the outside ring of a horseshoe-shaped, double-deck roadway. The upper level roadway serves the departure areas, and the lower level roadway serves the arrival areas. Sidewalks run the length of both the departure and arrival areas and total 154,604 square feet. The City does not regulate religious or charitable solicitation on the sidewalks and does not prohibit persons in the publicly accessible areas of the terminals from distributing literature and speaking with members of the traveling public about their views and beliefs.
Following the September 11, 2001 terrorist attacks, the departure areas of the passenger terminals at LAX were separated into prescreening areas that are open to the public, and postscreening areas to which only ticketed passengers are admitted. Consumer amenities such as stores and restaurants in most of the terminal buildings are located in the postscreening areas to which only ticketed passengers are admitted, but there are exceptions. In the international terminal, most of the retail amenities and concessions, including a food court, are located in the prescreening area that is open to the general public. Commercial amenities and facilities are also located in areas open to the general public in three other terminals. The prescreening area has become more congested due to the presence of explosive detection system (EDS) and explosive trace device (ETD) equipment that is used to scan each piece of baggage. Approximately 211,000 square feet of the area of the terminals is open to the general public and the City has allocated approximately 670 square feet for solicitation activities.
On September 18, 2006, in the related case (C.D.Cal. No. CV 03-00293), the district court, having declined to exercise supplemental jurisdiction over *454 ISKCON's state law claim, granted summary judgment in favor of the City, ruling that section 171.07 of the Los Angeles Municipal Code did not violate the First Amendment of the United States Constitution. ISKCON appealed on November 16, 2006.
On June 9, 2008, the Ninth Circuit issued an order in the present appeal requesting that this court decide the following question: "Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution?" (Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 770.)[3] The court added: "Our phrasing of the question should not restrict the California Supreme Court's consideration of the issues involved." (530 F.3d at p. 770.) The Ninth Circuit stated that the "answer will be determinative of the appeal presently before us." (Id. at p. 769.)
On August 13, 2008, this court granted the request and directed the parties to address the following questions: "1) Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution? 2) If so, does the ordinance at issue violate the California Constitution?"[4]
DISCUSSION
(2) "The constitutional right of free expression is an essential ingredient of our democratic society. `It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.' [Citations.] The airing of opposing views is fundamental to an informed electorate and, through it, a free society." (Spiritual Psychic Science Church v. City of Azusa (1985) 39 Cal. 3d 501, 511 [217 Cal. Rptr. 225, 703 P.2d 1119], disapproved on another ground in Kasky v. Nike, Inc. (2002) 27 Cal. 4th 939, 968 [119 Cal. Rptr. 2d 296, 45 P.3d 243].)
(3) It is well established that public areas such as streets and parks are public forums for free expression. As the high court has stated: "Wherever *455 the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." (Hague v. C. I. O. (1939) 307 U.S. 496, 515-516 [83 L. Ed. 1423, 59 S. Ct. 954].) Even in a public forum, the right of free speech may be restricted by reasonable restrictions on its time, place, or manner. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 791 [105 L. Ed. 2d 661, 109 S. Ct. 2746].)
(4) The Ninth Circuit asked this court to determine whether LAX is a public forum under the liberty of speech clause of the California Constitution. But our court rules provide that we should resolve such an issue only if "[t]he decision could determine the outcome of a matter pending in the requesting court ...." (Cal. Rules of Court, rule 8.548(a)(1).) Declaring whether LAX is a public forum would not determine the outcome of the present case, because the ordinance is a valid time, place, and manner restriction of free expression even if LAX is a public forum.[5]
(5) Section 23.27(c) prohibits only solicitation of the immediate receipt of funds and permits other forms of free expression, including soliciting future donations.[6] "Many forms of solicitation are constitutionally protected." (People v. Fogelson (1978) 21 Cal. 3d 158, 165 [145 Cal. Rptr. 542, 577 P.2d 677].) In Fogelson, we held unconstitutional on its face an ordinance enacted *456 by the City of Los Angeles that made it unlawful to "`seek, beg, or solicit . . . alms or donations'" on city property without a permit. (Id. at p. 161, fn. 1.) We concluded that the ordinance "lends itself to a substantial number of unconstitutional applications" (id. at p. 164), noting that it would regulate several forms of protected solicitation including soliciting religious or political contributions (Id. at pp. 164-165, fn. omitted). But we recognized that "[t]he mere fact that the challenged ordinance attempts to regulate constitutionally protected speech and religious activity does not, of course, render it unconstitutional. Speech and religious exercise are not wholly exempt from controls. [Citation.] The state may, for example, reasonably regulate the time, place and manner of engaging in solicitation in public places. [Citations.]" (Id. at p. 165.) The flaw in the ordinance at issue in Fogelson was that it granted public officials "`wide or unbounded discretion in granting or denying permits,'" which permitted the officials to base their decisions "`on the content of the ideas sought to be expressed.' [Citations.]" (Id. at p. 166.) We struck down the ordinance, stating it "contains absolutely no standards to guide licensing officials in exercising their discretion to grant or deny applications to solicit on city property. Thus, the ordinance gives officials unbridled power to prohibit constitutionally protected forms of solicitation." (Id. at p. 167, fn. omitted.)
(6) In Los Angeles Alliance for Survival v. City of Los Angeles, supra, 22 Cal. 4th 352, 357 (Los Angeles Alliance), we upheld an ordinance that banned soliciting an "immediate donation" in certain public places and in all public places if done in an aggressive manner. The ordinance enacted by the City of Los Angeles prohibited "aggressive solicitation" in any public place (id. at p. 398) and banned all solicitations in certain locations, such as near banks and automated teller machines, in dining areas of restaurants, or directed at occupied vehicles (Id. at pp. 399-400). The ordinance limited the term "solicit" to requests for "an immediate donation of money or other thing of value." (Id. at p. 399.) We recognized that the ordinance "plainly implicates the liberty of speech clause of the California Constitution," but added that "[t]he circumstance that an ordinance regulates protected conduct does not in itself, however, render the ordinance invalid . . . . California decisions long have recognized that even with regard to protected activity, a regulation may be enforceable if it survives the intermediate scrutiny of time, place, and manner analysis." (Id. at p. 364.) The ordinance will survive such intermediate scrutiny if "it is (i) narrowly tailored, (ii) serves a significant government interest, and (iii) leaves open ample alternative avenues of communication. [Citation.]" (Ibid., fn. omitted; see Ward v. Rock Against Racism, supra, 491 U.S. at p. 791 ["[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions `are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant *457 governmental interest, and that they leave open ample alternative channels for communication of the information.' [Citations.]"].)
(7) In order to qualify for intermediate scrutiny, a time, place, and manner regulation of protected speech must be content neutral, in contrast to content-based regulations, which are subjected to strict scrutiny. (Los Angeles Alliance, supra, 22 Cal.4th at pp. 364-365.) To be content neutral, a regulation must "be `justified' by legitimate concerns that are unrelated to any `disagreement with the message' conveyed by the speech. [Citation.]" (Id. at p. 368; see Ward v. Rock Against Racism, supra, 491 U.S. at p. 791 ["A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others."].) Observing that "the regulation of solicitation long has been recognized as being within the government's police power . . .," we held that "regulations such as the Los Angeles ordinance here at issue, that single out the public solicitation of funds for distinct treatment, should not be viewed as content based or constitutionally suspect for purposes of analysis under article I, section 2(a), of the California Constitution." (Los Angeles Alliance, supra, 22 Cal.4th at p. 378.)
Upon reconsideration in light of our decision in Los Angeles Alliance, the district court concluded that the ordinance at issue here was content neutral, but did not survive the intermediate scrutiny described in our decision in Los Angeles Alliance, which requires that the regulation be narrowly tailored, serve a significant government interest, and leave open ample alternative avenues of communication. The district court held that section 23.27(c) was not narrowly tailored because the ordinance's "ban on all solicitation for the immediate receipt of funds at all timesnot just during peak hours or in overcrowded locationsplaces a substantial burden on several forms of lawful solicitation, such as solicitation of immediate donations for lawful charitable, religious, political and protest activities." The district court further ruled that the ordinance failed to leave open ample alternate avenues of communication. Although the court acknowledged that the ordinance does not ban all solicitation, including "speaking with travelers about any subject or distributing literature," it left "no ample venue" for ISKCON to "solicit financial support for their charitable, religious or political activities." The district court again granted ISKCON's motion for summary judgment.
(8) The district court misapplied our decision in Los Angeles Alliance and the concept of narrow tailoring that it incorporates. We relied in Los Angeles Alliance on the Court of Appeal's decision in Savage v. Trammell Crow Co. (1990) 223 Cal. App. 3d 1562, 1571 [273 Cal. Rptr. 302], which held that a ban on distributing religious pamphlets in the parking lot of a shopping center was a valid time, place, and manner regulation. The ban on leafleting was *458 narrowly drawn because it furthered the shopping center's "interest in controlling litter and traffic." (Id. at p. 1574.) The court emphasized that "in determining whether a regulation is narrowly drawn, . . . we must give some deference to the means chosen by responsible decisionmakers. [Citation.]" (Ibid.) To be narrowly drawn, a regulation "`need not be the least-restrictive or least-intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." [Citations.] . . . So long as the means chosen are not substantially broader than necessary to achieve the government's interest, . . . the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. "The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests" or the degree to which those interests should be promoted. [Citations.]' [Citations.]" (Id. at pp. 1574-1575; see Ward v. Rock Against Racism, supra, 491 U.S. at p. 797 ["[R]estrictions on the time, place, or manner of protected speech are not invalid `simply because there is some imaginable alternative that might be less burdensome on speech.' [Citation.]"].)
Section 23.27(c) (as interpreted by the City, the district court, and the Ninth Circuit Court of Appeals) prohibits only soliciting the immediate receipt of funds, and permits other forms of communication, including soliciting funds to be sent at a later time by mail or through a Web site, distributing literature, and speaking with willing listeners. Prohibiting persons from soliciting the immediate receipt of funds at LAX is a narrowly tailored regulation of expressive activity because it is not substantially broader than necessary to addresses the particular problems caused by requests for the immediate receipt of funds. We noted in Los Angeles Alliance that the solicitation of the immediate receipt of funds is far more intrusive than other forms of communication, such as distributing literature: "`The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead, the recipient is free to read the message at a later time. . . . In contrast, . . . sales and the collection of solicited funds not only require the [person] to stop, but also "engender additional confusion . . . because they involve acts of exchanging articles for money, fumbling for and dropping money, making change, etc."' [Citation.]" (Los Angeles Alliance, supra, 22 Cal.4th at p. 369.) We observed that solicitation that requests the physical exchange of money "`creates a risk of fraud and duress that is well recognized, and that is different in kind from other forms of expression or conduct. . . . [S]olicitation has been associated with coercive or fraudulent conduct. [Citations.]'" (Id. at p. 371.) Finally, we *459 added: "`[R]equests for immediate payment of money create a strong potential for fraud or undue pressure, in part because of the lack of time for reflection. . . . [Q]uestionable practices associated with solicitation can include the targeting of vulnerable and easily coerced persons, misrepresentation of the solicitor's cause, and outright theft.'" (Id. at p. 372.)
Soliciting the immediate receipt of funds at a busy international airport like LAX is particularly problematic. Although portions of the airport are open to the general public, people usually come to the airport only to travel or to accompany a traveler. Travelers often are in a hurry, and the airport often is crowded. The problems posed by solicitations for the immediate receipt of funds that arise in any public place would be exacerbated in the often crowded and hectic environment of a large international airport. As the high court has observed: "`Solicitation requires action by those who would respond: The individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card.' [Citations.] Passengers who wish to avoid the solicitor may have to alter their paths, slowing both themselves and those around them. The result is that the normal flow of traffic is impeded. [Citation.] This is especially so in an airport, where `[a]ir travelers, who are often weighted down by cumbersome baggage . . . may be hurrying to catch a plane or to arrange ground transportation.' [Citation.] Delays may be particularly costly in this setting, as a flight missed by only a few minutes can result in hours worth of subsequent inconvenience. [¶] In addition, face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation. [Citation.] The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. [Citations.] Compounding this problem is the fact that, in an airport, the targets of such activity frequently are on tight schedules. This in turn makes such visitors unlikely to stop and formally complain to airport authorities. As a result, the airport faces considerable difficulty in achieving its legitimate interest in monitoring solicitation activity to assure that travelers are not interfered with unduly." (International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 683-684 [120 L. Ed. 2d 541, 112, S.Ct. 2701].)
We do not agree with the district court that the City was required to prohibit such practices only "during peak hours or in overcrowded locations." *460 Peak periods of congestion and overcrowded locations at LAX vary depending on the arrival and departure schedule of flights. Under these circumstances, generally prohibiting solicitation of the immediate receipts of funds at LAX is narrowly tailored to avoid the particular problems caused by this form of free expression.
As noted above, the district court further ruled that the ordinance failed to leave open ample alternate avenues of communication because it left "no ample venue" for ISKCON to "solicit financial support for their charitable, religious or political activities." Again, we disagree. In Frisby v. Schultz (1988) 487 U.S. 474, 483 [101 L. Ed. 2d 420, 108 S. Ct. 2495], the high court upheld an ordinance prohibiting picketing in front of a residence, concluding it was "virtually self-evident that ample alternatives remain," including going door-to-door and distributing literature in person or through the mails. In the present case, ISKCON has ample alternative means of conveying its message. It can distribute literature and speak to willing travelers. It can even seek financial support, as long as it does not request the immediate exchange of funds. The City acknowledges that it would be permissible for ISKCON to "ask for donations" and distribute "self-addressed stamped envelope[s]" in the areas of the airport open to the general public.
CONCLUSION
In response to the Ninth Circuit Court of Appeals' request, we conclude that even if those areas of Los Angeles International Airport that are open to the general public are public forums under the free speech clause of the California Constitution, section 23.27, subdivision (c) of the Los Angeles Administrative Code is valid on its face as a reasonable, content-neutral regulation of the manner of protected speech.
George, C. J., Baxter, J., Werdegar, J., Chin, J., and Corrigan, J., concurred.
KENNARD, J.,Concurring.
The court's opinion, authored by Justice Moreno, holds that a city ordinance prohibiting the solicitation and receipt of funds in public areas of Los Angeles International Airport does not violate the California Constitution's liberty of speech clause (Cal. Const., art. I, § 2, subd. (a) ["A law may not restrain or abridge liberty of speech or press."]) but instead is a valid time, place, and manner restriction on expressive activity.
I join in that holding, but I do so only under compulsion of this court's decision in Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal. 4th 352 [93 Cal. Rptr. 2d 1, 993 P.2d 334]. There, a majority of this court held that under the state Constitution's liberty of speech clause, a city *461 ordinance prohibiting, at specified locations, any solicitation for the immediate donation of funds was not a content-based regulation of speech and that such an ordinance was to be evaluated as a time, place, and manner restriction on speech. (Los Angeles Alliance for Survival v. City of Los Angeles, supra, at p. 357.) I disagreed, concluding that a solicitation ban is based on the content of speech, and therefore its validity must be determined using a standard of scrutiny more rigorous than the standard used to evaluate the validity of time, place, and manner restrictions. (Id. at p. 383 (dis. opn. of Kennard, J.).) Although my view on that question has not changed, I recognize that the majority's holding in Los Angeles Alliance for Survival v. City of Los Angeles has the force of precedent and that reiteration of dissenting views is rarely justified. (See People v. Stansbury (1993) 4 Cal. 4th 1017, 1072-1073 [17 Cal. Rptr. 2d 174, 846 P.2d 756] (conc. opn. of Kennard, J.).)
In this case, I would also decide an issue that the court's opinion does not address. Although this case comes to this court upon a request of the Ninth Circuit Court of Appeals for a decision on a question of California law, the court's opinion here does not answer the particular question of California law that the Ninth Circuit asked this court to decide. That question is whether Los Angeles International Airport is a public forum for free expression under the California Constitution's liberty of speech clause. More precisely, the question is whether the areas of that airport that are accessible to the general publicexcluding the areas reserved for ticketed passengers who have passed through security screeningare public forums. I would answer "yes" to that question.
My answer is based primarily on two of this court's decisions: In re Hoffman (1967) 67 Cal. 2d 845 [64 Cal. Rptr. 97, 434 P.2d 353], holding that a railway station (Union Station in Los Angeles) was a public forum, and Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal. 4th 850 [69 Cal. Rptr. 3d 288, 172 P.3d 742], holding that a privately owned shopping mall was a public forum (see also Robins v. Pruneyard Shopping Center (1979) 23 Cal. 3d 899 [153 Cal. Rptr. 854, 592 P.2d 341]).
To determine whether particular areas are public forums for purposes of the California Constitution's liberty of speech clause, this court has generally proceeded by asking whether, in relevant ways, the area in question is similar or dissimilar to areas that have already been determined to be public forums. (See, e.g., Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, 42 Cal. 4th 850, 858 [stating that an area may be a public forum "if it is open to the public in a manner similar to that of public streets and sidewalks"]; In re Hoffman, supra, 67 Cal. 2d 845, 851 [comparing railway station with "a public street or park"].) Applying that approach here, I conclude that the *462 prescreening public areas of Los Angeles International Airport are public forums because, in relevant ways, they are similar to shopping malls and railway stations.
Like railway stations and shopping malls, the prescreening areas of Los Angeles International Airport are open to the public; they contain restaurants, newsstands, shops, and seats or benches for waiting; and they are places where people frequently have leisure for discussion and socializing. Therefore, in answer to the Ninth Circuit's request, I would decide that the prescreening public areas of Los Angeles International Airport are public forums.
In reaching this conclusion, I am aware of the United States Supreme Court's holding that, for purposes of the free speech guarantee of the federal Constitution's First Amendment, airports are not public forums. (International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 680 [120 L. Ed. 2d 541, 112 S. Ct. 2701].) But the free speech guarantees of the federal and California Constitutions are not identical, particularly as regards the concept of public forum. Thus, for example, although the federal high court has held that privately owned shopping malls are not public forums for free expression under the First Amendment (Lloyd Corp. v. Tanner (1972) 407 U.S. 551 [33 L. Ed. 2d 131, 92 S. Ct. 2219]), this court has not found that holding persuasive in interpreting our state Constitution, which is "a document of independent force and effect particularly in the area of individual liberties" (People v. Hannon (1977) 19 Cal. 3d 588, 606-607, fn. 8 [138 Cal. Rptr. 885, 564 P.2d 1203]). This court has recognized that our state Constitution's free speech guarantee "differs from its counterpart in the federal Constitution both in its language and its scope" (Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, 42 Cal.4th at p. 862; see also Gerawan Farming, Inc. v. Lyons (2000) 24 Cal. 4th 468, 486 [101 Cal. Rptr. 2d 470, 12 P.3d 720]) and that those differences explain the broader application of the public forum concept under our state Constitution (Fashion Valley Mall, LLC v. National Labor Relations Bd., supra, at pp. 862-863).
When an area has been determined to be a public forum for purposes of our state Constitution's liberty of speech clause, that determination does not have the effect of prohibiting all regulation of expressive activities at that location. Reasonable time, place, and manner restrictions on expressive activities in public forums are valid, as this court's conclusion here about the validity of the ordinance prohibiting solicitation of funds amply demonstrates. Speech activities at airports that interfere with the legitimate interests of the airport management, arriving or departing passengers, security screeners, or airline or airport employees need not be tolerated.
*463 CHIN, J., Concurring.
I agree with the majority that the challenged ordinance governing the Los Angeles International Airport (LAX) does not violate the California Constitution. But I would answer the question the Ninth Circuit Court of Appeals posed, identify the legal standard applicable to that answer, and apply that standard to determine whether the ordinance is valid.
The Ninth Circuit requested this court to answer this question: "Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution?" (See Cal. Const., art. I, § 2, subd. (a).) Consistent with the United States Supreme Court's resolution of the same question under the First Amendment to the United States Constitution, I would answer that LAX is not a public forum for free speech purposes under the California Constitution. (See International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672 [120 L. Ed. 2d 541, 112 S. Ct. 2701] (Lee).) This answer does not mean free speech rights do not exist at LAX. It just means that speech at LAX receives a lower level of protection than speech receives at traditional free speech zones such as parks and public squares. LAX is not the same as a park and should not be treated the same as a park.
A. Whether Los Angeles International Airport Is a Public Forum Under the California Constitution
The United States Supreme Court developed the public forum doctrine to distinguish between public property subject to the highest free speech protection under the First Amendment and public property subject to a lower level of free speech protection. (See generally Clark v. Burleigh (1992) 4 Cal. 4th 474, 482-483 [14 Cal. Rptr. 2d 455, 841 P.2d 975].) The high court applied that law and concluded that airport terminals (in that case the three major airports in the greater New York City area) are not public forums. (Lee, supra, 505 U.S. at pp. 680-683.) I would reach the same conclusion for LAX under the California Constitution.
First, I agree with what is implied in the Ninth Circuit's question and the majority opinion: Public forum analysis applies under the California Constitution as well as under the First Amendment even though the doctrine was developed in First Amendment cases. It is a useful doctrine for deciding what level of protection speech receives in a given context. (See Clark v. Burleigh, supra, 4 Cal.4th at pp. 482-483.)
Although this court sometimes interprets the California Constitution differently than the First Amendment, no reason appears to do so here, and good reason exists not to do so. The public, litigators, and government attorneys advising their clients need a clear, consistent "public forum" doctrine in cases *464 arising on public property, not seemingly random fluctuations between state and federal constitutional law. This is especially true of airports. After the events of September 11, 2001, Congress enacted the Aviation and Transportation Security Act (Pub.L. 107-71, 115 Stat. 597), which created the Transportation Security Administration and gave it broad authority to "oversee the implementation, and ensure the adequacy, of security measures at airports" like LAX. (49 U.S.C. § 114(f)(11).) Federal and other authorities overseeing security measures at international airports throughout the country should have one set of constitutional rules to contend with, not multiple sets. Because of the need for interstate and international security cooperation, it benefits no one to have different constitutional rules at California airports than at other airports.
Airports are not traditional free speech zones like parks. This is true of the prescreening areas open to the public as well as the postscreening areas. As the majority aptly observes, "Although portions of the airport are open to the general public, people usually come to the airport only to travel or to accompany a traveler. Travelers often are in a hurry, and the airport often is crowded." (Maj. opn., ante, at p. 459; see also ibid. [quoting Lee, supra, 505 U.S. at pp. 683-684].) People do not go to airports to relax or to socialize, to be entertained or to spend time; they go to airports to get themselves or their friends and loved ones safely and efficiently to their destination. The parties' stipulation of agreed facts (as well as common experience) tells us that "[t]he `basic purpose' of LAX is to facilitate, process and serve the traveling public in getting to and from airline flights and moving into and out of the airport terminal areas in a safe, secure, convenient, and efficient fashion." LAX is not, and should not be declared to be, a free speech public forum under either the United States or the California Constitution.
In concluding that California constitutional law should differ from First Amendment law regarding airports, Justice Kennard relies "primarily" on two cases: Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal. 4th 850 [69 Cal. Rptr. 3d 288, 172 P.3d 742] (Fashion Valley) and In re Hoffman (1967) 67 Cal. 2d 845 [64 Cal. Rptr. 97, 434 P.2d 353] (Hoffman). (Conc. opn. of Kennard, J., ante, at p. 461.) Neither case addresses, much less answers, this question.
Hoffman, supra, 67 Cal. 2d 845, held that "First Amendment activities [cannot] be prohibited [at train stations] solely because the property involved is not maintained primarily as a forum for such activities." (Id. at p. 850.) For three reasons, that opinion has nothing to do with the issue here. First, Hoffman cited solely the First Amendment with no hint that the California Constitution should diverge from First Amendment law in this area. Second, *465 Hoffman concerned train stations in the 1960's, not airports in the 21st century. As the Lee courtin an opinion long predating September 11, 2001noted, there are major differences between airports and other "`transportation nodes.'" (Lee, supra, 505 U.S. at p. 681.) "To blithely equate airports with other transportation centers, therefore, would be a mistake." (Id. at p. 682.) Finally, Hoffman simply did not address the question whether a train station is a public forum under the First Amendment, much less whether it is one under the California Constitution, which it never cites. Hoffman held only that free speech rights exist at train stations, which is also true of airports even under my conclusion that they are not public forums. (See pt. B., below.) But Hoffman conducted no public forum analysis, which is not surprising given that the First Amendment public forum doctrine largely developed after that opinion. It never considered what level of protection speech receives at train stations: the highest level reserved for true public forums or the lower level given nonpublic forums.[1]
Fashion Valley, supra, 42 Cal. 4th 850, held that a shopping mall is a public forum under the California Constitution.[2] A shopping mall is entirely different from an airport for free speech purposes. As Fashion Valley noted, "in many cities the public areas of the shopping mall are replacing the streets and sidewalks of the central business district, which `have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.'" (42 Cal.4th at p. 858.) None of this is remotely true of airports. To equate an airport with a free speech zone is to ignore reality and, perhaps worse, trivialize free speech interests at true public forums.
B. The Standard Applicable to a Nonpublic Forum
Declaring an area a nonpublic forum does not mean free speech rights do not exist there. Free speech rights exist on public property open to the public whether or not the property is considered a public forum. This is true under the First Amendment and, I have no doubt, also true under the California Constitution. My conclusion that an airport is not a public forum just means that restrictions on speech at an airport are not subject to the same level of *466 "highest scrutiny" that applies to the "regulation of speech on government property that has traditionally been available for public expression . . . ." (Lee, supra, 505 U.S. at p. 678.) As the high court explained, designating property as a public forum would mean that a restriction of speech on that property "could be sustained only if it was narrowly tailored to support a compelling state interest." (Id. at p. 676.) A restriction on speech at a nonpublic forum such as an airport must still pass a constitutional test, albeit a less rigorous one. "The challenged regulation need only be reasonable, as long as the regulation is not an effort to suppress the speaker's activity due to disagreement with the speaker's view." (Id. at p. 679.)
I would conclude that the ordinance at issue here passes this test for the reasons the majority gives for concluding it would pass even the more rigorous test reserved for public forums. Accordingly, I concur with the majority opinion.
Baxter, J., and Corrigan, J., concurred.
NOTES
[1] These facts are based on the record provided to this court which, in minor respects, varies from some published sources.
[2] Section 23.27(c) provided, in relevant part: "(c)(1) No person shall solicit and receive funds inside the airport terminals at the Airport. [¶] (2) No person shall solicit and receive funds in the parking areas at the Airport. [¶] (3) No person shall solicit and receive funds on the sidewalks adjacent to the airport terminals or the sidewalks adjacent to the parking areas at the Airport. [¶] (4) Subdivisions (c)(1), (c)(2), and (c)(3) apply only if the solicitation and receipt of funds is conducted by a person to or with passers-by in a continuous or repetitive manner. Nothing herein is intended to prohibit the distribution of flyers, brochures, pamphlets, books, or any other printed or written matter as long as such distribution is not made with the intent of immediately receiving funds, as defined in Subdivision (c)(5), at the locations referred to in (c)(1), (c)(2), or (c)(3). [¶] (5) `Solicit and receive funds' means any written or oral request for [¶] (A) the donation of money, alms, property or anything else of value, or, [¶] (B) the pledge of a future donation of money, alms, property, or anything else of value, or, [¶] (C) the sale or offering for sale of any property upon the representation, express or implied, that the proceeds of such sale will be used for a charitable or religious purpose."
Effective June 19, 2000, section 23.27 was deleted and transferred without change to section 171.02 of the Los Angeles Municipal Code. As do the parties and the federal courts, we will continue to refer to the ordinance as section 23.27(c).
[3] California Rules of Court, rule 8.548(a) states: "On request of the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, the Supreme Court may decide a question of California law if: [¶] (1) The decision could determine the outcome of a matter pending in the requesting court; and [¶] (2) There is no controlling precedent."
[4] California Rules of Court, rule 8.548(f)(5) states: "At any time, the Supreme Court may restate the question ...."
[5] In reviewing the validity of a restriction on free expression on public property, there is no need to wrestle with the sometimes difficult question of whether the public property constitutes a public forum if the regulation qualifies as a reasonable time, place, and manner restriction. If so, the regulation is valid whether or not the area constitutes a public forum.
[6] The district court stated that section 23.27(c) "prohibits any person from soliciting and immediately receiving funds inside the LAX terminals, parking areas and on the sidewalks adjacent to the parking areas or airport terminals." The City agrees with the district court that the ordinance prohibits only soliciting the immediate receipt of funds, stating in its opening brief that "§ 23.27(c) only limits solicitors in one respect: Solicitors may no longer actually immediately receive funds in conjunction with their solicitation efforts . . . . They may receive funds . . . in the mail, over the internet, and at other areas of LAX not covered by the ordinance . . . ." The Ninth Circuit's certification order similarly describes the ordinance as prohibiting "any person from soliciting and immediately receiving funds." (Intern. Soc. for Krishna v. City of Los Angeles, supra, 530 F.3d at p. 770, italics added.) We accept for purposes of our analysis the interpretation of the ordinance urged by the City and adopted by the district court and the Ninth Circuit.
[1] The Hoffman opinion does say that in one "respect, a railway station is like a public street or park." (Hoffman, supra, 67 Cal.2d at p. 851.) But saying that a railway station is like a public street in one respect does not mean the court found it to be a public forum under a later-developed doctrine that it never mentioned.
[2] I dissented in Fashion Valley, supra, 42 Cal. 4th 850, but only because the shopping mall at issue there was private property. (Id. at pp. 870-882.) If the shopping mall had been public property, I would have agreed that it was a public forum. But LAX is public property. Accordingly, the disagreement between the majority and dissent in Fashion Valley is irrelevant here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3211970/ | IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,542
In the Matter of BENJAMIN N. CASAD,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed June 10, 2016. Sixty-day suspension, stayed upon
conditions.
Deborah L. Hughes, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Benjamin
N. Casad, respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Benjamin N. Casad, of Prairie Village,
an attorney admitted to the practice of law in Kansas in 1992.
On June 23, 2015, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent filed an answer on July 8, 2015. A hearing was held on
the complaint before a panel of the Kansas Board for Discipline of Attorneys on
September 1, 2015, where the respondent was personally present and was represented by
counsel. The hearing panel determined that respondent violated KRPC 1.1 (2015 Kan. Ct.
R. Annot. 442) (competence); 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 1.4(a) (2015
1
Kan. Ct. R. Annot. 482) (communication); and 8.4(d) (2015 Kan. Ct. R. Annot. 672)
(engaging in conduct prejudicial to the administration of justice).
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
"Findings of Fact
....
"8. In January 2013, the Leavenworth County District Court appointed the
respondent to represent R.B., an elderly man, in a criminal appeal following R.B.'s
conviction for forgery, a severity level 8 felony; conspiracy to commit forgery, a severity
level 10 felony; and theft, a class A misdemeanor. The court sentenced R.B. to a 10-
month prison sentence for the forgery conviction, a 6-month prison sentence for the
conspiracy conviction, to run concurrently to the forgery sentence, and a 12-month jail
sentence for the theft charge. The court granted R.B.'s request for probation and placed
R.B. on probation for a period of 12 months.
"9. On May 21, 2013, the respondent timely filed a brief on behalf of R.B.
However, the respondent failed to comply with Supreme Court Rule 6.02(a)(4) by
adequately citing to the record on appeal.
"10. In the brief, the respondent argued that R.B.'s statutory right to a speedy
trial had been violated. On August 30, 2013, the state timely filed its brief. In its brief, the
state conceded that R.B.'s statutory speedy trial rights were violated regarding the forgery
and theft convictions. Thus, the state agreed that those two convictions should be
reversed.
"11. On September 4, 2013, the Court of Appeals notified the respondent that
he failed to comply with Supreme Court Rule 6.02(a)(4) by adequately citing to the
record on appeal. The court ordered the respondent to submit a corrected brief on or
before September 16, 2013. The respondent failed to submit a corrected brief. On
2
October 10, 2013, the court issued an order dismissing R.B.'s appeal 'for failure to
resubmit an amended brief pursuant to Supreme Court Rule 6.02.' On November 13,
2013, the clerk of the appellate courts issued the mandate dismissing R.B.'s appeal.
"12. The respondent did not have contact with R.B. at any time during the
appeal. The respondent did not provide R.B. with a copy of the brief he filed on R.B.'s
behalf. The respondent did not provide R.B. with a copy of the court's order directing him
to resubmit an amended brief. The respondent did not provide R.B. with a copy of the
order dismissing R.B.'s appeal. The respondent never notified R.B. that his appeal had
been dismissed.
"13. In December 2013, Greg Robinson, R.B.'s trial counsel, learned that
R.B.'s appeal had been dismissed. After several unsuccessful attempts to contact the
respondent by phone and electronic mail message, Mr. Robinson spoke to the respondent.
The respondent told Mr. Robinson that he was considering filing a motion to recall the
mandate. At the conclusion of the conversation, Mr. Robinson believed that the
respondent was going to file something to remedy the dismissal.
"14. Mr. Robinson contacted the court and learned that the respondent had not
taken any action to remedy the dismissal.
"15. On March 5, 2014, Mr. Robinson filed a motion in district court
requesting that the district court order the respondent to file a motion to recall the
mandate or appoint new appellate counsel. On March 10, 2014, the respondent filed a
motion to recall the mandate in the Court of Appeals.
"16. On June 16, 2014, the respondent self-reported his conduct to the
disciplinary administrator's office.
"17. On September 26, 2014, the respondent attempted to file an amended
brief. The clerk of the appellate courts refused to accept and file the brief.
3
"18. On October 23, 2014, the Court of Appeals summarily denied the
respondent's motion to recall the mandate.
"19. On November 17, 2014, the respondent attempted to file a motion for an
extension of time to file a motion for reconsideration of the denial of the motion to recall
the mandate. The time period for filing a motion for rehearing or modification had
already expired. The respondent explained that he had several other matters that required
attention and did not have sufficient time to complete the motion for reconsideration or
file for extension of time before the deadline passed. The clerk of the appellate courts
refused to accept the motion for filing.
"20. If R.B.'s appeal had not been dismissed, R.B.'s convictions of forgery
and theft would have likely been reversed and his sentences on those convictions vacated
as the state conceded the speedy trial violations regarding those convictions.
"21. At some point, R.B. was found in violation of his probation for failure to
pay restitution. R.B. remains on probation as he is on a fixed income and has been unable
to satisfy the restitution obligation.
"22. Had R.B.'s convictions for forgery and theft been reversed as a result of a
successful appeal, his criminal history classification would have been lowered. Thus,
should R.B. later be convicted of or pleaded guilty to another offense, he may now be
subject to a harsher sentence than he would have been had the appeal been successful.
"Conclusions of Law
"23. Based upon the respondent's stipulation and the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1,
KRPC 1.3, KRPC 1.4, and KRPC 8.4(d), as detailed below.
4
"KRPC 1.1
"24. Lawyers must provide competent representation to their clients. KRPC
1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.' The respondent failed to
exercise the requisite preparation by failing to prepare and file a brief which comported
with the Supreme Court Rules. Accordingly, the hearing panel concludes that the
respondent violated KRPC 1.1 by filing a brief which failed to adequately cite to the
record on appeal in violation of Supreme Court Rule 6.02.
"KRPC 1.3
"25. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent R.B., by failing to timely submit a corrected brief to the Court of
Appeals, citing to the record on appeal. Because the respondent failed to act with
reasonable diligence and promptness in representing his client, the hearing panel
concludes that the respondent violated KRPC 1.3.
"KRPC 1.4
"26. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information.' The respondent did not have contact with R.B. at any time during the
appeal. The respondent did not provide R.B. with a copy of the brief he filed on R.B.'s
behalf. The respondent did not provide R.B. with a copy of the court's order directing him
to resubmit an amended brief. The respondent did not provide R.B. with a copy of the
order dismissing R.B.'s appeal. The respondent never notified R.B. that his appeal had
been dismissed. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.4(a).
5
"KRPC 8.4(d)
"27. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when he failed to file a brief
that comported with the Supreme Court Rules. As a result of the respondent's
misconduct, R.B. lost his opportunity for a direct appeal of his convictions. The injury is
particularly grave in this case as the state has conceded that two of the three counts
should have been dismissed due to speedy trial violations. Further, the respondent failed
to comply with an order of the Court of Appeals. As such, the hearing panel concludes
that the respondent violated KRPC 8.4(d).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"28. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"29. Duty Violated. The respondent violated his duty to his client to provide
competent and diligent representation and adequate communication. Further, the
respondent violated his duty to the profession to comply with court orders which resulted
in prejudice to the administration of justice.
"30. Mental State. The respondent knowingly did not respond to the Court of
Appeals' order and did not communicate with his client regarding the case. The
respondent negligently violated his duties to comply with Supreme Court rules regarding
citation to the record on appeal.
6
"31. Injury. As a result of the respondent's misconduct, the respondent caused
actual serious injury to his client.
"Aggravating and Mitigating Factors
"32. Aggravating circumstances are any considerations or factors that may
justify an increase in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
aggravating factors present:
"33. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 8.4(d).
Accordingly, the hearing panel concludes that the respondent committed multiple
offenses.
"34. Vulnerability of Victim. R.B. is an elderly, indigent criminal defendant.
R.B. was vulnerable to the respondent's misconduct.
"35. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1992. The
respondent began practicing law in 1996. At the time of the misconduct, the respondent
has been practicing law for approximately 17 years.
"36. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
mitigating circumstances present:
"37. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.
"38. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.
7
"39. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from
depression, anxiety, and alcoholism. The respondent has not consumed alcohol for 9
years. Based upon the testimony presented, it is clear that the respondent's depression and
anxiety contributed to his misconduct.
"40. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The respondent self-reported the misconduct. Thereafter, the respondent
fully cooperated with the disciplinary process. Additionally, the respondent admitted the
facts and the rule violations.
"41. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent is an active and productive member of the bar
of Leavenworth, Kansas. The respondent also enjoys the respect of his peers and
generally possesses a good character and reputation as evidenced by the testimony of Mr.
Robinson and David Graham and by several letters received by the hearing panel.
Respondent's Exhibits A, B, C, E, G, and H.
"42. Remorse. At the hearing on this matter, the respondent expressed genuine
remorse for having engaged in the misconduct.
"43. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.42 Suspension is generally appropriate when: . . . (b) a lawyer
engages in a pattern of neglect and causes injury or potential
injury to a client.
8
'4.43 Reprimand is generally appropriate when a lawyer is negligent
and does not act with reasonable diligence in representing a
client, and causes injury or potential injury to a client.'
'6.22 Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and there is injury or potential injury to a
client or a party, or interference or potential interference with a
legal proceeding.
'6.23 Reprimand is generally appropriate when a lawyer negligently
fails to comply with a court order or rule, and causes injury or
potential injury to a client or other party, or causes interference
or potential interference with a legal proceeding.'
"Recommendation
"44. The disciplinary administrator recommended that the respondent be
censured and that the censure be published in the Kansas Reports. The disciplinary
administrator further recommended that the respondent be ordered to comply with terms
of the KALAP monitoring agreement. The respondent also recommended that he be
censured and that the censure be published in the Kansas Reports. The respondent
recommended that the KALAP agreement be extended to 3 years' duration (instead of the
existing 1-year agreement).
"45. The respondent's failure to comply with the Court of Appeals' order—
and the impact of that conduct—is troubling to the hearing panel. However, the
respondent presented compelling mitigating evidence—including evidence that he has
not had any other complaints filed against him since his admission in 1992. Thus, the
hearing panel concurs with the recommendations of the parties and recommends to the
Supreme Court that the respondent be censured and that the censure be published in the
Kansas Reports. The hearing panel also recommends that the Kansas Supreme Court
should order the respondent that he must comply with the KALAP agreement and is
persuaded by counsel's recommendation that the KALAP agreement should be extended
9
to a total of 3 years. Further, the hearing panel directs the respondent to complete a full
physical examination with a physician within 30 days of the date of this report. Finally,
should a request be made to the respondent to execute any additional releases to allow the
members of the disciplinary administrator's office to discuss the respondent's treatment
with treatment providers, the respondent shall execute an appropriate release within 30
days of the date of the request. Should the respondent fail to comply with any portion of
the KALAP agreement during the next 3 years or fail to comply with any other direction
of the Kansas Supreme Court or of this hearing panel, the hearing panel recommends that
the Kansas Supreme Court enter at the request of the disciplinary administrator an order
to show cause why this case should not be reopened and other discipline imposed.
"46. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed
an answer. Respondent was also given adequate notice of the hearing before the panel
and the hearing before this court. He filed no exceptions to the hearing panel's final
hearing report. With no exceptions before us, the panel's findings of fact are deemed
admitted. Supreme Court Rule 212(c), (d) (2015 Kan. Ct. R. Annot. 369). Furthermore,
10
the evidence before the hearing panel clearly and convincingly establishes that the
charged misconduct was in violation of KRPC 1.1 (2015 Kan. Ct. R. Annot. 442)
(competence); 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 1.4(a) (2015 Kan. Ct. R.
Annot. 482) (communication); and 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in
conduct prejudicial to the administration of justice) and supports the panel's conclusions
of law. We therefore adopt the panel's findings and conclusions.
The remaining issue before this court is the appropriate discipline for respondent's
violations. As noted above, the hearing panel recommended a published censure but
supplemented that suggested sanction by recommending placement of conditions on the
respondent for 3 years. To reiterate, those recommended conditions were that the
respondent comply with the KALAP agreement and that the duration of the agreement be
extended to a total of 3 years; that respondent complete a full physical examination with a
physician within 30 days of the date of the final panel report; and that, within 30 days of
a request from the Disciplinary Administrator's office, respondent execute appropriate
releases to his treatment providers. Finally, the hearing panel recommended that, should
the respondent fail to comply with any portion of the KALAP agreement during the next
3 years or fail to comply with any other direction of the Kansas Supreme Court or of the
hearing panel, then, at the request of the Disciplinary Administrator, this court should
issue an order to show cause why this case should not be reopened and other discipline
imposed.
At the hearing before this court, both the Disciplinary Administrator and the
respondent requested that this court follow the panel's recommendation of published
censure with supplemental post-reprimand conditions. Naturally, we give due regard to
the recommendations of the panel and the parties, but we are not bound by such
recommendations. See In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014); Supreme
Court Rule 212(f) (2015 Kan. Ct. R. Annot. 371) ("The recommendation of the panel or
11
the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and
shall not prevent the Court from imposing sanctions greater or lesser than those
recommended by the panel or the Disciplinary Administrator."). Instead, this court
endeavors to fashion a disciplinary sanction in each case that is appropriately penal for
the past violations given the particular facts and circumstances—both aggravating and
mitigating—but with the additional goal of ordering such corrective measures as will
protect the public against future transgressions.
Here, as the panel observed, the respondent engaged in both intentional and
negligent behavior, which implicated both suspension and reprimand as generally
appropriate sanctions under the American Bar Association Standards for Imposing
Lawyer Sanctions. The mitigating circumstances in this case would ordinarily counsel
that we accept the recommendation of the lesser penalty of reprimand. But the panel's
determination that years-long supplemental conditions would also be advisable for the
respondent's professional rehabilitation convinces us that it is more appropriate to
underpin those conditions with a suspension.
Accordingly, we suspend the respondent from the practice of law in the State of
Kansas for a period of 60 days but stay the imposition of that suspension upon certain
conditions. First, the respondent shall comply with the terms of his current agreement
with KALAP, including any extension period that KALAP may deem necessary for
respondent's professional rehabilitation. Next, respondent shall obtain a full and complete
physical examination by a physician and shall follow through with all of the doctor's
recommendations. Further, the respondent shall forthwith comply with any request from
the Office of the Disciplinary Administrator to provide releases to medical care providers
to enable that office to obtain reports and discuss respondent's treatment regimen and
progress. Finally, upon completion of all of the conditions, the respondent shall make
satisfactory proof to the Office of the Disciplinary Administrator, upon which that office
12
shall terminate the suspension, as if it were for a definite term. See Supreme Court Rule
219(c) (2015 Kan. Ct. R. Annot. 403). A minority of the court would tie the conditions of
the stay to the period of time respondent is working with KALAP.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Benjamin N. Casad be and is hereby suspended
from the practice of law in the state of Kansas, in accordance with Supreme Court Rule
203(a)(2) and (5) (2015 Kan. Ct. R. Annot. 293), for a period of 60 days, but imposition
of that discipline shall be stayed upon the terms and conditions outlined above.
IT IS FURTHER ORDERED that, pursuant to Supreme Court Rule 219(c), respondent
shall be eligible for reinstatement without a hearing, in the same manner as if this
suspension were for a definite period of time.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
13 | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/126349/ | 537 U.S. 1123
GRAHAMv.MAZZUCA, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY.
No. 02-7220.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
2
C. A.2d Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3099685/ | IN THE
TENTH COURT OF APPEALS
No. 10-10-00124-CR
Ex parte
Eric Dale Angelo
From the 54th District Court
McLennan County, Texas
Trial Court Nos. 2009-726-C2
& 2009-603-C2
MEMORANDUM Opinion
Eric Dale Angelo attempts to request
post-conviction relief through an original petition for habeas corpus addressed
to this Court. By letter, the Clerk notified Angelo that this proceeding was
subject to being dismissed because this Court does not have jurisdiction to
issue or grant a post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.05
(Vernon 2005). Angelo was further warned that the proceeding would be
dismissed unless, within 21 days of the date of the letter, a response was
filed showing grounds for continuing the proceeding. Angelo has not filed a
response.
Accordingly, this proceeding is
dismissed. See Tex. R. App. P.
44.3.
TOM
GRAY
Chief
Justice
Before
Chief Justice Gray,
Justice
Reyna, and
Justice
Davis
Proceeding
dismissed
Opinion
delivered and filed May 5, 2010
Do
not publish
[CR25] | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7433292/ | Mandamus denied without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3048127/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3372
___________
Norman Medley, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mark McClindon, Highway Patrolman, *
Troop E Headquarters, Poplar Bluff, * [UNPUBLISHED]
MO; Marcus Hopkins, Deputy; Johnny *
Higgins, SEMO Task Force; Unknown *
Decker, Agent, SEMO Task Force; *
Unknown Scoggins, Highway *
Patrolman, Troop E; Randal Midkiff, *
Deputy, *
*
Appellees. *
___________
Submitted: November 13, 2009
Filed: December 11, 2009
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
In this 42 U.S.C. § 1983 action, Norman Medley appeals the district court’s1
adverse grant of a directed verdict on his Fourth Amendment claims. He has also
moved to strike the appellees’ briefs.
Because we cannot review the merits of Medley’s appeal without a trial
transcript, we dismiss the appeal. See Fed. R. App. P. 10(b)(1) (discussing appellant’s
duty to order transcript); Schmid v. United Bhd. of Carpenters & Joiners of Am., 827
F.2d 384, 385-86 (8th Cir. 1987) (per curiam) (where pro se appellant did not order
trial transcript, appellate court could not review claim of judicial bias, evidentiary
rulings, or sufficiency of evidence); cf. Merony v. Delta Int’l Mach. Corp., 18 F.3d
1436, 1437 (8th Cir. 1994) (dismissing appeal when pro se party failed to order
transcripts after district court denied their request to order them at government
expense). In addition, we deny Medley’s pending motion.
______________________________
1
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3443252/ | Judgment of conviction for assault and battery, imposing a fine of $1,000.
Appeal denied. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1339348/ | 168 S.E.2d 465 (1969)
5 N.C. App. 330
STATE of North Carolina
v.
Horace KEEL.
No. 6910SC329.
Court of Appeals of North Carolina.
July 23, 1969.
*466 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Bernard A. Harrell, for the state.
Charles R. Hassell, Jr., Raleigh, for the defendant.
MALLARD, Chief Judge.
Defendant was tried first on this charge at the December 1968 Session of Superior Court of Wake County. This trial resulted in a mistrial due to the inability of the jurors to agree upon a verdict. After this mistrial the defendant, an indigent, on 17 January 1969, filed a motion requesting that he be provided, at public expense, with a transcript of the evidence presented at the December 1968 trial which ended in a mistrial. The reason stated in the motion is "that he deems it necessary to have a transcript of the evidence presented at his first trial in order that he may properly prepare his defense for a second trial; that he is indigent and unable to pay the costs of preparation of said transcript." No other reason is set forth in the motion requesting the transcript which was signed by his attorney Charles R. Hassell, Jr., who represented the defendant at both his trial in December 1968 which resulted in a mistrial, and his trial the following February which resulted in his conviction. The court, after considering the motion found, inter alia, that the motion "is not founded upon a showing of necessity" and denied the motion. The defendant assigns this denial as error.
The question may be stated thus: Is the failure to provide the defendant with a transcript of the evidence taken by the court reporter at his first trial, nothing else appearing, a denial of a basic essential of his defense at a second trial and therefore a violation of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States? In this case we hold that it does not.
The cases of Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), and Williams v. Oklahoma City, 395 U.S. 458, 89 S. Ct. 1818, 23 L. Ed. 2d 440 (1969), are distinguishable from this case. There it was held that the due process and equal protection clauses of the Fourteenth Amendment were violated by the State's denial of an appellate review solely because of a defendant's inability to pay for a transcript. Here, the same lawyer who represented the defendant at the first trial which resulted in the mistrial, signed the *467 motion requesting the transcript of the evidence and the reason given was to assist him in the preparation of the defense for the second trial. No appellate review was involved here. The judge, based upon the motion filed, found that no necessity was shown for the transcript of the evidence and denied the motion.
A transcript of the evidence taken at a trial is only the court reporter's version of what the evidence was. It does not become the official record of the transcript of the evidence of a trial until the opposing parties agree thereto or it is settled by the trial judge. No doubt the judge, in finding that such was not necessary, recognized the fact that most lawyers take their own notes during the trial of what a witness says, and also that if a question arises as to a conflict in what a witness said, the court reporter is ordinarily available to testify from his notes. There is nothing in this record to indicate that the court reporter was not available to testify if necessary to impeach the State's witnesses.
In the case of Peterson v. United States, 351 F.2d 606 (9th Cir.1965), new counsel was substituted for the defendant after the conclusion of the first trial and he promptly moved that he be supplied, at public expense, with a transcript of the first trial. The court held:
"The Government need not then provide an indigent defendant with every advantage which money could buy for a litigant. The question is whether denial of access to this material in the circumstances of this case amounted, on the one hand, to a loss of mere advantage, or , on the other hand, to the deprivation of a basic essential of defense. * * *
In our judgment, where new counsel is involved and the testimony subject to impeachment is crucial to the Government's case, a transcript of the earlier testimony is the only adequate means for providing this material. The holding of this court in Forsberg v. United States, 351 F.2d 242 (9th Cir.1965) is thus distinguishable.
Where access to such essential material can be had for a fee, this `money hurdle' must, under Griffin, be met for the indigent at Government expense. In this case means for meeting it is provided by Title 28, § 753(f), U.S.C."
In the case of Forsberg v. United States, supra, the same court upheld the denial of a transcript where a defendant was represented by the same counsel at the first and second trials and the trial court ruled that it would permit the reporter during the second trial to privately read the testimony of any witness used on the first trial to defendant's lawyer.
In the case of Williams v. United States, 358 F.2d 325 (9th Cir.1966), the defendant, who was also represented by new counsel, and was denied a complete transcript of the first trial for the first time in his brief contended that the primary use of the transcript of the evidence given at the first trial would have been for the impeachment of the State's witness.
The court held that such an assertion under the circumstances of that case was too conjectural and speculative to base a holding that the District Court had abused its discretion in entering the order complained of.
In the case before us, the first trial was held in December 1968. The second trial was held in February 1969. The defendant was represented by the same attorney at both trials as well as in this court. Defendant does not say that his attorney failed to take notes at the first trial of what the witnesses said. The first trial ended in a mistrial on 10 December 1968. The second trial began on 10 February 1969. It thus does not appear that sufficient time had elapsed between the two trials to cause one's memory of what the witnesses said to grow dim. Although not stated in his request for the transcript of the evidence, the defendant now contends *468 that the primary use of the transcript of the testimony would have been for the purpose of impeaching the State's witness. Whether defendant's counsel could have actually impeached the State's witness with a transcript of what the court reporter said the evidence was is not shown. The defendant made no contention that the court reporter was not available and, in the absence of such a contention, we assume that he was available to the defendant, if desired, as a witness for the purpose of testifying to what his notes show the witnesses testified on the first trial. The only way, other than on cross-examination, the evidence in a reporter's transcript could be utilized to show conflicts in the testimony of the State's witnesses would be to have the reporter sworn and testify with respect thereto. There has been no showing here that defendant was restricted in his cross-examination of the State's witnesses. There is nothing on this record to reveal that the prosecution had a copy of the court reporter's transcript of the testimony. Both the defendant and the State had the right to use the court reporter's testimony if there was a conflict in the testimony of the witnesses.
The circumstances of this case do not reveal such a need for the transcript of the evidence that the failure of the court to require that defendant be supplied with a copy of the reporter's transcript of the evidence, at public expense, was a deprivation of a basis essential of his defense.
Defendant contends that his constitutional rights to counsel and due process of law were violated by the refusal of the trial court to suppress all identification evidence. This contention is without merit.
Defendant cites the now familiar case of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) relating to a line-up. In the case before us there was no line-up.
After the robbery a police officer brought some pictures on two different occasions to the witness Tart to look at. Mr. Tart identified the defendant's picture on the latter of these occasions as being a picture of one of the three men who robbed him. Defendant's picture had not been included in the first group of pictures shown Tart. The defendant's picture was selected by Tart from a group of twenty-five or more photographs from Raleigh, Kinston and Richmond, Virginia, without any suggestions from anyone and without knowing his name. Tart testified he had seen the defendant for several minutes at the time of the robbery. Neither the officer nor the witness Tart knew the defendant prior thereto. There was no suggestion by the officer at any time to the witness Tart that the defendant or any one of the persons whose photographs were being shown was one of the persons taking part in the robbery. After the date of the robbery, the next time the witness Tart actually saw the defendant was when he, Tart, was attending court as a witness in response to a subpoena in this case. Mr. Tart stated that he arrived at court at ten o'clock and was sitting in the courtroom. The courtroom was full and there were from nine to fifteen people in the prisoner's box. The defendant was among this group, and no one had suggested to Mr. Tart that the defendant was in this group of people. The evidence is conflicting as to whether defendant's counsel was present in the courtroom when Tart first observed the defendant was in the courtroom. Later that day, after Tart had been "in the court room for some time," the police officer who had shown him the photographs came to him and asked him if he recognized any of the three persons who robbed him and he told the officer that he recognized the defendant.
We are of the opinion and so hold that this was not such a line-up identification process, or confrontation, in the absence of defendant's counsel, if counsel was indeed absent, as to deprive the defendant in any way of his constitutional right to a fair *469 trial. See State v. Hunsucker, 3 N.C.App. 281, 164 S.E.2d 507 (1968).
Defendant asserts that the "photographic confrontation was a critical stage of the prosecution at which the defendant was entitled to the representation of counsel," and cites in support thereof the case of Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). The Simmons case does not support this contention. In Simmons the defendant did not contend that he was entitled to the presence of counsel at the time the pictures were shown to the witnesses.
In Simmons the court said:
"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eye-witnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 1972-1973 [18 L. Ed. 2d 1199], 1206, and with decisions of other courts on the question of identification by photograph."
In the case before us, at the time the pictures were shown to Tart, the defendant's name was not known to the officer or Tart. In the "totality of the circumstances" of this case, to hold that defendant was entitled to the representation of counsel at the time the photographs were exhibited to Tart would be as unreasonable in many respects as a holding that an indigent defendant was entitled to the presence of a court appointed lawyer at the time and place the crime was committed. When this case is considered on its own facts under the applicable rules, we are of the opinion and so hold that the photographic identification was not the result of any suggestion and certainly was not so "impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification."
The defendant also contends that the court committed error and expressed an opinion when the following occurred in the questioning of the witness Tart:
"COURT: Did you say that some diamonds were taken out of the safe?
A. Yes, sir, and also out of the showcase, yes, sir.
COURT: What part did the defendant have to do with, you say there was some other man that had a gun in your back, what was the defendant doing while he was holding the gun in your back?
A. He was with the other, the third man emptying the window."
When these questions were asked by the judge, the witness Tart had already stated more than once, that the defendant was one of the three persons who robbed him. The questions asked by the judge were within the context of the testimony of the witness, of a clarifying nature, and we do not think could have reasonably been interpreted as an expression of opinion. It was not error under the circumstances disclosed *470 by this record for the trial judge to ask these questions. State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968).
Defendant offered the witness Mrs. Mable Long, who testified on direct examination that she was one of the two employees of Bremson Diamond Company who were tied up by the three persons who committed the robbery. She did not identify any one of the robbers by the photographs shown to her and testified that she could not positively identify the defendant as being one of them. On cross-examination immediately following this testimony, the solicitor asked her what was her best opinion about it. Objection was sustained. Later the solicitor asked the witness if, based upon her observation of the people who committed the robbery, she had an opinion that the defendant was one of the people involved. The witness answered by saying that she could not answer positively but the defendant looked very much like one of them.
In Stansbury, N.C. Evidence 2d, § 129, it is said: "A lay witness may give his opinion as to the identity of a person whom he has seen, and his lack of positiveness affects only the weight, not the admissibility, of his testimony."
The defendant's assignment of error to the admission of the opinion of the defendant's witness Long, on cross-examination by the solicitor, is overruled.
Defendant has other assignments of error and contentions which we do not think merit discussion.
We are of the opinion that the defendant has had a fair trial free from prejudicial error.
No error.
BRITT and FRANK M. PARKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2959423/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED MARCH 12, 2015
NO. 03-14-00303-CV
HWY 3 MHP, LLC, Appellant
v.
Electric Reliability Council of Texas (ERCOT), Appellee
APPEAL FROM 419TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE JUSTICES PURYEAR, PEMBERTON, AND FIELD
DISMISSED FOR WANT OF JURISDICTION -- OPINION BY JUSTICE PURYEAR
This is an appeal from the interlocutory order signed by the trial court on May 1, 2014. Having
reviewed the record, it appears that the Court lacks jurisdiction over the appeal. Therefore, the
Court dismisses the appeal for want of jurisdiction. The appellant shall pay all costs relating to
this appeal, both in this Court and the court below. | 01-03-2023 | 09-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3074769/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
ERIC LEE HARRINGTON, No. 08-13-00228-CR
§
Appellant, Appeal from the
§
v. 372nd District Court
§
THE STATE OF TEXAS, of Tarrant County, Texas
§
Appellee. (TC# 1290356D)
§
JUDGMENT
The Court has considered this cause on the record and concludes there was no error in the
judgment. We therefore affirm the judgment of the court below. This decision shall be certified
below for observance.
IT IS SO ORDERED THIS 31ST DAY OF JULY, 2014.
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126364/ | 537 U.S. 1124
SIMPSONv.TEXAS.
No. 02-7268.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE COURT OF APPEALS OF TEXAS FOR THE FOURTEENTH DISTRICT.
2
Ct. App. Tex., 14th Dist. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4539908/ | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEANNE MARIE JOHNSON, ) No. 79120-6-I
)
Appellant, )
) DIVISION ONE
v. )
)
GOODWILL INDUSTRIES, )
) UNPUBLISHED OPINION
Respondent. )
)
MANN, C.J. — Jeanne Johnson appeals the trial court’s decision dismissing her
personal injury action against Goodwill Industries (Goodwill). We affirm.
I.
In 2014, Johnson attempted to sit on a chair that Goodwill had priced for sale and
displayed outside the Burien Goodwill store. The chair collapsed and Johnson fell to
the ground, injuring herself. The incident was memorialized in an incident report
prepared by a Goodwill employee.
Johnson sued Goodwill for damages. Johnson has a history of accidents and
injuries over the past 11 years, including a hip injury, an automobile accident, and a bus
accident.
After an August 27, 2018, bench trial, the trial court issued a decision for
Goodwill. The court found that although Johnson established that Goodwill owed her a
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79120-6-I/2
duty of care, and that Goodwill breached that duty, she failed to meet her burden of
proof for causation. The court found that Johnson failed to present sufficient medical
testimony to establish causation between the liability-producing situation and her
claimed injuries. The court also found that Johnson failed to present the requisite
evidence that her medical bills were reasonable and that her treatment was necessary.
Johnson unsuccessfully moved for reconsideration and a new trial. Johnson
appeals.
II.
At the outset, Johnson fails to articulate a basis for her appeal. An appellant
must provide an “argument in support of the issues presented for review, together with
citations to legal authority and references to relevant parts of the record.” RAP
10.3(a)(6). Without “adequate, cogent argument and briefing” appellate courts should
not consider an issue on appeal. Schmidt v. Cornerstone Inv. Inc., 115 Wn.2d 148,
160, 795 P.2d 1143 (1990). While we recognize that Johnson appears before us pro
se, we hold pro se litigants to the same rules of procedure and substantive law as an
attorney. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
Because Johnson fails to explain how the trial court erred in granting a verdict for
Goodwill, we can only review the adequacy of the trial court’s written findings and
conclusions.
Following a bench trial, this court reviews whether substantial evidence supports
the findings of fact and, if so, whether the findings support the conclusions of law. State
v. Homan, 181 Wn.2d 102, 105-06, 330 P.3d 182 (2014).
-2-
No. 79120-6-I/3
The trial court first correctly concluded that because Johnson offered no expert or
medical testimony to establish causation for her injuries, her claim fails as a matter of
law. See, e.g., Ugolini v. States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967)
(medical testimony must establish that the liability producing situation more likely than
not caused the claimed injury). The trial court also correctly concluded that Johnson
failed to present evidence proving that her medical expenses were reasonable and
necessary. See Patterson v. Horton, 84 Wn. App. 531, 543, 929 P.2d 1125 (1997).
The trial court’s conclusions are supported by its findings of fact, which, in turn, are
supported by substantial evidence.
Affirmed.
WE CONCUR:
-3- | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3233337/ | Section 3238 of the Code of 1923, as amended by Gen. Acts 1927, p. 76, relative to appeals in habeas corpus cases, provides, among other things: "No bill of exceptions or assignments of error shall be necessary or required, but the clerk of the court from which such appeal is taken shall, within thirty days from the date of such judgment, forward a transcript of the record and certificate of appeal to the Supreme Court or Court of Appeals, together with a statement of the evidence and the Judge's ruling thereon, all certified to be correct by the Judge or officer hearing the petition."
There is no certificate of the judge as is required by the section; in the absence of which this court will presume that there were sufficient facts before the judge, not included in the transcript, to justify him in denying the writ.
There is an agreed statement of facts between the attorney for petitioner and the attorney for the city, but even this statement, as it appears in the record, does not meet the requirements of the statute.
The judgment is affirmed.
Affirmed. *Page 556 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1024571/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7109
JERRY E. DAVIS,
Petitioner - Appellant,
versus
GENE JOHNSON, Director, Virginia Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (7:07-cv-00089-JCT)
Submitted: December 13, 2007 Decided: December 19, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jerry E. Davis, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry E. Davis seeks to appeal the district court’s order
dismissing as untimely his 28 U.S.C. § 2254 (2000) petition. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A
certificate of appealability will not issue absent “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Davis has not
made the requisite showing. Accordingly, we deny a certificate of
appealability, deny leave to proceed in forma pauperis, and dismiss
the appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 2 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/126380/ | 537 U.S. 1125
PEEKv.MOORE, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS.
No. 02-7294.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 33 Fed. Appx. 991. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3062980/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14591 ELEVENTH CIRCUIT
APRIL 7, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-01206-CV-T-23-EAJ
JOHN HODGES,
Plaintiff-Appellant
Cross-Appellee,
versus
PUBLIX SUPER MARKETS, INC.,
Defendant-Appellee
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(April 7, 2010)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
John Hodges appeals the district court’s entry of judgment on the pleadings
for Publix Super Markets, Inc. on his discrimination claims under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12203(a), and the Florida Civil Rights
Act (“FCRA”), Fla. Stat. § 760.10(1)(a). Publix cross-appeals the district court’s
order denying its motions for attorneys’ fees and sanctions under 28 U.S.C. §
1927, 42 U.S.C. § 1988, and Federal Rule of Civil Procedure 11 (“Rule 11”).
Hodges originally filed an action in 2008 against Publix, his former
employer, for violating the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et seq., by interfering with the lawful exercise of his FMLA rights and by
retaliating against him for asserting these rights (“Hodges I”). Both parties agreed
to the voluntary dismissal with prejudice of this claim. At some point before the
dismissal, Hodges received a right to sue letter from the Equal Employment
Opportunity Commission (“EEOC”), allowing him to sue under the ADA. Hodges
claims that the letter went directly to him, and that his counsel did not receive the
letter for another month. Thereafter, Hodges filed the present action, alleging that
Publix violated the ADA and FCRA by terminating him and subsequently refusing
to rehire him. Hodges alleged the same facts in both complaints, including
Publix’s failure to re-hire him. The district court dismissed the present action as
barred by res judicata. After Hodges filed the instant appeal, Publix moved for
2
attorneys’ fees and sanctions. The district court denied Publix’s motion, and
Publix filed the instant cross-appeal. We turn first to Hodges’s appeal, and then to
Publix’s cross-appeal, and affirm on both.
I. Hodges’s Res Judicata Claims
On appeal, Hodges argues that the district court erred in its ruling that the
present action was barred by res judicata, a ruling that we review de novo.
Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (citation
omitted). The doctrine of res judicata bars not only claims that were actually
raised in the prior action, but also “claims that could have been raised previously.”
Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003) (citation
omitted) (emphasis added). Claims that “could have been brought are claims in
existence at the time the original complaint is filed.” In re: Piper Aircraft Corp.,
244 F.3d 1289, 1298 (11th Cir. 2001) (citation and quotations omitted).
Under the res judicata doctrine, a subsequent action is barred when four
requirements are met: (1) there must be a final judgment on the merits; (2) the
decision must be rendered by a court of competent jurisdiction; (3) the parties must
be identical in both suits; and (4) the same cause of action must be involved in both
cases. Id. at 1296. The purpose of the res judicata doctrine is that the “full and fair
opportunity to litigate protects a party’s adversaries from the expense and vexation
3
attending multiple lawsuits, conserves judicial resources, and fosters reliance on
judicial action by minimizing the possibility of inconsistent decisions.” Ragsdale,
193 F.3d at 1238 (quotation and alteration omitted).
The parties only contest the fourth factor, whether Hodges I and the present
action involve the same cause of action. The principal test for determining whether
the same cause of action is involved is “whether the actions arise out of the same
nucleus of operative fact, or are based upon the same factual predicate.” Davila,
326 F.3d at 1187 (quotation and alteration omitted). A party may not split his
causes of action into parts to bring claims based on different legal theories at
different times. See id. (quotation omitted). In Davila, the plaintiff filed a
grievance pertaining to termination of his employment, which was denied. Id. at
1186. He then filed an EEOC charge alleging violations of the ADA, received a
right to sue letter, and sued for breach of contract and ADA violations based on his
termination. Id. We held that res judicata prevented the plaintiff from raising a
claim based on the same operative facts, even though his prior employment claims
were disposed of before the EEOC issued a right to sue notice on a different legal
theory. See id. at 1187–88 (quotation omitted).
The res judicata doctrine may be qualified or even rejected when its
application “would contravene an overriding public policy or result in manifest
4
injustice.” Garner v. Giarrusso, 571 F.2d 1330, 1336 (5th Cir. 1978) (citation
omitted).1 However, a “party cannot escape . . . res judicata by asserting its own
failure to raise matters clearly within the scope of a prior proceeding.”
Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar.
Ass’n, 455 U.S. 691, 710 (1982).
Hodges contends that his ADA and FMLA claims do not arise out of the
same nucleus of operative fact, arguing that: (1) Hodges I challenged only his
termination, but the present action challenges only Publix’s failure to rehire him;
(2) his failure to be rehired was not an essential fact to the FMLA claim in Hodges
I, and was instead included to tell his complete story, provide background, and
offer mitigation evidence; and (3) because he has yet to adjudicate either action on
the merits, his claims fall outside res judicata’s policy to prevent “endless
litigation,” and the district court should have permitted the claim to proceed under
the manifest injustice exception.
Hodges argues that In re: Piper Aircraft Corporation is analogous to his
case. There, a creditor and another party entered into a cooperation agreement to
purchase the assets of a debtor in bankruptcy. 244 F.3d at 1292. After the
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
5
bankruptcy court rejected their proposed reorganization plan, the creditor aligned
itself with a new partner. Id. The aggrieved party then filed suit in state court
alleging breach of the cooperation agreement and seeking a constructive trust. Id.
at 1293. We found that res judicata did not bar the suit because the facts
underlying the second claim were not in existence at the time the first case began
and were never actually raised as the case unfolded. Id. at 1299 . Alternatively, we
found that the second claim could not have been brought in the first action because
there was no adequate procedural vehicle through which the claim could be raised.
See id. at 1303–04.
However, In re: Piper Aircraft Corporation is distinguishable from
Hodges’s case, as the facts alleged in the present case were in existence at the time
he filed Hodges I. Even further, he actually alleged the same set of facts in Hodges
I and the present action. In both complaints, Hodges alleged that he suffered two
seizures while at work, that Publix refused to reinstate him upon his return from his
second seizure, and that although he applied for “several jobs as a bagger at other
Publix locations, . . . he was never offered a position.” Hodges provides no reason
why his FMLA, ADA, and FCRA claims could not, as a procedural matter, have
been raised in his first lawsuit. Hodges could have waited to file his lawsuit until
he received his right to sue letter or he could have later amended his complaint
6
before dismissal. Hodges also does not provide support for his proposition that the
overlapping facts in his two actions should be deemed material to the ADA claim,
but not to his FMLA claim.2
His argument that he should receive a manifest injustice exception is also
without merit. Accordingly, we hold that Hodges could have raised his ADA and
FCRA claims in Hodges I, and therefore the district court did not err in dismissing
the present action as barred by the doctrine of res judicata.
II. Publix’s Motions for Sanctions and Attorneys’ Fees
On cross-appeal, Publix argues that it was entitled to attorneys’ fees for the
claims that were properly dismissed on its motion for judgment on the pleadings.
Publix asserts that, under Christiansburg Garment Co. v. EEOC, 434 U.S. 412
(1978), it is entitled to attorneys’ fees. It contends that Hodges’s claims were
frivolous because the district court dismissed them before trial, and Publix itself
treated the case as baseless. Publix also argues that Rule 11 required an award of
fees because Hodges failed to recognize that res judicata barred his action, even
though “the most minimal inquiry” would have made that fact apparent. Finally,
Publix asserts that, because Hodges recklessly pursued a frivolous claim, it was
2
Hodges states that he did not believe that Publix’s failure to re-hire him resulted from
his assertion of rights under FMLA. However, his ADA and FMLA complaints allege Publix’s
failure to re-hire him, and incorporate this fact into each claim.
7
entitled to attorneys’ fees under 28 U.S.C. § 1927 even absent a finding that
Hodges acted in bad faith.
We review a district court’s rulings on the award of attorneys’ fees under 28
U.S.C. § 1297 and Christiansburg, and the imposition of Rule 11 sanctions, for
abuse of discretion. McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001)
(citation omitted); Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th
Cir. 1996) (citation omitted); Bruce v. City of Gainesville, Ga., 177 F.3d 949, 952
(11th Cir. 1999).
When a prevailing party in an ADA case seeks attorneys’ fees, the court
should analyze the request according to the Christiansburg standard, as it would a
similar request in a Title VII case. Bruce, 177 F.3d at 951. Under this standard, “a
district court may in its discretion award attorney’s fees to a prevailing defendant
in a Title VII case upon a finding that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not brought in subjective bad
faith.” Christiansburg Garment Co., 434 U.S. at 421. However, “it is important
that a district court resist the understandable temptation to engage in post hoc
reasoning by concluding that, because a plaintiff did not ultimately prevail, his
action must have been unreasonable or without foundation.” Id. at 421–22.
8
A claim for sanctions under 28 U.S.C. § 1927 involves, in part, two essential
requirements: (1) “the attorney must engage in unreasonable and vexatious
conduct;” and (2) the conduct must multiply the proceedings. Amlong & Amlong,
P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007). “[A]n attorney
multiplies proceedings ‘unreasonably and vexatiously’ . . . only when the
attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’” Id. (citation
omitted). Bad faith, in turn, is measured objectively, and exists “where an attorney
knowingly or recklessly pursues a frivolous claim.” Id. at 1241 (quotation and
citation omitted).
Rule 11 sanctions are proper when a party files a pleading (1) “that has no
reasonable factual basis;” (2) “that is based on a legal theory that has no reasonable
chance of success and that cannot be advanced as a reasonable argument to change
existing law;” or (3) “in bad faith for an improper purpose.” McGreal, 87 F.3d at
1254 (citation omitted). A court confronted with a motion for Rule 11 sanctions
must first determine whether the claims raised are objectively frivolous and, if so,
whether the signer of the pleadings should have been aware of their frivolous
nature. Id. (citation omitted). Even if the attorney had a good faith belief that the
claims were sound, sanctions must be imposed if the attorney failed to make a
reasonable inquiry. Id. (citation omitted). A party may be sanctioned for filing
9
claims barred under res judicata. Thomas v. Evans, 880 F.2d 1235, 1240 (11th Cir.
1989). However, such sanctions are not required: a party is only to be sanctioned
if it was unreasonable to bring an action at the time of filing, not merely because its
view of the law turned out to be incorrect. See id.
Although Hodges ultimately lost on his argument that res judicata should not
apply, this does not necessarily render his argument frivolous, unreasonable, or
without foundation. Hodges made a reasonable argument that Hodges I challenged
only Hodges’s termination and the present action challenges only Publix’s failure
to rehire him, and that therefore the two actions did not arise out of a common
nucleus of operative fact. Because Hodges raised a cognizable argument against
the application of res judicata, he did not recklessly pursue a frivolous claim under
§ 1927. Similarly, Publix did not demonstrate, for Rule 11 purposes, that Hodges
acted with bad faith for an improper motive. Accordingly, we hold that the district
court did not abuse its discretion in denying Publix’s motions for attorneys’ fees
and sanctions.
AFFIRMED.
10 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4539907/ | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES J. PALLOTTA, No. 80011-6-1
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION
JULEP BEAUTY, INC., a Washington
for-profit corporation,
Respondent.
Hazelrigg, J. — James Pallotta seeks reversal of summary judgment in
favor of Julep Beauty, Inc., arguing that he was owed a premium payment on his
investment before Julep merged with Glansaol Management, Inc. Because a
majority in interest of investors successfully amended all of the promissory notes
to waive the premium, Pallotta was not entitled to the premium payment. We
affirm.
FACTS
James Pallotta is an investor who operates in part through Raptor Holdings
LP. An employee of Pallotta's, Joshua Langsam, testified that investments were
sometimes made under Pallotta's name and sometimes made under the name of
Raptor but "[t]he two are largely one [and] the same." In his individual capacity,
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80011-6-1/2
Pallotta first invested in Julep Beauty, Inc., a Washington company founded by
Jane Park, in 2010.
In 2015, Julep required additional financing and imposed a "pay to play
provision" on professional investors who held preferred stock in the company.
These investors would be required to choose between an additional contribution
of a pro rata share relative to their preferred equity stake or conversion of their
preferred shares to common stock. Pallotta was identified as a professional
investor and chose to invest additional funding. In July 2015, Pallotta executed a
Note Purchase Agreement ("the Agreement") with Julep, agreeing to purchase a
subordinated convertible promissory note ("the Note") from Julep.
The Note provided that Julep promised to pay Pallotta $234,288.01 plus
"interest ... on the unpaid principal balance at a rate equal to 5% per annum,
computed on the basis of the actual number of days elapsed and a year of 365
days." The unpaid principal, accrued interest, and "other amounts payable
hereunder" would be due and payable on the earlier of the date of maturity, July
14, 2016, or when declared or made automatically due and payable on an "Event
of Default." The Note listed the occurrences that would constitute such an event,
including "Failure to Pay:"
The Company shall fail to pay (i) when due any principal
payment on the due date hereunder or (ii) any interest payment or
other payment required under the terms of this Note or any other
Transaction Document on the date due and such payment shall not
have been made within five (5) business days of the Company's
receipt of written notice to the Company of such failure to pay."
If an event of default other than bankruptcy or insolvency proceedings occurred,
the investor would have the right to declare all outstanding obligations due and
No. 80011-6-1/3
payable by written notice to Julep and with the written consent of a majority in
interest of investors. In addition, "[djuring any period in which an Event of Default
has occurred and is continuing, the Company shall pay interest on the unpaid
principal balance hereof at a rate per annum equal to the rate otherwise applicable
hereunder plus ten percent."
The section of the Note entitled "Payments" contained three subsections:
interest, voluntary prepayment, and mandatory prepayment. The interest
subsection simply stated that "[ajccrued interest on this Note shall be payable at
maturity." Section 1(c) provided for a mandatory prepayment before the date of
maturity in one specific circumstance:
In the event of a Liquidation Transaction, the outstanding
principal amount of this Note, plus all accrued and unpaid interest, in
each case that has not otherwise been converted into equity
securities pursuant to Section 4, shall be due and payable
immediately prior to the closing of such Liquidation Transaction,
together with a premium equal to 100% of the outstanding principal
amount to be prepaid.
The Note contained a provision allowing changes under certain
circumstances:
"Any provision of this Note may be amended, waived or
modified upon the written consent of the Company and a Majority in
Interest of Investors; provided, however, that no such amendment,
waiver or consent shall (i) reduce the principal amount of this Note
without Investor's written consent, or (ii) reduce the rate of interest of
this Note without Investor's written consent."
A "Majority in Interest of Investors" was defined as "Investors holding more than
50% of the aggregate outstanding principal amount of the Notes." The Agreement
contained a nearly identical waiver and amendment provision allowing a change
to "this Agreement and the Notes" under the aforementioned conditions. It
No. 80011-6-1/4
contained one additional sentence stating that "[a]ny amendment or waiver
effected in accordance with this paragraph shall be binding upon all of the parties
hereto."
The Note also contained a "pari passu" provision guaranteeing equal
treatment among the noteholders:
Investor acknowledges and agrees that the payment of all or
any portion of the outstanding principal amount of this Note and all
interest hereon shall be pari passu in right of payment and in all other
respects to any other Notes. In the event Investor receives payments
in excess of its pro rata share of the Company's payments to the
holders of all of the Notes, then Investor shall hold in trust all such
excess payments for the benefit of the holders of the other Notes and
shall pay such amounts held in trust to such other holders upon
demand by such holders.
(Emphasis omitted).
The parties extended the maturity date of the Note past the original July 14,
2016 date. Julep again encountered financial difficulties and began to explore
possible merger opportunities in late 2016. In advance of a potential acquisition,
Julep distributed a Note Cancellation Agreement to each of the noteholders,
including Pallotta. The Note Cancellation Agreement provided that Julep would
pay the noteholder the outstanding principal balance on their Note and interest
accrued through September 30, 2016 "[ujpon the closing of the Merger." Under
the Note Cancellation Agreement, the noteholder agreed that this payment would
satisfy all obligations owed to them by Julep and waived "any right to additional
payment with respect to the Note, including but not limited to pursuant to Section
1(c) thereof." On December 16, 2016, Julep entered into Note Cancellation
-4
No. 80011-6-1/5
Agreements with 26 of the 27 noteholders. Pallotta did not sign his Note
Cancellation Agreement.
On December 20, 2016, Julep and four of the noteholders, who represented
a majority in interest of the investors, executed an "Amendment to Subordinated
Convertible Promissory Notes" ("the Amendment"). This document amended each
of the Notes issued under the July 14, 2015 Agreements to delete section 1(c), the
provision that obligated Julep to pay a premium in the event of a liquidation
transaction. The Amendment stated that it was effective "as of closing of the
merger." Pallotta was not a signatory to the Amendment. The articles of merger
were filed with the Secretary of State later that day.
On January 6, 2017, Pallotta sent a letter to Park asserting that the
Amendment was ineffective as to his Note and demanding payment of the
outstanding principal, accrued interest of 5 percent through the maturity date,
default interest of 15 percent from the maturity date to the date of the letter, and
the premium of 100 percent of the outstanding principal amount. Pallotta was paid
100 percent of the principal on the Note and the accrued interest through
December 20, 2016. He also "received his share of the merger consideration
relating to his equity holdings."
Because Pallotta maintained that he was owed further payment, Julep
sought a declaratory judgment in King County Superior Court. The parties agreed
that there were no material facts in dispute and each filed motions for summary
judgment. The court granted summary judgment in favor of Julep. The court
determined that "Pallotta is owed no Premium, additional interest, default interest
No. 80011-6-1/6
under the Pallotta Note, or payment of any kind under the Pallotta Note." The court
also found that Pallotta would have to hold 96.7 percent of any additional payout
under his Note in trust for fellow noteholders. Pallotta appealed.
ANALYSIS
We review an appeal of summary judgment de novo, performing the same
inquiry as the trial court and viewing all facts and reasonable inferences therefrom
most favorably toward the nonmoving party. Lvbbert v. Grant County, 141 Wn.2d
29, 34, 1 P.3d 1124 (2000). "Summary judgment is proper only where there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law." Int'l Marine Underwriters v. ABCD Marine, LLC, 179 Wn.2d 274,
281, 313 P.3d 395 (2013); See also CR 56(c). A fact is material if the outcome of
the litigation depends on it in whole or in part. Kries v. WA-SPOK Primary Care,
LLC, 190Wn.App. 98, 117, 362 P.3d 974 (2015).
I. Meaning of "Rate of Interest"
Pallotta contends that the Amendment did not waive his right to receive the
premium because the premium constituted interest under the Note, the rate of
which could not be reduced without his individual consent. When interpreting a
contract, we are "'giv[ing] a meaning to the symbols of expression used by another
person.'" Berg v. Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 (1990) (quoting
3 A. Corbin, Contracts § 532 (1960)) (alterations in original). The purpose of
contract interpretation is to ascertain the intent of the contracting parties, jd. To
do so, we consider "the contract as a whole, the subject matter and objective of
No. 80011-6-1/7
the contract, all the circumstances surrounding the making of the contract, the
subsequent acts and conduct of the parties to the contract, and the
reasonableness of respective interpretations advocated by the parties." id. at 667
(quoting Stender v. Twin City Foods. Inc.. 82 Wn.2d 250, 254, 510 P.2d 221
(1973)). Extrinsic evidence may be used only to elucidate the meaning of the
words in a contract, not to add to, modify, or contradict the terms of the contract to
comport with what the parties intended to write. Confederated Tribes of Chehalis
Reservation v. Johnson. 135 Wn.2d 734, 752, 958 P.2d 260 (1998).
"Summary judgment on an issue of contract interpretation is proper when
the parties' written contract, viewed in light of the parties' other objective
manifestations, has only one reasonable meaning." Kries, 190 Wn. App. at 119. If
two or more meanings are reasonable, the meaning of the provision is a question
of fact. GMAC v. Everett Chevrolet. Inc.. 179 Wn. App. 126, 135, 317 P.3d 1074
(2014). "We generally give words in a contract their ordinary, usual, and popular
meaning unless the entirety of the agreement clearly demonstrates a contrary
intent." Hearst Commc'ns, Inc. v. Seattle Times Co.. 154 Wn.2d 493, 504, 115
P.3d 262 (2005). When terms are used separately and consistently throughout a
contract, they are presumed to have separate meanings. See Bellevue Sch. Dist.
No. 405 v. Bentlev, 38 Wn. App. 152, 159, 684 P.2d 793 (1984).
Pallotta contends that the trial court erred in interpreting the term "interest"
as used in the Note not to include the premium. "Interest" and "rate of interest" are
not defined in the Note. Pallotta argues that the premium falls under the following
dictionary definition of "interest:" "[t]he compensation fixed by agreement or
No. 80011-6-1/8
allowed by law for the use or detention of money, or for the loss of money by one
who is entitled to its use; especially], the amount owed to a lender in return for the
use of borrowed money." Black's Law Dictionary (10th ed. 2014). "Interest" is
also defined as "the price paid for borrowing money generally expressed as a
percentage of the amount borrowed paid in one year." Webster's Third New
International Dictionary 1178 (2002). Similarly, an "interest rate" is defined as
"[t]he percentage that a borrower of money must pay to the lender in return for the
use of the money, usu[ally] expressed as a percentage of the principal payable for
a one-year period. — Often shortened to rate." Black's Law Dictionary (10th ed.
2014) (emphasis omitted). A "premium" is "[a] sum of money paid in addition to a
regular price, salary, or other amount; a supplemental amount of money above the
normal or standard rate." Black's Law Dictionary (10th ed. 2014).
The Note provides that the "rate of interest of this Note" may not be reduced
without the individual investor's consent. Pallotta contends that the premium
"applies a rate, expressed as a percentage applied to the outstanding principal^]
and requires that Julep pay the rate as a condition of Pallotta's promise to lend
Julep Pallotta's money." However, this is not true in every instance. Under the
terms of the Note, payment of the premium is not necessarily required in return for
allowing Julep to use Pallotta's money. The premium only becomes due in the
event of a liquidation transaction. Additionally, although the amount of the
premium is expressed as a percentage of the outstanding principal, it is not tied to
any unit of time. The premium is a supplemental payment owed in addition to the
outstanding principal and accrued interest in the event of a liquidation transaction.
No. 80011-6-1/9
The premium is referenced few times in the Note, presumably because of
the limited circumstance in which it would arise. However, in the Note's
"Definitions" section, the meaning of "Senior Indebtedness" includes the phrasing:
"the principal of (and premium, if any), unpaid interest on and amounts
reimbursable, fees, expenses, costs of enforcement and other amounts due."
Although apparently not referencing the premium set out under this Note, the
distinction between a premium and interest indicates that the parties understood
these terms to reference two separate categories of payment.
Even viewing all facts in favor of Pallotta, the only reasonable interpretation
of the term "interest" in the Note does not include the premium due in the event of
a liquidation transaction. Because waiving the premium did not reduce the rate of
interest on the Note, Pallotta's individual consent was not required to waive the
provision.
II. Effectiveness of Waiver
We next consider whether Pallotta's right to receive the premium was
effectively waived. Julep argues that the execution of the Note Cancellation
Agreements and the Amendment by a majority in interest of the investors were a
"belt and suspenders" approach to his intransigence and were each sufficient to
waive Pallotta's entitlement to the premium.
We need not address the effect of the Note Cancellation Agreements on
Pallotta's Note because the Amendment effectively waived Pallotta's contractual
right to the premium. As noted above, because the premium was not "interest"
under the terms of the Note, Pallotta's individual consent was not required to
No. 80011-6-1/10
amend, waive, or modify the prevision for the premium if Julep and a majority in
interest of investors consented in writing to the change. The parties agree that the
written Amendment waiving the premium for all noteholders was signed by Park
as CEO of Julep and by a majority in interest of investors.
Pallotta contends that the waiver of the premium failed because the
premium became due before the Amendment became effective. Under the terms
of the Note, the premium became due "immediately prior to closing" of a liquidation
transaction. By the terms of the Amendment, the section of the Note providing for
the premium was deleted "as of closing" of the merger.
Under the plain language of the Note, the requirement to pay the premium
"immediately prior to closing" meant that Julep had up until the moment of closing
to make the payment and was not in breach until the moment of closing. The
Amendment became effective at the moment of closing. At the moment that the
merger closed, when Julep would have breached the mandatory prepayment
provision, that provision was simultaneously removed from the contract. A party
cannot breach a provision that does not exist. Additionally, as Julep points out,
Pallotta does not give any reason that the premium could not be waived after it
became due.
Because a majority in interest of the investors successfully amended all of
the Notes to delete the provision requiring the premium, Pallotta is not owed the
premium even though he did not individually consent to the Amendment. The trial
court did not err in granting summary judgment for Julep.1
1 Pallotta also assigns error to the trial court's order that he could be required to hold 96.7
percent of any additional payment in trust for the other noteholders, but he does not argue this
-10-
No. 80011-6-1/11
Affirmed.
WE CONCUR:
,>L^Au^r ^.c.1
assignment in his opening brief. "A party that offers no argument in its opening brief on a claimed
assignment of error waives the assignment." Brown v. Vail. 169 Wn.2d 318, 336 n. 11, 237 P.3d
263 (2010). Accordingly, to the extent that it is distinct from the trial court's grant of summary
judgment, we decline to address this alleged error.
-11 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3218618/ | Order Michigan Supreme Court
Lansing, Michigan
June 28, 2016 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
151662(22) Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 151662
COA: 325096
Kalamazoo CC: 2011-001461-FC
WILLARD GATISS PUTMAN, JR.,
Defendant-Appellant.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s March 8,
2016 order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 28, 2016
a0620
Clerk | 01-03-2023 | 06-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3218624/ | Order Michigan Supreme Court
Lansing, Michigan
June 28, 2016 Robert P. Young, Jr.,
Chief Justice
151255 Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Joan L. Larsen,
Justices
v SC: 151255
COA: 315591
Macomb CC: 2011-003482-FH
LOIS BUTLER-JACKSON,
Defendant-Appellant.
_________________________________________/
By order of May 27, 2015, the application for leave to appeal the November 6,
2014 judgment of the Court of Appeals was held in abeyance pending the decision in
People v Hartwick (Docket No. 148444). On order of the Court, the case having been
decided on July 27, 2015, 498 Mich. 192 (2015), the application is again considered.
Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part
of the Court of Appeals judgment addressing the propriety of court costs under
MCL 771.3(5). Though probation supervision costs and reimbursement of expenses
incurred in prosecuting the defendant or providing her with legal assistance are
authorized under that statute, court costs are not. See People v Cunningham, 496 Mich.
145 (2014), and People v Juntikka, 310 Mich. App. 306 (2015). We REMAND this case
to the Macomb Circuit Court for further proceedings. In all other respects, leave to
appeal is DENIED, because we are not persuaded that the remaining question presented
should be reviewed by this Court.
We do not retain jurisdiction.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 28, 2016
p0620
Clerk | 01-03-2023 | 06-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3218626/ | Order Michigan Supreme Court
Lansing, Michigan
June 28, 2016 Robert P. Young, Jr.,
Chief Justice
Stephen J. Markman
Brian K. Zahra
151254 Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 151254
COA: 318599
Wayne CC: 12-011767-FC
KEVIN-JAMEL RASHARD MYERS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the February 24, 2015
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.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 28, 2016
d0620
Clerk | 01-03-2023 | 06-30-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/126512/ | 537 U.S. 1135
CAULFIELDv.UNITED STATES.
No. 02-7608.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 104. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3062984/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14632 ELEVENTH CIRCUIT
APRIL 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-20023-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL TYRONE MOBLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 6, 2010)
Before DUBINA, Chief Judge, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Michael Tyrone Mobley appeals the district court’s denial of his
motion for a new trial based on newly discovered evidence. See Fed.R.Crim.P. 33.
Mobley was convicted for being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), possession with the intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), possession with the intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). Mobley argues that his proffered new evidence, an
affidavit containing exculpatory statements, meets all of the requirements to
warrant a new trial.
We review for abuse of discretion a district court’s denial of a motion for a
new trial based on newly discovered evidence. United States v. Vallejo, 297 F.3d
1154, 1163 (11th Cir. 2002). Likewise, we review for abuse of discretion a district
court’s decision concerning whether to hold an evidentiary hearing. United States
v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).
Federal Rule of Criminal Procedure 33 provides that a “court may vacate
any judgment and grant a new trial if the interest of justice so requires.”
Fed.R.Crim.P. 33(a).
To succeed on a motion for new trial based on newly discovered
evidence, the movant must establish that (1) the evidence was
discovered after trial, (2) the failure of the defendant to discover the
evidence was not due to a lack of due diligence, (3) the evidence is not
2
merely cumulative or impeaching, (4) the evidence is material to
issues before the court, and (5) the evidence is such that a new trial
would probably produce a different result.
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quoting United
States v. Ramos, 179 F.3d 1333, 1336 n.1 (11th Cir. 1999)). “Failure to meet any
one of these elements will defeat a motion for a new trial.” United States v.
Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995). As to the first prong, we have
“rejected the idea that newly available evidence is synonymous with newly
discovered evidence” in the Rule 33 context. United States v. DiBernardo, 880
F.2d 1216, 1224-25 (11th Cir. 1989) (holding that a codefendant’s exculpatory
testimony was not “newly discovered” evidence for the purposes of Rule 33).
“Motions for a new trial based on newly discovered evidence are highly disfavored
in the Eleventh Circuit and should be granted only with great caution. Indeed, the
defendant bears the burden of justifying a new trial.” United States v. Campa, 459
F.3d 1121, 1151 (11th Cir. 2006) (en banc) (internal quotation marks omitted).
A defendant is not entitled to an evidentiary hearing on a motion for a new
trial if “the acumen gained by a trial judge over the course of the proceedings
[made him] well qualified to rule on the [evidence] without a hearing.” United
States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (internal quotation marks
omitted). A motion for a new trial “may ordinarily be decided upon affidavits
3
without an evidentiary hearing,” and “[w]here evidentiary hearings are ordered, it
is because of certain unique situations typically involving allegations of jury
tampering, prosecutorial misconduct, or third party confession.” United States v.
Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)1 (citations omitted).
After reviewing the record, we conclude that the district court did not abuse
its discretion in denying Mobley’s motion, because the evidence supporting
Mobley’s motion was not “newly discovered” evidence in the Rule 33 context, and
because Mobley cannot establish that the proffered evidence would likely produce
a different outcome at trial. See Jernigan, 341 F.3d 1273, 1287; see also Starrett,
55 F.3d at 1554. Accordingly, we affirm the district court’s order.
AFFIRMED.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to October 1, 1981.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2898948/ | NO. 07-09-0042-CR
Â
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 31, 2009
______________________________
SANTIAGO MASON GOMEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A17779-0809; HONORABLE ROBERT W. KINKAID, JR., JUDGE
_______________________________
Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.
ON ABATEMENT AND REMAND
          Appellant, Santiago Mason Gomez, appeals from a trial court judgment pronounced
on January 13, 2009, and filed notice of appeal on January 14. The appellate record was
due by March 16, 2009. Tex. R. App. P. 35.2(b). The court clerk filed the clerkâs record on
March 6. The court reporter has requested three previous extensions of time to file the
reporterâs record on April 13, May 15, and June 29, all of which were granted. The court
reporterâs monthly report on June 29 indicated that the court reporter has recently
completed the reporterâs record in another case consisting of more than 5,000 pages.
Further, the report indicated a possible trial week for July 20-24. On the current monthly
report, the court reporter indicates five pending appellate cases, with an estimated total
page count of over 2,000 pages, all of the cases with record due dates in August.
Furthermore, the report indicates a travel week on August 3-7, jury weeks on August 10-20,
and another travel week on August 23-27. We note that the 64th Judicial District covers
Hale, Swisher, and Castro counties. Although the court reporter has answered all of our
inquiries and has diligently notified this court of her workload, this court has a responsibility
to ensure the timely filing of the appellate record. See Tex. R. App. R. 35.3(c).
          Accordingly, we abate this appeal and remand the cause to the trial court for further
proceedings. See Tex. R. App. P. 35.3(c). Upon remand, the trial court shall immediately
cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the
following:
1.       whether the reporterâs record can reasonably be filed in a manner that
does not further delay this appeal or have the practical effect of
depriving appellant of the right to appeal, and
Â
2.       whether an alternate or substitute reporter should or can be appointed
to complete the record in a timely manner.
Â
          The trial court shall cause the hearing to be transcribed. In addition, the trial court
shall (1) execute findings of fact and conclusions of law addressing the foregoing issues,
(2) cause a supplemental clerkâs record to be developed containing its findings of fact and
conclusions of law and all orders it may issue as a result of its hearing in this matter, and
(3) cause a reporterâs record to be developed transcribing the evidence and arguments
presented at the aforementioned hearing, if any. The trial court shall then file the
supplemental clerkâs record and any reporterâs record transcribing the hearing with the
clerk of this court on or before August 21, 2009. Should further time be needed by the trial
court to perform these tasks, then same must be requested before August 21, 2009.
          It is so ordered.
Â
                                                                                                 Per Curiam
Â
Do not publish.
lse"
UnhideWhenUsed="false" Name="Medium Shading 2 Accent 3"/>
NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-0171-CR, 07-10-0172-CR
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL E
Â
MARCH
15, 2011
Â
Â
GREGORIO RODRIGUEZ, APPELLANT
Â
v.
Â
THE STATE OF TEXAS, APPELLEE
Â
Â
FROM THE 137TH DISTRICT
COURT OF LUBBOCK COUNTY;
Â
NOS. 2009-455,818, 2009-458,190, 2009-425,597,
Â
2009-422,825; Â HONORABLE CECIL
PURYEAR, JUDGE
Â
Â
Before CAMPBELL
and HANCOCK, JJ., and BOYD, S.J.[1]
Â
Â
ORDER ON ABATEMENT AND REMAND
Â
           In these four cases, appellant Gregorio Rodriguez
appeals his convictions on his open pleas of guilty and resulting
sentences. On our own motion, after
examining the records, we consider our jurisdiction. See State v. Roberts, 940
S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other grounds, State v.
Medrano, 67 S.W.3d 892, 901-03 (Tex.Crim.App.
2002) (appellate court may on its own motion address issue of its
jurisdiction).
           The
reporterÂs record says sentence in each case was imposed in open court on March
3, 2010. Docket sheet entries in each
case appear to indicate sentencing occurred on March 8. Our case numbers 07-10-0122-CR and
07-10-0123-CR were misdemeanor convictions.Â
The written judgments in these cases state Âjudgment entered and sentence
imposed on this 8th day of March, A.D. 2010.ÂÂ
Our case numbers 07-10-0171-CR and 07-10-0172-CR were convictions for
state jail felonies. The written
judgments in these cases state Âdate judgment entered: 3-8-10Â and Âdate
sentence imposed/to commence March 8, 2010.Â
Also in case numbers 07-10-0171-CR and 07-10-0172-CR a document entitled
Âwaiver of constitutional rights, agreement to stipulate, and judicial
confession indicates it was Âsworn and subscribed by appellant before a
deputy district clerk on Â3-8-10.ÂÂ
Appellant filed a notice of appeal in each case on April 6, 2010.Â
           Our
appellate jurisdiction is triggered through a timely notice of appeal. Olivo v. State, 918 S.W.2d 519, 522
(Tex.Crim.App.1996). In the
absence of a motion for new trial, Rule of Appellate Procedure 26.2(a)(1) requires a notice of appeal be filed within 30 days
after the day sentence is imposed in open court. Tex. R. App. P. 26.2(a)(1). The rules of appellate procedure provide for
an extension of time to file the notice of appeal if Âsuch notice is filed
within fifteen days after the last day allowed and within the same period a
motion is filed in the court of appeals reasonably explaining the need for such
extension. Tex. R. App. P. 26.3. Both the notice of appeal and the motion for
extension of time must be filed within the time provided by the rules. See
Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.
1998) (per curiam); Olivo, 918 S.W.2d at 522.Â
Here, the clerkÂs records do not
contain motions for new trial, nor did we receive a motion for additional time
to file a notice of appeal. It is
therefore evident that establishing the correct date sentence was imposed in
open court is essential to determining our jurisdiction.
           Each
case is therefore abated and remanded to the trial court. On proper notice, the trial court shall
convene an evidentiary hearing as soon as practicable to determine the
following:
(1)Â the correct date on which sentence
was imposed in each case; and
(2)Â if that date was other than March 3,
2010, why the reporterÂs record is incorrect.
Following the hearing, the trial
court shall prepare findings of fact and conclusions of law regarding all
matters it considered in conjunction with this order. The hearing shall be transcribed and included
in a supplemental reporterÂs record. The
trial courtÂs findings of fact and conclusions of law as well as any orders
made in compliance with this order shall be included in supplemental clerkÂs
records, for each case. The supplemental
reporterÂs record, and supplemental clerkÂs records prepared in each case,
shall be filed with the clerk of this court on or before April 4, 2011. Should additional time be needed to perform
these tasks, the trial court may request same on or before April 4, 2011.
It is so ordered.
Per Curiam
Do not
publish.
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of
Appeals, sitting by assignment. | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2909005/ | Brandy Lee Morris v. State
IN THE
TENTH COURT OF APPEALS
No. 10-01-302-CR
     BRANDY LEE MORRIS,
                                                                              Appellant
     v.
     THE STATE OF TEXAS,
                                                                              Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 1999-894-C
                                                                                                               Â
MEMORANDUM OPINION
                                                                                                               Â
      Brandy Morris pled guilty to aggravated sexual assault and was sentenced to twenty yearsâ
imprisonment. Morris was sentenced on June 15, 2000. As part of the plea agreement, Morris
waived his right to appeal. On July 6, 2001, Morris filed a letter with the District Clerk in which
he requested DNA testing under Chapter 64 of the Code of Criminal Procedure. The clerk
informed Morris that his request would have to be directed to the court in the form of a motion.
The record does not contain a motion regarding DNA testing. On September 21, 2001, Morris
filed a notice of appeal in which he asserts that his sentence was excessive, counsel misrepresented
his rights, and counsel failed to file any motions on his behalf. We dismiss this cause for want
of jurisdiction.
      According to the Rules of Appellate Procedure, a notice of appeal for a criminal case must
be filed:
(1) within 30 days after the day sentence is imposed or suspended in open court, or after the
day the trial court enters an appealable order . . . .
Tex. R. App. P. 26.2(a)(1). Morrisâ notice of appeal was filed over a year after sentence was
imposed.
      A notice of appeal which complies with the requirements of Rule 26 is essential to vest a court
of appeals with jurisdiction. Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.âWaco 2000, pet.
refâd) (citing Slaton v. State, 981 S.W.2d 208, 209 (Tex. Crim. App. 1998); Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996)). If an appeal is not timely perfected, a court of appeals
does not obtain jurisdiction to address the merits of the appeal and can take no action other than
to dismiss the appeal. Id. Thus, because Morrisâ notice of appeal was untimely according to Rule
26, we are without jurisdiction to consider the merits of his appeal. Id. The appeal is dismissed
for want of jurisdiction.
                                                                               PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Appeal dismissed
Opinion delivered and filed October 24, 2001
Do not publish
[CR25]
ry indicted Graham for felony theft) (a
person who knowingly provides false information to the grand jury or a law
enforcement official who has the discretion to decide whether to prosecute a
criminal violation cannot be said to have caused the prosecution if the
information was immaterial to the decision to prosecuteÂ). Here, the grand
juryÂs decision not to prosecute would have been no different without the
information that Broadway claims was false; thus, that information, false or
not, was immaterial to the decision that the grand jury made.
           Finally, Âto recover for malicious
prosecution when the decision to prosecute is within another's discretion, the
plaintiff has the burden of proving that that decision would not have been made
but for the false information supplied by the defendant. Id. at 78. The
memo described below, prepared at SimpsonÂs direction prior to the presentation
of the matter to the grand jury, dispels the idea that any false information
Tranum gave was material to SimpsonÂs decision to present the matter to the
grand jury.
There is no evidence that a criminal prosecution
was commenced and no basis for the finding that Tranum initiated or procured a
prosecution.
lack of probable cause
Â
           ÂCourts must be especially careful in
malicious prosecution cases to ensure that sufficient evidence supports each
element of liability.ÂÂ Kroger Texas Ltd. Partnership v. Suberu, 216
S.W.3d 788, 795 (Tex. 2006) (Suberu spent four hours in jail after arrest; jury
acquitted her of misdemeanor theft). However, an acquittal does not establish
the absence of probable cause. Id. at 794. Â[I]t is well settled that
a private citizen has no duty to investigate a suspect's alibi or explanation
before reporting a crime. Id. ÂIf the acts or omissions necessary to
constitute a crime reasonably appear to have been completed, a complainant's
failure to investigate does not negate probable cause. Id. Further,
any failure to fully disclose all relevant information to the District Attorney
is immaterial to the probable-cause inquiry. Richey v. Brookshire Grocery
Co., 952 S.W.2d 515, 519 (Tex. 1997).
Included in exhibit 14 is a memorandum from Bruce
Beals, a legal assistant to District Attorney Simpson, stating as a conclusion:
Based on the interview with Niemeier (the
accountant), a review of the report he provided, BroadwayÂs employment
contract, the statement provided by Ms. B. J. Shaw, and the applicable portions
of the Texas Penal Code, it is my conclusion that there is reason to believe
that David C. Broadway intentionally misrepresented the amount of annual net
profit of Tranum Ford-Mercury in order to obtain a yearly bonus, thereby
unlawful (sic) appropriating funds (property) from Tranum. These bonuses
totaled more than $20,000 but less than $100,000 during the period 1995 Â 2000.
Â
Beals recommended that an indictment be prepared,
naming Broadway as the defendant, that the case be presented to the grand jury,
and that Niemeier and Ms. Shaw be called as witnesses.
The opinion discusses ÂTranumÂs decision to
prosecute, but the decision to present the information to the grand jury was
SimpsonÂs, and according to BealsÂs memo, the decision was based on NiemeierÂs
interview and report, the employment contract, and Ms. ShawÂs statement. The
memo demonstrates conclusively that the District Attorney found that probable
cause existed to exercise his discretion to present the information to the
grand jury. If probable cause existed for presentation to the grand jury, then
probable cause existed for Tranum to ask Simpson to investigate BroadwayÂs
actions.
Â
Â
 EXEMPLARY
DAMAGES
           Finally, based on my view of the
malicious prosecution claim, I must disagree with the decision about the
exemplary damages award.
The jury found (1) $75,000 for reputation damages
and $500,000 for mental anguish damages for malicious prosecution, (2) $250,000
for mental anguish damages for slander, and (3) $750,000 for exemplary
damages. We all agree that the $500,000 is not recoverable but disagree about
the $75,000. Eliminating the reputation damages and mental anguish damages would
reduce the exemplary damages to $250,000 under Justice ReynaÂs analysis, with
which I agree.
SUMMARY
I would reform the trial courtÂs judgment to
delete the amounts awarded by the jury for compensatory damages for malicious
prosecution. I would therefore also reform the judgment to limit the award of
exemplary damages to $250,000.
I respectfully dissent from the judgment.
Â
Â
Â
Â
BILL VANCE
Justice
Â
Dissenting
opinion delivered and filed July 2, 2008
Â
[1] Chief Justice Gray does not join Justice ReynaÂs
opinion.
[2] I have not found a case in which the plaintiff
who asserted a malicious prosecution claim was never formally charged with a
crime. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2907534/ | Lyles v. State
NO. 10-90-076-CV
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
          VERNON P. LYLES,
                                                                                            Appellant
          v.
          THE STATE OF TEXAS,
                                                                                            Appellee
* * * * * * * * * * * * *
From County Court
Robertson County, Texas
Trial Court # 89-34C
* * * * * * * * * * * * *
O P I N I O N
* * * * * * *
          This is an appeal in a bail bond forfeiture case. Vernon Lyles was a surety on a $1,500
bond for Thomas Earl Marks, the principal, who was charged with a misdemeanor property
offense. Marks failed to appear in County Court on December 7, 1989, and judgment nisi was
entered. On December 16, Marks was re-arrested and placed in the Robertson County jail. On
February 7, 1990, final judgment was entered. Lyles filed a timely motion to vacate or modify
the judgment, alleging his right to a remittitur because Marks was in custody on February 7. The
ultimate issue is whether the court should have granted a remittitur of the bond. We will reverse
and remand with instructions.
          Appellant asserts in point one that the court erred in entering a final judgment prior to the
nine-month delay provision in article 22.16(c)(1) of the Code of Criminal Procedure. See Tex.
Code Crim. Proc. Ann. art. 22.16(c)(1) (Vernon 1989). Because State v. Matyastik recently
held that article 22.16(c)(1) is unconstitutional as a violation of the separation of powers provision
in the Texas Constitution, we overrule point one.
See State v. Matyastik, No. 632-90 (Tex. Crim.
App. May 8, 1991).
          Points three, four, five and six concern remittitur of the amount of the bond, pre-judgment
and post-judgment interest. Article 22.16(a)(1) provides:
(a) After forfeiture of a bond and before the expiration of the time limits set by
Subsection (c) of this article, the court shall, on written motion, remit to the surety
the amount of the bond after deducting the costs of court, any reasonable costs to
the county for the return of the principal, and the interest accrued on the bond
amount as provided by Subsection (e) of this article if:
(1) the principal is incarcerated in the county in which the prosecution is
pending; . . . .
Tex. Code Crim. Proc. Ann. art. 22.16(a)(1) (Vernon 1989) (emphasis added). In Matyastik,
the Court also held that the italicized portion of art. 22.16 (a), which utilizes the time limitations
of subsection (c) before entering final judgment, to be unconstitutional. See Matyastik, No. 632-90. The Court ruled that "remittitur now may be done anytime between forfeiture and entry of
a final judgment." Id., slip op. at 4. Here, the principal was returned to custody on December
16, 1989, before final judgment was entered February 7, 1990. The Court still had jurisdiction
over its judgment at the April 5 hearing on Lyles' motion to vacate or modify the judgment, and
upon being made aware that Marks had been in custody since December 16, was required to order
a remittitur in accordance with the mandatory provision of article 22.16(a). See Tex. Code Crim.
Proc. art. 22.16(a) (Vernon 1989).
          The legislature has considered the overcrowded condition of most jails and the state
penitentiary, and determined it to be the public policy to allow a remittitur of an appearance bond
when the principal is returned to custody prior to final judgment. In making its determination, the
legislature has recognized that jail and penitentiary space is critical in Texas and that the bail bond
industry provides a useful service by assuming the risk of a defendant's timely appearance in
court. When a defendant is released on a bail bond, the potential liabilities that cities and counties
assume while housing persons accused of crime are eliminated as well as the financial burden for
housing each prisoner. In addition, critical jail space is made available for more serious offenders.
          Here, we are presented with a principal who was charged with a misdemeanor property
offense, theft by check. The State is insisting upon payment of the entire penalty of the bond,
$1,500, in addition to pre-judgment and post-judgment interest and attorney feesâall when the
defendant was returned to custody only nine days after he failed to appear and long before final
judgment was entered. We find that the court should have vacated or modified its February 7,
1990, judgment and granted remittitur in accordance with art. 22.16(a). Id. We believe that this
is true even though Lyles presented his request for remittitur after final judgment because (1) his
response to the motion for summary judgment made such a request and (2) at the time final
judgment was entered he could have relied on the nine-month-delay provision of article 22.16(c)(1)
which was declared to be unconstitutional at a later date. We sustain points of error three, four,
five and six.
          In point two, Appellant complains that attorney fees are not authorized by law. We agree.
See Blue v. State, 170 Tex. Crim. 449, 341 S.W.2d 917 (1960); Pitts v. State, 736 S.W.2d 191
(Tex. App.âWaco 1987, no writ). The State contends that the bail bond should be decided under
the law of contracts and that attorney's fees are proper. In Bailout Bonding Co. the Court stated
that bond forfeiture cases are criminal in nature and that the rules of civil procedure apply, but not
the rules of substantive civil law. See Bailout Bonding Co. v. State, 797 S.W.2d 275, 277 (Tex.
App.âDallas 1990, pet. ref'd). Further, the Court held that a judgment on a bond is not in the
nature of a violation of contract. Id. Accordingly, we sustain point two.
          We reverse and remand with instructions that the court modify the judgment to remit the
bond to the surety after deduction of only those items authorized by article 22.16(a).
Â
                                                                                 BOBBY L. CUMMINGS
                                                                                 Justice
Before Chief Justice Thomas,
          Justice Cummings and
          Justice Vance
Reversed and remanded with instructions
Opinion delivered and filed June 13, 1991
Publish
o the minors.
However, the theory that Harris made
alcohol available to minors was alleged in the information. The information alleges all of the elements
of the offense of making alcohol available to minors and tracks the language of
the statute. As a general rule, an
indictment in the language of the statute creating and defining the charged
offense will be sufficient. Beck v. State, 682 S.W.2d 550, 554 (Tex.
Crim. App. 1985).
         HarrisÂs contention appears to be that
there is a variance between the offense as alleged in the information and the
proof at trial. Even if the inclusion of
the words Âby purchasing alcohol in the information created a variance, the
variance was not material. Whether a
variance is material is determined by examining whether the information (1)
sufficiently informs the defendant of the charge against her to allow her to
adequately prepare a defense, and (2) is sufficiently clear about what criminal
conduct it is referring to, such that the defendant could not be subjected to
prosecution for the same offense under a differently-worded information. Gollihar
v. State, 46 S.W.3d 243, 247 (Tex.
Crim. App. 2001). The charging
instrument sufficiently informed Harris of the charge against her and was clear
enough about the offense that she would not be subjected to double jeopardy by
a differently worded indictment about the same offense. Thus there is no material variance.
         Because of our resolution of HarrisÂs
first issue, HarrisÂs second issue fails.Â
The State was not required to prove that Harris purchased the alcohol to
obtain a conviction. The statute
provides more than one means by which a person can commit an offense. Â The charging instrument alleged that Harris,
with criminal negligence, made alcohol available to minors. Harris was convicted of that offense.
CONCLUSION
         Having overruled HarrisÂs issues, we
affirm the judgment.
        Â
BILL VANCE
Justice
Â
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed November
10, 2004
Do not publish
[CR25] | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2959431/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED MARCH 11, 2015
NO. 03-14-00653-CR
The State of Texas, Appellant
v.
Michael Yanez, Appellee
APPEAL FROM THE 147TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES GOODWIN AND FIELD
DISMISSED ON APPELLANT’S MOTION -- OPINION BY JUSTICE GOODWIN
This is an appeal from the order entered by the trial court. The State of Texas has filed a motion
to dismiss the appeal. The Court grants the motion, allows The State of Texas to withdraw its
notice of appeal, and dismisses the appeal. The appellant shall pay all costs relating to this
appeal, both in this Court and the court below. | 01-03-2023 | 09-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126417/ | 537 U.S. 1127
BUCHANANv.HALEY, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.
No. 02-7335.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 44 Fed. Appx. 945. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2961210/ | The findings and recommendations of a disciplinary hearing
panel, though persuasive, are not binding on this court. In re Discipline of
Stuhff, 108 Nev. 629, 633, 837 P.2d 853, 855 (1992). The automatic review
of a panel decision recommending a suspension is conducted de novo,
requiring the exercise of independent judgment by this court. Id.; see SCR
105(3)(b).
Based on our review of the record, the suspension
recommendation is insufficient in relation to Goldberg's admitted conduct.
Accordingly, we reject the conditional guilty plea agreement and remand
this matter to the Southern Nevada Disciplinary Board for further
proceedings.
It is so ORDERED.
Hardesty
Parraguirre
tfi
J.
Saitta
Gibbons
cc: Chair, Southern Nevada Disciplinary Board
Michael J. Warhola, LLC
Bar Counsel, State Bar of Nevada
SUPREME COURT
OF
NEVADA
2
AP 1 ,147A TER#D | 01-03-2023 | 09-21-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126433/ | 537 U.S. 1129
HILLv.BOWERSOX, SUPERINTENDENT, SOUTH CENTRAL CORRECTIONAL CENTER.
No. 02-7437.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
2
C. A. 8th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2959311/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED APRIL 21, 2015
NO. 03-15-00009-CV
Byron C. Wilder and Barbara A. Wilder, Appellants
v.
CitiCorp Trust Bank, F.S.B.; CitiBank, N.A.; and CitiMortgage, Inc., Appellees
APPEAL FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY
BEFORE JUSTICES PURYEAR, PEMBERTON, AND BOURLAND
DISMISSED FOR WANT OF PROSECUTION -- OPINION BY JUSTICE BOURLAND
This is an appeal from the judgment signed by the trial court on December 4, 2014. Having
reviewed the record, the Court holds that Byron C. Wilder and Barbara A. Wilder have not
prosecuted their appeal and did not comply with a notice from the Clerk of this Court.
Therefore, the Court dismisses the appeal for want of prosecution. The appellants shall pay all
costs relating to this appeal, both in this Court and the court below. | 01-03-2023 | 09-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3443300/ | Reversing.
This is the second appeal of this case. The opinion on the former appeal is reported in 222 Ky. 846, 2 S.W.2d 1042, where a full statement of the issues involved may be found. On the return of this case to the lower court, the appellee, Kelsey Taylor, filed an amended petition in the suit which he had brought against his father, W.B. Taylor, and others, to reform the deed which his father had made him to the property here in question. By this amended petition, Kelsey Taylor made his son, Jefferson Taylor, an infant under the age of 14 years, a party defendant. Service was had upon this infant defendant by a copy of the summons being delivered to a guardian ad litem appointed for the purpose of such service, as is authorized in certain cases by section 52 of the Civil Code of Practice.
It appears in the order appointing the guardian ad litem for the purpose of service that the infant defendant *Page 274
at that time resided with his father and mother. He had no statutory guardian. The sheriff's return on the summons discloses the same state of fact. The infant's mother was no party to the suit of Kelsey Taylor against his father. After the infant had been served in the fashion indicated, proof was taken, and on submission the court reformed the deed from Kelsey Taylor's father to Kelsey Taylor, as requested by the latter. Thereupon an amended petition was filed in this case, which in substance alleged that the appellee had perfected his title to the land in question, and that appellant should be compelled to pay the balance of the purchase price. Appellant filed an answer to this amended petition, in which he denied that appellee had perfected his title. Appellant made the entire record of the case of Kelsey Taylor against his father a part of this answer. On submission, the court held that appellee had perfected his title, and that appellant should pay the balance of the purchase price. From this judgment, this appeal is prosecuted.
Section 52 of the Civil Code of Practice reads:
"(1) If the defendant be under the age of fourteen years the summons must be served on his father, or, if he have no father, on his guardian; or, if he have no guardian, on his mother; or, if he have no mother, on the person having charge of him.
"(2) If any of the parties upon whom summons is directed to be served by section 52 of the Civil Code is a plaintiff, then it shall be served on the person who stands first in the order named in said section, and who is not a plaintiff; and if all such persons are plaintiffs, it shall, on the affidavit of one or more of them showing that fact, be the duty of the clerk of the court to appoint a guardian ad litem for the infant, and the summons shall be served on such guardian."
It will be noted that the provisions of the Code require the summons for an infant under 14 years of age to be served on the person who stands first in the order named and who is not a plaintiff. In the suit of Kelsey Taylor against his father, the wife of Kelsey Taylor and the mother of the infant defendant was no party. The infant defendant resided with her, as well as his father, Kelsey Taylor. Hence the summons should have been served upon the mother for the infant, and the service upon the guardian ad litem was not authorized. *Page 275
In Cain v. Hall, 211 Ky. 817, 278 S.W. 152, 153, in speaking of the service of summons on infant defendants, we said: "As they were then infants under 14 years of age, their father was dead, they had no guardian, and their mother was a defendant, the summons for them had to be served upon their mother, and the prior appointment of a guardian ad litem for them was not authorized by either section 38 or 52 of the Code or at all. Hence neither the appointment of the guardian ad litem nor the service of summons upon him for the infants was in any sense a compliance with section 52; and neither the service upon him nor his answer for them brought them before the court. Allsmiller v. Freutchenicht, 86 Ky. 198, 5 S.W. 746, 9 Ky. Law Rep. 509; Roy v. Allen's Adm'r (Ky.) 118 S.W. 981." See, also, Rachford v. Rachford, 224 Ky. 831, 7 S.W.2d 234; Moseley v. Mayton, 196 Ky. 827, 245 S.W. 872.
As the infant defendant was not before the court in the suit brought by Kelsey Taylor against his father, the judgment in that action was void as to such infant, and did not serve to perfect the title of Kelsey Taylor. Hence the court erred in this case in adjudging that Kelsey Taylor had perfected his title, and that appellant should be compelled to pay the balance of the purchase price.
The judgment is therefore reversed, for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1028636/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8265
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN ANTWANINE JOHNSON, a/k/a Fudd,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:98-cr-00283-LMB-l)
Submitted: April 23, 2009 Decided: May 1, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian Antwanine Johnson, Appellant Pro Se. Gordon D. Kromberg,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Antwanine Johnson appeals from the district
court’s order denying his motion for reduction of sentence, 18
U.S.C. § 3582(c) (2006). We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons
stated by the district court. United States v. Johnson, No.
1:98-cr-00283-LMB-1 (E.D. Va. Oct. 14, 2008). We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1386646/ | 20 Wash. App. 837 (1978)
582 P.2d 897
CLARENCE H. POWERS, ET AL, Appellants,
v.
ROBERT G. HASTINGS, ET AL, Respondents.
No. 5004-1.
The Court of Appeals of Washington, Division One.
July 31, 1978.
Angevine & Johnson and Earl F. Angevine, for appellants.
Miracle, Pruzan & Nelson and Howard P. Pruzan, for respondents.
DORE, J.
Plaintiffs brought an action for the breach of an oral lease and option to purchase real estate agreement *839 and obtained a verdict for damages. The trial court granted defendants' motion for judgment n.o.v. Plaintiffs appeal.
ISSUES
ISSUE 1: Whether the trial court erred in granting a judgment n.o.v. for defendants on the basis that enforcement of the oral lease and option to purchase agreement of the Hastings' farm was barred by the statute of frauds?
ISSUE 2: Whether the testimony of a defendant seller in open court as to the details of an oral lease with option to purchase constitutes sufficient "memoranda" or "writing" under the statute of frauds?
FACTS
Defendants were the owners of a farm in Skagit County which they desired to sell. They advertised in various publications and in early 1973 plaintiffs contacted defendants in response to an ad. Subsequently the parties orally agreed that plaintiffs could lease the farm for 3 years with an option to purchase. Plaintiffs made substantial improvements in the approximate amount of $14,250 in converting the property into a dairy farm.
In the fall of 1974 plaintiffs had difficulty making the agreed monthly payments and ceased paying altogether in October of 1974. Plaintiffs attempted to obtain financing to purchase the property but the parties disagreed over the existence of the option to purchase agreement and the terms of a possible sale. Defendants refused to give plaintiffs a written lease and as a result plaintiffs claim they were unable to obtain financing so they could exercise their option. Plaintiffs left the property the latter part of 1974 and defendants sold the farm in March 1975 to a third party. Plaintiffs then sued for damages based on breach of the oral lease and option agreement.
The defendants in the pleadings, and in their testimony in open court, admitted the existence of the oral lease agreement and option to purchase defendants' farm. Defendants' only defense was that the lease and option to *840 purchase agreement was oral and was not enforceable under the statute of frauds.
The trial judge, in granting defendants' motion for judgment n.o.v., found that there was an agreement and option to purchase the defendants' farm but that since such agreement was not in writing, it was not enforceable under the statute of frauds. The trial court further found there was no part performance to take the agreement outside the statute of frauds.
DECISION
[1] Our courts have often repeated the rule that a challenge to the sufficiency of the evidence or a judgment notwithstanding the verdict admits the truth of the opponent's evidence and all inferences that can be reasonably drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party in the light most favorable to the opponent. No element of discretion is involved. Such motions can be granted only where the court can say, as a matter of law, there is no substantial evidence to support the opponent's claim. Davis v. Early Constr. Co., 63 Wash. 2d 252, 386 P.2d 958 (1963).
With the above guideline in mind, let us examine the authorities to determine whether the parties' oral lease with an option to purchase the defendants' farm is barred by the statute of frauds.
In Sealock v. Hackley, 186 Md. 49, 52-53, 45 A.2d 744, 746 (1946), the statute of frauds was offered to prevent the enforcement of an oral contract to convey land and during trial defendant admitted in his testimony the existence of the contract, the parties and the consideration. The court held that the statute did not bar enforcement of the agreement and stated:
As stated in Trossbach v. Trossbach, 184 Md. 47, 42 A.2d 905, the admissions of a party in the form of testimony constitute sufficient "memoranda" or "writings" under the Statute of Frauds, for recorded testimony is regarded as equivalent to signed depositions. The purpose of the Statute of Frauds is to protect a party, not *841 from temptation to commit perjury, but from perjured evidence against him. Admissions of a party in testifying, while evidence in form, are in essence not mere evidence, but make evidence against him unnecessary.
On the same issue the Supreme Court of Pennsylvania stated:
The statute of frauds, however, does not absolutely invalidate an oral contract relating to land but is intended merely to guard against perjury on the part of one claiming under the alleged agreement. Accordingly, if the title holder admits, either in his pleadings or his testimony, that he did in fact enter into the contract, the purpose of the statute of frauds is served and the oral agreement will be enforced by the court: ... Here defendant, in his testimony, admitted the making of the agreement as claimed by plaintiff.
(Citations omitted.) Zlotziver v. Zlotziver, 355 Pa. 299, 302, 49 A.2d 779, 781 (1946). Other courts have likewise interpreted and recognized this rule: Peacock Realty Co. v. E. Thomas Crandall Farm, Inc., 108 R.I. 593, 278 A.2d 405 (1971) (court held the statute of frauds writing requirement for conveyances of land will not bar enforcement of a broker's claim for a commission on a land sale when defendant admits in testimony the existence and terms of the agreement). Adams v. Wilson, 264 Md. 1, 284 A.2d 434 (1971) (the court held the statute of frauds provision providing contracts not to be enforced in 1 year must be in writing is not a bar to enforcement of a contract where the party to be charged has admitted the contract in testimony). Wolf v. Crosby, 377 A.2d 22 (Del. Ch. 1977) (holding that the rule permitting an admission of an oral agreement and the simultaneous assertion of the statute of frauds as a bar to the enforcement of such an agreement should no longer be recognized). And Corbin has stated:
Let us proceed, therefore, with a general consideration of what constitutes a sufficient note or memorandum. We may well start with this one general doctrine: There are few, if any, specific and uniform requirements. The statute itself prescribes none; and a study of the existing thousands of cases does not justify us in asserting their *842 existence. Some note or memorandum having substantial probative value in establishing the contract must exist; but its sufficiency in attaining the purpose of the statute depends in each case upon the setting in which it is found. A memorandum that is sufficient in one case may well be held insufficient in another. A complete admission in court by the party to be charged should dispense with the necessity of any writing whatever.
(Italics ours.) 2 A. Corbin, Corbin on Contracts § 498, at 683 (1950).
In addition, the Uniform Commercial Code, RCW 62A.2-201(3)(b), recognizes that an oral contract for the sale of goods even though in excess of the $500 limit imposed, is enforceable if "the party against whom enforcement is sought admits in his pleadings, testimony or otherwise in court that a contract for sale was made ..." See Dehahn v. Innes, 356 A.2d 711 (Me. 1976) (holding that the salutary principle embodied in RCW 62A.2-201(3)(b) is applicable to a contract for the sale of goods alone but also should apply equally to the instant contract involving both goods and real estate).
[2] Obviously the purpose of the statute of frauds is to prevent a fraud, not to perpetuate one, and in this regard the courts of this state are empowered to disregard the statute when necessary to prevent a gross fraud from being practiced. Granquist v. McKean, 29 Wash. 2d 440, 187 P.2d 623 (1947). The legislative intent in enacting the statute was to prevent fraud resulting from the uncertainty inherent in oral contracts of this nature. Miller v. McCamish, 78 Wash. 2d 821, 479 P.2d 919 (1971).
[3] In examining the record in the subject case, we find that both parties agreed that the parties had entered into an oral lease with an option to purchase defendants' farm. However, we disagree with the trial court's conclusion that the statute of frauds would bar enforcement of the parties' agreement. Our decision is supported in the record, which reveals that defendants on six different occasions admitted the existence of the lease with option to purchase in writing or in testifying in open court. These occasions were:
*843 1. Defendants in their answer and amended answer admitted the existence of a lease with an option to purchase.
2. Defendant Robert G. Hastings filed an affidavit (Exhibit 32) which spells out with particularity every aspect of the lease and option to purchase. The pertinent parts of the affidavit provide:
STATE OF WASHINGTON |
> SS.
COUNTY OF SKAGIT |
ROBERT G. HASTINGS, being first duly sworn, on oath deposes and says as follows:
That I am one of the defendants named in the above entitled action. That I make this affidavit from my own personal knowledge in support of our motion for summary judgment.
I and Clarence H. Power entered into an oral agreement sometime in late April or May of 1973 wherein he would lease my farm beginning July 1, 1973 for a period of three years with an option to purchase exercisable by him at any time prior to July 1, 1976. Mr. Power was to pay One Thousand Dollars ($1,000) a month for the first twelve months of said agreement and thereafter was to pay Fifteen Hundred Dollars ($1,500) a month which was about what my payments were to the Federal Land Bank. If he exercised the option he would pay One Hundred Eighty-five Thousand Dollars ($185,000) with Twelve Thousand Five Hundred Dollars ($12,500) down with monthly payments of at least Thirteen Hundred Dollars ($1,300) or something close to that. In addition, he agreed to pay the taxes on the property and also pay the insurance premiums on the buildings effective July 1, 1973.
Powers was to have his attorney draw up the lease with option agreement which was never done. I offered to have it done by my attorney and there appears to be a discrepancy as to whose responsibility it was to draw up the lease but at any rate no lease was ever drafted or signed to my knowledge.
Powers paid the rent pursuant to our agreement. Powers actually moved onto the farm and occupied the house in about August, 1973.
*844 ...
Sometime in November, 1974 he came to me and said that if he had a lease he could have obtained money from the Farmers' Home Administration, or someone. Your affiant responded by saying, "Well, let's make up a lease," and Powers responded saying it's too late now ...
/s/ Robert G. Hastings
Robert G. Hastings
SUBSCRIBED AND SWORN TO before me this 10th day of February, 1976.
/s/ Muriel M. Jones
Notary Public in and for the
State of Washington, residing
at Sedro-Woolley
(Italics ours.)
3. In testifying at the trial, defendant Hastings in open court admitted the existence of the agreement with an option to purchase.
Q Thereafter, in April or May, '73, you entered into the agreement whereby he could lease it with option to purchase it, is that correct?
A Yes.
Q And the purchase price, there is no question, it was $185,000, is there?
A That's right.
Q And what was the down payment?
A Twenty thousand dollars.
4. At the trial plaintiffs' attorney, in referring to the defendant Hasting's deposition, queried him in open court:
Q And then I asked you: "What did that paper say?" And you said: "Just as I told you, he would pay $1,000 for 12 months, after that $1,500; he would pay taxes, insurance and the Land Bank after he took over", is that correct?
A Would you read that once more?
Q "Well, just what I told you. He would pay $1,000 for 12 months, after that $1,500. He would pay the insurance and taxes and the Land Bank after he took over."
A Yes.
Q Is that right?
*845 A Pretty much so, yes.
...
Q I see. Now, Mr. Hastings, there is no question in your mind that the down payment under your term option was to be $12,500, is that correct?
A No, that is not correct.
Q I don't mean $12,500, I mean $20,000?
A Oh, yes, yes.
Q That was the down payment?
A Yes.
(Italics ours.)
5. Plaintiffs' counsel introduced Hastings' affidavit, designated exhibit 32, into the court record:
Q I would like to hand you what has been marked Exhibit 32 and ask you to look at that and tell me if you've ever seen that before, you recognize that?
A No, I don't recognize it, but
Q Would you refer to the last page, please, Mr. Hastings and examine the signature?
A Yes.
Q Do you recognize that?
A It looks like my signature.
Q And this is entitled Affidavit, et cetera, and signed by you in front of a notary public on February 10th of this year.
Would you check the date on the last page, am I correct on that?
A That's right, yes.
From this colloquy the jury had before it evidence wherein the defendant admitted the existence of the lease and option to purchase his farm by Powers, by acknowledging the written affidavit.
6. The contents of the affidavit relating to the lease and option to purchase were again corroborated by Hastings later in the trial, as shown by the following questions and answers:
Q [By Mr. Angevine] Mr. Hastings, I asked you if it's not a fact that on February I had better have the original, February 10th of this year that you signed an affidavit in which you stated, "But if he exercised the option he would pay $185,000 with $12,500 down with *846 monthly payments on the rest at $1,500 or something close to that." Did you sign that affidavit, do you recall?
A It looks like my signature there, yes.
Q And do you know whether or not this was signed under oath?
A You know, I don't remember a darn thing about signing that at all but it does look like my signature.
Q It is your signature?
A It looks like it, yes.
The statute of frauds was enacted to prevent frauds. Here both parties specifically testified as to the existence of an oral lease with an option to purchase defendants' farm and also to its particulars. The feared uncertainty and potential for fraud, inherent in such oral agreements and which is the basis for the statute of frauds' bar against enforcement, are clearly removed by their testimony.
Therefore, we hold that to apply the statute of frauds to bar enforcement of the option agreement in the subject case would constitute a gross fraud.
We further hold that the testimony of defendant Hastings in open court as to the details of the oral lease with option to purchase constitutes sufficient "memoranda" or "writings" to satisfy the statute of frauds, for we view recorded court testimony as equivalent to signed depositions.
We hold that in the subject case the statute of frauds is not a bar to enforcement of the parties' oral lease and option to purchase agreement.
PART PERFORMANCE
Also, it is apparent that even absent the written and court admissions by the parties that an oral lease and option to purchase agreement existed, there was in the subject case substantial evidence before the jury of part performance. Part performance will support an action for damages. Miller v. McCamish, 78 Wash. 2d 821, 479 P.2d 919 (1971).
*847 Both parties, the seller and buyer, testified that plaintiff moved onto the property pursuant to the lease with an option to purchase agreement and that he converted the same into a dairy farm and made substantial improvements in the approximate amount of $14,250. That plaintiff made monthly payments of $1,000 per month initially and later $1,500 per month which were far in excess of a reasonable monthly rental value for the farm.
[4] This testimony, if believed by the jury, would satisfy the three requirements set forth as guidelines in Richardson v. Taylor Land & Livestock Co., 25 Wash. 2d 518, 529, 171 P.2d 703, 710 (1946), which require that the acts of part performance be sufficient to remove the oral agreement from the statute of frauds and must point unequivocally to the agreement sought to be enforced. The principle elements or circumstances involved in determining whether there has been sufficient part performance to unequivocally point to the contract are (1) delivery and assumption of actual and exclusive possession of the land, (2) payment or tender of the consideration, whether in money or property or services, and (3) the making of permanent, substantial and valuable improvements, referable to the contract.
Richardson states at page 529:
We can therefore assert with confidence that no positive rule has been, or can be, formulated for the government or decision of all cases indiscriminately, but that the determination of each case must depend upon the particular facts and circumstances involved therein. Mobley v. Harkins, 14 Wn. (2d) 276, 128 P. (2d) 289, 143 A.L.R. 88. However, the theory upon which all courts act in such cases is that it would be intolerable in equity for an owner of land knowingly to permit another to invest his time, labor, and money in that land upon the faith of a contract which did not exist.
We find that the lease with an option to purchase in the subject case is but a single agreement and cannot be divided. We further find that the monthly payments, the taking of possession, and the making of permanent and substantial improvements point unmistakably to the lease *848 which, necessarily, includes the option to purchase the Hastings farm.
INSTRUCTION NO. 7
Defendants assign error to the court's giving of instruction No. 7 and argued that "the instruction totally fails to explain to the jury the very difficult but absolutely essential distinction that must be made in this case between the part performance of the oral lease and the part performance of an option to purchase."
The record shows defendants objected to the court's instruction No. 7 as follows:
BY MR. TWEDE: My only exception would be on the basis that the instruction doesn't go far enough.
BY THE COURT: I am going to read "Doing the following act."
BY MR. TWEDE: All right.
BY THE COURT: And you may except to that in that respect.
...
BY MR. TWEDE: My further exception to 7 is there is no requirement that there be some benefit going to the term of the proposed oral lease and also alternate possession benefit other than to the tenant.
It is clear that defendants objected to the court's instruction No. 7, but gave a different reason for his objection than he now sets forth in his brief. In addition, defendants failed to submit an alternate instruction No. 7.
[5] Failure to object to an instruction with sufficient specificity deprives the trial court of a particular deficiency and precludes consideration of that deficiency on appeal. Haugen v. Minnesota Mining & Mfg. Co., 15 Wash. App. 379, 550 P.2d 71 (1976).
As stated in Harris v. Burnett, 12 Wash. App. 833, 843, 532 P.2d 1165 (1975), citing Heitfeld v. Benevolent & Protective Order of Keglers, 36 Wash. 2d 685, 320 P.2d 655, 18 A.L.R. 2d 983 (1950):
When an instruction to be given by the trial court is a correct statement of the law but is objected to as too broad or as insufficiently specific under the evidence, the *849 objecting party must propose a proper instruction on the subject. Reversible error is not present unless the preferable instruction has been submitted and has been refused.
Defendants are precluded from raising an objection to instruction No. 7, on a theory which was not presented to the trial court for its consideration. Such new theory shall not be considered by this court. Commercial Credit Corp. v. Wollgast, 11 Wash. App. 117, 126, 521 P.2d 1191 (1974).
Reversed and remanded.
ANDERSEN, A.C.J., and CALLOW, J., concur.
Reconsideration denied November 16, 1978.
Review granted by Supreme Court March 2, 1979. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2905481/ | Filed 9/9/15 P. v. Zamudio CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A143925
v.
SOCORRO REYES ZAMUDIO, (Sonoma County
Super. Ct. No. SCR579487)
Defendant and Appellant.
ORDER DENYING PETITION FOR
REHEARING AND MODIFYING
OPINION
[NO CHANGE IN JUDGMENT]
BY THE COURT:
The opinion filed on August 25, 2015, is modified by deleting the final paragraph
of section II.A. (paragraph nine). The opinion also is modified by adding the following
sentence after the end of the eighth paragraph of section II.A.: “The forms and Board
certifications provide sufficient evidence and a rational basis for upholding the trial
court’s restitution order for mental-health expenses.”
These modifications do not change the appellate judgment. (Cal. Rules of Court,
rule 8.264(c)(2).)
Appellant’s petition for rehearing is denied.
Dated:________________ ________________________________P.J.
Humes, P.J.
1
Filed 8/25/15 P. v. Zamudio CA1/1 (unmodified version)
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,
A143925
v.
SOCORRO REYES ZAMUDIO, (Sonoma County
Super. Ct. No. SCR579487)
Defendant and Appellant.
Defendant Socorro Reyes Zamudio pleaded no contest to two counts related to
having unlawful sexual intercourse with a woman incapable of giving legal consent. He
appeals from the trial court’s order requiring him to pay $5,763.21 in victim restitution to
the Victim Compensation and Government Claims Board (Board) for medical and
mental-health expenses. He argues that the restitution order is supported by insufficient
evidence. We disagree and affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In March 2010, Zamudio was a guest at a friend’s house where a 55-year-old
developmentally disabled woman (Jane Doe) lived.1 One night Zamudio entered Doe’s
bedroom, lay down next to her, and told her to remove her disposable undergarment.
Zamudio then touched Doe and had sex with her, covering her mouth when she tried to
1
In the absence of a trial or completed preliminary hearing, this factual and procedural
background is taken from the presentence report prepared by the probation department.
1
call for help. Doe’s mother called the police upon discovering Zamudio in Doe’s
bedroom hiding under the bed.
Zamudio was charged with one count of sexual intercourse with an individual
incapable of giving legal consent (Pen. Code § 261, subd. (a)(1)),2 and one count of
unlawful sexual intercourse by force (§ 261, subd. (a)(2)). He pleaded no contest to the
charges and was sentenced to serve six years in state prison on each count, with
imposition of the sentence as to count two stayed under section 654. As part of his no
contest plea, Zamudio signed a waiver advising him that he could be subject to a
mandatory restitution fine between $200 and $10,000. The trial court ordered Zamudio to
pay a $2,400 restitution fine and victim restitution in an amount to be determined by the
Board under section 1202.4.
At the initial restitution hearing in November 2014, Zamudio referred to a prior
agreement with a judge regarding restitution, and the hearing was continued to December
2014. At the subsequent hearing, Board records were entered into evidence, including
copies of redacted health insurance claim forms submitted to and paid by the Board on
behalf of Doe and her mother. The Board sought reimbursement from Zamudio for these
payments. The only evidence Zamudio offered during the hearing was Doe’s physical-
evidence-examination report, which the trial court found was not relevant to restitution.
After the Board records and the physical-evidence-examination report were moved into
evidence, Zamudio submitted. The only other issues Zamudio raised related to his
release date and credit calculations.
The trial court ordered Zamudio to pay $5,763.21 in victim restitution to the
Board: $1,713.21 in medical expenses plus $4,050 in mental-health expenses. Zamudio
did not object to either the restitution amount or to the sufficiency of evidence supporting
the order during the hearing.
2
All further statutory references are to the Penal Code unless otherwise indicated.
2
II.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion by Ordering $4,050 in
Restitution for Mental-health Expenses.
Zamudio challenges only the $4,050 in restitution ordered for Doe and her
mother’s mental-health expenses. He argues that the evidence supporting the award for
mental-health expenses was insufficient under section 1202.4, subdivision (f)(4)(B). We
are not persuaded.
The California Constitution provides victims with the right to restitution from
criminal defendants. (Cal. Const., art. I, § 28, subd. (b)(13); People v. Smith (2011)
198 Cal. App. 4th 415, 431.) Section 1202.4 was enacted to implement the constitutional
provision. (Smith, at p. 431.) Section 1202.4, subdivision (f)(4)(A), provides, “If, as a
result of the defendant’s conduct, the Restitution Fund has provided assistance to or on
behalf of a victim . . . the amount of assistance provided shall be presumed to be a direct
result of the defendant’s criminal conduct and shall be included in the amount of
restitution ordered.” The term “victim” includes a parent of the victim who “sustained
economic loss as the result of a crime.” (§ 1202.4, subd. (k)(3)(A).)
When a victim receives assistance from the Restitution Fund, the amount of
assistance provided is “established by copies of bills submitted to the California Victim
Compensation and Government Claims Board reflecting the amount paid by the board
and whether the services for which payment was made were for medical or dental
expenses . . . [or] mental health counseling.” (§ 1202.4, subd. (f)(4)(B).) “Certified
copies of these bills provided by the board and redacted to protect the privacy and safety
of the victim or any legal privilege, together with a statement made under penalty of
perjury by the custodian of records that those bills were submitted to and were paid by
the board, shall be sufficient to meet this requirement.” (Ibid.) Although the statute
provides an example of what is sufficient to meet the evidentiary requirement,
“[s]ection 1202.4 does not, by its terms, require any particular kind of proof.” (People v.
Gemelli (2008) 161 Cal. App. 4th 1539, 1543.) The defendant also has a right to a
3
restitution hearing before a judge to dispute the determination of the restitution amount.
(§ 1202.4, subd. (f)(1).)
The standard of proof at a restitution hearing is by a preponderance of the
evidence. (People v. Gemelli, supra, 161 Cal.App.4th at p. 1542.) Restitution orders are
reviewed for abuse of discretion. (People v. Akins (2005) 128 Cal. App. 4th 1376, 1382.)
“In determining the amount of restitution, all that is required is that the trial court ‘use a
rational method which could reasonably be said to make the victim whole, and may not
make an order which is arbitrary or capricious.’ [Citations.] The order must be affirmed
if there is a factual and rational basis for that amount.” (Ibid.) “ ‘In reviewing the
sufficiency of the evidence [to support a factual finding], the “ ‘power of the appellate
court begins and ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted’ to support the trial court’s findings.”
(People v. Millard (2009) 175 Cal. App. 4th 7, 26.) A restitution order will be reversed
“only if the appellant demonstrates a clear abuse of discretion.” (Akins, at p. 1382.)
Zamudio does not challenge the presumption that any mental-health services, if
provided, were a direct result of his crimes. Nor does he argue that the restitution order
constitutes an “ ‘unauthorized sentence’ ” to which the waiver doctrine does not apply.
(Cf. People v. Scott (1994) 9 Cal. 4th 331, 354.) Instead, he argues that the Board records
submitted in support of the restitution award did not meet the evidentiary requirements of
section 1202.4, subdivision (f)(4)(B), because the insurance claim forms did not specify
the nature of services provided. We disagree.
During the restitution hearing, redacted copies of the health insurance claim forms
were moved into evidence along with two certifications by the Board’s custodian of
records made under penalty of perjury. The forms included the patient’s name, date of
service, cost of service, and a numerical code for the type of service provided. The forms
redacted certain information including the patient’s date of birth, the diagnosis, and the
physician’s name and contact information. The Board certifications summarized the bills
paid by the organization on behalf of Doe and her mother, separating the expenses into
$4,050 in mental-health bills and $1,713.21 in medical bills. The certifications also
4
stated that “the attached bills may have been redacted to protect the privacy and safety of
the victims or may have been redacted consistent with any legal privilege.”
The forms and accompanying Board certifications satisfy the evidentiary
requirement under section 1202.4, subdivision (f)(4)(B). In reaching this conclusion, we
are guided by People v. Cain (2000) 82 Cal. App. 4th 81, 87, which held that a restitution
hearing was not fundamentally unfair because evidence of the Board’s statement of
claims was hearsay and improperly considered. “The Board is one of the agencies within
California state government. [Citation.] Judging by its contents, the statement was made
as part of the Board’s official business. Such a document is inherently reliable.” (Id. at
p. 88, italics added.) Here, as in Cain, a statement by the Board that it paid $4,050 in
mental-health bills on behalf of Doe and her mother is “inherently reliable.” (Ibid.) The
Board’s certification, along with the insurance claim forms, provide sufficient evidence
under section 1202.4, subdivision (f)(4)(B) to support the trial court’s restitution order.
Although the claim forms redacted the patient’s diagnosis, the redaction comports with
the protections afforded victims against the disclosure of their confidential medical and
counseling communications under the California Victim’s Bill of Rights Act of 2008.
(Cal. Const., art. I, § 28, subd. (b)(4).)
At a restitution hearing, once the People have “ ‘ “made a prima facie showing of
[the victim’s] loss, the burden shifts to the defendant to demonstrate that the amount of
the loss is other than that claimed by the victim.” ’ ” (People v. Sy (2014)
223 Cal. App. 4th 44, 63.) Zamudio did not satisfy this burden because he failed to
challenge the restitution amount or the evidence supporting the order and he failed to
offer contrary evidence during the hearing.
If Zamudio felt that the redacted forms and certifications were insufficient, he
could have requested the court to release additional information under section 1202.4,
subdivision (f)(4)(C). A defendant is entitled to the release of the Board’s records if “the
defendant offers evidence to rebut the presumption that the amount of assistance provided
to the victim was a direct result of the defendant’s conduct” and “the trial court
determines after an in camera review of the records that the records are relevant to the
5
dispute.” (People v. Lockwood (2013) 214 Cal. App. 4th 91, 100.) Zamudio neither
offered relevant evidence nor asked the court to release additional information.
Accordingly, the forms and Board certifications provide sufficient evidence and a rational
basis for upholding the trial court’s restitution order for mental-health expenses.
III.
DISPOSITION
The restitution order is affirmed.
_________________________
Humes, P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
6 | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3452245/ | Affirming.
A demurrer of the appellee, the Louisville Railway Company, to the petition as amended of the appellant, Jannie Tinnell, against it and R.M. Sanders, was sustained and the plaintiff suffered a dismissal thereof as against the railway company. The substance of the material portions of the petition is that a street car of the defendant company was stopped between street intersections, at a place which was not a regular stop; that the gates were opened and the passengers, of which she was one, were allowed to alight; and that as she did so the defendant Sanders struck and injured her with his automobile, for which injuries she asked damages in the sum of $20,312. All of those things were charged to have been done through negligence and carelessness. It was particularly charged that Sanders' negligence was concurred in by the railway company.
The demurrer admitted the facts pleaded, but not the conclusions of the pleader. The correctness of the trial court's action must, therefore, depend upon the statements of fact contained in the petition measured by the standard of the high degree of care which a carrier owes to its passengers.
The appellant relies upon Louisville Railway Co. v. Rice,199 Ky. 196, 250 S.W. 863, 864. In that case the plaintiff was riding outside on the rear end of a street car which suddenly stopped between street intersections and was struck by an automobile closely following which did not stop in time to avoid a collision with him. A judgment against the railway company was reversed for a peremptory instruction in its favor, but in the course of the opinion it was observed that:
"The railway company had no control over him [the driver of the automobile], and to hold it liable for his negligent acts, unless it in some way concurred therein, would be to constitute it an insurer of its passengers and a guardian for the public."
The possibility of such concurring negligence was suggested in the following language: *Page 247
"If the machine was following the car at such a rate of speed and in such close proximity thereto as to make it dangerous or unsafe to appellee to stop the car on the west side of the intersection, and the conductor knew or had notice of his exposed position on the car, and also saw or had notice of the approach of the machine, unquestionably it would have been negligence to have stopped the car at that place."
We do not have any facts pleaded here to bring the case within the suggestion. The case must be ruled by Louisville Railway Co. v. Saxton, 221 Ky. 427, 298 S.W. 1105, in which the facts were on all fours with those presented here. It was there held that the sole question was whether in the exercise of a reasonable judgment the company's employees could have foreseen that the driver of the automobile would violate the law and attempt to pass a standing car and collide with passengers alighting from it. Concluding that the anticipation of such negligent act on the part of the driver of the automobile was not chargeable to the carrier, it was held that a peremptory instruction for it should have been given.
Under the authority of these two cases and the reasons given therein, the demurrer was properly sustained and the judgment is, therefore, affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2959502/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00683-CR
NO. 03-14-00684-CR
NO. 03-14-00685-CR
NO. 03-14-00686-CR
NO. 03-14-00687-CR
Ex parte Tammy Marie Ybarra
FROM THE COUNTY COURT AT LAW OF CALDWELL COUNTY
NOS. 42741, 42930, 43238, 43890, 44176
HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Tammy Marie Ybarra appeals from the trial court’s order denying her
petition for writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.09 (requiring person confined
for misdemeanor to file habeas petition in county court where offense committed); Ex parte
Gonzales, 12 S.W.3d 913, 914 (Tex. App.—Austin 2000, pet. ref’d) (concluding that appellate
court has jurisdiction to consider appeal from denial of habeas petition if trial court reached
merits of claim), superseded by statute on other grounds as recognized in Ex parte Villanueva,
252 S.W.3d 391, 396–97 (Tex. Crim. App. 2008). Ybarra complains that she completed her 300-day
jail sentence on October 27, 2014, and that her continued confinement to “lay out” her fines is
unlawful. See Tex. Code Crim. Proc. art. 43.09(a) (authorizing trial court to confine convicted
defendant who is unable to pay fines in county jail for sufficient period to discharge fines at rate of
$50 per day if other methods of discharging fine are insufficient).
After Ybarra filed this appeal, we received information from the trial court indicating
that she has been released from jail. The State has now confirmed, in a motion to dismiss, that
Ybarra was released from jail on December 23, 2014. We therefore dismiss Ybarra’s appeal
as moot.
_______________________________________
Scott K. Field, Justice
Before Chief Justice Rose, Justices Goodwin and Field
Dismissed as Moot
Filed: February 13, 2015
2 | 01-03-2023 | 09-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2896761/ | NO. 07-07-0335-CR
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IN THE COURT OF APPEALS
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FOR THE SEVENTH DISTRICT OF TEXAS
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AT AMARILLO
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PANEL D
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AUGUST 27, 2008
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______________________________
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TRINNY MARROQUIN, APPELLANT
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V.
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THE STATE OF TEXAS, APPELLEE
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_________________________________
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FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
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NO. A16884-0607; HONORABLE ED SELF, JUDGE
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_______________________________
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Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
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MEMORANDUM OPINION
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           Appellant, Trinny Marroquin, was convicted by a jury of possession of cocaine,
enhanced, and sentenced to nine years confinement. He contends the trial court erred by
failing to give jury instructions, pursuant to article 38.23(a) of the Texas Code of Criminal
Procedure, regarding the following issues: (1) whether he was intoxicated and a danger to
himself and others at the time of his initial arrest; and (2) whether he was in a public place at
the time of his initial arrest. We affirm.
Background
           At the trial of this cause, the State presented five witnesses. Officers Sophia Jaramillo,
Eric Wiley, and Paul Renfro testified to the circumstances surrounding Appellantâs arrest and
subsequent discovery of a suspicious substance. The remaining two witnesses testified as
to the chain-of-custody and chemical analysis of that substance. Appellant did not testify, nor
did he present any other witnesses.
            Officer Jaramillo of the City of Plainview Police Department testified that at
approximately 4:00 a.m., on March 26, 2006, she responded to a disturbance call. After
interviewing the complainant, she began patrolling the area in an attempt to locate the suspect
who had fled on foot. During that patrol, she entered an alley and observed a group of
persons, including Appellant, in the alley and a female urinating behind a residence. When
she approached the group, she determined that the individuals were intoxicated because she
detected an odor of alcohol on their breath, slurred speech, and glassy eyes. Upon
questioning, Jaramillo learned that none of the members of the group resided at the
residence. Â
           Jaramillo observed that although the weather that morning was cool enough to require
a jacket, Appellant wore only a t-shirt. Jaramillo believed he was intoxicated and that he was
a danger to himself because he was not appropriately dressed for the weather. In her
estimation, he had access to an automobile, was in no condition to drive, and, if allowed to
leave, would have been a danger to himself or others. Jaramillo then transported Appellant
to the Hale County Jail on a charge of public intoxication.
           On cross-examination, Jaramillo testified that she could not recall having a face-to-face
conversation with Appellant, nor could she specifically remember whether his eyes were
bloodshot and glassy, or his speech slurred. Officer Wiley testified that he served as back-up
to Jaramillo. He testified that he observed Appellant in the alley, his speech was slurred, eyes
a little red, and his hair was messed up. He further testified Appellant lacked the normal use
of his physical faculties, leaned up against a house for balance, and lost his balance while
standing. He believed Appellant was intoxicated and, if not arrested, was a danger to himself
and others.
            Sergeant Renfro testified that at the jail Appellant repeatedly asked him whether he
could use the restroom. Prior to permitting him to use the restroom, Renfro patted him down
and found a white, powdery substance in a bag in Appellantâs back pocket. Subsequent
chemical analysis of that substance revealed it to contain cocaine. Referring to Appellantâs
booking photo, Renfro described him as leaning to one side, his eyes closed, his tongue
partially protruding from his mouth, and hair disheveled.
           At the trial courtâs jury charge conference, Appellant sought a jury instruction pursuant
to article 38.23 of the Texas Code of Criminal Procedure
requesting a jury determination
whether Jaramillo had probable cause to arrest Appellant for public intoxication and whether
her warrantless arrest complied with article 14.03 of the Code of Criminal Procedure.
In
support of the requested jury instruction, Appellant contended that the testimony of âthe
officers [was] somewhat conflicted and vague and insufficient regarding the issue of the
legality or lawfulness of the arrest.â The trial court overruled Appellantâs requested instruction.
           Appellant contends he was entitled to an article 38.23 jury instruction to permit the jury
to decide whether the cocaine discovered during his booking on public intoxication was
lawfully obtained because the evidence at trial suggested that, at the time of his arrest, he
was neither intoxicated to the point at which he was a danger to himself or others, nor was he
in a public place.
Discussion
           To trigger an exclusionary rule instruction under article 38.23(a) three conditions must
exist: (1) the evidence heard by the jury must raise a fact issue; (2) the evidence on that fact
issue must be affirmatively contested; and (3) the contested factual issue must be material
to the lawfulness of the challenged conduct in obtaining the evidence. Oursbourn v. State,
No. PD 1687-06, 2008 WL 2261744, at *10 (Tex.Crim.App. June 4, 2008); Madden v. State,
242 S.W.3d 504 (Tex.Crim.App. 2007).
           âA fact issue about whether evidence was legally obtained may be raised âfrom any
source, and the evidenced may be strong, weak, contradicted, unimpeachable, or
unbelievable.ââ Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004) (quoting Wilkerson v.
State, 933 S.W.3d 276, 280 (Tex.App.âHouston [1st Dist.] 1996, pet. refâd)). It should be noted,
however, that an article 38.23 instruction must be included in the jury charge only if there is a
factual issue as to how the evidence was obtained. Id. A disagreement with the trial courtâs
conclusion that probable cause was shown as a matter of law is not the same as appellant
controverting the facts. Id. at 86. Here, Appellantâs argument is that his arrest and the
subsequent seizure of the cocaine were unlawful because Officer Jaramillo did not have
probable cause to arrest him for public intoxication. That is a legal issue not a factual one.
Because no factual dispute exists concerning the circumstances of Appellantâs arrest and the
seizure of the cocaine, the trial court did not err in refusing to instruct the jury under article
38.23(a).
           Furthermore, in order to be âaffirmatively contestedâ the factual dispute must be raised
by affirmative evidence, not merely cross-examination questions or argument. Oursbourn,
2008 WL 2261744 at 10, n. 68.; Madden, 242 S.W.3d at 513 nn. 22-23. Appellant presented
no evidence contesting a factual issue. True, Jaramilloâs testimony on cross-examination
indicated that she could no longer specifically recall Appellantâs physical condition that night, nor
could she say she personally observed him in the alley. Nevertheless, Wileyâs testimony was
unequivocal that he personally observed Appellant prior to his arrest and found his speech
slurred, eyes a little red, hair messed up, and his motor abilities lacking. Jaramilloâs uncertainty
on cross-examination does not raise a fact issue related to whether probable cause existed for
Appellantâs arrest. See Skatell v. State, 688 S.W.2d 248, 251-52 (Tex.App.âFort Worth 1985,
no pet.).
This is particularly so because no other controverting evidence was produced. See
Rose v. State, 470 S.W.2d 198, 200 (Tex.Crim.App. 1971); Skattel, 688 S.W.2d at 251.
           Finally, even if we were to assume that a factual issue was âaffirmatively contested,â the
only contested evidence Appellant points to is evidence which is not material to the lawfulness
of the challenged conduct in obtaining the evidence. Testimony that Appellant was close to
home, in a âjovialâ mood, and/or did not resist arrest does not contradict the facts underlying the
officersâ testimony at trial. There was no testimony at trial to support Appellantâs assertions on
appeal that the cold morning air did not cause him discomfort, his disheveled appearance may
have been caused by a lack of sleep, or that he was not a threat to himself or others because
he intended to walk home. Neither was there any testimony to contradict Jaramilloâs testimony
that Appellant was intoxicated and in a group in a public place. The absence of evidence does
not raise a fact issue.
            Accordingly, Appellantâs issues are overruled.Conclusion
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           The trial courtâs judgment is affirmed.
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                                                                                  Patrick A. Pirtle
                                                                                         Justice
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NO. 07-10-00230-CR
Â
IN THE COURT OF APPEALS
Â
FOR THE
SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL D
Â
AUGUST
10, 2010
Â
Â
DAVID EUGENE HAMILTON, APPELLANT
Â
v.
Â
THE STATE OF TEXAS, APPELLEE
Â
Â
FROM THE 46TH DISTRICT COURT OF WILBARGER
COUNTY;
Â
NO. 11,394; HONORABLE DAN MIKE BIRD, JUDGE
Â
Â
Before QUINN,
C.J., and CAMPBELL and PIRTLE, JJ.
Â
Â
MEMORANDUM OPINION
Â
Appellant, David Eugene Hamilton,
filed a notice of appeal challenging his conviction and sentence. On June 28, 2010, we abated and remanded the
case to allow the filing of a new certification of appellantÂs right to
appeal. Tex. R. App.
P. 25.2(d). On August 2,
appellant filed, rather than a new certification, a motion to dismiss the
appeal. The motion is signed by
appellant and his counsel. Tex. R. App. P. 42.2(a).Â
We have delivered no decision on the merits of appellantÂs case. We reinstate the case, dissolve the
abatement, and grant appellantÂs motion to dismiss. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained
and our mandate will issue forthwith.
Â
Â
James T. Campbell
         Justice
Â
Â
Do not
publish.
Â
          Â
 | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048551/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1463
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Tommie Whetzell, *
*
Appellant. *
___________
Submitted: November 20, 2009
Filed: February 10, 2010
___________
Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
___________
MELLOY, Circuit Judge.
Appellant Tommie Whetzell pleaded guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1), and to making a false statement to acquire a
firearm, 18 U.S.C. § 922(a)(6). At sentencing, the district court1 calculated
Appellant's base offense level to be twenty, finding that he had previously been
convicted of housebreaking in a military court martial proceeding, and that such a
crime qualifies as a "crime of violence" under U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(4)(A) (2007). After taking into account a three-level reduction for
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
acceptance of responsibility, U.S.S.G. § 3E1.1(a) and (b), and a four-level
enhancement based on the number of firearms involved, U.S.S.G. § 2K2.1(b)(1)(B),
the district court sentenced Appellant to forty-one months' imprisonment on each
count, to be served concurrently. Appellant argues that the district court erred in
applying § 2K2.1(a)(4)(A) because the court improperly referenced the underlying
facts in Appellant's conviction, as stated by the military appellate court, in violation
of the objective, categorical approach that the Supreme Court set out in Taylor v.
United States, 495 U.S. 575, 602 (1990). Upon de novo review, United States v.
LeGrand, 468 F.3d 1077, 1081 (8th Cir. 2006), we affirm the district court.
The guidelines provide for a base offense level of twenty upon a district court's
finding that the defendant previously committed a "crime of violence." U.S.S.G.
§ 2K2.1(a)(4)(A). Appellant's prior crime, the crime of housebreaking, occurs when
"[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters
the building or structure of another with intent to commit a criminal offense therein
. . . ." 10 U.S.C. § 930. Housebreaking is a generic burglary crime because it includes
the elements of "unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime." Taylor, 495 U.S. at 599. We have held that
generic burglary, as defined in Taylor, is a crime of violence within the meaning of
the guidelines. E.g., United States v. Stymiest, 581 F.3d 759, 769 (8th Cir. 2009);
LeGrand, 468 F.3d at 1082. Therefore, Appellant's conviction for housebreaking
constitutes a prior crime of violence.
Appellant's primary argument against this conclusion is that the district court
improperly referenced the military court's discussion of the underlying facts of his
conviction. Generally, a court is only to consider "the fact of conviction and the
statutory definition of the prior offense." Taylor, 495 U.S. at 602. But the district
court's reference in this case to the underlying facts of Appellant's housebreaking
conviction, as articulated in the military court's opinion, does not change the fact that
the elements of housebreaking constitute a generic burglary crime, a crime of violence
-2-
under our precedents. Further, and contrary to Appellant's argument, the Supreme
Court's opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our
decisions in regard to generic burglary and does not provide reason for reversal. See
Stymiest, 581 F.3d at 768–69.
Accordingly, we affirm the judgment of the district court.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048554/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1440
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Julian Allmon, *
*
Appellant. *
___________
Submitted: December 18, 2009
Filed: February 10, 2010
___________
Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Appellant Julian Allmon entered into a plea agreement under which he agreed
to testify for the Government. After testifying at his uncle's trial, pursuant to his plea
agreement, the Government called Appellant to testify in a subsequent trial against his
cousins. Appellant refused, citing the Fifth Amendment privilege against self-
incrimination. The district court1 found that Appellant had no Fifth Amendment
privilege and found him guilty of contempt. Following the guidelines' instructions in
regard to contempt, see U.S. Sentencing Guidelines Manual § 2J1.1 (2009), the district
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
court applied § 2J1.2 (Obstruction of Justice) as an analogous guideline under § 2X5.1
(Other Offenses) and sentenced Appellant to thirty-three months' imprisonment. On
appeal, we address the validity of Appellant's conviction in light of his claim for Fifth
Amendment privilege and whether the district court erred in selecting § 2J1.2 as the
applicable guideline rather than § 2J1.5 (Failure to Appear by a Material Witness).
For the following reasons, we affirm.
I.
In November 2004, a grand jury indicted Appellant's uncle, Derek Allmon
("Derek"), for drug distribution, a firearms offense, and attempting to murder a federal
witness. Subsequently, Turna Grigsby, another Government witness, was the victim
of attempted murder. In August 2005, a grand jury indicted Appellant on charges of
conspiracy to distribute five or more kilograms of cocaine, conspiracy to murder a
government witness, and attempted murder of a government witness. The latter two
of these charges concerned the attempted murder of Grigsby. In March 2006,
Appellant entered into a plea agreement in which he agreed to plead guilty to the
distribution charges and the Government agreed to dismiss the murder charges. The
plea agreement also contained a provision under which Appellant agreed to cooperate
with the Government, and, in exchange, the Government agreed to move for a
downward departure if it found Appellant's cooperation truthful and substantial.
Pursuant to the plea agreement, the Government called Appellant as a witness
at Derek's trial, where Appellant testified that he received and distributed cocaine
through Derek. In addition, Appellant testified that, at Derek's direction, Garrick
Allmon ("Garrick"), Anthony Harris, and Brandon Reed carried out the attempted
murder of Grigsby. Garrick is Appellant's brother; Harris and Reed are his cousins.
At the conclusion of the trial, the jury found Derek guilty on all counts.
After Derek's conviction, a grand jury indicted Harris and Reed for conspiring
to kill Grigsby. At Harris and Reed's trial, the Government called Appellant to testify
-2-
pursuant to his plea agreement, expecting that he would testify in a manner consistent
with his testimony at Derek's trial. Prior to taking the stand, however, Appellant's
attorney stated that Appellant would claim his Fifth Amendment privilege. The
grounds, according to Appellant's attorney, were that Appellant could face state
prosecution and might, out of fear of reprisal, deviate from his previous testimony,
subjecting himself to perjury charges. The district court found that Appellant had no
Fifth Amendment privilege and ordered Appellant to take the stand. When Appellant
took the stand, the Government asked Appellant, "I understand that you do not want
to testify against [your cousins]; is that correct?" Appellant responded, "Yes." The
district court again ordered Appellant to testify. Despite the court's order, Appellant
continued in his refusal. The district court cited Appellant for contempt of court.
Appellant then indicated that he was willing to answer questions from his cousins'
defense attorneys, but not from the Government. After the district court informed
Appellant that this was not an option, Appellant stated that he would not testify at all.
At the conclusion of the trial, Harris and Reed were acquitted of all charges.
Subsequently, the Government filed a notice of contempt of court pursuant to
18 U.S.C. § 401. The district court issued Appellant a notice and order to show cause
why he should not be held in contempt of court for his failure to comply with the
court's order. Appellant then filed a motion to dismiss, arguing that he had a valid
Fifth Amendment privilege, thus eliminating the "willfulness" element of contempt.
The district court rejected Appellant's argument, finding that the grounds on which
Appellant's Fifth Amendment claim rested were insufficient to permit his refusal to
testify. Following denial of the motion to dismiss, Appellant waived his right to a jury
trial and agreed to submit the matter to the district court. The district court found
appellant guilty beyond a reasonable doubt of criminal contempt.
Because there is no sentencing guideline for contempt convictions, see U.S.S.G.
§ 2J1.1, the guidelines instruct district courts to apply the most analogous offense
guideline, see U.S.S.G. § 2X5.1. The district court applied § 2J1.2, which has a base
-3-
offense level of fourteen. The court then increased the offense level by three, finding,
under § 2J1.2(b)(2), that Appellant’s conduct resulted in a “substantial interference
with the administration of justice” because, had Appellant testified at the Harris and
Reed trial, there was “a reasonable possibility and maybe a probability that the jury
would have convicted the defendants.” However, the district court also reduced his
offense level by three, under § 3E1.1, for Appellant’s acceptance of responsibility,
resulting in a total offense level of fourteen. When factoring in Appellant’s criminal
history category of IV, the advisory range was twenty-seven to thirty-three months.
The district court sentenced Appellant to thirty-three months. On appeal, Appellant
argues that, because he had a valid Fifth Amendment privilege, there is insufficient
evidence to support a conviction for contempt. He also argues that the district court
erred in selecting § 2J1.2 as an analogous guideline, rather than § 2J1.5.
II.
A court's determination of whether a witness has a valid claim for exercising
the Fifth Amendment privilege against self-incrimination is highly fact-intensive.
Accordingly, we review a district court's decision not to permit a witness to invoke his
Fifth Amendment privilege for abuse of discretion. See United States v. Washington,
318 F.3d 845, 856 (8th Cir. 2003). Appellant contends that the district court abused
its discretion in finding that he had no Fifth Amendment right, and therefore had
insufficient evidence with which to find him guilty of contempt because his contempt
was not willful. We disagree.
A valid assertion of the Fifth Amendment privilege is a defense to a contempt
charge because it negates the willfulness requirement. See United States v. Quam,
367 F.3d 1006, 1008 (8th Cir. 2004). But the rights under the Fifth Amendment are
not self-executing. It is a well-established rule that the Fifth Amendment privilege
against self-incrimination must be asserted in a timely fashion by the person seeking
its protection. Roberts v. United States, 445 U.S. 552, 559 (1980); Island v. United
States, 946 F.2d 1335, 1339 (8th Cir. 1991). The claimant must make some positive
-4-
disclosure showing that the danger of self-incrimination is "real and appreciable, not
remote and speculative." Ueckert v. Comm'r, 721 F.2d 248, 250 (8th Cir. 1983).
Accordingly, we must look to the grounds on which Appellant asserted his Fifth
Amendment privilege.
At trial, Appellant cited three justifications for refusing to testify. First, he
asserted that his testimony could subject him to state prosecution. Second, he
suggested that he might not be truthful in his testimony due to a fear of reprisal from
other prison inmates, thereby subjecting him to perjury charges. Third, when
Appellant took the stand, he simply stated that he did not want to testify against his
cousins. There is no question that the third justification does not provide valid
grounds on which to assert the Fifth Amendment privilege. See Rogers v. United
States, 340 U.S. 367, 371 (1951) ("[R]efusal to answer cannot be justified by a desire
to protect others from punishment."). Accordingly, we focus on Appellant's first two
justifications.
As to Appellant's first justification, it is established that the threat of future
prosecution of a witness arising from that witness's testimony is precisely the harm
that the Fifth Amendment is designed to protect. See United States v. Gianakos, 415
F.3d 912, 919 (8th Cir. 2005). However, Appellant failed to meet his burden of
demonstrating the presence of that danger in this case. The testimony that the
Government sought to elicit in the Harris and Reed trial was precisely the same as that
which Appellant had already given at Derek's trial. Testifying consistently with his
prior testimony would not expose Appellant to any further jeopardy beyond that which
existed by virtue of prior testimony. We recognize that there is ample precedent for
the rule that waiver of the Fifth Amendment privilege in one proceeding does not
waive that privilege in a subsequent proceeding, often because circumstances have
changed between the two proceedings. See, e.g., United States v. Burch, 490 F.2d
1300, 1303 (8th Cir. 1974); United States v. Licavoli, 604 F.2d 613, 623 (9th Cir.
1979); United States v. Cain, 544 F.2d 1113, 1117 (1st Cir. 1976); In re Neff, 206
-5-
F.2d 149, 152 (3d Cir. 1953). Accordingly, our decision should not be read to hold
that Appellant waived his Fifth Amendment privilege by testifying at Derek's trial.
He did not. To the extent that Appellant asserted some new ground for apprehension,
he could perhaps maintain a claim for Fifth Amendment privilege. But Appellant
made no such argument in this case; he merely asserted a blanket refusal to testify.2
Without this showing, we cannot find that the district court abused its discretion in
refusing to permit Appellant to assert his Fifth Amendment privilege.
The district court characterized Appellant's second justification as simply a
Fifth Amendment claim based on fear of reprisal. This is an invalid basis for asserting
the Fifth Amendment privilege. See In re Long Visitor, 523 F.2d 443, 448 (8th Cir.
1975) ("[I]t is well established that fear of reprisal cannot excuse a witness from
testifying."). Appellant, however, argued to the district court that the basis for
asserting the privilege was not reprisal, but the fear of a perjury prosecution arising
out of his fear of testifying truthfully at the second trial. While it is somewhat
difficult to determine what exactly Appellant claimed at trial to be the basis of his
Fifth Amendment claim, we agree with Appellant that the question is more complex
than whether fear of reprisal, by itself, is a valid ground for asserting that privilege.
At trial, the following exchange took place:
MR. HENDRIX: I think the threat is if Julian were to testify today and
he says anything materially different than what he said in the Derek
Allmon trial, there's a realistic threat of perjury prosecution, so I think he
has a valid Fifth Amendment Claim.
THE COURT: Don't I have to assume that since he was under oath he
testified truthfully in the first trial, in the Derek Allmon trial?
2
To the extent Appellant argues that Harris and Reed's attorneys would try to
incriminate him on cross-examination, Appellant's willingness to answer questions
from the defense but not the Government contradicts this claim.
-6-
MR. HENDRIX: I think that would probably be fair.
THE COURT: If I make that assumption, don't I have to assume that he
will be under oath and will testify truthfully at this trial?
MR. HENDRIX: In light of what just happened, I'm not sure we can
make that assumption.
THE COURT: What do you mean just happened?
MR. HENDRIX: By what happened yesterday in him telling me, "I'm
afraid now to testify," that there may be ramifications to this, so that may
change. . . . I think the Fifth Amendment claim is if his testimony changes
out of his fear, then he likely faces a perjury prosecution.
Thus, Appellant's argument appears to be that at Derek's trial, he testified
truthfully, but at Harris and Reed's trial, where the Government sought to elicit the
same testimony, Appellant was afraid of the potential repercussions of a repeat-
performance and thus was unlikely to tell the truth. By electing to lie, and deviate
from the testimony he gave at Derek's trial, Appellant's argument is that he could have
been subject to perjury charges arising from the second proceeding, and could
therefore avail himself to the Fifth Amendment privilege.
Appellant's claim is somewhat unusual. When dealing with the intersection
between the Fifth Amendment and perjury, we have stated that the Fifth Amendment's
protection against self-incrimination does not confer upon a witness the right to
commit perjury. See, e.g., Quam, 367 F.3d at 1008. However, we have also stated
that a witness may invoke the Fifth Amendment privilege and refuse to testify in a
later proceeding if truthful testimony in that later proceeding will reveal perjury that
occurred in a past proceeding. See In re Grand Jury Subpoena, 739 F.2d 1354, 1360
(8th Cir. 1984). We have not, however, directly addressed the issue in this case:
Whether a witness can assert the Fifth Amendment privilege when his fear of perjury
arises out of his current refusal to testify truthfully and thus risk committing perjury
-7-
at the present proceeding. We hold that the Fifth Amendment does not confer such
a right.
While we have not directly addressed the issue, case law indicates that the Fifth
Amendment confers no right upon a witness to avoid testifying simply because he
refuses, for one reason or another, to do so truthfully. See, e.g., Zicarelli v. N.J. State
Comm'n of Investigation, 406 U.S. 472, 480 (1972) ("When considering whether a
claim of the privilege should be sustained, the court focuses inquiry on what a truthful
answer might disclose . . . .") (emphasis added); Grand Jury Subpoena, 739 F.2d at
1360 ("[I]f upon questioning by the grand jury a truthful response would be
inconsistent with [the witness's] trial testimony, . . . [the witness] would have the right
to invoke his Fifth Amendment privilege against self-incrimination.") (emphasis
added); Evans v. City of Chicago, 513 F.3d 735, 743 (7th Cir. 2008) ("'To be
privileged by the Fifth Amendment to refuse to answer a question, the answer one
would give if one did answer it (and answer it truthfully) must have some tendency
to subject the person being asked the question to criminal liability.'") (citation omitted,
emphasis added). Further, those courts that have directly addressed the issue have
held that the Fifth Amendment is concerned with perjury arising from past testimony,
not present testimony. See, e.g., United States v. Vavages, 151 F.3d 1185, 1192 n.3
(9th Cir. 1998) ("Fear of a perjury prosecution can typically form a valid basis for
invoking the Fifth Amendment only where the risk of prosecution is for perjury in the
witness' past testimony."); United States v. Partin, 552 F.2d 621, 632 (5th Cir. 1977)
(same). That, however, was not the argument that Appellant made to the district court.
Thus, the district court did not abuse its discretion in finding that Appellant had no
Fifth Amendment privilege and therefore willfully engaged in criminal contempt by
disobeying the court's order.
-8-
III.
Appellant next argues that the district court erred in its sentencing
determination. The sentencing guideline for contempt, § 2J1.1, does not provide a
base offense level. Rather, it references § 2X5.1, which instructs the district court to
apply the most analogous guideline. Appellant argues that the district court erred in
selecting as the analogous guideline § 2J1.2 (Obstruction of Justice), rather than
§ 2J1.5 (Failure to Appear by a Material Witness). "[W]e review de novo the court's
determination of whether there is a sufficiently analogous guideline, and, where there
are several analogous guidelines, we give due deference to the court's fact-bound
selection of the most analogous guideline." United States v. Ferrara, 334 F.3d 774,
777 (8th Cir. 2003). There is no question here that an analogous guideline exists, so
we confine our analysis to whether the district court erred in its selection.
"The Sentencing Commission did not provide a specific guideline because
'misconduct constituting contempt varies significantly' and is 'highly context-
dependent.'" Id. (quoting U.S.S.G. § 2J1.1 cmt. app. n. 1). It is apparent, however,
that the Commission envisioned—in at least some cases—that § 2J1.2 would be an
analogous guideline. See U.S.S.G. § 2J1.1 cmt. app. n. 1. ("In certain cases, the
offense conduct will be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for
that guideline to apply."). Our Court has not yet addressed the issue at hand.
However, the courts that have addressed the issue have found application of § 2J1.2
appropriate in contempt cases where a witness's refusal to testify was motivated by a
desire to impede prosecution or protect coconspirators, rather than an "abstract desire"
not to testify. See, e.g., United States v. Myers, 302 F. App'x 201, 205–06 (4th Cir.
2008) (unpublished per curiam) (finding no error in district court's application of §
2J1.2 where the defendant "failed to appear in an attempt to impede" investigation)
(emphasis added); United States v. Brennan, 395 F.3d 59, 74 (2d Cir. 2005) (noting
that all of the guidelines' examples of obstruction of justice "describe conduct that
actually and directly seeks to hinder or corrupt a judicial proceeding.") (emphasis
-9-
added); United States v. Alwan, 279 F.3d 431, 440–41 (7th Cir. 2002) (same); United
States v. Brady, 168 F.3d 574, 579 (1st Cir. 1999) (same); cf. United States v. Ortiz,
84 F.3d 977, 982 (7th Cir. 1996) (finding that § 2J1.2 is inappropriate where "there
is nothing to truly indicate that [the witness's] refusal to testify was designed to assist
[the defendant] in escaping punishment."); United States v. Underwood, 880 F.2d 612,
620 (1st Cir. 1989) (finding that § 2J1.5 was not applicable because the defendant "did
not intend to 'obstruct justice'").
The cases and the guidelines demonstrate the fact-intensive nature of selecting
an analogous guideline in contempt cases. Here, the facts support the district court's
determination. The court determined, and the record reveals, that Appellant's reason
for refusing to testify arose, in part, out of his desire not to testify against his cousins.
In other words, he sought to hinder their prosecution. This is clear from Appellant's
response to the Government's question in regard to why Appellant sought Fifth
Amendment protection. Further, Appellant told the district court that he would
respond to questioning from defense counsel, but not from the Government. This is
another indication of Appellant's motives, demonstrating his desire to avoid answering
questions that would potentially incriminate his cousins.
Appellant cites a number of cases in support of his position. But his reliance
on these cases is misplaced, as they stand for no more than that the selection of an
analogous guideline in contempt cases is a fact-bound determination with an often
debatable outcome. In Underwood, the first case on which Appellant relies, the First
Circuit found that § 2J1.5, rather than § 2J1.2, was analogous in a contempt case
because the district court found that the defendant "asserted his Fifth Amendment
claim in good faith . . . [he] did not intend to 'obstruct justice;' he simply intended not
to testify." 880 F.2d at 620. But, as we have stated, there is evidence here of
Appellant's intent to obstruct. Further, the First Circuit has read Underwood narrowly,
declaring that it was a unique case and "reiterat[ing] that the question of which
-10-
[guideline] is the most appropriate analogy depends on the facts of the case." United
States v. Marquardo, 149 F.3d 36, 45 (1st Cir. 1998).
Appellant's reliance on United States v. Cefalu, 85 F.3d 964 (2d Cir. 1996), and
United States v. Herre, 731 F. Supp. 1051 (S.D. Fla. 1990), is equally unpersuasive.
In Cefalu, the court found only that there was no precedent requiring application of
§ 2J1.2 in contempt cases. 85 F.3d at 968. Citing the fact-intensive nature of the
inquiry and the deference due to the district court, the Second Circuit found no error
had occurred when the district court applied a guideline other than § 2J1.2 in a
contempt case. Id. Likewise, the district court in Herre noted only that § 2J1.2 is not
mandatory in contempt cases and found that where there was no evidence of a design
to interfere, § 2J1.2 is not appropriate. 731 F. Supp. at 1052. As stated above, the
record indicates such evidence existed in the case at hand. Thus, while these cases
may demonstrate that the question as to what guideline should apply is fact-sensitive
and often debatable, a debatable issue is not enough to overcome the deference due
to the district court. Accordingly, we find that the district court did not err in applying
§ 2J1.2 as the analogous guideline under § 2X5.1.
IV.
For the foregoing reasons, we affirm the district court.
______________________________
-11- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048558/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3071
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Eduardo Perez-Carrillo, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 25, 2010
Filed: February 10, 2010
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Eduardo Perez-Carrillo (Perez) pled guilty to possessing child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). The district court1 sentenced him to 120
months in prison and supervised release for life. In this appeal of Perez’s conviction
and sentence, counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable. In a pro
se supplemental brief, Perez argues (1) the indictment was defective; (2) the district
court lacked jurisdiction because section 2252A(a)(5)(B) exceeded Congress’s
1
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
Commerce Clause authority, and there was no evidence the images traveled across
state lines; (3) his due process rights and Federal Rule of Criminal Procedure 32 were
violated by the court’s failure to verify that Perez and counsel had read and discussed
the presentence report (PSR), and he was prejudiced because he could have raised
defenses to culpability for individual images; (4) he is actually innocent of the charges
and his right to a jury trial was waived without his consent; and (5) counsel was
ineffective on appeal.
Counsel’s and Perez’s arguments fail, and we reject them seriatim: (1) the
district court did not abuse its discretion in imposing the 120-month prison sentence,
see Gall v. United States, 552 U.S. 38, 51 (2007); (2) the indictment sufficiently
charged the offense, see United States v. Jenkins-Watts, 574 F.3d 950, 968 (8th Cir.
2009) (describing when the indictment is challenged for the first time after the verdict
is returned, an appellate court upholds the indictment unless the indictment is so
defective that by no reasonable construction can it be said to charge an offense of
which defendant was convicted); (3) section 2252A(a)(5)(b) does not exceed
Congress’s Commerce Clause power, see United States v. Bausch, 140 F.3d 739, 741
(8th Cir. 1998) (deciding 18 U.S.C. § 2252(a)(4)(B), which criminalizes possession
of 3 or more visual depictions of minors engaged in sexual activity, is not beyond
Congress’s commerce power, because it contains an express jurisdictional element
requiring transport in interstate and foreign commerce of visual depictions or materials
used to produce depictions), and there was sufficient evidence the images traveled
through interstate commerce, United States v. Rayl, 270 F.3d 709, 715 (8th Cir. 2001)
(concluding evidence that child pornography images traveled through computer
servers located outside defendant’s state to get to his computer was sufficient to show
that images were transported through interstate commerce); (4) Perez cannot show
plain error resulting from the court’s Rule 32 error, as the prejudice he alleges resulted
from his counsel’s failure, not the court’s error, see United States v. Prado, 204 F.3d
843, 845 (8th Cir. 2000) (stating a failure to verify the defendant and attorney had
read and discussed the PSR is waived and harmless where the defendant did not
-2-
request additional time to review the PSR and did not describe how he was
prejudiced); (5) Perez clearly waived his right to trial in his plea agreement, and he
has always maintained that he knowingly possessed child pornography on his
computer, disputing only the number of videos of which he was aware and who was
responsible for downloading the videos, see Rayl, 270 F.3d at 714 (explaining, one
violates § 2252A(a)(5)(B) by knowingly possessing materials that contain child
pornography and were transported in interstate commerce by any means); and (6)
Perez cannot demonstrate the requisite prejudice from counsel’s alleged deficiencies
on appeal, see United States v. Davis, 508 F.3d 461, 463-64 (8th Cir. 2007) (holding
the defendant did not establish prejudice where counsel tendered an Anders brief,
because an appellate court reviews the record and will order full briefing of any
nonfrivolous issues).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues. We grant counsel’s motion to
withdraw, and we affirm the district court’s judgment.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048571/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SPRINT PCS ASSETS, L.L.C., a
Delaware limited liability
company, wholly-owned by Sprint
Telephony PCS, LP, a Delaware
limited partnership,
Plaintiff-Appellee,
v. No. 05-56106
CITY OF PALOS VERDES ESTATES, a D.C. No.
California municipality; CITY CV-03-00825-AHS
COUNCIL OF THE CITY OF PALOS Central District
VERDES ESTATES, its governing of California,
body; JOSEPH SHERWOOD, in his Santa Ana
official capacity as Mayor Pro
Tem of the City of Palos Verdes ORDER
REQUESTING
Estates; JOHN FLOOD, in his official
THAT THE
capacity as Councilmember of the
SUPREME COURT
City of Palos Verdes Estates;
OF CALIFORNIA
ROSEMARY HUMPHREY, in her
DECIDE A
official capacity as
QUESTION OF
Councilmember of the City of
CALIFORNIA
Palos Verdes Estates; DWIGHT
LAW
ABBOTT, in his official capacity as
Councilmember of the City of
Palos Verdes Estates; JAMES F.
GOODHART, in his official capacity
as Councilmember of the City of
Palos Verdes Estates,
Defendants-Appellants.
Filed May 8, 2007
5179
5180 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
Before: Barry G. Silverman, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.
ORDER
We respectfully request that the Supreme Court of Califor-
nia decide the question set forth in Part III of this order. Sub-
mission of this appeal is deferred, and all further proceedings
are stayed pending receipt of the Supreme Court of Califor-
nia’s decision. The panel retains jurisdiction over further pro-
ceedings in this court. The parties will notify the Clerk of this
court within one week after the Supreme Court of California
accepts or declines this request, and again within one week
after that court renders its decision.
I.
Pursuant to Rule 8.548 of the California Rules of Court, a
panel of the United States Court of Appeals for the Ninth Cir-
cuit, before which this appeal is pending, requests that the
Supreme Court of California decide whether California Public
Utilities Code §§ 7901 and 7901.1 permit public entities to
regulate the placement of telephone equipment in public
rights of way on aesthetic grounds. The decisions of the
Supreme Court of California and the California Courts of
Appeal provide no answer, and a similar question is currently
pending before the Supreme Court of California in Sprint
Telephony PCS v. County of San Diego, Case No. S145541.
We understand that the Supreme Court of California may
reformulate our question, and we agree to accept and follow
the court’s decision.
SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5181
II.
The caption of this case is:
SPRINT PCS ASSETS, L.L.C., a
Delaware limited liability
company, wholly-owned by Sprint
Telephony PCS, LP, a Delaware
limited partnership,
Plaintiff-Appellee,
v.
CITY OF PALOS VERDES ESTATES, a
California municipality; CITY
COUNCIL OF THE CITY OF PALOS
VERDES ESTATES, its governing No. 05-56106
body; JOSEPH SHERWOOD, in his
official capacity as Mayor Pro D.C. No.
Tem of the City of Palos Verdes CV-03-00825-AHS
Central District
Estates; JOHN FLOOD, in his official
capacity as Councilmember of the of California,
City of Palos Verdes Estates; Santa Ana
ROSEMARY HUMPHREY, in her
official capacity as
Councilmember of the City of
Palos Verdes Estates; DWIGHT
ABBOTT, in his official capacity as
Councilmember of the City of
Palos Verdes Estates; JAMES F.
GOODHART, in his official capacity
as Councilmember of the City of
Palos Verdes Estates,
Defendants-Appellants.
5182 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
Counsel for the parties are as follows:
For Plaintiff-Appellee:
John J. Flynn
Gregory W. Sanders
Nossaman, Guthner, Knox & Elliot, LLP
18101 Von Karman Avenue, Suite 1800
Irvine, California 92612
(949) 833-7800
For Defendants-Appellants:
Scott J. Grossberg
Richard R. Clouse
Amy von Kelsche-Berk
Cihigoyenetche, Grossberg & Clouse
8038 Haven Avenue, Suite E
Rancho Cucamonga, California 91730
(909) 483-1850
Daniel P. Barer
Pollak, Vida & Fisher
1800 Century Park East, Suite 400
Los Angeles, California 90067
(310) 551-3400
If the Supreme Court of California accepts this request,
Appellants should be deemed the petitioners.
III.
The question for which we seek an answer is:
Do California Public Utilities Code §§ 7901 and
7901.1 permit public entities to regulate the place-
ment of telephone equipment in public rights of way
on aesthetic grounds?
SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5183
This appeal involves the Telecommunications Act of 1996,
47 U.S.C. § 332(c)(7)(B)(iii), which requires this court to per-
form substantial evidence review of Appellants’ application
of the City of Palos Verdes Estates’ wireless ordinance. The
answer to the foregoing question of law is necessary for this
court to conduct that review, because the validity of the wire-
less ordinance under California law is a threshold question.
IV.
The relevant facts are as follows:
The City of Rancho Palos Verdes (“the City”) enacted
Chapter 18.55 of the Palos Verdes Municipal Code pursuant
to the federal Telecommunications Act of 1996, 47 U.S.C.
§ 332(c)(7), which preserves “the authority of . . . State or
local government . . . decisions regarding the placement, con-
struction, and modification of personal wireless service facili-
ties.” Chapter 18.55 sets forth permit standards and
requirements for the installation of personal wireless facilities.
In applying this chapter of the Municipal Code, the City con-
siders the aesthetic impact of any proposed wireless facility.
In 2002, Sprint PCS Assets, L.L.C. (“Sprint”) submitted
applications to construct two wireless facilities in public
rights of way in the City. Both of those applications were
denied. After its appeals to the City’s Planning Commission
and the City Counsel were denied, Sprint challenged the deci-
sion by bringing suit in the Central District of California.
Sprint’s complaint alleged, inter alia, that the City violated 47
U.S.C. § 332(c)(7)(B)(iii), which provides that: “Any decision
by a State or local government or instrumentality thereof to
deny a request to place, construct, or modify personal wireless
service facilities shall be in writing and supported by substan-
tial evidence contained in a written record.” The district court
reviewed the City’s decision and granted summary judgment
in favor of Sprint, holding that the City’s “denials of Sprint’s
permit applications were not supported by substantial evi-
5184 SPRINT PCS v. CITY OF PALOS VERDES ESTATES
dence. Aesthetic grounds do not qualify under California law
and California Public Utilities Code sections 7901 and 7901.1
preempt Chapter 18.55 of the City’s ordinances.”
V.
We respectfully submit that the question we pose is worthy
of decision because it arises frequently in Telecommunica-
tions Act cases, its decision may be dispositive in this case,
it is not answered by any opinions of the Supreme Court of
California or the California Courts of Appeal, and it is cur-
rently pending in another case before the Supreme Court of
California.
In an unpublished, non-precedential, memorandum disposi-
tion, our court held that California Public Utilities Code
§§ 7901 and 7901.1 preempted the City of La Cañada Flin-
tridge from denying a permit for wireless service facilities
based on aesthetics. Sprint PCS Assets, L.L.C. v. City of La
Cañada Flintridge, No. 05-55014, 182 Fed. Appx. 688 (9th
Cir. 2006) (mem.). In reaching that conclusion, our court
examined the legislative history of those code sections, and
analyzed the language of the statute, but did not rely on any
opinions of the Supreme Court of California or the California
Courts of Appeal.
The California Court of Appeal also addressed this issue in
Sprint Telephony PCS v. County of San Diego, Case No.
D045957, and disagreed with the conclusion reached by our
court in City of La Cañada Flintridge. However, that court’s
decision was depublished when the Supreme Court of Califor-
nia granted a petition for review on September 13, 2006.
We respectfully request that the Supreme Court of Califor-
nia accept and decide this question.
VI.
The Clerk shall file this order and ten copies, along with all
briefs in this appeal with the Supreme Court of California;
SPRINT PCS v. CITY OF PALOS VERDES ESTATES 5185
provide certificates of service to the parties; and provide addi-
tional record materials if so requested by the Supreme Court
of California. See Cal. R. Ct. 8.548(c) and (d).
IT IS SO ORDERED.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3816623/ | This was a civil action brought in district court of Creek county, Okla., by Francis Hope, plaintiff in error, against Helen S. Haddock, Fred T. Haddock, Marie H. Dierks, Margaret Starr Galer, and Thomas L. Boone, defendants. The parties will be referred to as they appeared in trial court.
Plaintiff's petition was, in substance, as follows: That she is a Creek freedman enrolled as such opposite Creek freedman roll No. 58; that there was allotted to her as her proportionate share of the lands of the Creek Nation lots 3 and 4 in northwest quarter, and south half of northwest quarter of section 2, township 15 north, range 10 east, and containing 162.92 acres, more or less; that at the time of said allotment, plaintiff was a minor, and that Thomas L. Boone was appointed her guardian by county court of McIntosh county Okla., and continued to act as such until her majority; that during her minority her said guardian applied for and secured permission from county court of said county to sell an undivided one-half interest in and to her said allotted lands, and that thereafter her guardian sold such interest to Fred T. Haddock, one of defendants, and that Helen S. Haddock, Marie H. Dierks, and Margaret Starr Galer appear now to be record owners of undivided interests *Page 110
in said allotment and assert title adverse to the right and title of plaintiff, and that such claims constitute clouds upon plaintiff's title.
Plaintiff's sole claim in this suit is that the guardianship sale of the undivided interest by the county court was and is void for that said county court was without jurisdiction to make an order of sale of an undivided interest in plaintiff's allotment; that said sale was prejudicial to her interests because the defendants have become tenants in common with plaintiff.
Plaintiff further alleges that the consideration paid to plaintiff for such interest has long since been spent, and that she is unable to restore same to purchaser. She demands that she be decreed to be the owner in fee simple of all said land, and that the said sale of one-half interest be set aside.
Thomas L. Boone filed a disclaimer. The other defendants filed answer consisting of a general denial, except that they admit that Fred T. Haddock purchased a one-half interest in the lands described in the petition, and admit that defendants Helen S. Haddock, Marie H. Dierks, and Margaret Starr Galer are record owners of undivided interests in and to said lands. The answer asks that title of defendants be quieted. The cause was tried to the court without a jury. The following is the substance of the testimony:
Plaintiff, as a witness for herself, testified: That she attained her majority March 16, 1923; that Thomas L. Boone was appointed her guardian by the county court of McIntosh county, the county of her residence; that she first learned of the sale of an interest in her land after she became of age, and that she had no funds with which to reimburse purchaser; that she was unable to pay the taxes on the land and later sold an undivided one-half interest to a Mr. Hays.
Fred T. Haddock, as a witness for plaintiff, testified that he purchased the property at probate sale in October, 1919, for $14,750; that subsequent thereto an oil well was completed on the land from which he recovered approximately $5,000 out of the proceeds, and that he sold interests in the land to his wife and the other defendants.
There was offered in evidence certified copies of the following papers: An order of county court of McIntosh county appointing Thomas L. Boone guardian of plaintiff, letters of guardianship, oath of guardian, petition of guardian, Thomas L. Boone, to sell an undivided one-half interest in plaintiff's allotment, decree of sale, return of sale of real estate, order confirming sale of real estate. These papers are attached together and offered by plaintiff as exhibit A. The petition for sale of real estate, as shown by said copies, was filed August 22, 1919, and is, omitting formal parts, in substance, as follows: That Boone is the acting guardian of Francis Hope, a minor, and that the guardian and his said ward are residents of McIntosh county, Okla., with their postoffice address at Stidham in said county and state; that his said ward had but little personal property; that she is a minor duly enrolled citizen of the Creek Nation opposite roll No. M-58 of the freedman roll of said nation, and that she was allotted and received as her proportionate share of the lands of said nation the real estate above described situated in Creek county, which is of the reasonable value of $800; that all of said land is wild, rough, rocky, raw and uncultivated, and produces but very little income for the support, maintenance, and education of said minor; that it is necessary for the best interests of said minor and of her estate that a portion of the above lands be sold and the proceeds used for support, maintenance, and education of the minor, and the balance, if any there be, be invested under the supervision of the court; that the annual expense chargeable against the ward's estate for support, maintenance, and education is about $400; that said minor's father is dead and her mother is poor and unable to properly support and educate her without assistance from said estate, and that it is therefore necessary for such purpose to make the sale of the interest in such land. The next of kin and persons interested in the personal estate of said minor are set out. Wherefore, it is prayed that an order issue for the sale of such interest at public or private sale as shall be adjudged most beneficial by the court. The petition is duly verified. On the same date the county court entered its decree of sale of said real estate reciting that the guardian had appeared in person and by his attorney, and that the mother and next of kin appeared in open court and consented to the sale. The proof further showed that the guardian filed his return of sale on September 20, 1919, reciting a sale of an undivided one-half interest in said land to Fred T. Haddock for $5,150, and praying a hearing upon the motion to confirm. Thereafter, on the 6th day of October, 1919, other bids were offered, and the final and successful bid of Fred T. Haddock for said property was $14,750; whereupon, the court decreed him to be the highest and *Page 111
best bidder and directed the issuance of guardian's deed.
The plaintiff, upon cross-examination, testified that she had contracted to sell to Mr. Hays the undivided one-half interest in this land if she should succeed in this litigation for $800. Fred T. Haddock, on cross-examination, testified: He sold all of his interest to Mrs. Haddock and the other defendants, and that there has been no income from the property since 1922. Upon the close of the evidence the court rendered judgment for defendants, and plaintiff thereupon appeals to this court for review.
The motion for new trial sets out four grounds: (1) That the judgment of the court is not sustained by sufficient evidence, and is contrary to law; (2) that the decision of the court is contrary to the evidence; (3) errors of law occurring at the trial, excepted to by plaintiff; (4) that the court erred in rendering judgment in favor of defendants and against plaintiff, and in refusing to render judgment in favor of plaintiff.
The brief of plaintiff is confined to a single proposition, to wit, that the county court of McIntosh county was wholly without jurisdiction or authority to authorize the guardian of plaintiff to sell and convey an undivided one-half interest in her Creek allotment, and in the body of the brief the plaintiff's attorneys say:
"If a county court has jurisdiction or authority to authorize a guardian of a Creek freedman to divest her of an undivided one-half interest in her allotment, the judgment of the lower court should be sustained."
Plaintiff's attorneys frankly admit in the brief that they have been unable to find a case similar to the one here presented, but they contend that it was never contemplated, either by Congress, when it conferred jurisdiction upon county courts of Oklahoma to supervise estates of minor Indians and freedmen, or by statutes of Oklahoma, that a guardian should be allowed or the county court be given jurisdiction to sanction such a sale as the one complained of.
Section 12, art. 7, of the Constitution of Oklahoma, provides, among other things:
"The county court, co-extensive with the county, shall have original jurisdiction in all probate matters. * * *"
Section 13 of the same article, among other things, provides:
"The county court shall have the general jurisdiction of a probate court. It shall probate wills, appoint guardians of minors; * * * grant letters testamentary and of administration, settle accounts of executors, administrators, and guardians; transact all business appertaining to the estates of deceased persons, minors, idiots, lunatics, persons non compos mentis, and common drunkards, including the sale, settlement, partition, and distribution of the estates thereof."
It thus appears that our fundamental law has vested in our county courts comprehensive probate jurisdiction. In the case of Cabin Valley Mining Co. v. Hall, 53 Okla. 760, 155 P. 570, the court, referring to article 7, sec. 13, of the Constitution of Oklahoma, and quoting from the decision in the case of Mallen v. Ruth Oil Co., 230 Fed. 497, says:
"The effect of the foregoing constitutional provision, so far as it relates to the question now being considered, is to clothe the county court with full, complete, and exclusive jurisdiction and authority to transact all business appertaining to the estates of minors, including the sale, settlement, partition, and distribution of the same. The jurisdiction is full and complete so far as relates to matters appertaining to business of the estates of minors, because it applies to all business of that character."
The court in the opinion says also:
"The jurisdiction granted to the county court being 'to transact all business appertaining to the estates of minors,' and in cases where a guardian has been appointed 'the court making the appointment has exclusive jurisdiction to control him in the management and disposition of the person and property of his ward,' this grant would be broad enough to authorize any act to be done or step to be taken that under the circumstances of the case, in the judgment of the court, would be for the best interests of the minor. * * *"
Section 1455, C. O. S. 1921, is as follows:
"Management of Estate of Ward. Every guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, for the comfortable and suitable maintenance and support of the ward, and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell the real estate, upon obtaining an order of the county court therefor, as provided, and must apply the proceeds of such sale, as far as may be necessary, for the maintenance and support of the ward and his family, if there be any." *Page 112
Section 1457, Id., is as follows:
"The guardian may join in and assent to a partition of the real estate of the ward with the written approval of the county judge, whenever such assent may be given by any person."
Section 1466, Id., is as follows:
"When the income of an estate under guardianship is not sufficient to maintain the ward and his family, or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that purpose, upon obtaining an order therefor."
Section 1467 is as follows:
"Sale of Property for Investment. When it appears to the satisfaction of the court upon the petition of the guardian, that for the benefit of his ward his real or personal estate,or some part thereof, should be sold and the proceeds thereofput out at interest, or invested in some productive stock, orin the improvement or security of any other real estate of theward, his guardian may sell the same for such purpose, uponobtaining an order therefor."
Section 1468:
"If the property is sold for the purposes mentioned in the two preceding sections, the guardian must apply the proceeds of the sale to such purposes, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital is wanted for the maintenance of the ward and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be necessary, in like manner as if it had been personal estate of the ward."
Section 1470 provides for what shall be contained in the petition for the order of sale, and section 1471 provides:
"Hearing and Order. If it appear to the court or judge, from the petition, that it is necessary or would be beneficial to the ward that the real or personal estate, or some part of it, should be sold, or that the real and personal estate should be sold. * * * If it appear that it is necessary or would be beneficial to the ward to sell the personal estate or some part of it, the court must order the sale to be made."
Section 1476, entitled "Order of Sale," reads as follows:
"If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof, should be sold, the court may grant an order therefor, specifying therein the causes or reasons why the sale is necessary or beneficial, and may, if the same has been prayed for in the petition, order such sale to be made either at public or private sale."
In the case of Duff v. Keaton, 33 Okla. 92, 124 P. 291, the court, in the opinion, in discussing the power of the probate court to authorize an oil and gas lease for term of years, Judge Williams said:
"The statutes of this state are entirely lacking as to any specific provision for the procedure to be followed by the guardian in leasing the lands of his ward for agricultural or grazing or commercial purposes or for exploring for oil or gas."
But the court, referring to sections 12 and 13 of article 7 of the Constitution, and section 5478, Comp. Laws 1909, providing that "every guardian appointed shall have the custody and care of the education of the minor; and the care and management of his estate, until such minor arrives at the age of majority, or marries, or until the guardian is legally discharged," continues:
"In the following section the guardian is required, before his appointment becomes effective, to give bond to the minor conditioned that he will faithfully execute the duties of his trust according to law; it being specially provided that the following conditions shall constitute a part of every such bond without being expressed therein: * * * Second. To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in relation thereto, and also in relation to the care, custody and education of the ward."
The court quotes in its entirety section 5491, Comp. Laws 1909, and also section 5513, Comp. Laws 1909, as follows:
"The county court, on the application of a guardian or any person interested in the estate of any ward, after such notice to persons interested therein as the judge shall direct, may authorize and require the guardian to invest the proceeds of sales and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein; and the probate court may make such otherorders and give such directions as are needful for themanagement, investment and disposition of the estate andeffects, as circumstances require."
Under this reasoning and authority an oil and gas lease for period of years was upheld.
In the case of Cabin Valley Mining Co. v. Hall, supra, it was held that under the Constitution and laws of this state, the *Page 113
county court may authorize a guardian of a minor to execute an oil and gas mining lease upon the lands of his ward for a period of years extending beyond the ward's minority. The statutory and constitutional provisions are referred to by Judge Hardy in the opinion in this case last named, and he also quotes from the case of Mallen v. Ruth Oil Co., 230 Fed. 497, in part as follows:
"The jurisdiction is full and complete so far as relates to matters appertaining to business of the estates of minors, because it applies to all business of that character. It must be exclusive, because it is not to be presumed, in the absence of clear provisions to the contrary, that the framers of the Constitution intended there should be any division of authority between the county courts and any other courts of the state relating to this important matter, in view of the embarrassment and confusion which such divided authority would lead to. The jurisdiction is neither in plain terms nor by implication lodged in any other court."
In the opinion the court refers to section 6569, Rev. Laws 1910, which, at the end, contains the sentence:
"And the county court may make such other orders and give such directions as are needful for the management, investment, and disposition of the estate and effects, as circumstances * * * require."
The court continues:
"There is no limit in this section as to the terms of the lease, nor any limitation as to the time for which same may run; it being left to the judgment of the court, in the exercise of sound discretion, to determine what is best for the interest of the minor under the circumstances."
The court refers also to those sections of Mansfield's Digest, later carried into Kirby's Digest, as being reviewed by the Supreme Court of Arkansas in Beauchamp v. Bertig,90 Ark. 351, 119 S.W. 75, where the court held that such statutes granted authority to probate courts to authorize a guardian to lease the lands of his ward for term of years to extend beyond the minority of the ward. The court in that case stated the rule with reference to the powers of a guardian in socage at common law to lease the lands of his ward, and observed that, under the common law or statutes simply declaratory thereof, leases made by the guardian to extend beyond the term of the guardianship are voidable, and cited many authorities in support of this statement. In determining the effect of these statutes the court, in the Beauchamp Case, said:
"But the supreme lawmaking power in our state has by the above statutes invested the probate court with power to sell and lease the lands of infants. The matter is left in the judgment of the probate court, and there are no limitations prescribed for the term of the lease, and we are of the opinion, from the above and cognate provisions of chapter 76, Kirby's Digest, that none were intended. The best interest of the estate of the minor is the prime and only consideration, and that seems to be the only limit to his discretion within the statutory provisions. Complying with these, the intention of the lawmakers was to give the probate courts plenary power in the premises. Hence the lease made by order of the court was valid, although it was to continue beyond the minority of the infants."
Quoting further from Judge Hardy's opinion:
"Such was the law in the Indian Territory, and leases executed by guardians extending beyond the minority of their wards were approved by the United States Courts in the Indian Territory, and their authority so to do was sustained by this court in Huston v. Cobleigh, 29 Okla. 793, 119 P. 416, where, after setting out the sections of the statute hereinbefore quoted, the court held: 'That, while at common law all leases by a guardian to extend beyond the term of the guardianship were voidable, a lease of a minor's land pursuant to an order of the probate court was valid, though it extended beyond the minority, following Beauchamp v. Bertig (90 Ark. 351) 119 S.W. 75 (23 L. R. A. (N. S.) 659).'
"In Mallin v. Ruth Oil Co., supra, the United States District Court said, with reference to the jurisdiction of the county court: 'In the exercise of its exclusive jurisdiction to transact all business appertaining to the estates of minors, the court must, I think, be held to have all the powers relating to the conduct of minors' estates which formerly belonged to courts of equity.' "
To the same effect, Gassenheimer v. Gassenheimer, 108 Ala. 651, 18 So. 520, in which last case the court said:
"The reason underlying the doctrine is that, as the infant labors under disability — is incapable of managing and disposing of property — the court owes to him the duty of protection, and of controlling and administering his property so as to promote his * * * interests; a similar reason * * * which prevails when the court decrees a sale for his maintenance and education."
In the case of Ricardi v. Gaboury, 115 Tenn. 484, 89 S.W. 98, the court approved a lease extending for a period of 99 years, which had been made under an order of the *Page 114
chancery court; and in Marsh v. Reed, 184 Ill. 263, 56 N.E. 306, the Supreme Court of Illinois held that a lease for 99 years was valid, though the will of the testator contained a provision that the land should not be leased for a longer term than ten years.
The rule is stated in 3 Pomeroy, Equity Jurisprudence, sec. 1308, as follows:
"An infant having been made a ward of the court and a guardian being appointed, the further jurisdiction concerning the ward is ordinarily exercised by supervising, directing and controlling the acts of the guardian in the management of his trust."
In Gibbon's Suits in Chancery, sec. 970, the doctrine is thus announced:
"Whenever it is necessary for the welfare of an infant, idiot, or lunatic to convert his realty into personalty or his personalty into realty, or to invest his money or to ratify or avoid his contracts, the chancery court has authority to order it to be done and to superintend the execution of its order. In short, the chancery courts, acting 'in loco parentis,' and as general guardian for minors, idiots, and lunatics, and persons of unsound mind, will do for them and their property what they themselves would in all probability have done if possessed of good reason and good conscience."
In the case of Welch v. Focht, 67 Okla. 275, 171 P. 730, the first paragraph of the syllabus is as follows:
"The county courts of this state are courts of record and have original general jurisdiction in probate matters. The orders and judgments of such courts, when acting within their jurisdiction, are entitled to the same favorable presumptions and the same immunity from collateral attack as are accorded those of other courts of general jurisdiction."
In this case it is declared "jurisdiction" is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them.
In the discussion, quoting from the case of Bryan v. Bauder,23 Kan. 95, it is said:
"In the course of its proceedings, it became the duty of that court to decide whether the petition was sufficient for a sale of the premises. The court held it sufficient. As the petition presented a case for judicial determination, if the determination was erroneous, it was reviewable in the appellate court, but not a void or worthless determination."
The case of Welch v. Focht, supra, was quite similar to the one at bar, and it was held that the plaintiff's attack was a collateral attack; citing Hathaway v. Hoffman, 53 Okla. 72,153 P. 184; Continental Gin Co. v. DeBord, 34 Okla. 66,123 P. 159; Holmes v. Holmes, 27 Okla. 140, 111 P. 220; Moffer v. Jones, 67 Okla. 171, 169 P. 652.
The presumption is in the case at bar that the judgment of not only the county court but the trial court is correct, and there has been presented to us no authority which in anywise denies the correctness of the ruling of these courts. On account of the importance of the question, we have given it considerable study, but it is the rule of this court that "a plausible, but not convincing, argument in the brief, unsupported by citation of authority, is not sufficient to overcome the presumption indulged by the Supreme Court in favor of the correctness of the judgment of the trial court." Chestnut Smith v. Lynch, 84 Okla. 199, 202 P. 1018; Mires v. Hogan, 97 Okla. 130, 222 P. 985.
In the case of Webb v. Webb's Guardian, in the Court of Appeals of Kentucky, 1917, 198 S.W. 736, the court dealt with the sale of certain mineral rights and certain timber rights on a tract of land of several hundred acres, and the court said at page 738:
"It is insisted that a judgment which orders the sale ofanything less than the entire interest, which an infant may ownin a tract of land, or in such part of the tract as may beadjudged to be sold, is void, upon the ground that the court has no authority to order such a sale, and for that reason the judgment which directed a sale of the various minerals and rights connected with them in the 377.40-acre tract of land, leaving to the infants the surface of the land, was void. This argument is urged upon the provisions of section 489, supra, which authorizes a court of equity to adjudge a sale of a vested estate of an infant in real property for the education and maintenance of the infant, it being urged that that statute does not authorize the court to adjudge the sale of such interests. It is true that courts of equity in this state have no inherent power to adjudge the sale of lands of infants, but the power to do so is purely statutory, and the authority given by such statutes cannot be exceeded." Citing many cases.
Quoting further, the court says:
"Section 489, subsection 3, of the Civil Code, authorizes a court of equity to order a sale of the vested estate of an infant in real property for his maintenance and education. Under this statute, and for the *Page 115
purpose there stated, the court cannot order any other kind of an estate of an infant in real property to be sold, except an estate which is vested in the infant at the time of the judgment, but it does not require that the whole vested estatein the property be sold. A sale should not be adjudged of anyinterest in the vested estate of an infant in real property,unless it is to the best interest of the infant that the saleshould be made. The estate which the infants in this action owned in the minerals, as well as the rights in the surface of the lands which were sold, was a vested estate, and the interests which were left to them and not sold were also a vested estate. That one person may own the minerals which are under the surface, and another one own the surface of the land, or that one may own the surface and another the standing timber trees upon the land, is too well recognized and conceded to require the citation of authorities to sustain it. If one owns the surface and another the minerals in the land, each of them is the owner of real property and may have vested estates in them. Each of these estates is the subject of sale and conveyance."
The court, quoting from the case of Hays v. Wicker, 161 Ky. 706, 171 S.W. 447, says:
" 'We do not see that a substantial difference can be made between selling coal under the land without selling the surface, and selling the timber on the land without selling the surface. The chancellor should sell only so much of the ward'sestate as his interest requires to be sold, and if he may sellhalf of the land, we do not see why he may not sell a severableestate in the land, retaining the surface so as to give him ahome. * * * We therefore conclude that the judgment complained of is not void for want of authority in the court to order the sale.' "
The court further holds, in substance, that where the court has jurisdiction of the parties and the subject-matter of the action, and adjudges a sale by a commissioner, which is fairly made, the sale is reported and confirmed, the purchaser of the property cannot be divested of it because the judgment under which the sale was made was erroneous and was thereafter reversed upon appeal.
It must be borne in mind that there is no wrongdoing or imposition alleged or sought to be established, nor is the regularity of the proceedings assailed, in the case at bar, except with respect to the power of the probate court to make the order of sale of an undivided interest in real estate.
For the reasons given, the judgment of the trial court is affirmed.
DIFFENDAFFER, JEFFREY, HALL, and HERR, Commissioners, concur.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4539911/ | IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of: No. 80041-8-I
Mark Jorstad, a vulnerable adult, DIVISION ONE
Respondent, UNPUBLISHED OPINION
v.
Rita Jorstad,
Appellant.
LEACH, J. — On May 15, 2019, the trial court entered a five year Vulnerable
Adult Protection Order (VAPO) on behalf of Mark Jorsted against his wife Rita
Jorsted. 1 Rita appeals. She asserts the trial court should not have imposed the
VAPO and violated Canons 2.2, 2.3, and 2.6 of the Washington Code of Judicial
Conduct (CJC). The record contains substantial evidence that Rita abused and
neglected Mark. And, the record does not support Rita’s assertions of judicial
misconduct. So, we affirm.
BACKGROUND
Mark Jorsted suffers from Parkinson’s disease, depression, and restricted
mobility. Mark is bedridden and cannot speak in full sentences. Mark and Rita
1 For clarity, Mark Jorstad, Rita Jorstad, Nikola Jorstad, and Richard Jorstad
will be referred to by their first names.
Citations and pincites are based on the Westlaw online version of the cited material.
No. 80041-8-I/2
Jorstad have been married since 2011. Mark and Rita spent part of the year living
in Phoenix, Arizona and the other part living in Des Moines, Washington. They
each have children from previous relationships. Nikola Jorstad and Richard
Jorstad are Mark’s children.
In 2016, the couple separated for three months and Mark filed for divorce.
Mark sought a protection order against Rita and the court granted it. But, Mark
later terminated the protection order and the divorce proceedings.
On May 9, 2016, Mark was driving from Phoenix to Des Moines when
California Highway Patrol pulled Mark over and detained him. Mark told the officer
he was fleeing from Rita because she choked him and hit him at their condominium
in Phoenix. On May 14, Mark told Des Moines police officers that Rita threatened
to kill him. The officers identified Rita as the aggressor. But, the officers did not
find probable cause to establish domestic violence had occurred.
On March 9, 2017, Mark suffered a pulmonary embolism.
In September 2017, Mark and Rita moved back to Phoenix. From
September until June 2018, Mark depended on Rita and her family for his care.
This included Rita’s daughter, Shauna Dillon and son-in-law, Brad Dillon.
In June 2018, Mark and Rita drove from Phoenix to Des Moines. During a
stop in Seaside, Oregon, Mark was transported to Providence Seaside Hospital
for an evaluation. When Rita left the hospital room, Mark told hospital staff that
Rita physically abused him and that he was afraid of her.
After Mark and Rita returned to Des Moines, Mark was admitted to
St. Joseph’s Hospital in Tacoma for further evaluations. Mark repeatedly told
2
No. 80041-8-I/3
hospital staff and Nikola that Rita physically abused him, that he did not want to
have contact with Rita, and that he did not want Rita involved in his medical
decisions. Hospital staff determined Mark was competent to make decisions and
then helped Mark execute a revocation of his Durable Power of Attorney for
Finances and Health Care. Mark changed his attorney in fact from Rita to Nikola
with Richard as the alternate. Hospital staff also placed Mark on “confidential
status,” so that Rita could not find him. They also made a referral to the
Washington State Department of Social and Health Services (DSHS), Adult
Protection Services (APS).
APS had already received an intake form from Providence Seaside Hospital
that identified Rita as the “alleged perpetrator” who abused or neglected Mark. On
June 7, 2018, APS Investigator Debra Daniel interviewed Rita at the Des Moines
condominium. Daniel read the APS intake narrative to Rita and explained that Rita
was the “alleged perpetrator.” Rita became very upset and ended the interview.
On June 18, 2018, APS dispatched Investigator Scott Kieser to interview
Mark and conduct an “alleged victim interview” at the Des Moines condominium.
With Rita present during the interview, Mark told Kieser that Rita was a “godsend”
and was “not physically abusive.”
In July 2018, Mark returned to St. Joseph’s Hospital. On July 6, 2018,
Daniel interviewed hospital staff and learned that Rita did not believe Mark had
Parkinson’s and that she had taken him off his Parkinson’s medication. But, since
being hospitalized, Mark had responded well to Parkinson’s medication. On the
same day, Rita called Mark but the hospital denied her call.
3
No. 80041-8-I/4
On August 24, 2018, Rita asked to visit Mark. Mark told hospital social
workers that “he would rather his wife not visit him and stated that he doesn’t want
her here” and that he did not want to live with Rita. Dr. J. Daniel Wanwig found
Mark to “exhibit decision making capacity.”
On October 15, Rita filed a petition for a VAPO on behalf of Mark against
Nikola. Rita sought “to compel Nikola Jorstad to immediately provide information
about Mark Jorstad’s location; allow Rita Jorstad access to Mark Jorstad’s medical
information and allow her to visit Mr. Jorstad without restriction; and compel an
independent third-party medical evaluation of Mr. Jorstad.”
On October 22, 2018, Daniel and the DSHS-APS filed a petition for a VAPO
on behalf of Mark against Rita. On November 7, the trial court determined “that an
emergency exists” and issued a temporary protection order. On November 19,
Mark was discharged to an adult family home. The temporary protection order
restrained Rita from going near or contacting Mark and excluded Rita from going
within the hospital or the long-term care facility in which Mark resided. Due to
Mark’s medical condition, the trial court determined that an off-site VAPO hearing
was necessary.
In March 2019, the trial court linked DSHS-APS’s and Rita’s cases. It also
reissued and extended the temporary protection order.
Trial was held May 6 through May 9, 2019 and May 13, 2019. Daniel
testified she was concerned that when Mark was under Rita’s care, Rita would not
provide him his prescribed Parkinson’s medications. She testified that a form of
neglect occurs when a caretaker contravenes a doctor’s orders. Daniel also
4
No. 80041-8-I/5
testified that her concerns about Mark’s decision making capacity caused her to
request three or four hospital evaluations. When Daniel found Mark competent,
he stated he did not want to see Rita nor have her as a part of his medical or
financial decisions. He also said he wanted DSHS-APS to obtain a protection
order against Rita.
On May 15, the trial court determined that Rita “represents a credible threat
to the physical safety” to Mark. It found Mark to be a vulnerable adult under
RCW 74.34.020 because of his age and his limited mental or physical abilities to
care for himself. It also found Mark’s account of Rita’s violence, abuse, and his
fear of her credible. It found Rita committed acts of abuse, improper restraint, and
neglect. The trial court determined Mark should be protected and entered a five
year VAPO against Rita expiring May 15, 2024. The trial court also denied and
dismissed Rita’s petition.
Rita appeals the VAPO.
ANALYSIS
Vulnerable Adult Protection Order
Rita challenges the sufficiency of the evidence to support the trial court
findings of abuse, neglect, and improper use of restraints. 2
2
Rita also asserts the superior court erred in entering the VAPO before the
APS investigation #340690 concluded. Because she does not support her
argument by reference to the record or citation to authority, we do not consider it.
RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992).
5
No. 80041-8-I/6
We review a trial court’s decision to grant or deny a petition for a VAPO for
abuse of discretion. 3 A trial court abuses its discretion when its exercise of
discretion is “manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.”4 We review the record to determine whether substantial
evidence supports challenged factual findings. 5
Substantial evidence is that which is “sufficient to persuade a rational fair-
minded person the premise is true.” 6 “We defer to the trier of fact on the
persuasiveness of the evidence, witness credibility, and conflicting testimony.” 7
In most instances, “[t]he proper standard of proof involving abuse of a
vulnerable adult under chapter 74.34 RCW is a preponderance of the evidence.”8
In Knight, we held that “the standard of proof for a vulnerable adult protection order
contested by the alleged vulnerable adult is clear, cogent, and convincing
evidence, as it is with a guardianship.” 9 Here, Mark does not contest the VAPO.
Instead, Rita attacks the credibility of the evidence and contends a preponderance
of evidence does not support the trial court’s finding that Mark was abandoned,
abused, or neglected.
RCW 74.34.110(1) authorizes a trial court to issue a VAPO if it finds that a
vulnerable adult requires protection from “abandonment, abuse, financial
3In re Knight, 178 Wn. App. 929, 936, 317 P.3d 1068 (2014).
4State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
5 Knight, 178 Wn. App. at 936.
6 Sunnyside Valley Irr. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369
(2003).
7 Knight, 178 Wn. App. at 937.
8 Kraft v. Dep’t of Soc. & Health Servs., 145 Wn. App. 708, 716, 187 P.3d
798 (2008).
9 Knight, 178 Wn. App. at 940.
6
No. 80041-8-I/7
exploitation, or neglect, or the threat thereof.” RCW 74.34.130 authorizes a trial
court to order the relief it deems necessary to protect a vulnerable adult, such as
entering restraining orders and prohibiting contact with the vulnerable adult.
The trial court found Mark “competently and credibly made statements” that
Rita choked him, hit him, and tied him down. It also found that “Mark Jorstad has
made clear his wishes that Rita Jorstad not have any contact with him, not have
access to his medical records, and not make decisions for him.” It found, by a
preponderance of the evidence, that Rita presents a credible threat to Mark’s
physical safety. And, the trial court found it necessary to impose the VAPO in order
to protect Mark from Rita.
The record contains substantial evidence that support these findings. In
2016, Mark told California Highway Patrol that he was fleeing Rita’s abuse, and he
told Des Moines police officers that Rita threatened to kill him. In 2018, at
Providence Seaside Hospital, Mark waited until Rita left his hospital room to tell
hospital staff that Rita physically abused him and that he was afraid of her. Then,
Mark reported Rita’s abuse to St. Joseph’s Hospital staff. Doctors found Mark
competent and credible, and hospital staff assisted him in changing his power of
attorney from Rita to Nikola. Mark also told Daniel that he wanted a protection
order against Rita.
Because substantial evidence support the trial court’s finding that Rita
committed acts of abuse, improper restraint, and neglect, we affirm the VAPO.
7
No. 80041-8-I/8
Code of Judicial Conduct
Rita asserts the trial court violated Canons 2.2, 2.3, and 2.6 of the
Washington Code of Judicial Conduct (CJC). The CJC provides broad ethical
statements called Canons, which “state overarching principles of judicial ethics that
all judges must observe.” 10 We presume judges perform their functions regularly
and properly without bias or prejudice. 11
CJC 2.2
Rita asserts the VAPO should be vacated under Court Rule 60(b) because
the trial court favored the State in selecting a hearing date, overruling her counsel’s
objections, and discounting testimony and declarations in violation of CJC 2.2.
Under CJC 2.2, “[a] judge shall uphold and apply the law, and shall perform all
duties of judicial office fairly and impartially.”
First, on Tuesday, May 7, the trial court asked the parties whether May 8
provided enough time to finish the trial. If May 8 did not provide the parties enough
time, the trial court asked whether “everyone else and their witnesses [were]
available Tuesday/Wednesday of next week?” Rita’s counsel said that Rita was
unavailable on Tuesday, May 14 because of work. The trial court responded, “If
we are not available to finish tomorrow, we have to finish next week. So that
means if people have to take off work to be here to finish this trial, that’s what’s
going to have to happen.” Then, Nikola’s counsel said that Nikola was unavailable
on Tuesday, May 14 during lunch. Finally, the trial court stated, “If we don’t finish
10CJC Scope [2].
11State v. Leon, 133 Wn. App. 810, 813, 138 P.3d 159 (2006) (citing
Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993).
8
No. 80041-8-I/9
tomorrow, is that people will make themselves available for next week.” The trial
ended on Monday, May 13 and the court issued the VAPO on Wednesday,
May 15. Because the court did not convene on May 14, the day Rita was working,
Rita’s argument that the trial court favored the State in selecting a hearing date is
without merit.
Second, the trial court admitted Exhibit 7 over the objection of Rita’s
counsel. Rita’s counsel objected on the grounds of timeliness. The trial court
heard each party’s reasoning before admitting the exhibit as rebuttal. Rita fails to
demonstrate unfairness or partiality.
Third, before entering the VAPO, the trial court stated, “This Court, having
listened carefully to everyone’s testimony over the last four days, read through all
of the materials that were submitted, taken into consideration the law, has now
made a decision.” Rita’s assertion that the trial court discounted testimony and
declarations is without merit.
CJC 2.3
Rita contends the trial court violated CJC 2.3(A) through CJC 2.3(C) by
displaying and allowing lawyers and witnesses to display bias and prejudice
against her during trial. Because Rita does not support these assertions by
reference to the record, we do not consider them. 12
CJC 2.6
Rita contends the trial court violated CJC 2.6 by not permitting Mark to
testify and not permitting Brad Dillon to testify on rebuttal. Under CJC 2.6(A), “A
12 RAP 10.3(a)(6); Cowiche Canyon Conservancy, 118 Wn.2d at 809.
9
No. 80041-8-I/10
judge shall accord to every person who has a legal interest in a proceeding, or that
person’s lawyer, the right to be heard according to law.”
On November 7, 2018, the trial court held an ex parte hearing. The court
imposed a temporary protection order in which it noted, “Jorstad is hospitalized
and having difficulty communicating with the court via FaceTime.” But, Rita did not
call Mark to testify at trial. And, Mark told Daniel that he did not want to be present
at court.
The trial court denied Rita’s request to call Brad Dillon on rebuttal because
her counsel advised the court that his testimony was being offered to rebut DSHS’s
case in chief rather than support her own case against Nikola. The trial court
correctly determined that Rita, as the respondent, did not have the right to call a
rebuttal witness to rebut the petitioner’s case. So, Rita’s assertions are without
merit.
CONCLUSION
Substantial evidence supports the trial court’s finding that Rita committed
acts of abuse, improper restraint, and neglect against Mark. Rita fails to establish
any violation of judicial ethics by the trial court. So, we affirm the VAPO.
WE CONCUR:
10
No. 80041-8-I/11
11 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4539912/ | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Estate of
No. 80552-5-I
ALBERTA BAIDOO.
DIVISION ONE
EMMANUEL K. BAIDOO,
Appellant, UNPUBLISHED OPINION
v.
TRUDY SUSAN BAIDOO,
Respondent.
CHUN, J. — Trudy Baidoo admitted decedent Alberta Baidoo’s will to
probate. Over a year later, Emmanuel Baidoo, Trudy’s father and Alberta’s
husband, filed a Trust and Estate Dispute Resolution Act1 (TEDRA) petition.
Emmanuel’s2 petition requested “an Order that [Emmanuel] shall take from the
Estate and [Trudy], jointly and severally, the amounts that would have flowed to
him had he (a) hired counsel to challenge the Will and (b) succeeded in said
challenge.” Apparently determining that Emmanuel’s petition constituted a will
contest, the trial court dismissed it as time-barred by RCW 11.24.010’s four-
month limitations period. Because Emmanuel’s petition would have required the
trial court to determine issues affecting the validity of Alberta’s will, we affirm.
1
Chapter 11.96A RCW.
2
For clarity, we refer to the Baidoos by their first names. We intend no
disrespect.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80552-5-I/2
I. BACKGROUND
Trudy admitted Alberta’s will to probate. The probate court appointed her
as personal representative for the estate.
Nearly 14 months later, Emmanuel filed a TEDRA petition, alleging as
follows: Alberta suffered from cancer. Weeks before her passing, members of
Trudy’s family “flew in from around the world in order to pressure [Alberta]
(against her wishes) to execute” a “death bed will” disinheriting Emmanuel. After
his wife’s passing, Emmanuel told Trudy that “he did not believe that the death
bed Will was, in any way, a reflection of what [Alberta] wanted.” Trudy
responded that she would “ensure that [Emmanuel] would be able to maintain
[Alberta’s] assets and that only upon [Emmanuel’s] death would those assets be
split up.” But Trudy was misleading Emmanuel, and providing inaccurate legal
advice, so that he would not obtain legal counsel in time to challenge the will.
Emmanuel asserted that the conduct he alleged constituted a breach of the
fiduciary duty Trudy owed to him as the personal representative of Alberta’s
estate.
Trudy moved to dismiss Emmanuel’s petition as time-barred under
RCW 11.24.010. The trial court granted the motion and dismissed the case. The
court also awarded Trudy $3,500 in costs and attorney fees. Emmanuel appeals.
2
No. 80552-5-I/3
II. ANALYSIS
A. Statute of Limitations
Emmanuel asserts that RCW 11.24.010’s four-month limitation period
does not bar his TEDRA petition because he is not contesting the will. We
disagree.
We review de novo a trial court’s interpretation of a probate statute. In re
Estate of Jones, 152 Wn.2d 1, 8-9, 93 P.3d 147 (2004).
RCW 11.24.010 requires a party to file a will contest within four months
following probate. “A will contest is the proceeding in which a court determines
issues ‘affecting the validity of the will.’” Cassell v. Portelance, 172 Wn. App.
156, 162, 294 P.3d 1 (2012) (citing RCW 11.24.010). “A court may treat a
motion as a will contest, even where the petitioner styles it otherwise.” Cassell,
172 Wn. App. at 162 (citing In re Estates of Palmer, 146 Wn. App. 132, 137-38,
189 P.3d 230 (2008)).
Here, Emmanuel argues that his petition does not constitute a will contest
because, “[r]ather than challenge any will, [Emmanuel’s] petition alleges various
breaches of fiduciary duty by [Trudy] in her role as personal representative of
[Emmanuel’s] wife’s estate.” Though Emmanuel couched his petition in terms of
violations of fiduciary duty, he clearly seeks to contest Alberta’s will. For
instance, the facts section of Emmanuel’s petition refers to Alberta’s will as a
“death bed Will,” claims that Alberta executed the will “mere weeks before her
passing,” and asserts that Alberta’s family members “flew in from around the
3
No. 80552-5-I/4
world to pressure [Alberta] (against her wishes) to execute a will disinheriting
[Emmanuel].” It states that Emmanuel “did not believe that the death bed Will
was, in any way, a reflection of what [Alberta] wanted.” It requests “an Order that
[Emmanuel] shall take from the Estate and [Trudy], jointly and severally, the
amounts that would have flowed to him had he (a) hired counsel to challenge the
Will and (b) succeeded in said challenge.”
Thus, to resolve Emmanuel’s petition, the court would have had to
determine whether he would have succeeded in a will contest had he timely filed
one. To do so, the court would have determined whether lack of capacity or
undue influence affected the validity of Alberta’s will. Because Emmanuel’s
petition would have required the court to consider issues affecting the validity of
Alberta’s will, it constituted a will contest. Accordingly, Emmanuel needed to file
his petition within four months of the date Trudy opened the will for probate.
Emmanuel, however, did not file his petition until over a year had passed. The
trial court did not err by dismissing the petition as time-barred.3
3
Trudy offers an alternative argument supporting affirmance. She says
Emmanuel’s breach of fiduciary duty claims fail because the lower court, in another
case, denied Emmanuel’s motion for an order to show cause pursuant to
RCW 11.68.070 based on the same allegations of breach of fiduciary duty as made in
his TEDRA petition. She asserts that this shows the court determined that Emmanuel
failed to establish any ground under RCW 11.28.250 to remove her as personal
representative of Alberta’s estate. To support this argument, Trudy moved to
supplement the record in this case. Because we determine the trial court properly
dismissed Emmanuel’s TEDRA petition as time-barred, we do not address Trudy’s
alternative argument. Thus, we deny her motion to supplement the record.
4
No. 80552-5-I/5
B. Attorney Fees Below
Emmanuel contends that because the court incorrectly determined that his
petition was time-barred, it abused its discretion by awarding attorney fees to
Trudy. In light of our conclusion above, we disagree.
RCW 11.96A.150 provides that a court has the discretion to order costs,
including reasonable attorney’s fees, to any party. “We review a trial court's fee
decision under this statute for abuse of discretion, meaning we will uphold the
court's decision unless it is manifestly unreasonable or based on untenable
grounds or reasons.” Bale v. Allison, 173 Wn. App. 435, 461, 294 P.3d 789
(2013).
Here, Trudy successfully moved to dismiss Emmanuel’s petition as time-
barred. Given that Emmanuel filed his petition around ten months after the
limitations period had expired, it was not unreasonable to award Trudy her
reasonable attorney’s fees and costs. Emmanuel does not challenge the amount
of the award as unreasonable. The trial court did not abuse its discretion by
awarding Trudy her reasonable fees and costs.
C. Attorney Fees on Appeal
In the conclusion of her response brief, Trudy “requests attorney fees and
costs for having to defend this appeal pursuant to RAP 18.1 and 14.2.” A
separate section addressing fees issues is mandatory under RAP 18.1(b).
Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 710 n.4, 952
5
No. 80552-5-I/6
P.2d 590 (1998). Because Trudy fails to properly brief her request for fees on
appeal, we decline to award them.4
We affirm.
WE CONCUR:
4
Emmanuel also asks us to award him his attorney fees and costs on appeal
under RCW 11.24.050, which gives courts the discretion to award fees and costs “[i]f the
probate be revoked or the will annulled.” Because we do not revoke the probate or
annul Alberta’s will, we decline to award Emmanuel his attorney fees and costs on
appeal.
6 | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/4539913/ | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of R.O., No. 80339-5-1
STATE OF WASHINGTON, DIVISION ONE
Respondent, UNPUBLISHED OPINION
v.
R.O.
Appellant,
Hazelrigg, J. — R.O. appeals the denial of his motion for revision of an
order authorizing his 14-day involuntary commitment under RCW 71.05.240. He
argues that the court's finding that he was gravely disabled was not supported by
substantial evidence, particularly in light of the lack of evidence of his conduct and
ability to care for himself prior to his contact with police. We disagree and hold the
trial court's denial of the motion for revision was proper as the finding of grave
disability under the statute and order of commitment based on the symptoms R.O.
continued to exhibit prior to the hearing are supported by substantial evidence. We
affirm.
FACTS
Seattle Police Officer Bryan Asher encountered R.O. in July 2019 while on
duty. Asher witnessed R.O. dancing in the street in a high traffic area and was
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80339-5-1/2
forced to brake in order to avoid striking R.O. Asher asked R.O. to move out of
the street, but R.O. continued to dance and call out "Jesus." The officer had to
physically move R.O. out of the street, but once he did so, R.O. remained where
Asher placed him. Asher noted R.O. was speaking in both Spanish and English,
but did not seek language assistance to communicate with R.O. Believing R.O.
was in a mental health crisis, Asher took R.O. to the emergency room at Swedish
Cherry Hill.
While at the emergency room, R.O. frequently yelled out "Jesus,"
responded to internal stimuli, had a difficult time focusing, and sporadically clapped
and laughed to himself. R.O. reported that he walked into the street intending to
harm himself because he was feeling weak in his faith and it was the "devil's work."
R.O. also indicated he had not been sleeping, but denied drug use; he explained
"it is mostly the word of the Lord." The staff noted that R.O. had abrasions on his
chest, shoulders, and abdomen, but R.O. was unable to coherently explain how
he got the abrasions. R.O.'s urinalysis was positive for amphetamine,
methamphetamine, and MDMA.1 Later that morning, R.O. was detained for a
maximum of 72 hours under Washington's Involuntary Treatment Act (ITA).2
R.O. was transferred to Navos Inpatient Services (Navos) for mental health
treatment the following day. The State filed a petition for an additional 14 days of
involuntary treatment, alleging R.O. was "gravely disabled" due to a mental
disorder. A hearing on the petition was held wherein the State clarified it was
proceeding under subsection (a) of RCW 71.05.020(22). The State presented
1 3, 4-Methylenedioxymethamphetamine
2 Ch. 71.05 RCW.
No. 80339-5-1/3
testimony from Asher, Swedish Medical Center evaluator Erica Williams, and
Navos mental health counselor Kassandra Sparkmon.
At the hearing, Asher testified about his interaction with R.O. in the street.
Williams provided testimony explaining that the hospital physician described
R.O.'s behavior when admitted as "bizarre," including suicidal ideations, and
related to methamphetamine use. She also noted that R.O. was pleasant and
calm at times while in the emergency room.
Sparkmon opined that R.O. suffered from a mental disorder with a working
diagnosis of unspecified schizophrenia spectrum disorder and other psychotic
disorder. Sparkmon identified the numerous symptoms observed in R.O. by
various care providers that she believed demonstrated this mental disorder.
Sparkmon further testified that her opinion was R.O.'s mental disorder created a
danger of serious harm to him based on a failure or inability to care for his essential
needs of health and safety. Sparkmon indicated that, while at Navos, R.O. was at
various times selectively mute, isolative, and observed laying in the middle of a
hallway floor. She stated R.O. denied the need for mental health treatment, but
was generally medically compliant while at Navos.
Both Williams and Sparkmon testified that they did not find any documented
history of medical or mental health admissions or diagnoses for R.O. Sparkmon
testified that there were notes in R.O.'s chart that referenced his past ability to
access food and shelter through YouthCare and that he sometimes worked odd
jobs and used the money to buy food. Sparkmon stated that his future access to
No. 80339-5-1/4
these resources was not confirmed and she maintained her opinion that he would
not be able to meet his essential needs.
The court commissioner found R.O. suffered from a mental disorder and
was gravely disabled under the applicable statute because R.O. was in danger of
serious physical harm resulting from a failure to provide for his essential needs of
health and safety. The commissioner found that a less restrictive alternative was
not in R.O.'s interest. The court ordered R.O. remanded into the custody of Navos
for a period of inpatient treatment not to exceed 14 days.
R.O. moved for revision of the commissioner's commitment ruling before a
judge in the superior court. The commissioner's findings and conclusions were
preserved via a standard check-box style form, but also incorporated the oral
findings inthe record of the hearing by reference. The judge hearing R.O.'s motion
for revision adopted the findings of the commissioner and incorporated them in the
order denying the motion. R.O. timely appeals the denial of his motion for revision.
ANALYSIS
R.O. argues the State failed to present sufficient evidence that he was
gravely disabled and that, as a result, his 14-day commitment order should be
vacated. As a preliminary matter, R.O. argues that his case is not moot, despite
the fact that the 14-day involuntary commitment has long since been completed.
The State does not argue that the case is moot. We will address the merits of
R.O.'s challenge.
A commissioner's actions are subject to revision by a superior court judge.
RCW 2.24.050. "On revision, the superior court reviews the commissioner's
No. 80339-5-1/5
findings of fact and conclusions of law de novo based on the evidence and issues
presented to the commissioner." In re Welfare of Ca.R.. 191 Wn. App. 601, 607,
365 P.3d 186 (2015). Once a superior court has decided the motion for revision,
as was done here, we focus our review on the superior court's decision as opposed
to the commissioner's original order. Faciszewski v. Brown. 187 Wn.2d 308, 313
n.2, 386 P.3d 711 (2016). Here, the superior court denied the motion for revision
and adopted the commissioner's findings of fact and conclusions of law as its own.
When reviewing an involuntary commitment order, this court's inquiry is
"whether substantial evidence supports the findings and, ifso, whether the findings
in turn support the [superior] court's conclusions of law and judgment." In re Pet,
of LaBelle. 107 Wn.2d 196, 209, 728 P.2d 138 (1986). "Accordingly, we will not
disturb the trial court's findings of 'grave disability' if supported by substantial
evidence which the lower court could reasonably have found to be clear, cogent
and convincing." \± As the challenger of the findings, R.O. bears the burden of
establishing that the findings are not supported by substantial evidence. In re Pet.
ofA.S.. 91 Wn. App. 146, 162, 955 P.2d 836 (1998).
"In general, an individual may be involuntarily committed for mental health
treatment if, as a result of a mental disorder, the individual either (1) poses a
substantial risk of harm to him or herself, others, or the property of others, or (2) is
gravely disabled." In re Pet, of M.K.. 168 Wn. App. 621, 630, 279 P.3d 897 (2012);
RCW 71.05.240. In R.O.'s case, the basis for commitment was that he was gravely
disabled. RCW 71.05.020(22) defines gravely disabled as follows:
"Gravely disabled" means a condition in which a person, as a result
of a mental disorder, or as a result of the use of alcohol or other
No. 80339-5-1/6
psychoactive chemicals: (a) Is in danger of serious physical harm
resulting from a failure to provide for his or her essential human
needs of health or safety; or (b) manifests severe deterioration in
routine functioning evidenced by repeated and escalating loss of
cognitive or volitional control over his or her actions and is not
receiving such care as is essential for his or her health or safety[.]
Here, the State proceeded under the (a) prong which the superior court eventually
ruled was established by a preponderance of the evidence. See A.S., 91 Wn. App.
at 163.
When the State alleges an individual's mental disorder renders them
gravely disabled under prong (a), "the State must present recent, tangible evidence
of failure or inability to provide for such essential human needs as food, clothing,
shelter, and medical treatment which presents a high probability of serious physical
harm within the near future unless adequate treatment is afforded." LaBelle. 107
Wn.2d at 204-05.3 In explaining its ruling on the order of commitment, the
commissioner specifically noted that a recent unpublished case4 from Pivision Two
of this court analyzed LaBelle and suggested that mere access to food and shelter
may not demonstrate the respondent's ability to provide for themselves and
maintain personal safety.
Though R.O. draws alternative conclusions from the testimony and
emphasizes the evidence that he presented at the 14-day commitment hearing,
we find substantial evidence exists for the superior court's findings and
conclusions. Evidence was presented that R.O. suffered from a mental disorder
3 LaBelle addressed former RCW 71.05.020(1), which our legislature eventually recodified
as RCW 71.05.020(22) without substantive changes.
4 In re Pet. G.T.. No. 50572-0-II (Wash Ct. App. Feb. 6, 2019) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2050572-0-ll%20Unpublished%20Opinion.pdf.
6-
No. 80339-5-1/7
with a working diagnosis of unspecified schizophrenia spectrum and other
psychotic disorder. This finding is supported by Sparkmon's testimony, wherein
she explained that this working diagnosis was based on R.O.'s "responding to
internal stimuli, disorganized speech, blunted affect, religious preoccupation,
suicidal ideation, confusion, auditory hallucinations, delusions, lack of need for
sleep, and impaired insight, impulse control and judgment."
At the 14-day commitment hearing and now on appeal, R.O. focuses his
argument on the State's failure to demonstrate that his conduct was due to an
underlying mental illness as opposed to his drug use. R.O. reinforces this
argument by emphasizing the lack of any evidence of R.O.'s conduct or condition
prior to his interaction with Asher. R.O. avers this failure to establish a baseline
for whether or not R.O. was adequately providing for his essential human needs is
fatal to the State's case. In Labelle, the Supreme Court held that when the State
proceeds under the gravely disabled standard, it "must present recent, tangible
evidence of failure or inability to provide for such essential human needs as food,
clothing, shelter, and medical treatment which presents a high probability of
serious physical harm within the near future unless adequate treatment is
afforded." Labelle, 107 Wn.2d at 204-05. Proving an individual is gravely disabled
under prong (a) does not necessarily require prior knowledge of the individual's
lifestyle, but instead recent tangible evidence of failure to provide for essential
human needs. ]d. Here, the State properly focused on the recent evidence that
during R.O.'s commitment, when he was not under the influence of non-prescribed
7-
No. 80339-5-1/8
drugs, many mental health symptoms persisted despite his general compliance
with some aspects of treatment.
The court's findings are supported by substantial evidence that while at the
hospital, R.O. was at times isolative, selectively mute, and exhibited unusual
behavior such as laying in the hallway. Sparkmon admitted that R.O. seemed to
be improving while at the hospital, but though he was medically compliant, he did
not recognize the need for treatment. Though R.O. now argues that we should
reweigh the evidence or consider it in another light, our scope of review does not
permit for such an inquiry. Reviewing the record in its entirety, the court's findings
for R.O's 14-day commitment are supported by substantial evidence as
established in the testimony of the responding care providers and involved officer.
Affirmed.
WE CONCUR:
fi&T/M*****^'— >vy | 01-03-2023 | 06-08-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3048578/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IOANE JOHN OPETA,
Plaintiff-Appellant, No. 04-56719
v.
D.C. No.
CV-03-05189-WJR
NORTHWEST AIRLINES PENSION
PLAN FOR CONTRACT EMPLOYEES, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
William J. Rea, District Judge, Presiding
Argued and Submitted
September 12, 2006—Pasadena, California
Filed May 7, 2007
Before: J. Clifford Wallace, M. Margaret McKeown, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
5107
5110 OPETA v. NORTHWEST AIRLINES PENSION PLAN
COUNSEL
Lisa S. Kantor, Glenn R. Kantor, Kantor & Kantor LLP,
Northridge, California; Russell G. Petti, Law Offices of Rus-
sell G. Petti, La Canada, California, for the plaintiff-appellant.
Thomas B. Ackland, Jason Orlandi, Barger & Wolen LLP,
Los Angeles, California, for the defendant-appellee.
OPINION
WARDLAW, Circuit Judge:
Ioane John Opeta appeals the district court’s judgment that
he is not “totally and permanently” disabled, and therefore
ineligible for a disability pension benefit under the Northwest
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5111
Airlines Pension Plan for Contract Employees (the “Plan”),
which is administered by Northwest Airlines (“Northwest”)
and regulated by the Employee Retirement Income Security
Act of 1974 (“ERISA”). We must determine whether the dis-
trict court, in conducting a de novo review of the Plan’s denial
of benefits, abused its discretion by admitting evidence extrin-
sic to the administrative record. We hold that because the cir-
cumstances did not clearly establish that the evidence was
necessary to the district court’s review, Friedrich v. Intel
Corp., 181 F.3d 1105, 1110-11 (9th Cir. 1999), the district
court abused its discretion by admitting the evidence. There-
fore, we reverse the district court’s judgment and remand for
a grant of benefits under the Plan.
I.
On October 30, 1996, Ioane John Opeta, a Northwest
employee, severely injured his back when he grabbed a falling
300-pound crate while loading cargo onto an aircraft. Opeta
underwent surgery and received extensive treatment for his
injury, including physical therapy, and numerous epidurals for
pain relief. In 1998, Opeta returned to work for Northwest as
a ramp coordinator on light duty, but was terminated from his
position as equipment lead supervisor because of his medical
condition. He proceeded to work at Northwest in various posi-
tions, including as an accountant, a security coordinator, and
an inspector of security and pollution processes at several
Northwest facilities. Opeta remained in constant pain that was
exacerbated by long periods of sitting or standing.
In 2001, Opeta’s condition worsened and he began experi-
encing sharp pain in his lower back. Medical tests revealed
that he had mild degenerative disc disease in his spine. Dr.
Mealer, the orthopedic surgeon to whom Opeta had been
referred by Northwest, and who performed Opeta’s surgery,
reported that Opeta was temporarily totally disabled, but nev-
ertheless cleared him for work. In 2002, on Dr. Mealer’s rec-
5112 OPETA v. NORTHWEST AIRLINES PENSION PLAN
ommendation, Opeta was placed on leave due to total
disability.
On February 5, 2002, Opeta applied for a disability retire-
ment pension. Under the Plan’s terms, an employee may
receive a disability retirement pension if the participant’s
“employment ends due to [his] total and permanent disabili-
ty.” The Plan defines total and permanent disability as “a
medically determinable physical or mental condition which
renders you incapable of any employment with [Northwest].”
The Plan provides that Northwest will determine whether the
employee is totally and permanently disabled based on the
employee’s medical reports. If the employee disagrees with
Northwest’s decision, a doctor acceptable to both the
employee and Northwest will make a “final and binding”
determination following an Independent Medical Examination
(“IME”). After the Plan’s in-house physician reviewed the
medical records, he concluded that while Opeta was totally
disabled, he was not permanently disabled from all employ-
ment with Northwest. Opeta disagreed with the denial of his
application, and pursuant to the Plan, exercised his right to an
IME.
Northwest and Opeta agreed that Dr. Gold, an orthopedic
specialist, would perform the IME and make the “final and
binding” determination. On November 4, 2002, Dr. Gold
examined Opeta and determined that Opeta was “temporarily
totally disabled” and “unable to work in any capacity.” Dr.
Gold reported that while there was “a possibility that [Opeta]
could be a candidate for extreme sedentary work,” it was
“very unlikely.”
Northwest requested that Dr. Gold clarify his determination
by answering a specific set of written questions about Opeta’s
condition. Dr. Gold responded as follows:
Question 1: Was John Opeta totally disabled
from all employment with North-
west Airlines on May 3, 2002?
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5113
Answer: Yes, Mr. Ioane John Opeta was
totally disabled from all employment
with Northwest Airlines on 05-03-
02.
Question 2: Was John Opeta permanently dis-
abled from all employment with
Northwest Airlines on May 3, 2002?
Answer: Yes, Mr. Ioane John Opeta was per-
manently disabled from all employ-
ment with Northwest Airlines on 05-
03-02.
Question 3: On what date was John Opeta both
totally & permanently disabled from
all employment (including light or
sedentary work without regard to
level of pay)? If John Opeta was not
both totally & permanently disabled
from all employment, please explain
your reasons for your opinion.
Answer: Mr. Opeta has been totally and per-
manent [sic] disabled from all
employment since January 2002 as a
result of his chronic lumbar condi-
tion status post a lumbar L4-5
decompression and chronic bilateral
radiculopathy and chronic back pain
syndrome.
Question 4: Is there any type of work that John
Opeta could do? If “yes”, please
describe.
Answer: At this time, there is no type of work
that Mr. Opeta could participate in
5114 OPETA v. NORTHWEST AIRLINES PENSION PLAN
as noted previously. The possibility
of extreme sedentary type of work
could be a possibility after further
time and appropriate treatment.
Question 5: Is there any treatment currently
available that would allow John
Opeta to return to some kind of
employment? If yes, please describe
the type of treatment and the fre-
quency and duration of care you
believe is indicated.
Answer: With further time and back rehabili-
tation, there is a remote possibility
that Mr. Opeta could return to some
kind of employment and, as
described above, this would be
extremely sedentary. The treatment
that could potentially render Mr.
Opeta to achieve this position could
be further back rehabilitation pro-
gram, epidural steroid injections, or
a possibility of lumbar fusion.
On January 16, 2003, Northwest again denied Opeta’s
claim for benefits, basing its denial on “the evaluation by Dr.
Gold, and other evidence,” also reiterating that Dr. Gold’s
decision was “final and binding.”
Opeta subsequently filed an action in the United States Dis-
trict Court for the Central District of California, seeking an
award of benefits under the Plan.1 The district court held a
1
Opeta misguidedly contends that the Plan contains an “arbitration
agreement” which the district court should have enforced. Opeta’s argu-
ment relies on a distorted reading of the Plan’s terms. The Plan itself con-
tains no language suggesting that any dispute between a beneficiary and
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5115
bench trial to determine, on de novo review, whether Opeta
was totally and permanently disabled within the meaning of
the Plan. During opening statements, over Opeta’s objection,
the district court allowed Northwest to read a textual descrip-
tion of a previously undisclosed surveillance videotape of
Opeta filmed in September 2002—two months before Dr.
Gold examined Opeta. Although the videotape itself never
became a part of the administrative record, Northwest pos-
sessed a textual description of the video’s contents and still
shots for over a month before Dr. Gold’s examination. North-
west did not, however, submit this evidence to Dr. Gold to be
considered in his independent evaluation of Opeta’s condi-
tion.
The videotape depicted Opeta doing yard work for approxi-
mately two hours and thirty minutes in front of his house,
including using an electric hedge trimmer to cut the bushes,
a gas-powered weed trimmer to edge the lawn, and a lawn
mower to cut the grass. It also showed Opeta using a broom
and dust pan with an extended handle to sweep, as well as a
hose to water the lawn. While he was performing these activi-
ties, Opeta used back support, which he wore strapped around
his waist and over his shoulders.
After the first day of proceedings, the district judge ordered
Dr. Gold and Opeta into court to testify. Dr. Gold testified
that it was “very unlikely” that Opeta could return to work
and that he was “totally disabled from any employment at
Northwest Airlines.” Dr. Gold also stated that “based on the
information that I had then and based on what I still have right
Northwest must be arbitrated. Opeta, however, suggests that the Plan’s
language providing for an independent medical opinion, with respect to
the determination of total and permanent disability, is in essence an agree-
ment to arbitrate. We disagree and focus instead on the crux of Opeta’s
argument, which is that the district court should have excluded new evi-
dence and enforced Dr. Gold’s “final and binding” determination accord-
ing to the terms of the Plan.
5116 OPETA v. NORTHWEST AIRLINES PENSION PLAN
now, I would stick to that conclusion.” However, on cross-
examination Northwest surprised Dr. Gold by playing the vid-
eotape. Dr. Gold then testified that if he had been provided
with the videotape at the time of his November 2002 evalua-
tion, he would not have concluded that Opeta was totally and
permanently disabled.
The district court also allowed Dr. Mealer to testify regard-
ing Opeta’s medical condition and treatment, as well as his
impressions of the videotape surveillance which he had previ-
ously viewed as part of his review of Opeta’s claim. Addition-
ally, the district court ordered the videographer to testify as to
what he observed while conducting the video surveillance of
Opeta.
The district court’s judgment found that Opeta was not
totally and permanently disabled within the meaning of the
Plan and thus, not eligible for disability retirement benefits.
II.
In ERISA cases, we review de novo the district court’s
choice and application of the appropriate standard of review.
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 (9th
Cir. 2006) (en banc). We review the district court’s decision
to admit or exclude evidence that was not before the plan
administrator for an abuse of discretion. See Dishman v.
UNUM Life Ins. Co. of Am., 269 F.3d 974, 985 (9th Cir.
2001); Friedrich, 181 F.3d at 1110-11. We review for clear
error underlying findings of fact. Friedrich, 181 F.3d at 1109.
III.
The district court correctly ruled that the appropriate stan-
dard for review of the Plan’s denial of benefits is de novo.
The district court reviews a challenge to an ERISA plan’s
denial of benefits de novo “unless the benefit plan gives the
administrator or fiduciary discretionary authority to determine
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5117
eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989). We have held that the default standard of review in
ERISA cases is de novo and that discretion exists only if it is
“ ‘unambiguously retained.’ ” Kearney v. Standard Ins. Co.,
175 F.3d 1084, 1090 (9th Cir. 1999) (en banc) (quoting Bogue
v. Ampex Corp., 976 F.2d 1319, 1325 (9th Cir. 1992)).
[1] “We have held that ERISA plans are insufficient to con-
fer discretionary authority on the administrator when they do
not grant any power to construe the terms of the plan.” Abatie,
458 F.3d at 964. In Ingram v. Martin Marietta Long Term
Disability Income Plan, 244 F.3d 1109, 1112-13 (9th Cir.
2001), we concluded that even though the plan identified the
carrier as “solely . . . responsible” for providing benefits,
deciding all claims, and controlling the operation and admin-
istration of the plan, “those provisions merely identified the
plan administrator’s tasks, but bestowed no power to interpret
the plan,” Abatie, 458 F.3d at 964, and therefore de novo
review was appropriate.
[2] Here, the Plan nowhere states that the plan administra-
tor, Northwest, has the full or sole discretion to interpret the
terms of the plan. By its terms, the final decision as to eligibil-
ity is made not by Northwest, but by an independent mutually
acceptable physician. Cf. Abatie, 458 F.3d at 965 (concluding
that a plan conferred discretion because plan administrator
had exclusive “responsibility to interpret the terms of the plan
and to determine eligibility of benefits”); Bergt v. Ret. Plan
for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1142
(9th Cir. 2002) (concluding that a plan conferred discretion
because its terms granted the administrator the “power” and
“duty” to “interpret the plan” and to “decide on questions con-
cerning the plan and the eligibility of any Employee” (internal
quotation marks and citations omitted)); McDaniel v. Chevron
Corp., 203 F.3d 1099, 1107 (9th Cir. 2000) (holding that a
plan conferred sufficient discretion because “the Plan Admin-
istrator has the sole discretion to interpret the terms of the
5118 OPETA v. NORTHWEST AIRLINES PENSION PLAN
Plan”) (internal quotation marks omitted); Friedrich, 181 F.3d
at 1110 n.5 (finding that administrator had discretionary
authority because plan stated that insurer “shall have the sole
discretion to interpret the terms of the Plan and to determine
eligibility for benefits”) (internal quotation marks omitted).
Therefore, because the Plan did not unambiguously confer
discretion on Northwest to interpret the terms of the Plan and
determine eligibility benefits, the district court correctly deter-
mined that it should apply a de novo standard of review. See
Abatie, 458 F.3d at 964.
IV.
[3] While de novo is the correct standard of review in this
case, the district court abused its discretion by failing to con-
duct the proper analysis before admitting extrinsic evidence.
If de novo review applies, “[t]he court simply proceeds to
evaluate whether the plan administrator correctly or incor-
rectly denied benefits.” Abatie, 458 F.3d at 963. Under de
novo review, the district court should have determined
whether Opeta was entitled to benefits based on the evidence
in the administrative record and “other evidence as might be
admissible under the restrictive rule of Mongeluzo.” Kearney,
175 F.3d at 1094.
[4] In Mongeluzo v. Baxter Travenol Long Term Disability
Benefit Plan, we resolved the question of the scope of review
that a district court may employ upon de novo review of a
plan administrator’s decision. 46 F.3d 938, 943-44 (9th Cir.
1995). Agreeing with the Third, Fourth, Seventh, Eighth, and
Eleventh Circuits, we held that extrinsic evidence could be
considered only under certain limited circumstances. Id. We
cited with approval the rule of the Fourth Circuit that the dis-
trict court should exercise its discretion to consider evidence
outside of the administrative record “ ‘only when circum-
stances clearly establish that additional evidence is necessary
to conduct an adequate de novo review of the benefit deci-
sion.’ ” Id. at 944 (quoting Quesinberry v. Life Ins. Co. of N.
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5119
Am., 987 F.2d 1017, 1025 (4th Cir. 1993) (en banc)) (empha-
sis added). We emphasized that “a district court should not
take additional evidence merely because someone at a later
time comes up with new evidence” and that “[i]n most cases”
only the evidence that was before the plan administrator at the
time of determination should be considered. Id.
In Quesinberry, the Fourth Circuit provided a non-
exhaustive list of exceptional circumstances where introduc-
tion of evidence beyond the administrative record could be
considered necessary:
claims that require consideration of complex medical
questions or issues regarding the credibility of medi-
cal experts; the availability of very limited adminis-
trative review procedures with little or no
evidentiary record; the necessity of evidence regard-
ing interpretation of the terms of the plan rather than
specific historical facts; instances where the payor
and the administrator are the same entity and the
court is concerned about impartiality; claims which
would have been insurance contract claims prior to
ERISA; and circumstances in which there is addi-
tional evidence that the claimant could not have
presented in the administrative process.
987 F.2d at 1027 (holding that the district court’s admission
of additional evidence was not an abuse of discretion because
the extrinsic evidence was necessary to assist in the under-
standing of complex medical issues).
In Friedrich, we applied the Mongeluzo standard and held
that the district court’s admission of additional evidence was
not an abuse of discretion. 181 F.3d at 1111. There, the dis-
trict court correctly determined that the plan administrator had
prevented the plaintiff from providing medical records to sup-
port his claim during its review and the administrative record
included only incomplete, illegible, and disorganized medical
5120 OPETA v. NORTHWEST AIRLINES PENSION PLAN
records. Id. We concluded that the district court did not abuse
its discretion because “[w]ith the addition of [the plaintiff’s]
trial evidence to [the defendant’s] evidence already in the
administrative record, the district court had a complete record
that allowed the court to make an adequate, independent de
novo review of the benefits decision.” Id. Moreover, we found
that the district court properly excluded additional evidence
presented by the plan administrator, because detailed, written
reports from the plan’s experts already in the administrative
record, “made it unnecessary for the district court to hear
additional testimony from [the defendant’s] consultants.” Id.
Here, the district court admitted several pieces of extrinsic
evidence, including the videotape, and testimony from Dr.
Gold, Dr. Mealer, Opeta, and the videographer, without con-
ducting the proper analysis. Under Mongeluzo, we must deter-
mine whether each piece of extrinsic evidence was necessary
for the district court to conduct an adequate de novo review.
Because we conclude that none of the extrinsic evidence was
necessary to conduct an adequate de novo review, we hold
that the district court abused its discretion in admitting the evi-
dence.2
2
Northwest argues that Opeta waived his right to challenge the admissi-
bility of the evidence. The record demonstrates otherwise. Opeta repeat-
edly objected to the introduction of evidence outside of the administrative
record, and never waived this objection. On the first day of proceedings,
Opeta’s counsel objected to the district court’s decision to bring Dr. Gold
into court. Opeta’s counsel attempted to explain to the district court the
correct analysis it should apply in ERISA cases to determine whether to
admit extrinsic evidence given a de novo standard of review:
Counsel: I said you could order it . . . . I don’t think you should
do it either. I think you should apply the answers to
the questions as the plan says. Theoretically, in this
case I have no objection to bringing in Dr. Gold. I
firmly believe he will support our position; however,
to do that turns Ninth Circuit law, actually Supreme
Court rulings on its head with regard to ERISA, that
the Court is supposed to take the administrative record
and rule.
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5121
A.
The Plan states that “[i]f you disagree with the decision of
the Employer, a doctor acceptable to you and to the Employer
The Court: Don’t I have any right to witnesses?
Counsel: Your Honor, under your discretion, if you determine
you need to hear a witness in order to rule —
The Court: I think there is a big question here about what Dr.
Gold said, what he meant by what he said. I would
like him here.
Counsel: If that is what the Court wants, we have no objec-
tion.
...
Counsel: We are then turning what the Courts have said is
supposed to be an expeditious, expedited, efficient
ERISA trial into a federal case.
The Court: I’ve never heard of a trial that had no witnesses,
have you?
Counsel: Yes, your Honor. I have been doing them for years
under ERISA. The Kearny case is very specific
about — well, I guess its not very specific, but it’s
instructive that the Court is supposed to look at the
administrative record to make a ruling.
The Court: Well, I would feel much better if Dr. Gold was here.
Counsel: Okay.
...
Counsel: Your Honor, all I can tell you is if the Court deter-
mines that there is a de novo review and the Court
wishes additional evidence, the Court can order it.
The Court: I’m going to order Dr. Gold and Mr. Opeta into
court.
Counsel: Fine.
Opeta then filed a set of written objections to Dr. Gold’s testimony and
the introduction of the videotape and, on the second day of trial, before
any witnesses were called, Opeta’s counsel again objected to the admis-
sion of new evidence.
5122 OPETA v. NORTHWEST AIRLINES PENSION PLAN
will make a determination. This determination will be final
and binding on you and on the Employer.” Both parties agree
that Dr. Gold’s determination was final and binding. How-
ever, Northwest asserts that Dr. Gold found Opeta to be
totally, but not permanently disabled. Conversely, Opeta
claims that Dr. Gold unambiguously found that Opeta was
both totally and permanently disabled.
[5] De novo review requires the district court to evaluate
whether Northwest correctly denied Opeta benefits under the
terms of the Plan. Abatie, 458 F.3d at 963. The videotape of
Opeta doing light yard work almost two months before Dr.
Gold’s evaluation was not part of the administrative record,
and is not relevant to the district court’s review of North-
west’s interpretation of Dr. Gold’s assessment. The videotape
itself was never part of Dr. Gold’s evaluation. The administra-
tive record contained still frames from the videotape and tex-
tual descriptions of the surveillance, but Northwest never
submitted any of these materials to Dr. Gold in connection
with his “final and binding” determination, electing instead to
surprise him at trial. Dr. Gold’s initial determination was
based entirely on Opeta’s medical records supplied by both
parties, as well as Dr. Gold’s own personal examination.
Northwest failed to place all of the records and evidence in its
possession before Dr. Gold. Moreover, none of the excep-
tional circumstances outlined in Quesinberry apply here. See
987 F.2d at 1027. Therefore, allowing the videotape into evi-
dence was an abuse of discretion.
B.
[6] The district court also abused its discretion by admitting
the testimony of Dr. Gold, Dr. Mealer, Opeta, and the video-
grapher because the circumstances did not establish that the
additional evidence was necessary for the court to conduct an
adequate de novo review. Even if there was confusion sur-
rounding Dr. Gold’s initial assessment, Northwest took the
appropriate steps to clarify that determination by requesting
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5123
that Dr. Gold answer a set of written questions that specifi-
cally asked whether Opeta was totally and permanently dis-
abled. Dr. Gold’s answers unequivocally state that he found
Opeta both totally and permanently disabled at the time of the
assessment. Dr. Gold’s testimony was not necessary to under-
stand or clarify his conclusions that were plainly stated in
response to Northwest’s follow-up questions.
Under Mongeluzo, that the district judge “would feel much
better” if Dr. Gold testified and that he “had never heard of
a trial [without] witnesses” is insufficient to warrant addi-
tional evidence. There was no “big question” or ambiguity as
to what Dr. Gold meant by what he said—the administrative
record contained his explanation of what he meant, as well as
his conclusion that there was a remote possibility at some
point in the future that Opeta could return to extremely seden-
tary work. Dr. Gold was clear and emphatic in those
responses that Opeta was “totally and permanent [sic] dis-
abled from all employment since January 2002” and that “[a]t
this time, there is no type of work that Mr. Opeta could partic-
ipate in . . .” Moreover, Northwest’s insistence that Dr. Gold
be called to testify seems to have been entirely for the purpose
of sandbagging him with the secret videotape surveillance, as
all of his testimony on direct examination was cumulative of
the detailed answers he had previously supplied to Northwest.
[7] The additional testimony by Dr. Mealer, Opeta, and the
videographer was irrelevant to determining whether the Plan
correctly or incorrectly denied benefits based on Dr. Gold’s
evaluation, which was the only question properly before the
district court.
C.
Northwest further argues that Dr. Gold determined that
Opeta was not permanently disabled because he stated that
there was a possibility that Opeta’s condition might improve
one day to the point where he could return to “extremely sed-
5124 OPETA v. NORTHWEST AIRLINES PENSION PLAN
entary” work, even though that possibility was “remote” and
“very unlikely.” Northwest contends that this “remote” possi-
bility renders Opeta not permanently disabled, justifying its
denial of Opeta’s claim.
We do not interpret the terms of the Plan to require Opeta
to prove that there is absolutely no chance of any type of
recovery. Instead, we construe the Plan, consistent with its
plain language, as requiring Opeta to be totally and perma-
nently disabled as determined by an independent doctor at the
time of his medical evaluation. The Plan states that “Total and
Permanent Disability is a medically determinable physical or
mental condition which renders you incapable of any employ-
ment with the Employer.” Black’s Law Dictionary defines
“permanent disability” as “[a] disability that will indefinitely
prevent a worker from performing some or all of the duties
that he or she could do before an accident.” Black’s Law Dic-
tionary 474 (7th ed. 1999). Dr. Gold stated in his second letter
to Northwest that Opeta is “unable to work in any capacity,
whatsoever, with Northwest Airlines” and that “[w]ith further
time and back rehabilitation, there is a remote possibility that
Mr. Opeta could return to some kind of employment, and
[that] this would be extremely sedentary.” Construing the
term “permanent” to require the claimant to establish with
certainty that he would never recover is unreasonable, and we
will not read into the Plan an unreasonable term.
[8] Northwest also argues that after Dr. Gold submitted his
evaluation, “the Plan exercised its discretion to review these
reports and interpreted them to conclude that Opeta did not
satisfy the definition as set forth in the Plan language.” We
reject this argument. According to the plain language of the
Plan, Northwest no longer had discretion to interpret Dr.
Gold’s reports because the decision of the independent doctor
was “final and binding” on both Northwest and Opeta.
OPETA v. NORTHWEST AIRLINES PENSION PLAN 5125
V.
[9] We hold that admitting the videotape and additional tes-
timony was an abuse of discretion and that, based on the plain
terms of the Plan and binding nature of Dr. Gold’s pretrial
opinion, the district court erred as a matter of law by awarding
a judgment in Northwest’s favor. We therefore reverse the
district court’s judgment and remand for an award of benefits
under the Plan consistent with this opinion.3
REVERSED and REMANDED.
3
Opeta asks us to take judicial notice of the fact that the same district
court judge in a separate subsequent case for Opeta’s long term disability
benefits, found that Opeta was totally disabled, and therefore, could not
have possibly found that he was not totally disabled in this case. We deny
this motion as moot. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048582/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL MORALES-IZQUIERDO, No. 03-70674
Petitioner, INS No.
v.
A79-166-816
ALBERTO R. GONZALES, Attorney ORDER AND
General, AMENDED
Respondent.
OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 13, 2005—Portland, Oregon
Proceedings Stayed January 5, 2006
Resubmitted June 22, 2006
Filed February 6, 2007
Amended May 8, 2007
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Stephen Reinhardt, Alex Kozinski, Pamela Ann Rymer,
Michael Daly Hawkins, Sidney R. Thomas, Susan P. Graber,
William A. Fletcher, Ronald M. Gould and Jay S. Bybee,
Circuit Judges.
Opinion by Judge Kozinski;
Dissent by Judge Thomas
5267
MORALES-IZQUIERDO v. GONZALES 5271
COUNSEL
Robert Pauw, Gibbs Houston Pauw, Seattle, Washington, for
the petitioner.
5272 MORALES-IZQUIERDO v. GONZALES
Peter D. Keisler, Assistant Attorney General, Civil Division;
Jonathan F. Cohn, Deputy Assistant Attorney General; Don-
ald E. Keener, Deputy Director, Office of Immigration Litiga-
tion; John Andre, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Washington, D.C., for
the respondent.
Trina A. Realmuto and Nadine K. Wettstein, American Immi-
gration Law Foundation, Washington, D.C., as amici curiae in
support of the petitioner.
ORDER
The petition for panel rehearing is denied. See Fed. R. App.
P. 40. Judges Pregerson, Reinhardt, Thomas and W. Fletcher
would grant the petition. The opinion filed on February 6,
2007, slip op. at 1389, is amended as follows:
Delete and footnote 15, id. at 1408-09.
Delete , id. at 1412.
OPINION
KOZINSKI, Circuit Judge:
When an alien subject to removal leaves the country, the
removal order is deemed to be executed. If the alien reenters
the country illegally, the order may not be executed against
him again unless it has been “reinstated” by an authorized offi-
cial.1 Until 1997, removal orders could only be reinstated by
1
Why this is so is not clear, and neither party explains it. It’s certainly
possible to conceive of a system where a removal order remains in force
MORALES-IZQUIERDO v. GONZALES 5273
immigration judges. That year, the Attorney General changed
the applicable regulation to delegate this authority, in most
cases, to immigration officers. We consider whether this
change in regulation is valid.
I
Morales-Izquierdo, a native and citizen of Mexico, was
arrested in 1994 for entering the United States without inspec-
tion. He was released and served with a mail-out order to
show cause.2 Eventually, a removal hearing was scheduled,
and Morales was notified via certified mail of the time and
place of the hearing. When Morales failed to attend the hear-
ing, he was ordered removed in absentia.3 Morales claims he
never received notice of the hearing date, but the record
permanently and may be re-executed whenever the alien is found to have
reentered the country illegally. As Judge Fernandez has noted, “there is
nothing unusual about allowing multiple executions on a judgment until
the full relief under it has been obtained.” Castro-Cortez v. INS, 239 F.3d
1037, 1055 (9th Cir. 2001) (Fernandez, J., dissenting), abrogated by
Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2427 & n.5 (2006). That,
however, does not appear to be the way our immigration law has devel-
oped.
2
When an alien is apprehended for an immigration violation, the immi-
gration officer typically serves the alien with what is known as a mail-out
order to show cause. What this means is that the alien is handed the order
upon submitting an address of record. This order explains why the alien
is in proceedings and under what legal authority, and it provides the
address of the Immigration Court. 8 C.F.R. § 1003.15. The order also
states that an alien must advise that court of any change in address, and
that failure to provide such information may result in an in absentia hear-
ing. Id. It’s called a “mail-out” order because notice of the hearing date
is subsequently mailed out to the alien’s address of record.
3
Morales’ 1994 removal order was actually a “deportation” order,
though the difference is of no legal consequence. The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, div. C, 110 Stat. 3009-546, replaced all references to “deporta-
tion” with “removal.” See Gerald L. Neuman, Habeas Corpus, Executive
Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 966 (1998)
(“IIRIRA realigned the vocabulary of immigration law, creating a new
category of ‘removal’ proceedings that largely replaces what were for-
merly exclusion proceedings and deportation proceedings . . . .”). To avoid
more confusion than necessary, we use the term “removal,” even when
referring to a pre-1996 “deportation.”
5274 MORALES-IZQUIERDO v. GONZALES
shows that the notice was mailed to his address of record, and
the Immigration and Naturalization Service (INS) received a
return receipt bearing the signature “Raul Morales.”
A warrant of removal was issued, and the INS apprehended
and removed Morales from the United States in 1998.4 He
attempted to reenter illegally in January 2001—this time
using a false border-crossing card. He was apprehended at the
port of entry, and was expeditiously removed for misrepre-
senting a material fact in violation of the Immigration and
Nationality Act (INA) § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)
(6)(C)(i).5 Undaunted, Morales reentered the United States
undetected the following day—a fact he disclosed to the
immigration officer during the reinstatement proceeding.
Sometime between his 1998 and 2001 removals, Morales
married a United States citizen. In March 2001, Morales’ wife
filed an I-130 alien relative petition based on his marriage to
a United States citizen. When Morales and his wife met with
the INS in January 2003, an immigration officer served them
with a denial of the I-130 petition and a notice of intent to
reinstate Morales’ removal order in accordance with INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8.
Morales petitioned here for review of the reinstatement order.
The case came before a three-judge panel, which held that
the regulation authorizing immigration officers to issue rein-
statement orders is invalid and Morales’ removal order could
only be reinstated by an immigration judge. See Morales-
Izquierdo v. Ashcroft, 388 F.3d 1299, 1305 (9th Cir. 2004).
4
Contrary to the administrative record, Morales claims he was not
removed at all, but that he voluntarily departed. The difference is immate-
rial for reinstatement purposes. See n.14 infra.
5
Pre-IIRIRA, this expedited removal at the border would have been cal-
led an “exclusion.” However, “removal” now encompasses both “exclu-
sion” and “deportation.” See n.3 supra. Again, Morales denies that he was
forcibly removed, claiming that he departed voluntarily.
MORALES-IZQUIERDO v. GONZALES 5275
We took the case en banc. See Morales-Izquierdo v. Gon-
zales, 423 F.3d 1118 (9th Cir. 2005).
II
As noted, Morales cannot be removed again under the 1994
removal order unless and until it was reinstated. The order
was reinstated by an immigration officer, who acted pursuant
to 8 C.F.R. § 241.8, which authorizes immigration officers—
rather than immigration judges6—to reinstate prior removal
orders of aliens who illegally reenter the United States.7
Morales argues that the Attorney General exceeded his
authority in promulgating the regulation. The three-judge
panel so held. However, the First, Sixth, Eighth and Eleventh
Circuits have upheld the regulation against similar challenges.
See De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1283
(11th Cir. 2006); Ochoa-Carrillo v. Gonzales, 437 F.3d 842,
846 (8th Cir. 2006); Lattab v. Ashcroft, 384 F.3d 8, 20 (1st
Cir. 2004). The Sixth Circuit saw the matter as so clear-cut
that it did not deem it necessary to publish its disposition
upholding the regulation. Tilley v. Chertoff, 144 Fed. App’x
536, 539-40 (6th Cir. 2005) (mem.), cert. denied, 127 S. Ct.
62 (2006). No other court has reached a contrary conclusion.
[1] A. In determining whether 8 C.F.R. § 241.8 is valid,
6
A prior regulation required a hearing before an immigration judge. 8
C.F.R. § 242.23 (repealed 1997).
7
This regulation was originally adopted by the INS, which was part of
the Department of Justice. See Inspection and Expedited Removal of
Aliens; Detention and Removal of Aliens; Conduct of Removal Proceed-
ings; Asylum Procedures, 62 Fed. Reg. 10,312, 10,379 (Mar. 6, 1997)
(codified in scattered parts of 8 C.F.R.). The INS ceased to exist in 2003,
and most of its functions were transferred to the Department of Homeland
Security (DHS). See Homeland Security Act of 2002, Pub. L. No. 107-
296, §§ 441, 471, 116 Stat. 2135, 2192, 2205 (codified at 6 U.S.C. §§ 251,
291). To minimize confusion, we use the term “INS,” even when referring
to DHS’ successor to the INS-U.S. Immigration and Customs Enforce-
ment.
5276 MORALES-IZQUIERDO v. GONZALES
we apply the familiar Chevron two-step approach. Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). Under Chevron step one, we ask “whether Congress
has directly spoken to the precise question at issue,” id. at 842
—i.e., whether DHS can reinstate a prior removal order with-
out a full-blown hearing before an immigration judge.
[2] Here, two sections of the INA are potentially impli-
cated. The first, INA § 240, titled “Removal proceedings,”
requires that “[a]n immigration judge shall conduct proceed-
ings for deciding the inadmissibility or deportability of an
alien.” INA § 240(a)(1), 8 U.S.C. § 1229a(a)(1).8 The second
relevant section, INA § 241, titled “Reinstatement of removal
orders against aliens illegally reentering,” provides:
If the Attorney General finds that an alien has reen-
tered the United States illegally after having been
removed or having departed voluntarily, under an
order of removal, the prior order of removal is rein-
stated from its original date and is not subject to
being reopened or reviewed, the alien is not eligible
and may not apply for any relief under this chapter,
and the alien shall be removed under the prior order
at any time after the reentry.
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5). Section 241 makes
no mention of a hearing before an immigration judge, or any
other procedure. Most of the section is devoted to limiting the
alien’s rights and ensuring that the removal is carried out
expeditiously.
[3] Morales argues that Congress spoke clearly as to
8
Section 240 also provides certain procedural protections: the right to
representation, “a reasonable opportunity to examine the evidence against
the alien, to present evidence on the alien’s own behalf, and to cross-
examine witnesses,” and a complete record of the proceedings. INA
§ 240(b)(4), 8 U.S.C. § 1229a(b)(4).
MORALES-IZQUIERDO v. GONZALES 5277
whether a hearing before an immigration judge is required for
reinstating a prior removal order, and did so in INA § 240.
While recognizing that reinstatement is mentioned nowhere in
this section, Morales claims a reinstatement order is function-
ally a removal order because it has the effect of authorizing
an alien’s removal. In other words, reinstatement is simply a
species of removal, and is thus governed by INA § 240, which
calls for a hearing before an immigration judge. In support of
his argument, Morales points out that when Congress has
intended to exempt certain removal proceedings from the INA
§ 240 hearing requirement, it has done so explicitly.9 Rein-
statement is not among those proceedings explicitly
exempted.
[4] Morales’ argument that the failure to exempt reinstate-
ment from the requirement that a hearing be held before an
immigration judge, particularly when similar provisions of the
same statute contain explicit exemptions, carries some force.
But such failure hardly amounts to the kind of unambiguous
expression of congressional intent that would remove the
agency’s discretion at Chevron step one. Far more telling is
the fact that reinstatement and removal are placed in different
sections, which “logically can be understood as indicating a
congressional intention to treat reinstatement determinations
differently from first-instance determinations of removabili-
ty.” Lattab, 384 F.3d at 18 (citing Alexander v. Sandoval, 532
U.S. 275, 288-91 (2001)); see also De Sandoval, 440 F.3d at
1281. After all, “the words of a statute must be read in their
context and with a view to their place in the overall statutory
9
See INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) (directing immigration
officers to “order the alien removed . . . without further hearing” for lack
of valid documents or for fraud); INA § 235(c), 8 U.S.C. § 1225(c)
(directing immigration officers to “order the alien removed” if suspected
of being inadmissible under security threat grounds, and report the order
to the Attorney General who will decide whether to provide a hearing);
INA § 238, 8 U.S.C. § 1228 (directing the Attorney General to institute
expedited removal procedures—either by an immigration judge or officer
—for aliens convicted of aggravated felonies).
5278 MORALES-IZQUIERDO v. GONZALES
scheme.” FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000) (quoting Davis v. Mich. Dep’t of Trea-
sury, 489 U.S. 803, 809 (1989) (internal quotation marks
omitted)). Here, the fact that Congress placed reinstatement in
a separate section from removal suggests that reinstatement is
a separate procedure, not a species of removal.
[5] A closer look at the texts of the two sections confirms
that Congress intended reinstatement to be a different and far
more summary procedure than removal. Under INA § 240,
first-instance removal proceedings involve a broad inquiry.
To order an individual removed, the immigration judge must
make two determinations: (1) whether the individual is
removable from the United States; and, if so, (2) whether the
individual is otherwise eligible for relief from removal. See
INA § 240, 8 U.S.C. § 1229a. While the first determination
can be relatively straightforward, the second is often complex
and fact-intensive. The types of relief from removal include
cancellation of removal for extreme hardship on U.S. citizen
family members, adjustment of status for spouses of U.S. citi-
zens and asylum. See id.; see also INA § 208, 8 U.S.C. § 1158
(asylum); INA § 240A, 8 U.S.C. § 1229b (cancellation of
removal; adjustment of status). Determining what relief is
warranted under any of these provisions requires a formal
hearing before a trier of fact, such as an immigration judge.
[6] The scope of a reinstatement inquiry under INA § 241
is much narrower, and can be performed like any other minis-
terial enforcement action. The only question is whether the
alien has illegally reentered after having left the country while
subject to a removal order. As the Eleventh Circuit pointed
out, INA § 241 reinstatement—unlike INA § 240 first-
instance removal—“deprives aliens of any relief, reopening,
or review at the reinstatement stage.” De Sandoval, 440 F.3d
at 1281. By barring all relief, Congress eliminated the second
and much more difficult removal inquiry. The First and
Eighth Circuits similarly found that “the elimination of any
exogenous defense to reinstatement significantly narrows the
MORALES-IZQUIERDO v. GONZALES 5279
range of issues to be adjudicated, thereby limiting the value
of additional procedures.” Lattab, 384 F.3d at 20; see also
Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 867 (8th Cir.
2002) (same).
Morever, the texts of the two sections differ in their delega-
tion of discretion: INA § 240 expressly requires that an immi-
gration judge conduct removal proceedings, whereas INA
§ 241 authorizes the Attorney General to reinstate removal
orders. “This distinction suggests Congress knew how to
mandate a hearing before an immigration judge, but chose not
to do so in the context of reinstatement orders.” De Sandoval,
440 F.3d at 1281.
[7] Given the different layout of the two sections and their
very different scope, we conclude that Congress did not con-
sider removal and reinstatement to be equivalent. Certainly,
nothing in the text of the INA, or the statutory scheme, sup-
ports Morales’ argument that reinstatement is merely a spe-
cies of removal. Nor does anything in the INA express an
unequivocal congressional intent that reinstatement proceed-
ings be conducted before an immigration judge. If anything,
the statutory scheme supports the opposite conclusion. See
Tilley, 144 Fed. App’x at 540 (“[T]he regulations promul-
gated in 8 C.F.R. § 241.8(a) meet all of the requirements of
[INA] § 241(a)(5). Therefore, we do not see an ambiguity that
requires us to review the agency’s implementation of its gov-
erning statute.”). Indeed, it’s hard to imagine why Congress
would have bothered with the detailed provisions of INA
§ 241 if it intended to give an alien subject to reinstatement
exactly the same rights and procedural protections as an alien
facing removal for the first time.10
10
Or, in the words of Judge Fernandez, “An objective observer would
have asked, as Congress did, just what was the purpose of all of that pro-
cedure, all of those punctilious niceties, which can take years to complete,
if the person could just step back into the country a few days later and
have the roundelay go on?” Castro-Cortez, 239 F.3d at 1054 (Fernandez,
J., dissenting).
5280 MORALES-IZQUIERDO v. GONZALES
[8] B. While this case could probably be decided under
the first Chevron inquiry, all other circuits that have published
opinions on this matter decided the issue at Chevron step two.
In an abundance of caution, we therefore proceed to the sec-
ond step, which requires us to ask “whether the agency’s
answer is based on a permissible construction of the statute.”
Chevron, 467 U.S. at 843. In making this determination, we
“need not conclude that the agency construction was the only
one it permissibly could have adopted . . . , or even the read-
ing the court would have reached if the question initially had
arisen in a judicial proceeding.” Id. at 843 n.11. Rather, “Con-
gress, when it left ambiguity in a statute meant for implemen-
tation by an agency, understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the
agency (rather than the courts) to possess whatever degree of
discretion the ambiguity allows.” Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688, 2700
(2005) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735,
740-41 (1996) (internal quotation marks omitted)).
Deference to an agency’s interpretation “is especially
appropriate in the immigration context where officials ‘exer-
cise especially sensitive political functions that implicate
questions of foreign relations.’ ” INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110
(1988)). For these reasons, the First, Eighth and Eleventh Cir-
cuits had “little difficulty in concluding that the government’s
interpretation satisfies” the second step of Chevron. Lattab,
384 F.3d at 19-20; see also De Sandoval, 440 F.3d at 1283;
Ochoa-Carrillo, 437 F.3d at 846. We find no fault with this
conclusion.
Morales raises two issues, however, that our sister circuits
did not consider. First, he invokes the doctrine of constitu-
tional avoidance, asking us to construe the statute so as to
avoid serious constitutional issues. Morales relies on Clark v.
Martinez, 543 U.S. 371 (2005):
MORALES-IZQUIERDO v. GONZALES 5281
[W]hen deciding which of two plausible statutory
constructions to adopt, a court must consider the
necessary consequences of its choice. If one of them
would raise a multitude of constitutional problems,
the other should prevail—whether or not those con-
stitutional problems pertain to the particular litigant
before the Court.
Id. at 380-81; see also INS v. St. Cyr, 533 U.S. 289, 299-300
(2001) (same). According to Morales, construing the statute
so as to require that reinstatement hearings be held before an
immigration judge would avoid constitutional problems that
arise by assigning the reinstatement function to an immigra-
tion officer. See Part III infra (discussing various constitu-
tional challenges Morales raises to the reinstatement process).
The problem with Morales’ argument is that we are not
deciding between two plausible statutory constructions; we
are evaluating an agency’s interpretation of a statute under
Chevron. At step two of this inquiry, our function is “not sim-
ply [to] impose [our] own construction on the statute, as
would be necessary in the absence of an administrative inter-
pretation. Rather, . . . the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843 (internal footnote omitted).
When Congress has explicitly or implicitly left a gap for an
agency to fill, and the agency has filled it, we have no author-
ity to re-construe the statute, even to avoid potential constitu-
tional problems; we can only decide whether the agency’s
interpretation reflects a plausible reading of the statutory text.
Clark v. Martinez, and the constitutional avoidance doctrine
it embodies, plays no role in the second Chevron inquiry.
Second, Morales argues that the Attorney General imper-
missibly eliminated the hearing requirement in 1997, when it
had been a mainstay of the reinstatement process during the
previous four decades. Compare 8 C.F.R. § 242.23(b)
(repealed 1997) (requiring a hearing before an immigration
5282 MORALES-IZQUIERDO v. GONZALES
judge for reinstatement), with 8 C.F.R. § 241.8(a) (“The alien
has no right to a hearing before an immigration judge in [rein-
statement proceedings].”). Morales labels this argument
“[c]ongressional acquiescence in the prior administrative
practice.” The Supreme Court, however, has drawn a sharp
distinction between “ ‘Congress’ deliberate acquiescence’ ”
and its “failure to express any opinion.” Rapanos v. United
States, 126 S. Ct. 2208, 2231 (2006) (plurality opinion). Con-
gressional acquiescence can only be inferred when there is
“overwhelming evidence” that Congress explicitly considered
the “precise issue” presented to the court. Id. (quoting Solid
Waste Agency of N. Cook County v. U.S. Army Corps of
Eng’rs, 531 U.S. 159, 169 n.5 (2001) (“overwhelming evi-
dence”); Bob Jones Univ. v. United States, 461 U.S. 574, 600
(1983) (“precise issue”)).
Here, we concluded at Chevron step one that Congress has
not expressed a clear preference that reinstatement hearings
be held before immigration judges; if anything, the INA’s
statutory scheme supports the opposite conclusion. Nor has
Morales pointed to anything in the legislative history that dis-
closes congressional acquiescence in the agency’s past
practice—and certainly not the requisite “overwhelming evi-
dence.” A finding of congressional acquiescence must be
reserved for those rare instances where it is very clear that
Congress has considered and approved of an agency’s prac-
tice, lest the agency be improperly deprived of the very flexi-
bility Congress intended to delegate. Such is not the case here.
We also understand Morales to be arguing that the agency’s
change in policy was impermissibly inconsistent with its past
practice. An “[u]nexplained inconsistency is . . . a reason for
holding an interpretation to be an arbitrary and capricious
change from agency practice under the Administrative Proce-
dure Act.” Brand X, 125 S. Ct. at 2699 (emphasis added).
This rule, too, is reserved for rare instances, such as when an
agency provides no explanation at all for a change in policy,
or when its explanation is so unclear or contradictory that we
MORALES-IZQUIERDO v. GONZALES 5283
are left in doubt as to the reason for the change in direction.
A broader rule would deny agencies the necessary flexibility
to change policies in light of “changed factual circumstances,
or a change in administrations.” Id. at 2700. Indeed, Chevron
itself involved a 180-degree reversal in an agency’s position
that survived judicial scrutiny. Chevron, 467 U.S. at 857-58;
see also id. at 863 (“An initial agency interpretation is not
instantly carved in stone.”).
[9] The regulatory change here was adequately explained.
The change in the reinstatement regulation was part of a
major overhaul of the INA’s implementing regulations,
designed “to implement the provisions of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA) and the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA).” Inspection and Expedited Removal
of Aliens; Detention and Removal of Aliens; Conduct of
Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444,
444 (proposed Jan. 3, 1997) (codified in scattered parts of 8
C.F.R.). The notice accompanying the proposed regulations
explains that the cumbersome procedure embodied in the
existing reinstatement rule “resulted in limited use of the pro-
vision.” Id. at 451. Such limited use was consistent with pre-
IIRIRA law, which applied reinstatement to a narrow class of
previously-deported aliens.11 But IIRIRA dramatically
expanded the class of aliens subject to reinstatement, while
narrowing the defenses available in such proceedings. As the
Supreme Court noted last Term, “In IIRIRA, Congress
replaced [the existing] reinstatement provision with one that
11
Congress first instituted reinstatement in 1950, but only for certain
immigrants (e.g., “subversives” and “anarchists”). Fernandez-Vargas v.
Gonzales, 126 S. Ct. 2422, 2425-26 (2006) (citing Internal Security Act of
1950, § 23, 64 Stat. 1012). The INA, passed in 1952, broadened the rein-
statement provision to apply to a somewhat larger class of aliens, those
deported for engaging in certain unlawful activities—e.g., smuggling,
marriage fraud, crimes of moral turpitude, multiple criminal convictions,
aggravated felonies, illegal drug use or dealing, and terrorism activities.
See INA § 242, 8 U.S.C. § 1252 (repealed 1996).
5284 MORALES-IZQUIERDO v. GONZALES
toed a harder line . . . . Unlike its predecessor, § 241(a)(5)
applies to all illegal reentrants, explicitly insulates the
removal orders from review, and generally forecloses discre-
tionary relief from the terms of the reinstated order.”
Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422, 2426 (2006).
Congress’ ambitious purpose behind IIRIRA was to “enable
the prompt admission of those who are entitled to be admit-
ted, the prompt exclusion or removal of those who are not so
entitled, and the clear distinction between these categories.”
H.R. Rep. No. 104-469(I), at 111 (1996); see also id. at 107
(“Existing procedures to deny entry to and to remove illegal
aliens from the United States are cumbersome and duplica-
tive.”); U.S. Representative Zoe Lofgren, A Decade of Radi-
cal Change in Immigration Law: An Inside Perspective, 16
Stan. L. & Pol’y Rev. 349, 354-70 (2005) (asserting, albeit in
disagreeing with its purpose, that IIRIRA aimed at streamlin-
ing the removal process).
[10] The net effect of these statutory changes is two-fold.
First, IIRIRA brings vastly more aliens within the sweep of
the reinstatement provision, essentially making every
removed alien subject to reinstatement if he returns to the
United States without the Attorney General’s permission. Sec-
ond, the decision to reinstate is now far more mechanical:
There need be no determination whether the alien falls into
one of the narrow categories specified in the earlier statute as
eligible for reinstatement, see n.11 supra, and aliens can no
longer seek certain kinds of relief, such as adjustment of sta-
tus. These major legislative changes provide an adequate jus-
tification for the Attorney General’s decision to make parallel
changes to the implementing regulations. “Providing a
mechanical procedure for the reinstatement of prior orders is
entirely consistent with [IIRIRA’s] purpose”—“to make the
removal of illegal reentrants more expeditious.” Lattab, 384
F.3d at 20.
[11] We thus conclude that the regulation is a valid inter-
pretation of the INA.
MORALES-IZQUIERDO v. GONZALES 5285
III
We now turn to Morales’ argument that the regulation, if
authorized under Chevron, is nevertheless invalid because it
violates various constitutional guarantees.
[12] A. Morales first argues that the regulation violates
due process because it assigns the reinstatement determination
to an immigration officer—an official not qualified to resolve
disputed questions as to the factual predicates for reinstate-
ment. But reinstatement only requires proof that (1) petitioner
is an alien, (2) who was subject to a prior removal order, and
(3) who illegally reentered the United States. INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8. And
“[a]s a predicate to obtaining relief for a violation of proce-
dural due process rights in immigration proceedings, an alien
must show that the violation prejudiced him.” Padilla v. Ash-
croft, 334 F.3d 921, 924-25 (9th Cir. 2003) (quoting Ramirez-
Alejandre v. Ashcroft, 320 F.3d 858, 875 (9th Cir. 2003) (en
banc)). To show prejudice, Morales must present “plausible
scenarios in which the outcome of the proceedings would
have been different” if a more elaborate process were pro-
vided. Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998).
We note at the outset that the regulation provides signifi-
cant procedural safeguards against erroneous reinstatements.
First, the immigration officer must verify the identity of the
alien. “In disputed cases, verification of identity shall be
accomplished by a comparison of fingerprints.” 8 C.F.R.
§ 241.8(a)(2). If no fingerprints are available, the removal
order cannot be reinstated under 8 C.F.R. § 241.8. Id.; see
also Ochoa-Carrillo, 437 F.3d at 847 (discussing the finger-
print requirement). Second, the immigration officer “must
obtain the prior order of exclusion, deportation, or removal
relating to the alien.” 8 C.F.R. § 241.8(a)(1). Without this
documentation, 8 C.F.R. § 214.8 cannot be used and the mat-
ter is referred to an immigration judge.12 And, third, the offi-
12
Similarly, a removal order cannot be reinstated under 8 C.F.R. § 241.8
if the alien raises either (1) an unresolved adjustment of status claim under
5286 MORALES-IZQUIERDO v. GONZALES
cer must determine whether the alien reentered the United
States illegally. “In making this determination, the officer
shall consider all relevant evidence, including statements
made by the alien and any evidence in the alien’s possession.
The immigration officer shall attempt to verify an alien’s
claim, if any, that he or she was lawfully admitted, which
shall include a check of Service data systems available to the
officer.” 8 C.F.R. § 241.8(a)(3).
[13] We need not determine whether these procedures are
adequate as to all aliens in all cases because Morales does not
dispute that he satisfies the statutory predicates for reinstate-
ment. Rather, he argues that his 1994 in absentia removal
order is defective because he never got notice of the removal
hearing, his 1998 removal was actually a voluntary departure
and his marriage to a U.S. citizen entitled him to adjustment
of status. But the reinstatement statute specifically precludes
Morales from seeking to reopen the previous removal order
based on defective service or any other grounds. INA
§ 241(a)(5), 8 U.S.C. § 1231(a)(5).13 And, that Morales may
the Haitian Refugee Immigrant Fairness Act of 1998 or the Nicaraguan
Adjustment and Central American Relief Act, or (2) an asylum claim. See
8 C.F.R. § 241.8(d)-(e). If the alien raises an adjustment of status claim
under either of these statutes, “[t]he immigration officer may not reinstate
the prior order in accordance with this section unless and until a final deci-
sion to deny the application for adjustment has been made.” 8 C.F.R.
§ 241.8(d). Likewise, if the alien “expresses a fear of returning to the
country designated in that order, the alien shall be immediately referred to
an asylum officer for an interview to determine whether the alien has a
reasonable fear of persecution or torture.” 8 C.F.R. § 241.8(e); see also
Fernandez-Vargas, 126 S. Ct. at 2426 n.4 (same). If the asylum officer
determines that the fear is reasonable, he must refer the matter to an immi-
gration judge “for full consideration of the request for withholding of
removal.” 8 C.F.R. § 208.31(e).
13
The INA does have a procedure an alien may use to reopen an in
absentia removal order based on a claim of lack of notice, see INA
§ 240(b)(5)(C)(ii), 8 U.S.C. § 1229a(b)(5)(C)(ii), but Morales has failed to
avail himself of it.
MORALES-IZQUIERDO v. GONZALES 5287
have departed voluntarily rather than been deported is of no
consequence.14 Because none of the grounds Morales raises
would have been a proper basis for relief during the reinstate-
ment process, he suffered no prejudice by being denied access
to an official who could adjudicate facts that might support
these claims. Morales has thus failed to establish the requisite
prejudice. See Padilla, 334 F.3d at 925 (“A hearing before an
immigration judge, therefore, could not help [petitioner]
because . . . [s]ection 1231(a)(5) provides that an alien who
meets those criteria flatly ‘is not eligible’ for other relief.”).
[14] We are satisfied, moreover, that the regulation pro-
vides sufficient procedural safeguards to withstand a facial
challenge for patent procedural insufficiency. Given the nar-
row and mechanical determinations immigration officers must
make and the procedural safeguards provided by 8 C.F.R.
§ 241.8, see pp. 5285-86 supra, the risk of erroneous depriva-
tion is extremely low. DHS estimates that immigration offi-
cers have issued approximately 211,000 reinstatement orders
nationwide since 1999, and the amici identify only three such
cases that have been reversed on grounds other than retroactivi-
ty.15 Because the risk of error is so low, any additional or sub-
stitute procedural safeguards—including those Morales seeks
—would produce marginal protections, if any, against errone-
ous determinations, while the cost in terms of resources and
delay would be substantial. Due process does not require such
a poor bargain. See Mathews v. Eldridge, 424 U.S. 319, 335
(1976).
14
Any mode of departure—voluntary or involuntary—while subject to
an order of removal constitutes a removal for reinstatement purposes. See
INA § 241(a)(5), 8 U.S.C. § 1231(a)(5) (ordering the Attorney General to
reinstate a removal order if “an alien has reentered the United States ille-
gally after having been removed or having departed voluntarily [while]
under an order of removal”).
15
The Supreme Court held that the reinstatement provision has no
impermissible retroactive effect in Fernandez-Vargas, 126 S. Ct. at 2434,
so the officers did not err in reinstating pre-1996 removal orders.
5288 MORALES-IZQUIERDO v. GONZALES
While the regulation does not offend due process, we leave
open the possibility that individual petitioners may raise pro-
cedural defects in their particular cases. Morales himself
raises several such challenges, and to these we now turn.
[15] B. Morales first claims he had no meaningful oppor-
tunity to review his file and respond to adverse evidence. But
Morales points to no material errors in his file; nor does he
explain what evidence he would have presented, had he been
given an opportunity to do so. 8 C.F.R. § 241.8(b) requires
immigration officers to provide notice, and permits the alien
to make a written or oral statement to be considered by the
officer under 8 C.F.R. § 241.8(a)(3). Morales was given the
benefit of these procedures, and he has failed to show how a
more elaborate process would have helped him.
[16] Second, he argues he should have had an opportunity
to obtain assistance of counsel, but there is no Sixth Amend-
ment right to counsel in any civil removal proceeding. Lara-
Torres v. Ashcroft, 383 F.3d 968, 974 (9th Cir. 2004). Any
such right is statutory, and the INA extends the right to repre-
sentation by counsel only to aliens in proceedings before an
immigration judge. Similarly, the Administrative Procedure
Act provides a right to counsel “in every case of adjudication
required by statute to be determined on the record after oppor-
tunity for an agency hearing.” 5 U.S.C. § 554(a). The INA
does not require a hearing here. In any event, Morales cannot
show prejudice: He does not contest the predicates for rein-
statement, and was not eligible for any type of relief. Having
a lawyer would not have changed the outcome.
[17] Morales’ third argument, that the immigration officer
who reinstated his removal order suffered from institutional
bias, is foreclosed by Marcello v. Bonds, 349 U.S. 302
(1955): “Th[is] contention [of bias] is without substance when
considered against the long-standing practice in deportation
proceedings, judicially approved in numerous decisions in the
federal courts, and against the special considerations applica-
MORALES-IZQUIERDO v. GONZALES 5289
ble to deportation which the Congress may take into account
in exercising its particularly broad discretion in immigration
matters.” Id. at 311; see also United States v. Garcia-
Martinez, 228 F.3d 956, 960-63 (9th Cir. 2000).
[18] Finally, Morales argues that he was denied due process
because he was not notified of the availability of judicial
review. We have never required such notice in the civil immi-
gration context, and we find no reason to require it in the rein-
statement context—where an alien’s rights and remedies are
severely limited. See Part III.C infra. In any event, petitioner
obviously got notice because he “filed a timely petition for
judicial review to this court. Again, no prejudice has been
shown.” Ochoa-Carrillo, 437 F.3d at 848.
C. Morales also claims that a removal order may not con-
stitutionally be reinstated if the underlying removal proceed-
ing itself violated due process. We have, on several occasions,
expressed “serious[ ] doubt that the government’s new rein-
statement procedure comports with the Due Process Clause.”
Castro-Cortez v. INS, 239 F.3d 1037, 1040 (9th Cir. 2001),
abrogated by Fernandez-Vargas, 126 S. Ct. at 2427 & n.5.16
And, one of our cases lends direct support to Morales’ conten-
tion: “[T]he INS cannot reinstate a prior order of removal that
did not comport with due process.” Arreola-Arreola v. Ash-
croft, 383 F.3d 956, 963 (9th Cir. 2004).
[19] To the extent we so held in Arreola-Arreola, we revisit
16
See also Perez-Gonzalez, 379 F.3d at 796 (addressing the harm “on
narrower grounds than due process”); Padilla, 334 F.3d at 924 (“[W]e still
need not decide whether the INS’s regulation offends due process . . . .”).
But see United States v. Luna-Madellaga, 315 F.3d 1224, 1226-27 (9th
Cir. 2003) (“[A]n alien who illegally reenters the United States while
under an order of removal has already received a full and fair hearing
. . . .”); Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173, 1174 (9th
Cir. 2001) (“[A]liens removable under § 241(a)(5) have already received
all of the process that is due under the Constitution.” “To preclude a sec-
ond bite at the apple after an illegal reentry does not offend due process.”).
5290 MORALES-IZQUIERDO v. GONZALES
that decision here and reverse field: Reinstatement of a prior
removal order—regardless of the process afforded in the
underlying order—does not offend due process because rein-
statement of a prior order does not change the alien’s rights
or remedies. The only effect of the reinstatement order is to
cause Morales’ removal, thus denying him any benefits from
his latest violation of U.S. law, committed when he reentered
the United States without the Attorney General’s permission
in contravention of INA § 212(a)(9), 8 U.S.C. § 1182(a)(9).
The reinstatement order imposes no civil or criminal penal-
ties, creates no new obstacles to attacking the validity of the
removal order, see, e.g., INA § 240(b)(5)(C)(ii), 8 U.S.C.
§ 1229a(b)(5)(C)(ii) (allowing reopening of a removal order
based on lack of notice), and does not diminish petitioner’s
access to whatever path for lawful entry into the United States
might otherwise be available to him under the immigration
laws.
The Supreme Court noted this very point in Fernandez-
Vargas:
While the [reinstatement] law looks back to a past
act in its application to “an alien [who] has reentered
. . . illegally,” 8 U.S.C. § 1231(a)(5), the provision
does not penalize an alien for reentry (criminal and
civil penalties do that); it establishes a process to
remove him “under the prior order at any time after
the reentry.” Ibid. . . . [T]he statute applies to stop an
indefinitely continuing violation that the alien him-
self could end at any time by voluntarily leaving the
country.
126 S. Ct. at 2432 (second alteration in original). While aliens
have a right to fair procedures, they have no constitutional
right to force the government to re-adjudicate a final removal
order by unlawfully reentering the country. Nor is the govern-
ment required to expend vast resources on extraneous proce-
MORALES-IZQUIERDO v. GONZALES 5291
dures before reinstating a removal order that has already been
finalized and executed.
Or, to put it differently, an alien who respects our laws and
remains abroad after he has been removed should have no
fewer opportunities to challenge his removal order than one
who unlawfully reenters the country despite our government’s
concerted efforts to keep him out. If Morales has a legitimate
basis for challenging his prior removal order, he will be able
to pursue it after he leaves the country, just like every other
alien in his position. If he has no such basis, nothing in the
Due Process Clause gives him the right to manufacture for
himself a new opportunity to raise such a challenge. The con-
trary conclusion would create a new and wholly unwarranted
incentive for aliens who have previously been removed to
reenter the country illegally in order to take advantage of this
self-help remedy. It would also make a mockery of aliens who
do respect our laws and wait patiently outside our borders
seeking lawful admission. Nothing in the Constitution
requires such a perverse result.
IV
[20] We conclude that a previously removed alien who
reenters the country illegally is not entitled to a hearing before
an immigration judge to determine whether to reinstate a prior
removal order. The reinstatement statute and its implementing
regulation comport with due process, and 8 C.F.R. § 241.8 is
a valid interpretation of the INA.
[21] Morales has shown no violation of due process in the
conduct of his reinstatement proceeding. To the extent genu-
ine issues of material fact exist with respect to his underlying
removal order, this “prior order . . . is not subject to being
reopened or reviewed” during the course of the reinstatement
process. INA § 241(a)(5), 8 U.S.C. § 1231(a)(5).
PETITION DENIED.
5292 MORALES-IZQUIERDO v. GONZALES
THOMAS, Circuit Judge, with whom PREGERSON,
REINHARDT, and W. FLETCHER, Circuit Judges, join, dis-
senting:
On January 15, 2003, Raul Morales-Izquierdo and his
United States citizen wife, Patricia Morales, attended a meet-
ing at the INS’s Tacoma, Washington office. The Moraleses
expected to discuss the I-130 alien relative petition that Patri-
cia had filed on March 1, 2001, to adjust her husband’s status
to that of a legal permanent resident. Instead, the INS served
on the couple both a denial of the petition for adjustment of
status and a notice of intent to reinstate a 1994 deportation
order against Raul Morales under INA § 241(a)(5).
Morales has consistently and emphatically maintained that
the 1994 deportation order is invalid because he was never
given notice of the 1994 hearing at which he was ordered
deported in absentia. In a sworn statement, Morales claimed
never to have received the notice that was sent to his ex-
girlfriend’s house, explaining that someone else had signed to
indicate receipt of the notice. He has never been granted a
hearing at which he could present his case; the majority opin-
ion assures that he never will be.
This result would have been impossible under the regula-
tions that governed reinstatement proceedings for nearly
forty-five years. Under the former 8 C.F.R. § 242.23, an alien
subject to a reinstatement order was entitled to a hearing
before an immigration judge, who was charged with deter-
mining the identity of the alien, whether the alien had previ-
ously been deported, and whether the alien illegally reentered
the United States. 8 C.F.R. § 242.23 (repealed 1997). At the
hearing before the immigration judge, the alien had the oppor-
tunity to contest the charges and evidence, present his or her
own evidence, and apply for relief from deportation. Id. The
alien was also afforded the right to appeal an adverse decision
to the Board of Immigration Appeals and ultimately to the
MORALES-IZQUIERDO v. GONZALES 5293
federal courts of appeal. Castro-Cortez v. INS, 239 F.3d 1037,
1044 (9th Cir. 2001).
All of that changed in 1997, when the Attorney General
made a complete course reversal. Under the new regulation,
aliens were to be removed from the country without a hearing
or an opportunity to contest the charges, via reinstatement by
a low-level Department of Homeland Security employee who
served as both prosecutor and judge.
The central question in this case is whether the Immigration
and Naturalization Act (“INA”) permits the Attorney General
to make these changes, eliminating longstanding procedural
protections. Because the INA unambiguously prohibits the
Attorney General from creating alternative procedures for any
inadmissibility or deportability determinations absent explicit
congressional permission and because the creation of less-
protective procedural mechanisms raises serious constitu-
tional questions, I respectfully dissent from the majority’s
decision to uphold the Attorney General’s regulation.1
I
As the majority and I agree, the appropriate framework for
assessing the validity of 8 C.F.R. § 241.8 is dictated by Chev-
ron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-45 (1984). Under Chevron, we must consider first
“whether Congress has directly spoken to the precise question
at issue.” Id. at 842. “If Congress has done so, the inquiry is
at an end; the court ‘must give effect to the unambiguously
expressed intent of Congress.’ ” Food and Drug Administra-
tion v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000) (quoting Chevron, 467 U.S. at 843).
1
Because I conclude that the regulation is ultra vires to the statute, I find
it unnecessary to reach the question of whether the regulation violates the
Due Process Clause.
5294 MORALES-IZQUIERDO v. GONZALES
In determining congressional intent, we not only examine
the precise statutory section in question but also analyze the
provision in the context of the governing statute as a whole,
presuming a congressional intent to create a “symmetrical and
coherent regulatory scheme.” Id. at 1301 (quoting Gustafson
v. Alloyd Co., 513 U.S. 561, 569 (1995)). We must also “be
guided to a degree by common sense as to the manner in
which Congress is likely to delegate a policy decision of [sig-
nificant] economic and political magnitude to an administra-
tive agency.” Id. If, after conducting such an analysis, we
conclude that Congress has not addressed the issue, we “must
respect the agency’s construction of the statute so long as it
is permissible.” Id. at 1300 (citing INS v. Aguirre-Aguirre,
526 U.S. 415, 424 (1999)).
Ultimately, “the judiciary is the final authority” in inter-
preting statutes, and courts must employ all “traditional tools
of statutory construction” under Chevron step one to ascertain
whether Congress’s intent is “clear.” Chevron, 467 U.S. at
843 n.9. In this case, the text and structure of the INA are
clear; the statute unambiguously prohibits the Attorney Gen-
eral’s interpretation. But even if the statute were ambiguous,
the Attorney General’s interpretation would be precluded by
the canon of constitutional avoidance — unquestionably a
“traditional tool of statutory construction” to be used at Chev-
ron step one — pursuant to which we must presume that Con-
gress did not intend to permit any interpretation that, like the
Attorney General’s, raises serious constitutional questions.
II
The intent of Congress could hardly be clearer. The text
and structure of the INA unambiguously require that inadmis-
sibility and deportability determinations be made by an immi-
gration judge pursuant to the procedural protections outlined
in INA § 240. Section 240 declares that the procedural mech-
anism it creates “shall be the sole and exclusive procedure for
determining” an alien’s removability, unless Congress has
MORALES-IZQUIERDO v. GONZALES 5295
“specified” an alternative procedure. INA § 240(a)(3); 8
U.S.C. § 1229(a)(3). This language leaves no room for quar-
reling. Unless Congress explicitly creates a new procedural
mechanism, the § 240 procedure must be followed in any and
all “removal proceedings.” INA § 240(a)(1); 8 U.S.C.
§ 1229(a)(1). Because reinstatement proceedings determine
the admissibility of aliens and because the reinstatement pro-
vision contains no explicit procedural exception, it is clear
that § 241(a)(5) proceedings must employ the required § 240
mechanism.
Although the statute’s plain language should settle the
question, it is worth noting that this construction is buttressed
by the INA’s inclusion of several provisions that do explicitly
create or authorize alternative procedural mechanisms, dem-
onstrating that Congress knew how to express an intention to
deviate from § 240 and failed to do so in § 241(a)(5). See,
e.g., INA § 235(b)(1) (expedited removal for arriving and cer-
tain other aliens); INA § 235(c) (expedited removal for terror-
ists); INA § 238 (administrative removal for nonpermanent
residents convicted of an aggravated felony). The existence of
these explicit provisions has considerable significance in dis-
cerning Congress’s intent. See Valderrama-Fonseca v. INS,
116 F.3d 853, 856 & n. 6 (9th Cir.1997) (noting in relation to
IIRIRA § 348 that “it is apparent that Congress knew how to
make provisions of IIRIRA applicable to pending proceedings
when it wanted to”).
In short, § 240 requires an explicit exemption before expe-
dited procedures may be used, and § 241(a)(5) contains no
such exemption. Thus, because 8 C.F.R. § 241.8 goes beyond
the authority of the INA by eliminating the express and exclu-
sive authority of immigration judges to determine whether an
alien’s prior deportation order should be reinstated under INA
§ 241(a)(5), the regulation is ultra vires to INA § 240(a). See
Romero v. INS, 39 F.3d 977, 979-81 (9th Cir. 1994).
Despite these unambiguous statutory requirements, the
majority concludes that reinstatement proceedings need not
5296 MORALES-IZQUIERDO v. GONZALES
follow § 240 strictures. The majority holds that the reinstate-
ment provision authorizes the Attorney General’s less-
protective procedural mechanism just by implying a prefer-
ence for shorter proceedings. But this analysis violates the
very statute it purports to interpret. The INA does not tolerate
implied authorizations; it requires Congress to “specify” an
intention to deviate from § 240 guarantees. INA § 240(a)(3)
(“Unless otherwise specified in this Act, a proceeding under
this section shall be the sole and exclusive procedure” for
removal.) (emphasis added).
The majority, of course, does not rest entirely on its asser-
tion of implied repeal; it also argues that reinstatement pro-
ceedings are not “removal proceedings” and that they
therefore do not fall within the ambit of § 240. However,
reading the reinstatement provision both on its face and in its
context, “with a view to [its] place in the overall statutory
scheme,” Davis v. Michigan Dept. of Treasury, 489 U.S. 803,
809 (1989), it is evident that § 241(a)(5) is not an alternative
to § 240; rather, a § 241(a)(5) reinstatement order may issue
only after a § 240 determination has been made that the alien
is removable. The reinstatement provision does nothing to
change the fact that illegally reentering aliens fall squarely
within the category of “removable” aliens entitled to § 240
procedural guarantees. Section 240(e)(2) defines “removable”
aliens as all those that are “inadmissible under section 212”
or “deportable under section 237.” One of the enumerated
grounds for inadmissibility under § 212 is illegal reentry; it
covers aliens who have “been ordered removed” and have
“enter[ed] or attempt[ed] to reenter the United States without
being admitted.”2 INA § 212(a)(9)(C)(i); 8 U.S.C. § 1182(a)
2
Illegally reentering aliens are also “deportable” under INA § 237(a)(1);
8 U.S.C. § 1226a(a)(1), which includes aliens that were “inadmissible” at
the time of entry and those that are “present in the United States in viola-
tion of” the INA. Under § 212(a)(9), all reentering aliens are “inadmissi-
ble,” and under INA § 276; 8 U.S.C. § 1326(a), which makes it a crime
to reenter the United States after receiving a formal order of deportation,
exclusion, or removal, all reentering aliens are “present in the United
States in violation of” the INA.
MORALES-IZQUIERDO v. GONZALES 5297
(9)(C)(i). By enumerating illegal reentry as a ground for inad-
missibility and by specifying that all inadmissible aliens are
“removable” within the meaning of § 240, the INA expressly
provides for the removal of illegally reentering aliens pursu-
ant to ordinary § 240 procedures.
Importantly, § 212(a)(9)(C)(i) also specifically anticipates
reentry after a formal removal order, meaning that the provi-
sion covers exactly the same group of aliens that the reinstate-
ment provision covers. It is therefore simply not true that
“reinstateable” aliens constitute a separate category from “re-
movable” aliens. The so-called “first-instance” removal provi-
sions, namely §§ 240 and 212, expressly cover the same
aliens that the reinstatement provision covers.
This dual coverage need not render either provision sur-
plusage nor need it imply that an alien subject to reinstate-
ment is entitled to precisely the same rights as an alien facing
removal for the first time. As many courts have made clear,
the reinstatement provision strips illegally reentering aliens of
discrete rights that are granted to first time removable aliens,
including the rights to “relief, reopening, [and] review.” De
Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1281 (11th Cir.
2006). The majority is also correct to note that § 241(a)(5)
narrows the substantive inquiry that must be made prior to
determining the alien’s status. Additionally, the reinstatement
provision creates a new kind of order to be entered at the end
of a § 240 proceeding: an immediately-executing reinstate-
ment order. The reinstatement provision, therefore, has real
effects on the rights of reentering aliens and on the conse-
quences of a reinstatement determination. But it does not —
and cannot be read to — authorize abrogation of the proce-
dural guarantees mandated by § 240. The rights-stripping pro-
visions in § 241(a)(5) do not conflict with any § 240
procedures; the reinstatement provision can be given full
effect without undermining § 240 exclusivity.
In short, the only way to give effect to both §§ 240 and
241(a)(5), especially taking into consideration the express
5298 MORALES-IZQUIERDO v. GONZALES
inclusion of reentering aliens in the category of “removable”
aliens, is to require that a reinstatement order issue only after
a full § 240 hearing before an immigration judge. See
Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833 (1983)
(restating and reaffirming “the settled principle of statutory
construction that we must give effect, if possible, to every
word of the statute”); FTC v. Mandel Brothers, Inc., 359 U.S.
385, 389 (1959) (holding that statutes should be interpreted so
as to “fit, if possible, all parts into an harmonious whole”).
The majority finds additional justification for reading
§ 241(a)(5) as authorizing a deviation from § 240 require-
ments in the fact that the reinstatement provision mentions the
Attorney General rather than immigration judges, allegedly
indicating a differential delegation of discretion. However, the
Attorney General is merely a titular decision-maker, an exam-
ple of statutory synecdoche, using the head of the Department
of Justice to refer to all of its employees. Countless provisions
of the INA refer to determinations of “the Attorney General”
even when those determinations will actually be made by
lower-level employees and even when those determinations
must actually be made by immigration judges pursuant to
§ 240 procedures. For example, the statutory provision outlin-
ing grounds of inadmissibility, INA § 212, contains several
references to findings of the Attorney General even though
§ 240 unquestionably requires that immigration judges make
inadmissibility determinations. See, e.g., INA § 212(a)(2)(C)
(deeming inadmissible any alien whom “the Attorney General
knows or has reason to believe” is a drug trafficker or a drug
trafficker’s spouse); INA § 212(a)(2)(H)(i) (any alien whom
“the Attorney General knows or has reason to believe” is a
human trafficker); § 212(a)(2)(I) (any alien whom “the Attor-
ney General knows, or has reason to believe” is a money laun-
derer); § 212(a)(3)(A) (any alien whom “the Attorney General
knows, or has reasonable ground to believe, seeks to enter the
United States” as a spy); § 212(a)(3)(B)(i)(II) (any alien
whom “the Attorney General . . . knows, or has reasonable
ground to believe” is an active terrorist); § 212(a)(4)(A) (any
MORALES-IZQUIERDO v. GONZALES 5299
alien who “in the opinion of the Attorney General at the time
of application for admission or adjustment of status” is likely
to become a “public charge”). These provisions might autho-
rize the Attorney General to promulgate regulations clarifying
the burden of proof or the evidence that is admissible, but
they certainly do not affect the § 240 requirement that inad-
missibility determinations be made by immigration judges.
The majority additionally claims that the mention of immi-
gration judges in § 240 “suggests Congress knew how to man-
date a hearing before an immigration judge, but chose not to
do so in the context of reinstatement orders.” Maj. Op. at
5279 (quoting De Sandoval, 440 F.3d at 1281). This argument
begs the question. The point is that Congress did not believe
itself to be mandating or authorizing any kind of hearing
whatsoever; section 241(a)(5) is a substantive provision that
leaves § 240 hearing requirements entirely intact.
Although the majority is right to assert that § 241(a)(5)
indicates a desire to shorten proceedings for illegally reenter-
ing aliens, it is wrong to conclude that the reinstatement pro-
vision authorizes a deviation from § 240 procedural
guarantees. Section 241(a)(5) streamlines reinstatement pro-
ceedings by stripping reentering aliens of a discrete set of
rights, not by authorizing an expedited procedural mecha-
nism. Considering the text of the reinstatement provision and
its context in the statutory scheme, it is clear that § 241(a)(5)
authorizes reinstatement orders to issue only after an immi-
gration judge makes a § 240 determination that the alien is
“removable.”
In sum, Congress has expressed its unambiguous intent that
the procedural mechanisms it created in § 240 “shall be the
sole and exclusive procedure for determining” an alien’s
removability. Because the Attorney General’s regulation
establishes procedures that conflict with the express provi-
sions of the INA, it cannot stand. See Bona v. Gonzales, 425
5300 MORALES-IZQUIERDO v. GONZALES
F.3d 663, 670-71 (9th Cir. 2005) (holding that a regulation
that is contrary to statute is invalid).
III
Even if the text and structure of the INA were sufficiently
ambiguous to leave some discretion to the Attorney General,
the canon of constitutional avoidance would preclude the
interpretation that the Attorney General chose.
A
The avoidance canon instructs courts to reject those “plau-
sible statutory constructions” that “would raise a multitude of
constitutional problems,” Clark v. Martinez, 543 U.S. 371,
380-81 (2005), as long as an alternative construction exists
that is “fairly possible” and less troubling, Crowell v. Benson,
285 U.S. 22, 62 (1932). The canon rests not only on courts’
desire “to avoid the decision of constitutional questions” but
also on a “reasonable presumption that Congress did not
intend the alternative which raises constitutional doubts.”
Clark, 543 U.S. at 381. Avoidance, then, is a “means of giv-
ing effect to congressional intent,” id. at 381-82, resting on an
assumption that, between two plausible statutory construc-
tions, Congress meant the one that does not approach the
boundaries of “constitutionally protected liberties,” DeBar-
tolo, 485 U.S. at 575. In short, the avoidance canon rests on
a judicial presumption that Congress always intends to steer
clear of constitutional boundaries.
For purposes of this case, two important conclusions flow
from the avoidance canon’s rationales: first, the canon is
highly relevant at Chevron step one, and second, the canon
does not ultimately depend on the merits of implicated consti-
tutional claims.
Because the avoidance canon centers on a presumption
about congressional intent, it certainly pertains to the step one
MORALES-IZQUIERDO v. GONZALES 5301
determination of whether Congress intended to preclude the
agency’s interpretation. See Brown & Williamson, 529 U.S. at
126 (denying deference at step one, not because the statute
was entirely clear, but because “Congress ha[d] clearly pre-
cluded” the agency’s construction); MCI Telecommunications
Corp. v. American Telephone & Telegraph Co., 512 U.S. 218,
229 (1994) (holding that an agency’s interpretation should be
denied deference at step one, even in the face of some
ambiguity, if the proffered interpretation “goes beyond the
meaning that the statute can bear”); Edward J. DeBartolo
Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485
U.S. 568, 574 (1988) (holding that an interpretation should be
denied deference at step one if it is “clearly contrary to the
intent of Congress”); INS v. Cardoza-Fonseca, 480 U.S. 421,
448 n.31 (1987) (denying deference at step one even while
noting that the provision contained significant ambiguities, on
the ground that the statute clearly precluded the agency’s
interpretation).
The avoidance canon, thus, is properly applied at step one
of the Chevron analysis. While the majority may be correct
that the avoidance canon cannot be used to render an agency’s
interpretation “unreasonable” at Chevron step two, the canon
is unquestionably a “traditional tool of statutory interpreta-
tion” that may and should be used to determine whether Con-
gress intended to preclude the agency’s chosen interpretation.
See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs, 531 U.S. 159, 172-73 (2001) (denying defer-
ence because the agency’s interpretation “needlessly” raised
serious “constitutional issues” and because the Court assumed
“that Congress does not casually authorize administrative
agencies to interpret a statute to push the limit of congressio-
nal authority”); DeBartolo, 485 U.S. at 575 (rejecting an
agency’s interpretation at step one because it raised “serious
constitutional problems”). See also Lattab v. Ashcroft, 384
F.3d 8, 20n.5 (1st Cir. 2004) (specifically reserving the ques-
tion of whether “the rule of avoidance” would “lead to a dif-
5302 MORALES-IZQUIERDO v. GONZALES
ferent statutory construction” if it were applied “under the
first step of Chevron”).
The second conclusion to flow from the avoidance canon’s
rationales is that its application does not depend on this or any
court’s conclusions as to the merits of implicated constitu-
tional claims. Clark, 543 U.S. at 381 (“The canon is not a
method of adjudicating constitutional questions by other
means.”) (citing Adrian Vermeule, Saving Constructions, 85
Geo. L.J. 1945, 1960-61 (1997) (listing cases in which the
Supreme Court used the canon to avoid a constitutional ques-
tion only later to decide that the avoided application was not
unconstitutional)). Even if every constitutional challenge to
arise under the Attorney General’s regulation were ultimately
decided against the alien, the regulation should be rejected
under the avoidance canon if it approaches “the constitutional
danger zone” without a clear statement from Congress that it
intended to do so. Vermeule, 85 Geo. L.J. at 1960.
B
That the reinstatement regulation does, in fact, approach the
“constitutional danger zone” is beyond cavil. We have noted
specifically on more than one occasion that 8 C.F.R. § 241.8
“raises very serious due process concerns[.]” Castro-Cortez v.
INS, 239 F.3d 1037, 1048 (9th Cir. 2001), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422,
2427 & n.5 (2006). See also Aguilar-Garcia v. Ridge, 90
Fed.Appx. 220, 220 (9th Cir. 2004); Arreola-Arreola v. Ash-
croft, 383 F.3d 956, 959 (9th Cir. 2004).
And several of our sister circuits have expressed similar
doubts as to the sufficiency of process afforded. See Lattab,
384 F.3d at 21 n.6 (noting the seriousness of the constitutional
claim given that the regulation “offers virtually no procedural
protections”); United States v. Charleswell, 456 F.3d 347, 356
n.10 (3d Cir. 2006) (noting that constitutional doubts relating
to the regulation “continue to cause a significant amount of
MORALES-IZQUIERDO v. GONZALES 5303
consternation”); Bejjani v. INS, 271 F.3d 670, 687 (6th Cir.
2002) (construing the regulation as having no retroactive
effect in part “to avoid a constitutional question”), abrogated
on other grounds by Fernandez-Vargas, 126 S. Ct. at 2427 &
n.5; Gomez-Chavez v. Perryman, 308 F.3d 796, 802 (7th Cir.
2002) (reserving the question of “what kind of procedures”
would be “necessary” for an alien who challenges the factual
basis for reinstatement); Alvarez-Portillo v. Ashcroft, 280
F.3d 858, 867 (8th Cir. 2002) (noting that additional proce-
dures might be due for an alien who challenges the applicabil-
ity of reinstatement), abrogated on other grounds by
Fernandez-Vargas, 126 S. Ct. at 2427 & n.5.
When we examine the reinstatement procedures more
closely, the constitutional concerns expressed by our court
and others become apparent. It is well-settled that the due pro-
cess clause of the Fifth Amendment applies to aliens in
removal proceedings. Arreola, 383 F.3d at 962; United States
v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir. 1985).
Due process requires “a full and fair hearing of [the alien’s]
claims and a reasonable opportunity to present evidence on
his behalf,” Salgado-Diaz v. Ashcroft, 395 F.3d 1158, 1162
(9th Cir. 2005) (internal quotation marks omitted). Here, both
on a facial and as-applied examination, the reinstatement pro-
cess is well within the constitutional danger zone.
1
First, purely on a facial analysis, the reinstatement process
itself approaches the “constitutional danger zone” because it
does not provide any opportunity for the alien to challenge the
legality of a prior removal order. The inquiry is confined to
three determinations: (1) the identity of the alien, (2) that the
alien has previously been deported, and (3) that the alien ille-
gally reentered the United States. 8 C.F.R. § 241.8. Thus, an
alien that previously has been removed in absentia and with-
out due process has no means of raising his due process claim.
5304 MORALES-IZQUIERDO v. GONZALES
Even as to the three factual determinations to be made, the
Attorney General’s reinstatement procedure affords insuffi-
cient procedural protections, clearly approaching — if not
breaching — the constitutional danger zone. The reinstate-
ment procedure does not provide adequate means to contest
the predicates to reinstatement. As we observed in Castro-
Cortez, “an alien cannot receive a full and fair hearing unless
he has the right to place information into the administrative
record.” 239 F.3d at 1049. Under the regulation, however, the
alien is afforded the ability only to make “a written or oral
statement contesting the determination” to the officer who has
already decided to reinstate the order. 8 C.F.R. § 241.8(a)(3).
Thus, if an alien wishes to contest the fact that he was previ-
ously deported or that his reentry was illegal, he is not permit-
ted to do so with any extrinsic evidence. Under the
reinstatement regulation, the alien has no right to introduce
documents or other evidence to be considered by the officer;
the officer alone determines what will constitute the adminis-
trative record. Furthermore, the alien has no right to a hearing
at which he or she could call witnesses to testify, and the alien
is not afforded the right to review the immigration file upon
which the charges are based or to confront the evidence
assembled by the government in support of reinstatement.
The lack of due process in practice is illustrated by the rein-
statement cases that have found their way to the courts of
appeal. In the typical reinstatement case considered by our
circuit and our sister circuits, the alien has married a United
States citizen and makes an appointment with the agency to
discuss adjustment of status or an extension of a previously
granted work authorization. During the discussion, the officer
serves a Notice to Reinstate Prior Order and asks the alien to
fill out the form, which includes a checkbox to indicate
whether the alien wishes to make a statement. If the box is
checked “no,” that is the end of the matter, and the reinstate-
ment is effected without further ado. If the box is checked
“yes,” either the alien writes out a statement, or the officer
asks questions and writes down the answers. Then the rein-
MORALES-IZQUIERDO v. GONZALES 5305
statement is effected, and the alien usually is immediately
taken into custody.3 This procedure cannot be said to comport
3
See, e.g., Lino v. Gonzales, 467 F.3d 1077 (7th Cir. 2006) (alien mar-
ried to U.S. citizen with three U.S. citizen daughters served with reinstate-
ment notice during interview concerning adjustment of status); Fernandez-
Vargas v. Ashcroft, 394 F.3d 881, 883 (10th Cir. 2005) (alien married to
U.S. citizen served with reinstatement notice during interview concerning
adjustment of status and taken into custody); Berrum-Garcia v. Comfort,
390 F.3d 1158, 1161(10th Cir. 2004) (alien with U.S. citizen wife served
with notice of reinstatement of removal during interview concerning
adjustment of status); Lattab, 384 F.3d at 12 (alien married to U.S. citizen
with adjustment of status proceedings pending served with reinstatement
notice during visit to agency office to renew employment authorization
and taken into custody); Perez-Gonzalez v. Ashcroft, 379 F.3d 783, 785-86
(9th Cir 2004) (alien married to U.S. citizen served with reinstatement
notice and taken into custody during interview about petition to reapply
for admission as predicate to adjustment of status); Flores v. Ashcroft, 354
F.3d 727, 729 (8th Cir. 2003) (alien with U.S. citizen husband served with
reinstatement notice and taken into custody during adjustment of status
interview); Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir. 2003) (alien
married to U.S. citizen served with reinstatement notice during interview
concerning adjustment of status and taken into custody); Gomez-Chavez
v. Perryman, 308 F.3d 796, 799 (7th Cir. 2002) (alien married to U.S. citi-
zen with work authorization served with notice to reinstate during inter-
view concerning adjustment of status); Gallo-Alverez v. Ashcroft, 266 F.3d
1123, 1127 (9th Cir. 2001) (alien married to U.S. citizen returns to INS
office at suggestion of District Director to renew work authorization,
served with Notice to Reinstate Prior Order and taken into custody);
Castro-Cortez, 239 F.3d at 1040 (alien [Castro-Cortez] married to U.S.
citizen served with reinstatement notice during interview concerning
adjustment of status and taken into custody); Id. at 1042 (alien [Funes-
Quevado] married to a U.S. citizen served with reinstatement notice dur-
ing interview concerning adjustment of status and taken into custody); Id.
at 1042-43 (alien [Rueda) married to a U.S. citizen served with reinstate-
ment notice during interview concerning adjustment of status and
arrested); Id. at 1043 (alien [Salinas-Sandoval] married to U.S. citizen
served with reinstatement notice during visit to agency to inquire about
progress on adjustment of status request); see also Wilson v. Gonzales,
2006 WL 3541717 (2d Cir. 2006) (alien business owner married to U.S.
citizen served with reinstatement notice during adjustment of status pro-
ceedings); Faiz-Mohammad v. Ashcroft, 395 F.3d 799, 801 (7th Cir. 2005)
(reinstatement notice served during adjustment of status proceedings);
Arevalo v. Ashcroft, 344 F.3d 1, 6 (1st Cir. 2003) (alien with U.S. citizen
children served with reinstatement order during sixth year of adjustment
of status proceedings).
5306 MORALES-IZQUIERDO v. GONZALES
with the requirements of notice and a hearing before a person
is deprived of liberty. Mathews v. Eldridge, 424 U.S. 319, 333
(1976). The very real and practical consequence of the Attor-
ney General’s decision is that families in the United States are
broken apart, with the father or mother summarily removed
from the country without any opportunity to contest the gov-
ernment’s charges.
In short, the regulatory procedure is so streamlined that it
deprives reentering aliens of any meaningful opportunity to
raise potentially viable legal, constitutional, or factual chal-
lenges to their removability. Based on these observations, it
is clear that the reinstatement process implemented by 8
C.F.R. § 241.8 falls within the constitutional danger zone.
2
When one specifically examines whether due process has
been afforded to Morales in this case, one can only conclude
that the procedures as applied to him place him within the
constitutional danger zone.
First, the due process problems inherent in the reinstate-
ment process affected Morales. He appeared at his interview
for adjustment of status. Without prior notice, he was pre-
sented with a Notice of Intent to Reinstate Prior Order. He
was not afforded a lawyer. Although he stated that he did not
read or write English and needed to have things explained in
Spanish in words he could understand, he was not afforded an
interpreter. According to the agent’s notes, Morales stated that
he had never been before an immigration judge, that he was
never informed that he was deported in absentia, and that the
signature on the notice card was not his. He was not afforded
the opportunity to examine the immigration file that served as
the basis for the reinstatement. Rather, despite the fact that he
contested the factual predicate for a reinstatement order to
issue, he was immediately arrested and taken into custody
after he finished answering the officer’s questions. Thus, in
MORALES-IZQUIERDO v. GONZALES 5307
his case, the facial due process concerns with the reinstate-
ment process were not merely theoretical; he experienced
them. He was not given the opportunity to contest the factual
basis for the reinstatement, even though he vigorously dis-
puted it. The procedures utilized in Morales’ reinstatement
hearing place him within the constitutional danger zone.
Second, because he was deported in absentia, Morales has
never seen an immigration judge at all. He never had a full
hearing on his prior deportation charges. Therefore, his situa-
tion is different from that involved in Arreola-Arreola, in
which we concluded that the alien had received due process
in his prior deportation hearing.
If Morales’ allegations are true — that he never received
notice of the deportation hearing at which he was deported in
absentia — then there can be no question that he has been
denied a full and fair hearing of his claims; he was, in fact,
denied any hearing at all. See Colmenar, 210 F.3d at 971
(holding that an asylum petitioner was denied a full and fair
hearing and a reasonable opportunity to present evidence on
his behalf where the IJ “acted as a partisan adjudicator” dur-
ing petitioner’s hearing). Thus, the procedures used in the
underlying deportation hearing independently place Morales
within the constitutional danger zone.4
4
It is, of course, unnecessary in avoidance analysis to determine whether
Morales has demonstrated prejudice. Because there is at least a serious
possibility that the reinstatement regulations violated Morales’s due pro-
cess rights, those regulations are inconsistent with presumed congressional
intent regardless of whether Morales has shown a remediable constitu-
tional violation in his case. Nevertheless, it is worth noting that Morales
has shown a significant likelihood of prejudice by contesting both the con-
stitutionality of the initial removal order and the factual basis of the rein-
statement order. His inability to present and develop those claims before
an immigration judge may well have resulted in an erroneous deportation.
5308 MORALES-IZQUIERDO v. GONZALES
3
Because the reinstatement procedures fall within the consti-
tutional danger zone, both facially and as applied to Morales,
the doctrine of constitutional avoidance requires a presump-
tion that Congress intended to afford Morales a full § 240
hearing before an immigration judge. This statutory construc-
tion, which is consistent with the plain words of § 240 and
with the overall structure of the INA, necessarily means that
the reinstatement regulation is ultra vires to the statute and
must be invalidated.
C
Rather than reaching the question of whether there has been
a deprivation of due process, the majority opinion contends
that any such violation can be addressed and remedied by the
court on a petition for habeas corpus, filed by the alien fol-
lowing removal. This contention, however, cannot be squared
with the Real ID Act of 2005’s limitation on the availability
of habeas review.5 In fact, the majority’s suggestion highlights
a second “constitutional danger zone” that the reinstatement
provision approaches: the Suspension Clause.
Section 106(a) of the Real ID Act, Pub. L. No. 109-13
(May 11, 2005), amending 8 U.S.C. § 1252(D)(5), provides:
Notwithstanding any other provision of law, . . . or
5
The majority opinion does not specify that it has habeas relief in mind,
but a writ of habeas corpus is the only imaginable remedy that an alien
could seek after removal from the country. By the time that a removal
order has been executed, motions to reopen and petitions for review would
no longer be available. Furthermore, neither a motion to reopen nor a peti-
tion for review would allow litigation of a fact-based (or as-applied) sub-
stantive constitutional challenge since the agency may not litigate such
challenges and the appellate courts may not conduct evidentiary hearings.
A removed alien, thus, has absolutely no means of raising an as-applied
constitutional challenge to his deportation, particularly after REAL-ID.
MORALES-IZQUIERDO v. GONZALES 5309
any other habeas corpus provision, . . . a petition for
review filed with an appropriate court of appeals in
accordance with this section shall be the sole and
exclusive means for judicial review of an order of
removal entered or issued under any provision of
[the INA].
“The [Real ID Act] eliminated habeas jurisdiction . . . over
final orders of deportation, exclusion, or removal.” Alvarez-
Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005).
Without § 240 procedural protections during the reinstatement
proceeding, this lack of post-removal habeas review raises
serious Suspension Clause concerns. The Attorney General’s
regulation, thus, approaches a second and independent “con-
stitutional danger zone” by denying reinstateable aliens any
constitutionally sufficient access to relief from detention and
deportation.
When there are essential disputed factual issues, the only
constitutionally adequate remedy is a “full and fair hearing,”
which includes “a reasonable opportunity [for the alien] to
present evidence on his behalf.” Ibarra-Flores v. Gonzales,
439 F.3d 614, 620 (9th Cir. 2006) (internal quotation marks
omitted). Because the Real ID Act vests exclusive habeas cor-
pus jurisdiction over final orders of removal in the courts of
appeal, the statute necessarily deprives the alien of a contested
evidentiary hearing with a resolution that is later subject to
appellate review based on a complete record. Courts of appeal
are not trial courts. Tippitt v. Reliance Standard Life Ins. Co.,
457 F.3d 1227, 1237 (11th Cir. 2006) (“[I]t is not the role of
appellate courts to make findings of fact.”); see also Icicle
Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986) (not-
ing that it was improper for a court of appeals to make “fac-
tual findings on its own”). In short, under the Real ID Act,
evidentiary hearings in habeas corpus review of final orders
of removal are eliminated. Thus, without a hearing before an
IJ, Morales will have no opportunity to litigate the contested
questions of fact. Even if habeas review were afforded in the
5310 MORALES-IZQUIERDO v. GONZALES
appellate courts, it would not be constitutionally sufficient
because it would not include an evidentiary hearing at which
Morales could participate.
In addition, even if a full post-removal evidentiary hearing
were permitted, Morales would be unable to attend and pre-
sent live testimony without committing the criminal act of
reentering the United States after removal, in violation 8
U.S.C. § 1326(a).
In short, the theoretical existence of a post-removal habeas
corpus remedy does not provide an opportunity for a full and
fair hearing of Morales’s claims before a neutral fact-finder.
Morales will never have a hearing on his claims. The only
method of avoiding this constitutionally problematic result is
to enforce the proper construction of the statute, requiring that
reinstatement proceedings be governed by § 240 procedures.
D
Given all of these considerations, even if the statutory lan-
guage were susceptible to another interpretation, the canon of
constitutional avoidance would require us to construe the stat-
ute to avoid these many constitutional concerns, interpreting
it instead as requiring that § 240 procedures be applicable to
reinstatement proceedings. That construction is at least “fairly
possible,” Crowell, 285 U.S. at 62, even if not textually and
structurally required, and that construction would avoid the
plethora of due process and Suspension Clause problems that
are inherent in the Attorney General’s regulation.
IV
Congress could hardly have been more clear. The INA
unambiguously requires that inadmissibility and deportability
determinations be made by an immigration judge pursuant to
the procedural protections outlined in INA § 240. Lest there
be any doubt, application of the traditional rules of statutory
MORALES-IZQUIERDO v. GONZALES 5311
construction, including the canon of constitutional avoidance,
dictate the same conclusion; we should not lightly assume that
Congress intended to authorize the Attorney General’s abro-
gation of so many aliens’ procedural rights. The Attorney
General’s action in stripping away the procedural protections
that had been in place for nearly forty-five years is in direct
conflict with the statute and cannot stand.
For those reasons, I respectfully dissent. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048584/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_______________
No. 08-2978
_______________
Terrick Terrell Nooner, *
*
Appellant, *
*
Don William Davis; *
Jack Harold Jones, Jr., *
*
Intervenor Plaintiffs-Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, in his official capacity *
as Director, Arkansas Department of *
Correction; Gaylon Lay, in his official *
capacity as Warden, Arkansas *
Department of Correction, Cummins *
Unit; Wendy Kelly, in her official *
capacity as Deputy Director for Health *
and Correctional Programs, Arkansas *
Department of Correction; John Byus, *
in his official capacity as Administrator, *
Correctional Medical Services, *
Arkansas Department of Correction; *
Does, 1-50, unknown executioners, *
in their official capacities as employees *
and/or agents of the Arkansas *
Department of Correction, *
*
Appellees, *
------------------------------
Frank Williams, Jr., *
*
Appellant, *
*
v. *
*
Larry Norris, in his official capacity *
as Director, Arkansas Department of *
Correction; Gaylon Lay, in his official *
capacity as Warden, Arkansas *
Department of Correction, Cummins *
Unit; Wendy Kelly, in her official *
capacity as Deputy Director for Health *
and Correctional Programs, Arkansas *
Department of Correction; John Byus, *
in his official capacity as Administrator, *
Correctional Medical Services, *
Arkansas Department of Correction; *
Does, 1-50, unknown executioners, *
in their official capacities as employees *
and/or agents of the Arkansas *
Department of Correction, *
*
Appellees. *
___________
Submitted: September 24, 2009
Filed: February 8, 2010
___________
Before MELLOY, GRUENDER and BENTON, Circuit Judges.
___________
GRUENDER, Circuit Judge.
Terrick Terrell Nooner, Don William Davis, Jack Harold Jones and Frank
Williams, Jr. (collectively, “the Inmates”) were each convicted of capital murder in
-2-
Arkansas. Their convictions have been affirmed, their petitions for post-conviction
relief have been denied, and they await execution by the State of Arkansas. In this 42
U.S.C. § 1983 lawsuit against Larry Norris, Director of the Arkansas Department of
Correction, and other corrections employees (collectively, “the ADC”), the Inmates
challenge the constitutionality of Arkansas’s protocol for execution by lethal injection.
The district court1 granted the ADC’s motion for summary judgment, and the Inmates
now appeal. For the following reasons, we affirm.
I. BACKGROUND
Nooner filed his lawsuit on May 1, 2006. Davis and Jones filed motions to
intervene as party plaintiffs, which the district court granted on May 26, 2006, and
December 1, 2006, respectively. On August 9, 2007, the district court ordered the
case consolidated with a similar lawsuit filed by Williams on July 11, 2007.
On June 26, 2006, the district court granted Davis a preliminary injunction,
staying his execution. The ADC appealed, and on July 9, 2007, we vacated the
preliminary injunction and stay of execution. Nooner v. Norris, 491 F.3d 804, 806
(8th Cir. 2007). The next day, the Inmates sought discovery for the first time by filing
a motion for expedited discovery. The district court denied the Inmates’ motion for
expedited discovery on August 9, 2007, but the ADC nevertheless produced more than
300 pages of documents in response. The ADC moved for summary judgment,
arguing that the Inmates had failed to establish a genuine issue of material fact about
the constitutionality of Arkansas’s lethal injection protocol. The Inmates sought
shelter under Federal Rule of Civil Procedure 56(f), claiming that they lacked access
to the facts necessary to oppose the ADC’s motion for summary judgment and that
they needed further discovery.
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
-3-
Before the district court ruled on the ADC’s motion for summary judgment, the
Supreme Court granted certiorari in Baze v. Rees, 552 U.S. 945 (2007), a case
challenging the constitutionality of Kentucky’s lethal injection protocol. Accordingly,
the district court denied the ADC’s motion for summary judgment without prejudice
and stayed and administratively terminated the Inmates’ lawsuit pending the outcome
in Baze.
The Supreme Court issued its decision in Baze on April 16, 2008, upholding
Kentucky’s lethal injection protocol. 553 U.S. 35, 128 S. Ct. 1520 (2008). The
Inmates successfully moved to reopen their case on May 15, 2008. The ADC
amended its lethal injection protocol on May 22, 2008, and moved for summary
judgment on June 4, 2008. The Inmates opposed this motion but did not renew their
request for a continuance to obtain further discovery under Rule 56(f). On August 5,
2008, the district court granted the ADC’s motion for summary judgment.
Under Arkansas law, the Director of the ADC is responsible for determining the
policies and procedures followed by the ADC to execute prisoners by lethal injection.
Ark. Code Ann. § 5-4-617(a)(4). The parties refer to the set of execution instructions
he has developed—and revised—as the Arkansas lethal injection protocol.
Ray Hobbs, Chief Deputy Director of the ADC, submitted an affidavit (“the
Hobbs affidavit”) dated July 28, 2008, stating that he was authorized to make
statements about the protocol on behalf of the ADC. The Inmates have not argued
that Hobbs acted ultra vires in submitting this affidavit, and the ADC specifically
stated at oral argument that it considers the statements in the Hobbs affidavit to be
binding on the ADC. Because the ADC may amend the protocol at the Director’s
discretion, see Ark. Code Ann. § 5-4-617, we accept the Hobbs affidavit as a written
addendum to the May 22, 2008 protocol.
-4-
Under the protocol, the ADC’s Deputy Director for Health and Correctional
Programs is primarily responsible for supervising executions. The Deputy Director
must be “healthcare trained, educated, and/or experienced in matters related to the
establishment and monitoring of IVs, the mixing and administration of lethal
chemicals, and assessing the presence or absence of consciousness.” The protocol
allows a designee to perform the functions of the Deputy Director, but the designee
must meet the same qualifications. If needed, the Deputy Director provides an
orientation for the executioners before each execution. She also selects the IV team,
which is responsible for establishing intravenous infusion sites in condemned
prisoners. Each member of the IV team must have at least two years of professional
experience as an emergency medical technician, nurse, physician assistant or
physician.
Arkansas administers the same combination of lethal chemicals to execute
prisoners that at least thirty other states use: sodium pentothal, pancuronium bromide
and potassium chloride. See Baze, 128 S. Ct. at 1527 (plurality opinion).2 Before
each execution, the Deputy Director is responsible for ensuring that the lethal
chemicals are mixed properly and transferred to conspicuously numbered syringes that
are secured in a carrying case.3
2
All references to Baze, unless otherwise indicated, are to the plurality opinion
written by Chief Justice Roberts.
3
The protocol identifies the label and contents of each syringe as follows:
SYRINGE
LABELED/
MARKED CONTENTS
#1/#2 Sodium Pentothal, 3.0 grams (two (2) syringes
of 1.5 grams in 60 cc)
#3/#6 Normal Saline, 50 cc each
#4/#5 Pancuronium Bromide, 100 mg (two (2)
syringes of 50 mg in 50 cc)
-5-
Arkansas executes condemned prisoners in an execution chamber that is
adjoined by a witness room and a control room. There is a large window between the
execution chamber and the witness room that can be covered by a curtain. From the
control room, the executioners can see into the execution chamber through a one-way
mirror. The protocol directs the Deputy Director to bring the condemned prisoner into
the execution chamber strapped to a gurney, which is positioned directly in front of
the one-way mirror so that the Deputy Director and the executioners can observe the
IV infusion sites and the prisoner’s face throughout the execution. The Deputy
Director affixes cardiac monitor leads to the prisoner and then summons the IV team.
The IV team establishes two independent IV infusion sites, preferably one in
each of the prisoner’s arms. If two sites cannot be established, the protocol directs the
Deputy Director to dismiss the IV team and “summon trained, educated, and
experienced person(s) necessary to establish a primary IV line as a peripheral line or
as a central venous line.” After the infusion sites are established, the IV team
connects the IV lines to the control room with extension tubing, allowing the
executioners to administer the lethal chemicals from the control room. When the
warden authorizes the executioners to begin injecting the lethal chemicals, the curtain
between the execution chamber and the witness room is opened.
The executioners first inject two syringes containing three grams of sodium
pentothal, a barbiturate, into the primary IV line. The protocol requires the Deputy
Director to wait at least three minutes after the executioners begin the injection of
sodium pentothal before directing the executioners to administer the contents of the
#7/#8 Potassium Chloride, 240 mEq (two (2) syringes
of 120 mEq in 60 cc)
Backup Syringes
#B1/B2 Sodium Pentothal, 3.0 grams (two (2) syringes
of 1.5 grams in 60 cc)
#B3 Normal Saline, 50 cc
-6-
remaining syringes. During this time, the protocol instructs the Deputy Director to
use standard medical techniques, “such as checking for movement, opened eyes,
eyelash reflex, and response to verbal commands and physical stimuli,” to verify that
the prisoner has been rendered completely unconscious. After three minutes have
elapsed and the Deputy Director verifies that the prisoner is completely unconscious,
the protocol instructs the executioners to inject a syringe of normal saline to flush the
IV line, followed by two syringes containing 100 mg of pancuronium bromide, which
paralyzes the prisoner’s muscles and stops respiration. After injecting another syringe
of saline, the executioners administer two syringes containing 240 mEq of potassium
chloride, which induces cardiac arrest.
The protocol requires the Deputy Director to monitor the primary IV infusion
site continuously and to reduce the flow of lethal chemicals or redirect them to the
alternate infusion site if she suspects a problem. The curtain between the witness
room and the execution chamber is closed if an infusion problem develops but
otherwise remains open during the administration of lethal chemicals. After the
cardiac monitors display a flat-line, a coroner is summoned to pronounce death.
Prison officials then close the curtain to the witness room and escort the witnesses
from the building.
The Inmates argue that the district court abused its discretion in finding that the
case is ripe for summary judgment. They also argue that the district court erred in
granting summary judgment to the ADC because the record establishes genuine issues
of material fact about whether Arkansas’s lethal injection protocol is unconstitutional.
-7-
II. DISCUSSION
The Eighth Amendment, applicable to the states through the Fourteenth
Amendment, prohibits cruel and unusual execution procedures. See Baze, 128 S. Ct.
at 1530. Challenges to the constitutionality of a state’s lethal injection procedures are
cognizable under 42 U.S.C. § 1983. Hill v. McDonough, 547 U.S. 573, 576 (2006).
“We begin with the principle . . . that capital punishment is constitutional.”
Baze, 128 S. Ct. at 1529 (citing Gregg v. Georgia, 428 U.S. 153, 177 (1976) (plurality
opinion)). “It necessarily follows that there must be a means of carrying it out.” Id.
“[T]he Constitution does not demand the avoidance of all risk of pain in carrying out
executions.” Id. To establish a violation of the Eighth Amendment, an execution
procedure must be “‘sure or very likely to cause . . . needless suffering,’ and give rise
to ‘sufficiently imminent dangers.’” Id. at 1531 (quoting Helling v. McKinney, 509
U.S. 25, 33-34 (1993)). “[T]o prevail on such a claim there must be a ‘substantial risk
of serious harm,’ . . . that prevents prison officials from pleading that they were
‘subjectively blameless for purposes of the Eighth Amendment.’” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 842, 846 and n.9 (1994)). “The mere fact ‘an
execution method may result in pain, either by accident or as an inescapable
consequence of death,’ does not amount to an Eighth Amendment violation.”
Clemons v. Crawford, 585 F.3d 1119, 1125 (8th Cir. 2009) (quoting Baze, 128 S. Ct.
at 1531). The Supreme Court “has never invalidated a State’s chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual punishment.”
Baze, 128 S. Ct. at 1530.
In Taylor v. Crawford, we reviewed a facial challenge to the constitutionality
of Missouri’s lethal injection protocol. 487 F.3d 1072, 1085 (8th Cir. 2007), cert.
denied, 553 U.S. ---, 128 S. Ct. 2047 (2008). We determined that the constitutionality
of Missouri’s protocol “depends upon whether the protocol as written would inflict
unnecessary pain, aside from any consideration of specific intent on the part of a
-8-
particular state official.” Id. at 1081. Accordingly, we focused on the written protocol
to determine whether it “presents a substantial risk of inflicting unnecessary pain,” id.
at 1080, and we held that Missouri’s protocol did not violate the Eighth Amendment,
id. at 1085.
After our decision in Taylor, the Supreme Court upheld Kentucky’s lethal
injection protocol in Baze. 128 S. Ct. at 1526. The Court’s opinion was fractured,
and no opinion commanded a majority of the Justices. However, a three-Justice
plurality concluded, in an opinion written by Chief Justice Roberts, that a lethal
injection protocol must create a “substantial risk of serious harm” to be
unconstitutional. Id. at 1531 (quoting Farmer, 511 U.S. at 842). Following Baze, no
federal appellate court has invalidated a lethal injection protocol under the Eighth
Amendment. Cooey v. Strickland, 589 F.3d 210, 221 (6th Cir. 2009) (collecting
cases).
In Clemons v. Crawford, we relied on Baze to hold that eight condemned
prisoners in Missouri could not “support an Eighth Amendment claim” because they
had not “alleged a sufficiently substantial risk of serious harm” in challenging
Missouri’s implementation of its protocol. 585 F.3d at 1127-28; see also Harbison
v. Little, 571 F.3d 531, 535 (6th Cir. 2009) (“Chief Justice Roberts’s plurality opinion
[in Baze] is controlling.”), petition for cert. filed, --- U.S.L.W. --- (U.S. Nov. 23,
2009) (No. 09-7777); Emmett v. Johnson, 532 F.3d 291, 298 n.4 (4th Cir. 2008)
(concluding that the plurality opinion “represents the controlling opinion of the
Court”). In this case, we are called on to decide whether the Arkansas lethal injection
protocol violates the Eighth Amendment’s prohibition against cruel and unusual
punishment by subjecting the Inmates to a substantial risk of serious harm.
-9-
A. Ripeness of Summary Judgment Motion
As a preliminary matter, however, the Inmates argue that their case is not ripe
for summary judgment. We review the district court’s determination that a case is ripe
for summary judgment for abuse of discretion. Nolan v. Thompson, 521 F.3d 983,
986 (8th Cir. 2008).
“Discovery does not have to be completed before a court can grant summary
judgment, but summary judgment is proper only after the nonmovant has had adequate
time for discovery.” In re TMJ Implant Prods. Liab. Litig., 113 F.3d 1484, 1489-90
(8th Cir. 1997) (internal citations omitted). The record shows that the Inmates had
adequate time to conduct discovery. This lawsuit was initially filed on May 1, 2006,
but the Inmates did not request discovery for more than fourteen months, when they
sought expedited discovery. The Inmates attribute this fourteen-month delay to the
district court’s failure to enter a scheduling order, which they assert is normally the
starting point for discovery in Arkansas. As the district court correctly noted,
however, the “lack of a scheduling order did not prevent counsel from conferring and
developing a discovery plan as required under Federal Rule of Civil Procedure 26(f);
nor did it prevent Nooner from requesting that the Court enter a scheduling order.”
Nooner v. Norris, No. 5:06-cv-001100, 2007 WL 2301221, at *3 (E.D. Ark. Aug. 9,
2007) (unpublished) (footnote omitted) (citing Nickens v. White, 622 F.2d 967, 971
(8th Cir. 1980)).
In any event, the Inmates sought shelter under Federal Rule of Civil Procedure
56(f) on July 30, 2007, claiming that without discovery they lacked the facts necessary
to oppose the ADC’s initial motion for summary judgment. Subsequently, the ADC
voluntarily produced more than 300 pages of documents to the Inmates. On
November 9, 2007, the district court stayed and administratively terminated the
lawsuit pending the Supreme Court’s decision in Baze. After the district court
reopened this case on May 21, 2008, the ADC filed a second motion for summary
-10-
judgment. In opposing the ADC’s motion, the Inmates did not renew their request for
a continuance to obtain further discovery under Rule 56(f).4 Under these
circumstances, the district court did not abuse its discretion in finding that the case is
ripe for summary judgment. See In re TMJ Implant Prods. Liab. Litig., 113 F.3d at
1490 (“If a party opposing a summary judgment motion does not seek shelter under
Rule 56(f) or otherwise ask for a continuance, a court generally does not abuse its
discretion in granting summary judgment based on the record before it.” (citing
Wallace v. Dorsey Trailers Se., Inc., 849 F.2d 341, 344 (8th Cir. 1988))); Ballard v.
Heineman, 548 F.3d 1132, 1136 (8th Cir. 2008) (“The district court does not abuse
its discretion by denying further discovery ‘where the nonmoving party is not
deprived of a fair chance to respond to the summary judgment motion.’” (quoting
Nord v. Kelly, 520 F.3d 848, 852 (8th Cir. 2008))).
B. Summary Judgment
Turning to the merits, “[w]e review a district court’s grant of summary
judgment de novo, using the same standards applied by the district court.”
Schoolhouse, Inc. v. Anderson, 275 F.3d 726, 728 (8th Cir. 2002) (citing Iowa Coal
Mining Co. v. Monroe County, 257 F.3d 846, 852 (8th Cir. 2001)). “Summary
judgment is proper where the evidence, when viewed in the light most favorable to the
nonmoving party, indicates that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law.” Davison v. City of
Minneapolis, 490 F.3d 648, 654 (8th Cir. 2007) (quoting Hughes v. Stottlemyre, 454
F.3d 791, 796 (8th Cir. 2006)). We must affirm the district court’s grant of summary
judgment unless a reasonable fact finder, viewing the evidence in the light most
favorable to the Inmates, could return a verdict in their favor. See Prosser v. Ross, 70
4
The district court granted the Inmates a thirty-day extension to file their
response in opposition to the ADC’s motion for summary judgment, but they did not
argue that they needed the time to conduct discovery or that they lacked access to the
facts needed to oppose the ADC’s motion.
-11-
F.3d 1005, 1009 (8th Cir. 1995). The Inmates contend that summary judgment was
improper with respect to eight issues. We examine each in turn.
1. The Risk of Remaining Conscious
The combination of lethal chemicals that Arkansas and at least thirty other
states use to execute prisoners has been designed to cause as little pain as possible.
See Baze, 128 S. Ct. at 1527 n.1 (noting that “in moving to lethal injection, the States
were motivated by a desire to find a more humane alternative to then-existing
methods”). “The proper administration of [sodium pentothal] ensures that the prisoner
does not experience any pain associated with the paralysis and cardiac arrest caused
by the [pancuronium bromide] and [potassium chloride].” Id. at 1527. In this case,
the Inmates have not challenged the opinion of the ADC’s expert witness, Dr. Mark
Dershwitz, that within sixty seconds of the injection of all three grams of sodium
pentothal “more than 99.9999999% of the population would be unconscious.”
However, it is also undisputed that if the other chemicals were administered to a
prisoner while still conscious, he would feel “an excruciating burning sensation as [the
potassium chloride] travels through his veins to induce a heart attack, and yet he
would be unable to indicate that he is experiencing pain due to the paralyzing effects
of the second chemical, pancuronium bromide.” See Taylor, 487 F.3d at 1074.
The Arkansas protocol contains several safeguards to ensure that the sodium
pentothal is administered properly and that the prisoner has been rendered fully
unconscious before the pancuronium bromide and potassium chloride are injected.
The protocol requires the Deputy Director to wait three minutes after the injection of
sodium pentothal before directing the executioners to administer the remaining
chemicals. During this time, the Deputy Director must verify that the prisoner is
unconscious by using “standard procedures for assessing consciousness as required
by medical paraprofessionals, such as checking for movement, opened eyes, eyelash
reflex, and response to verbal commands and physical stimuli.” If the prisoner
-12-
remains conscious after the injection of the sodium pentothal, the protocol requires the
Deputy Director to direct the executioners to inject the back-up doses of sodium
pentothal into the secondary IV line. Finally, the protocol requires the Deputy
Director to continuously monitor the IV infusion sites throughout the execution and
to suspend the flow of lethal chemicals if she suspects a problem.
The Inmates argue that evidence about four previous executions in Arkansas
establishes a genuine issue of material fact regarding whether the protocol creates a
substantial risk of serious harm. In particular, they assert that the ADC “botched” the
executions of Ronald Gene Simmons on June 25, 1990; of Rickey Ray Rector on
January 24, 1992; of Steven Douglas Hill on May 7, 1992; and of Christina Riggs on
May 2, 2000. In the light most favorable to the Inmates, the record shows that each
of these condemned prisoners exhibited signs of consciousness within three minutes
of the injection of sodium pentothal. Thus, according to the Inmates, these executions
create a genuine issue of material fact about whether the current protocol sufficiently
ensures that they will be fully unconscious before the pancuronium bromide and
potassium chloride are administered.
We emphasized in Taylor that when reviewing the constitutionality of a state’s
lethal injection protocol we review the current protocol as written. See 487 F.3d at
1080 (“The focus of our inquiry is whether the written protocol inherently imposes a
constitutionally significant risk of pain.”). Moreover, we held that if the written
protocol is not unconstitutional on its face, “any risk that the [lethal injection]
procedure will not work as designated in the protocol is merely a risk of accident,
which is insignificant in our constitutional analysis.” Id. The plurality in Baze
similarly stated that “an isolated mishap alone does not give rise to an Eighth
Amendment violation, precisely because such an event, while regrettable, does not
suggest cruelty.’” 128 S. Ct. at 1531 (citing Farmer, 511 U.S. at 842).
-13-
The Inmates point to the plurality’s suggestion in Baze that a “series of
abortive” execution attempts “would present a different case,” id., to claim that their
evidence of problems during previous executions creates a genuine issue of material
fact about the constitutionality of the Arkansas protocol. These four executions were
not carried out under the current protocol, however. As discussed above, the current
protocol contains numerous safeguards designed to prevent the ADC from
administering pancuronium bromide and potassium chloride to a prisoner who is not
fully unconscious. Thus, even if the ADC engaged in a “series of abortive” execution
attempts under previous protocols, the record does not establish a genuine issue of
material fact about whether the Inmates will remain conscious during the injection of
the pancuronium bromide and potassium chloride under the current protocol.
The Inmates correctly point out that the record does not contain the lethal
injection protocols in place at the time Simmons, Rector, Hill and Riggs were
executed. According to the Inmates, this creates a genuine issue of material fact about
whether the ADC has engaged in a “series of abortive” execution attempts despite the
safeguards required by the current protocol because it is possible the previous
protocols contained the same safeguards. Although the record does not identify or
describe the protocols in place at the time of the four previous executions, it does
contain lethal injection protocols dated May 23, 1996, and November 23, 2005. These
protocols lacked many of the safeguards required by the current protocol. For
instance, the 1996 protocol did not require ADC officials to monitor the IV infusion
sites, and it did not contain a contingency plan for addressing infusion problems.
Neither the 1996 nor the 2005 protocol required ADC officials to pause between the
administration of sodium pentothal and pancuronium bromide to determine whether
the prisoner is unconscious, nor did they require the preparation or administration of
back-up syringes of sodium pentothal. The current protocol is much more thorough
than these earlier protocols and, as discussed above, contains procedures that
sufficiently protect prisoners from remaining conscious during the injection of the
pancuronium bromide and potassium chloride. Cf. Harbison, 571 F.3d at 536-37
-14-
(upholding the Tennessee lethal injection protocol despite the state’s decision to reject
a review committee’s recommendation to adopt procedures for assessing
consciousness after the administration of sodium pentothal).
The Inmates urge us to ignore the safeguards in the current protocol and find
that there is a genuine issue of material fact about whether the protocols that governed
the executions carried out in 1990, 1992 and 2000 contained safeguards that were not
part of the 1996 and 2005 protocols. We reject this argument. The possibility that the
ADC removed significant safeguards in 1996 and 2005, only to reinstate them in the
May 22, 2008 protocol, is so unlikely that it amounts to little more than pure
speculation. See Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009)
(“[S]ummary judgment will not be reversed on the basis of speculation, conjecture,
or fantasy.” (citing Potman v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th Cir.
2003))). Under the current protocol, “any risk that [Arkansas’s lethal injection]
procedure will not work as designated . . . is merely a risk of accident, which is
insignificant in our constitutional analysis.” Taylor, 487 F.3d at 1080.
We hold that the Inmates’ evidence of previous executions does not establish
that the Arkansas protocol creates a substantial risk of serious harm that the Inmates
will remain conscious after the administration of the sodium pentothal.
2. Intracardiac Infusion
The Inmates argue that the record establishes a genuine issue of material fact
about whether the ADC plans to use “intracardiac infusion” in future executions. In
this context, intracardiac infusion refers to a potentially painful procedure whereby
lethal chemicals are injected directly into a chamber of the heart with a large needle.
The November 23, 2005 version of the protocol authorized this procedure as a last
resort, but the May 22, 2008 version does not mention it. Nevertheless, the Inmates
claim that the ADC plans to use this procedure under the current protocol based on a
-15-
July 18, 2008 newspaper article in which ADC spokeswoman Dina Tyler is reported
to have said that the ADC could start a line directly to a condemned prisoner’s heart
if necessary. The ADC argues that this article is hearsay and cannot be relied on to
oppose summary judgment.
We have held that “only evidence that would be admissible at trial may be
relied upon to counter a motion for summary judgment.” Sokol & Assocs., Inc. v.
Techsonic Indus., Inc., 495 F.3d 605, 611 n.4 (8th Cir. 2007) (citing Shaver v. Indep.
Stave Co., 350 F.3d 716, 723 (8th Cir. 2003)). The Inmates argue that Tyler’s
statement is admissible under Federal Rule of Evidence 801(d)(2) as a non-hearsay
admission of a party opponent. This argument fails to distinguish Tyler’s statement
from the newspaper article containing the statement. Newspaper articles are “rank
hearsay.” See Miller v. Tony & Susan Alamo Found., 924 F.2d 143, 147 (8th Cir.
1991). Even if Tyler’s statement is viewed as a non-hearsay admission of a party
opponent, the newspaper article reporting the statement is offered to prove the truth
of the matter asserted and is not covered by any hearsay exception. Therefore, the
article’s description of Tyler’s statement about intracardiac infusion “cannot be
admitted for its truth.” See United States v. Santisteban, 501 F.3d 873, 878-79 (8th
Cir. 2007).
Even assuming the newspaper article is admissible evidence, the Inmates would
still fail to establish a genuine issue of material fact about whether the ADC plans to
use intracardiac infusion in future executions. The Hobbs affidavit flatly states that
“intracardiac infusion will not be performed during any future lethal-injection
execution carried out by the ADC.” The affidavit is dated July 28, 2008, ten days
after the newspaper account of Tyler’s statement. Because we treat the Hobbs
affidavit as a binding written addendum to the protocol, we conclude that it supersedes
Tyler’s statement.
-16-
3. Central line placement
If the IV team cannot establish IV access through traditional methods, the
protocol authorizes the Deputy Director to summon “trained, educated, and
experienced person(s)” to establish a central venous line by inserting a catheter in the
femoral, jugular or subclavian vein. The Inmates argue that this “vague, standardless
provision . . . places no meaningful restrictions whatsoever upon who may perform
this dangerous procedure” and that the protocol therefore authorizes unqualified
personnel to establish such lines. We reject the Inmates’ argument. “[I]t is imperative
for the State to employ personnel who are properly trained to competently carry out
each medical step of the [lethal injection] procedure.” Clemons, 585 F.3d at 1128
(quoting Taylor, 487 F.3d at 1084). The protocol’s requirements satisfy this standard.
Moreover, the Hobbs affidavit clarifies that any attempt to place a central venous line
will be performed by “a licensed physician who is credentialed to establish” such
lines.5 The Inmates have not established a genuine issue of material fact about
whether they face a substantial risk of serious harm from the placement of central
venous lines by unqualified ADC personnel.
4. Cut-down procedure
The Inmates argue that the protocol authorizes ADC personnel to use a “cut-
down” procedure if they are unable to obtain intravenous access by other methods.
They define a cut-down as “an incision into the prisoner’s flesh deep enough to
expose the vein for direct insertion of the needle and catheter.” The Inmates
characterize the procedure as “brutal, agonizing” and “barbaric.” They point to the
1992 execution of Rickey Ray Rector as evidence that future prisoners will be
“subject to the procedure that led to [his] torturous death.” In that instance, ADC
5
We need not consider whether a central venous line may constitutionally be
established by someone other than a licensed physician.
-17-
personnel were unable to establish infusion sites through traditional methods and
eventually made a two-inch incision in Rector’s arm. Rector reportedly groaned
periodically during the ADC’s attempts to establish intravenous access. The Inmates
argue that this evidence suggests that they face a substantial risk of serious harm from
a cut-down procedure.
Although the current protocol does not expressly authorize a cut-down
procedure, the ADC acknowledges that it might be necessary to make incisions on
some prisoners to establish IV access. However, the Hobbs affidavit clarifies that any
such incision would be made by a licensed physician who is properly qualified to
carry out the procedure. Moreover, the protocol states that all attempts to obtain IV
access must avoid unnecessary pain by using local anesthetic as necessary.6 The
Inmates have not argued, nor does the record establish, that an incision made under
these conditions rises to the level of serious harm. Accordingly, we conclude that the
Inmates have failed to establish a genuine issue of material fact about whether they
face a substantial risk of serious harm from a cut-down procedure. Cf. Cooey, 589
F.3d at 228 (noting that the Sixth Circuit upheld Tennessee’s lethal injection protocol
even though it expressly authorizes a physician to use a cut-down procedure to gain
IV access as a contingency plan).
6
The protocol provides:
EVERY EFFORT WILL BE EXTENDED TO THE CONDEMNED
INMATE TO ENSURE THAT NO UNNECESSARY PAIN OR
SUFFERING IS INFLICTED BY THE IV PROCEDURE.
STANDARD PRACTICE OF USING A LOCAL ANESTHETIC WILL
BE ACCOMMODATED AS NECESSARY.
-18-
5. IV Team Qualifications
The Inmates argue that the ADC does not require its IV team members to have
qualifications and experience comparable to those required by the Kentucky protocol
upheld in Baze. The Baze plurality stated that Kentucky has instituted “important
safeguards” to ensure that the lethal chemicals used in its executions are properly
administered. 128 S. Ct. at 1533. Specifically, Kentucky’s protocol requires each
member of its IV team to have at least one year of professional experience as a
phlebotomist, emergency medical technician, paramedic, certified medical assistant
or military corpsman. Id. The plurality noted that the current members of Kentucky’s
IV team insert IV catheters on a daily basis and that the Kentucky protocol requires
the IV team to engage in at least ten practice sessions each year. Id. at 1533-34. But
the plurality made clear that the “most significant” of Kentucky’s safeguards was the
requirement that each member of the IV team have at least one year of professional
experience. Id. at 1533.7
The Arkansas protocol goes even further than the Kentucky protocol by
requiring IV team members to have at least two years of professional experience as
7
The Inmates assert that the Baze plurality found that the daily experience of the
IV team members was equally significant. This argument mischaracterizes Baze. The
opinion states:
Kentucky has put in place several important safeguards to ensure that an
adequate dose of sodium thiopental is delivered to the condemned
prisoner. The most significant of these is the written protocol’s
requirement that members of the IV team must have at least one year of
professional experience as a certified medical assistant, phlebotomist,
EMT, paramedic, or military corpsmen.
Baze, 128 S. Ct. at 1533 (emphasis added).
-19-
an emergency medical technician, nurse, physician assistant or physician. The record
does not show how often the current members of the IV team establish IV lines, but
the two-year professional experience requirement ensures that IV team members are
qualified and competent to insert IV catheters. Moreover, the Inmates are wrong to
suggest that “no training of the IV Team members whatsoever is conducted” in
Arkansas. The protocol does not include a specific schedule for practice execution
sessions, but that does not mean such practice sessions do not take place. Indeed, the
protocol outlines a procedure for conducting practice execution sessions and requires
the IV team to “initiate intravenous infusion devices” during each practice session.
We conclude that the required qualifications for IV team members in Arkansas under
the current protocol are substantially similar to the requirements of the Kentucky
protocol upheld in Baze. See 128 S. Ct. at 1537 (observing that a state “with a lethal
injection protocol substantially similar to” Kentucky’s protocol would be
constitutional).
The Inmates also argue that the Deputy Director is not qualified to supervise the
IV team. They argue that the protocol’s requirement that the Deputy Director be
“healthcare trained, educated, and/or experienced” is vague. This argument ignores
other relevant language in the same sentence, which in full states that the Deputy
Director must be “healthcare trained, educated, and/or experienced in matters related
to the establishment and monitoring of IVs.” (Emphasis added.) The Inmates also
argue that the Deputy Director must hold the same “credentials, qualifications and
competencies” as the members of the IV team. We reject this argument. The Deputy
Director supervises the IV team and monitors the infusion sites, but she does not
personally establish any of the IV lines and is not a member of the IV team. The
qualifications required by the protocol ensure that the Deputy Director is sufficiently
competent to perform her supervisory role.8
8
We reject the Inmates’ assertion that John Byus, the Administrator of Medical
and Dental Services for the ADC, is unqualified to supervise the IV team. The record
reveals that Byus is an experienced healthcare professional with more than thirty years
-20-
Because the Inmates have not presented sufficient evidence to create a genuine
issue of material fact about whether they face a substantial risk of serious harm as a
result of any deficiencies in the training or experience of the ADC’s IV team or its
Deputy Director, summary judgment was proper on this issue.
6. Infusion Site Monitoring
The Inmates contend that the Arkansas protocol subjects them to a substantial
risk of serious harm by failing to provide for adequate monitoring of the IV infusion
sites. The sole piece of evidence they provide in support of this argument is a post-
mortem photograph of Steven Hill, which shows his entire body—except his head and
hands—covered with a sheet. The Inmates argue that this photograph creates a
genuine issue of material fact about whether the protocol prevents adequate
monitoring of the IV infusion sites by authorizing the ADC to cover condemned
prisoners with sheets during their executions.
The Baze plurality noted that in Kentucky “the presence of the warden and
deputy warden in the execution chamber with the prisoner allows them to watch for
signs of IV problems.” 128 S. Ct. at 1534 (emphasis added). The Kentucky protocol
does not specifically require anyone to monitor the infusion sites, however. See
Appellants’ App. at 528-44; see also Harbison, 571 F.3d at 538 (concluding that
visually monitoring IV lines “by video camera and through a one-way window” does
not violate the Constitution).
The Arkansas protocol expressly requires the Deputy Director to “directly
observe the . . . IV infusion site(s)” and to “closely monitor” these sites “throughout
of experience as an emergency room technician, licensed practical nurse, Assistant
Infirmary Administrator, Supervisor of Medical Services, and Administrator of
Medical and Dental Services.
-21-
the lethal chemical infusion process.” This requirement necessarily precludes ADC
personnel from fully covering condemned prisoners with sheets before they are
pronounced dead. Moreover, the post-mortem photograph of Hill is not probative of
whether the IV infusion sites were visible during his execution. Thus, the Inmates
have failed to establish a genuine issue of material fact about the adequacy of
infusion-site monitoring under the protocol. See Gregory v. Rogers, 974 F.2d 1006,
1010 (8th Cir. 1992) (“A mere scintilla of evidence is insufficient to avoid summary
judgment.” (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986))).9
7. Contingency Plan
If the Deputy Director suspects there is a problem with an infusion site, the
protocol requires her to “direct reduction of lethal chemical flow rate or redirect lethal
chemical to the secondary or alternative site.” The Inmates argue that this
contingency plan creates a substantial risk of serious harm because the Deputy
Director might order the executioners to administer the syringes of pancuronium
bromide and potassium chloride to the secondary IV site without injecting additional
doses of sodium pentothal and normal saline. In other words, the Inmates contend that
the protocol authorizes the Deputy Director to administer pancuronium bromide and
potassium chloride to a prisoner who is not fully unconscious. This argument
erroneously assumes that pancuronium bromide and potassium chloride are the only
two “lethal chemicals” administered under the protocol. The Inmates’ own expert
asserted that “[t]wo grams of sodium thiopental is a massive, and potentially lethal,
9
We also note that Charles Carpenter, Hill’s former attorney, submitted a
declaration in which he described seeing the IV insertion point at Hill’s elbow as well
as a wide belt covering Hill’s chest during the execution. Carpenter’s observation is
also consistent with nine post-mortem photographs of prisoners (including one of Hill)
in the record. In each of these photographs, the prisoner is strapped to the gurney
uncovered and the infusion sites are visible.
-22-
dose”;10 the Arkansas protocol calls for the injection of three grams of sodium
pentothal. Cf. Cooey v. Strickland, 589 F.3d at 216, 219 (upholding the Ohio lethal
injection protocol, which relies exclusively on a five-gram dose of sodium pentothal
to execute prisoners). Indeed, the protocol clearly lists sodium pentothal among the
“lethal chemicals” used during executions. The ADC’s decision to characterize
sodium pentothal as a lethal chemical indicates that it intends all of the chemicals
listed in the protocol to be redirected to the secondary IV site.
The Inmates’ argument again ignores the protocol’s requirement that the
Deputy Director ensure the prisoner is fully unconscious before directing the
executioners to administer the pancuronium bromide and potassium chloride. The
protocol also requires her to administer the back-up doses of sodium pentothal if
necessary to render the prisoner completely unconscious. These requirements
necessarily prohibit injecting pancuronium bromide and potassium chloride into the
secondary IV line before the prisoner is fully unconscious. Moreover, the Hobbs
affidavit clarifies that the ADC interprets the protocol to require “the back-up syringes
of sodium pentothal and saline flush to be administered before the administration of
any remaining pancuronium bromide and potassium chloride,” if the need arises for
the Deputy Director to redirect the flow of lethal chemicals during an execution. We
conclude that the Inmates have failed to create a genuine issue of material fact about
whether the protocol’s contingency plan subjects them to a substantial risk of serious
harm. Cf. Emmett, 532 F.3d at 306 (upholding Virginia’s lethal injection protocol
despite the lack of an explicit requirement to administer a back-up dose of sodium
pentothal if it is necessary to inject additional doses of pancuronium bromide or
potassium chloride).
10
Sodium pentothal is also known as thiopental. Baze, 128 S. Ct. at 1527.
-23-
8. The Adequacy of the Execution Facility
The Inmates argue that the ADC’s execution facility subjects them to a
substantial risk of serious harm because the execution chamber is poorly lit, the
control room is too small, the syringes are inadequately labeled, and the executioners
are not positioned to properly observe the IV infusion sites. The Inmates rely on
eleven photographs in the record to support this argument, none of which create a
genuine issue of material fact about the adequacy of the execution facility. The
photographs show that the syringes are clearly labeled with large numbers and
arranged in the carrying case in numerical order. The photographs reveal little, if
anything, about the size of the control room, the viewpoint of the executioners, or the
adequacy of the lighting. Based on these photographs alone, no reasonable fact finder
could conclude that the ADC’s execution facility subjects the Inmates to a substantial
risk of serious harm, and summary judgment was therefore appropriate. See Dush v.
Appleton Elec. Co., 124 F.3d 957, 963 (8th Cir. 1997) (“To avoid the entry of
[summary] judgment, it is incumbent upon the nonmoving party to support its case
with ‘more than a scintilla of evidence.’” (quoting F.D.I.C. v. Bell, 106 F.3d 258, 263
(8th Cir. 1997))).
C. Summary
We hold that the district court did not abuse its discretion in finding that the
Inmates’ case is ripe for summary judgment. Based on our review of Arkansas’s
lethal injection protocol, we conclude that it is designed “to avoid the needless
infliction of pain, not to cause it.” See Taylor, 487 F.3d at 1085 (quoting Workman,
486 F.3d at 907). Moreover, it is substantially similar to—and perhaps even more
thorough than—the Kentucky protocol upheld by the Supreme Court in Baze, see 128
S. Ct. at 1537, and the Missouri protocol we upheld in Taylor, see 487 F.3d at 1085.
The Inmates have failed to establish a genuine issue of material fact about whether the
Arkansas protocol subjects them to a substantial risk of serious harm. On this record,
-24-
we hold that the protocol does not violate the Eighth Amendment and that the district
court appropriately granted the ADC’s motion for summary judgment.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-25- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3459835/ | Dear Mr. Hodgkins:
Pursuant to your request, we have reconsidered Attorney General Opinion Number 02-0379 and hereby recall the opinion. We affirm our conclusion that the 1999 amendment to La.R.S. 33:1448G can be applied retroactively as opined in Attorney General Opinion Number 99-340.
Yours very truly,
RICHARD P. IEYOUB Attorney General
BY: ________________________________ TINA VICARI GRANT Assistant Attorney General
RPI/TVG/dam
Date Released: February 14, 2003 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/126476/ | 537 U.S. 1132
DAVIDSONv.CITY OF MONTGOMERY, ALABAMA.
No. 02-7533.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE COURT OF CIVIL APPEALS OF ALABAMA.
2
Ct. Civ. App. Ala. Certiorari denied. Reported below: 863 So. 2d 1162. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3447874/ | Affirming.
This is a contest of a local option election held in Clay County on July 3, 1937, in which 1,513 votes were cast for the adoption of the local option law and 392 against. The judgment dismissed the contest. A former similar election was held invalid. Hardigree v. White, 266 Ky. 648, 99 S.W.2d 785.
One of the grounds of contest continued to be urged in the brief of the appellant is that Walter E. Woods was not legally a member of the county board of election commissioners which chose the officers for this election. It appears that the chairman of the Democratic county executive committee, acting without knowledge or authority of the committee, had submitted five names to the State Board of Election Commissioners, but Mr. Woods was not among them. The State Board seems to have ignored that list, and, in the absence of a list submitted according to the Statute, the State Board named Woods as the Democratic commissioner for Clay County. Section 1596a-2, Statutes. Under this appointment *Page 366
he duly qualified and acted as such in connection with this election. This is not a direct proceeding attacking and seeking to set aside the appointment as was the case of Russell v. Rhea, 269 Ky. 138, 106 S.W.2d 148. It is a collateral attack upon the appointment in the form of questioning the legality of Woods' acts. It is a sufficient response to the challenge of the validity of the election to say that whether he was a de jure or a de facto officer his official acts were valid so far as the public or third parties are concerned and there is no right in the appellant to question his acts in a contest of an election held by officers in whose appointment he participated. Holland v. Stubblefield, 182 Ky. 282,206 S.W. 459.
There appears to have been a misunderstanding as to the time of the meeting of the county board of election commissioners to choose the officers for this election. Charles H. White, sheriff, and ex-officio chairman of the county board, and Woods met. After waiting for C.L. Garrison, the Republican member, to come and he did not, they proceeded to make up a list of election officers. The dry forces had submitted names from which they desired such officers to be chosen but the wet forces had not. The list of election officers, which had been signed by the other two members of the commission, was submitted to Garrison within the time stipulated by the statute and he approved and signed the list. It was in the form of and recorded as a minute of a meeting of the board. Because of the absence of written notice and the failure of Garrison to attend when White and Woods made up the list, it is argued that the election officers were illegally chosen and their action was void, which, in turn, invalidated the election. The case of Roberts v. Stumbo, 227 Ky. 334, 12 S.W.2d 1110, is relied on. The facts and nature of the proceedings are entirely different. We think the approval by Garrison, the third member, was an effectual waiver of the notice required by the statute to be given in writing (Section 1596a-2, Statutes), and that the selection of the precinct officers was as valid as if he had been present when it was first made. Certainly, it is not a ground of contest in an election. The appellant had filed a suit to enjoin the officers so chosen from serving in the election, but after the circuit court clerk refused to issue a restraining order he took no further steps in the case.
There was a very light vote cast in this election. *Page 367
For some reason the polls were not opened in four precincts in which there were 577 registered voters. The appellant contends that because of the failure to hold an election in those precincts there was no county vote on the issue and that the disfranchisement of these electors invalidated the whole election. In the absence of any pleading or proof that the election was not properly and duly advertised in these precincts or that any attempt was made to exclude them from the election, save the dereliction of some officer or officers, it cannot be said that this was not a county unit election. Contestants rely upon the authorities holding that where any considerable proportion of voters have been deprived of their right of suffrage there has been no free and equal election. Wallbrecht v. Ingram, 164 Ky. 463, 175 S.W. 1022; Bowles v. Knight, 257 Ky. 640, 78 S.W.2d 913. A corrollary rule must control here. It is that if all the votes which might have been but were not cast should be counted for the loser in an election and the result would not thereby be changed, the entire election will not be set aside. Wallbrecht v. Ingram, supra; Wright v. Lyddan, 191 Ky. 58, 229 S.W. 74. If the 577 possible votes in the four precincts in which no election was held had been cast in opposition to the adoption of the local option law, and therefore added to the 392 so cast, there would yet have been a majority of 544 votes in favor of it. The court is, therefore, not authorized to set aside the election on this account. Bennett v. Day, 271 Ky. 676, 113 S.W.2d 38.
We think the trial court, a special judge presiding, properly dismissed the contest.
In view of the delay which has ensued in putting the law into effect because of this contest, which is without merit, the mandate herein will issue ten days from this date.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447877/ | Reversing.
On August 8, 1879, C.C. Mills conveyed to his daughter, Mary Jane Ward, 100 acres of land located north and south of Trace Fork of Rockhouse Creek in Martin County. In 1899, Mary Jane Ward obtained 40 acres of land south of Trace Fork by patent from the Commonwealth. This patent apparently covered some of the land already owned by her. In 1900, Mary Jane, having married John K. Spriggs, conveyed the gas rights in the land described in the patent to John C.C. Mayo. The grantors named in this deed were Mary Jane Spriggs and John K. Spriggs, her husband. The appellant, Kentucky West Virginia Gas Company, obtained its title to the gas rights in controversy from this source.
In 1910, Mary Jane, having previously divorced John K. Spriggs, and using the name of Mary Jane Ward, conveyed a tract of land containing the land in controversy to her daughter, Martelia Perry. The appellees, W.A. Frazier, Ralph Stafford, and Jim Webb, now hold a lease to the gas rights in two tracts, the titles to which were derived from this source. One tract is north of Trace Fork and contains 40 acres. The other, which is the subject of the controversy, is south of Trace Fork and contains 26 acres. Frazier obtained the leases in 1942 and employed Ralph Stafford to abstract them. Stafford's abstract certified the titles to be good. For his services Stafford was later given a 3/16 share. Webb acquired his 1/8 share in payment of equipment furnished.
Frazier, with Stafford as his spokesman, visited E.E. Clark, the Company's superintendent of realty, in Prestonsburg, to secure a gas purchase contract. Clark testified he showed them a large multicolored wall map of the land in that vicinity and pointed out to them that the Company claimed to own all the acreage on Trace Fork except a tract colored green on the map (indicating its ownership by Warfield Natural Gas Company). The excepted tract was north of Trace Fork and labeled as the "M.J. Spriggs and L. Ward tract." Clark testified that Stafford or Frazier, after looking at the map, said, "Well, I guess that is our tract." The Company's land was colored red on the map. Frazier's testimony concerning this meeting was, in substance, that neither *Page 644
he nor Stafford understood the colors on the map; that Clark told them, "If the land was on the right hand side of the creek, the Company didn't own it"; and that he, Frazier, knew his lands to be on the right of the creek as the creek runs.
As a result of this meeting the appellees submitted their leases and abstracts to Clark, who forwarded them to C.P. Van Gilst, vice president of the Company, at Ashland, recommending approval of a gas purchase contract. After retaining these leases for some 15 days, the usual gas purchase contract was made whereby the Company agreed to buy the gas produced by appellees, to be delivered at its main line. The sellers warranted title to the gas.
Shortly after Frazier began drilling it was discovered by one of the Company's scouts that the well was being drilled on the 40 acre tract south of Trace Fork owned by the Company. This information was relayed to Clark, who, after a hurried inspection, notified Frazier that he was drilling on the Company's land. At this time Frazier had drilled 300 feet. Both parties rechecked their titles and had various conferences in an attempt to settle the dispute. However, Frazier continued drilling. At 537 feet he struck gas, constructed a pipe line 1800 feet to the Company's main line and prepared to make delivery. At one time both parties agreed to have W.R. Richmond, a competent surveyor who had surveyed the land in 1907, to determine whether the well was located on the Company's land. But when he determined it was, no agreement was reached.
The appellees brought this action to enforce their contract and to recover $3,000 damages as the cost of drilling the well. The Company alleged mutual mistake, asked for a cancellation of the contract and that its title be quieted. The appellees, by reply and amended petition, pleaded estoppel, adverse possession and sought additional damages of $3,000 as profit they would have made had the contract been carried out and $500 for drainage. The lower court adjudged the title of the 40 acre tract to be in appellees and awarded them $6,500 damages.
The Company contends that the judgment is in error on all counts. With its contention we agree. The proof conclusively establishes that the land described *Page 645
in the Company's deed is south of Trace Fork and covers that tract on which the well has been drilled. In addition to the testimony of Clark and the Company's engineer, the testimony of Richmond, a competent surveyor, and R.S. Mollett, a local inhabitant, substantiates this conclusion. It then becomes apparent that both the Company and the appellees claim this land under a common source of title, namely, Mary Jane Ward. Since she conveyed the oil and gas rights to John C.C. Mayo, the Company's predecessor in title, 10 years before she purported to convey the entire fee to Martelia Perry, the appellees' predecessor in title, it follows that superior title to the oil and gas rights rests in the Company. While it may be conceded that none of the appellees' witnesses were aware of the Mayo deed, nevertheless it was of public record and the appellees were upon constructive notice of its existence.
Notwithstanding the record title, the appellees were shown a map and told that the Company claimed ownership of all the lands on Trace Fork except one piece on the north, colored in green, which was pointed out to them. At the same time they were also told that the tract not owned by the Company was on the right of the creek. The appellees, however, insist that the Company did not claim the tract in controversy. This contention is based on the fact that they understood the right of the creek to be on the south or on the "right as the creek runs." We are of the opinion that the usual and accepted meaning of this language, as shown by the proof, is otherwise.
The appellees also argue that the Company was given the leases and abstracts to inspect, and, was thereby made aware of their claim of ownership; that it executed the contract and remained silent while they drilled the well; and that it is now estopped to deny ownership in them. Such facts are not sufficient to create an estoppel in pais. In the first place there was no false representation made by the Company either in words or conduct. Clark, its agent, knew and explained to the appellees what the Company owned. Secondly, the appellees placed no reliance on the Company's conduct. Their claimed ownership was based on their leases and abstracts and not on anything said or done by the Company. Therefore, the appellees can not claim estoppel due to silence and inaction of the Company *Page 646
when they had equal opportunity and means of obtaining information as to ownership by a thorough investigation of the deeds of record. And lastly, the appellees warranted title to the Company which thereby had a right to rely on such representation rather than to investigate, determine and notify the appellees in whom the title was vested. See discussion on elements of estoppel in pais, 19 Am. Jur., Estoppel, Sections 42 and 55. Further, it is undisputed that, as soon as the Company learned of the drilling on its land, it notified Frazier of his mistake.
Since we hold the title of the gas rights to be in the Company, it necessarily follows that any award to appellees for profits lost and drainage was erroneous.
There remains the $3,000 awarded as the cost of drilling the well. This award was erroneous in that it allowed recovery for that part of the well completed after the Company notified Frazier that he was drilling on its land. The work done by the appellees after notification was at their own peril, and its cost is not recoverable. Restatement, Contracts, Sections 352 and 336. Williston on Contracts, Vol. 5, sec. 1459, n. 12. Furthermore, the award was based on Frazier's statement that the well cost around $2,200 to $2,500 and that his time was worth $500. He kept no record of the expenses and introduced no evidence of the cost of a single item of equipment or charge for labor. It was a statement of a lump sum unsupported by any facts. We have heretofore held that facts must be shown which afford a basis for measuring or computing damages with reasonable certainty. Louisville Bridge Co. v. Louisville N. R. Co., 116 Ky. 258, 75 S.W. 285, 25 Ky. Law Rep. 405; Bugg
Franks v. Jones, 183 Ky. 500, 209 S.W. 514; Western Union Telegraph Co. v. Ramsey, 261 Ky. 657, 88 S.W.2d 675, 103 A.L.R. 541. In this record there are no data, no expert testimony, and no itemized account for the court to determine, with any reasonable certainty, the cost of the whole well or the first 300 feet. The appellees therefore failed to introduce sufficient proof to warrant the $3,000 awarded.
Judgment reversed, with directions to set it aside, and to enter a judgment in conformance with this opinion. *Page 647 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2959491/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED FEBRUARY 13, 2015
NO. 03-12-00735-CV
Appellants, Physician Assistants Business Alliance of Texas, LLC; Richard Branson, PA-C;
Shawn Mollica, PA-C; and Will Thompson, PA-C // Cross-Appellants, Texas Medical
Board; Texas Physician Assistant Board; and Mari Robinson in Her Official Capacity as
Executive Director of the Texas Medical Board and the Texas Physician Assistant Board
v.
Appellees, Texas Medical Board; Texas Physician Assistant Board; and Mari Robinson in
Her Official Capacity as Executive Director of the Texas Medical Board and the Texas
Physician Assistant Board // Cross-Appellees, Physician Assistants Business Alliance of
Texas, LLC; Richard Branson, PA-C; Shawn Mollica, PA-C; and Will Thompson, PA-C
APPEAL FROM 353RD DISTRICT COURT OF TRAVIS COUNTY
BEFORE CHIEF JUSTICE ROSE, JUSTICES PURYEAR AND PEMBERTON
AFFIRMED IN PART; REVERSED AND RENDERED INPART –
OPINION BY JUSTICE PURYEAR
This is an appeal from the judgment signed by the trial court on September 19, 2012. Having
reviewed the record and the parties’ arguments, the Court holds that there was reversible error in
the court’s judgment. Therefore, the Court reverses the trial court’s conclusions nos. 3 and 4 and
renders judgment that Texas Medical Rule 177.16(f) is invalid to the extent that it purports to (a)
impose the Act’s ownership-interest restrictions upon a change in an entity’s ownership interests
and (b) impose any ownership restrictions on an entity or its owners upon the entity’s or one of it
PA-owners’ contracting with a new supervising physician. The Court affirms the trial court’s
judgment in all other respects. The appellees/cross-appellants shall pay all costs relating to this
appeal, both in this Court and the court below. | 01-03-2023 | 09-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4261595/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 05 2018, 9:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony C. Lawrence Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Rader, April 5, 2018
Appellant-Defendant, Court of Appeals Case No.
48A05-1709-CR-2092
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Thomas Newman,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
48C03-1505-F5-735 & 48C03-
1603-F5-428
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 1 of 7
STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Gregory Rader, appeals the trial court’s imposition of a
sentence after being found ineligible to participate in Drug Court.
[2] We affirm.
ISSUE
[3] Rader presents us with one issue on appeal, which we restate as: Whether the
trial court violated the plea agreement by imposing a sentence after Rader
became ineligible to participate in Drug Court.
FACTS AND PROCEDURAL HISTORY
[4] On May 18, 2015, the State filed an Information, charging Rader with a Level 5
felony operating a vehicle after forfeited for life; a Class A misdemeanor
operating a vehicle with a BAC over .15; and a Class C misdemeanor operating
a vehicle while intoxicated under Cause Number 48C03-1505-F5-735 (F5-735).
On December 21, 2015, Rader pled guilty as charged, but sentencing was
stayed pending a referral to the Madison County Drug Court. At the time of
the referral, Rader was serving a sentence on home detention out of Hamilton
County. Under the terms of the plea agreement entered into in F5-735, he was
to report to the Madison County Drug Court for evaluation after he completed
serving the Hamilton County sentence. Pursuant to the terms of the plea:
Sentencing shall be stayed and the Defendant referred to the
Madison County Drug Court Program. If the Defendant
successfully completes (graduates) Drug Court, the charges
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 2 of 7
herein shall be dismissed. If the Defendant fails to graduate from
Drug Court for any reason, sentencing shall be open to the [c]ourt.
The Defendant shall start Drug Court after serving his current
home detention in Hamilton County.
(Appellant’s App. Vol. II, pp. 38-39) (emphasis added).
[5] On March 2, 2016, the State filed another Information, charging Rader with a
Level 5 felony operating a vehicle after forfeited for life under Cause Number
48C03-1603-F5-428 (F5-428). On August 24, 2016, Rader entered into the
same plea agreement with the State to resolve the F5-428 case: he pled guilty as
charged in exchange for a stayed sentenced and a referral to the Madison
County Drug Court. Again, the agreement specified that “If the Defendant
successfully completes (graduates) Drug Court, the charges herein shall be
dismissed. If the Defendant fails to graduate from Drug Court for any reason,
sentencing shall be open to the [c]ourt.” (Appellant’s App. Vol. II, pp. 83-84)
(emphasis added). Rader was scheduled to complete his Hamilton County
sentence in December 2016, at which point he was to report to the Drug Court.
[6] On December 22, 2016, the Drug Court notified the trial court that Rader was
ineligible for participation in its program because he did not reside in the
county. Rader refused to move to Madison County, informing the Drug Court
that it would present an undue hardship on him. On January 30, 2017, the trial
court conducted a sentencing hearing at which Rader failed to appear and a
warrant was issued for his arrest. Rader remained at large for the next eight
months.
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 3 of 7
[7] During the sentencing hearing on August 14, 2017, Rader requested the trial
court for another opportunity to participate in the Drug Court program. The
trial court noted that it was “just totally unbelievable” that Rader had refused to
comply with the eligibility requirements of the program, and that he “has been
out running around for eight (8) months after thumbing his nose at the [c]ourt
and his opportunity to do Drug Court.” (Transcript pp. 62-63). The trial court
imposed an aggregate sentencing of six years in F5-735, and a six-year sentence
in F5-428, with the sentences in the two causes to run consecutively.
[8] Rader now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[9] Rader contends that the trial court violated the plea agreement by imposing a
sentence where the language of the plea agreement was ambiguous. Initially we
note that Rader never asserted the ambiguity of the plea agreement’s terms as a
basis for his request to give him a second opportunity to comply with the
requirements of the Drug Court. “[A] trial court cannot be found to have erred
as to an issue or argument that it never had an opportunity to consider.”
Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). Therefore, as a general
rule, a party may not present an argument or issue on appeal unless the party
raised that argument or issue for the trial court. Id. In such circumstances the
argument is waived. Id.
[10] Waiver notwithstanding, we will address Rader’s argument on its merits. Our
courts have long held that plea agreements are in the nature of contracts entered
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 4 of 7
into between the defendant and the State. Lee v. State, 816 N.E.2d 35, 38 (Ind.
2004). That is:
[a] plea agreement is contractual in nature, binding the
defendant, the state, and the trial court. The prosecutor and the
defendant are the contracting parties, and the trial court’s role
with respect to their agreement is described by statute: if the
court accepts the plea agreement, it shall be bound by its terms.
Id. As such, we will look to principles of contract law when construing plea
agreements to determine what is reasonably due to the defendant. Id. The
primary goal of contract interpretation is to give effect to the parties’ intent.
Valenzuela v. State, 898 N.E.2d 480, 482 (Ind. Ct. App. 2008), trans. denied.
When the terms of a contract are clear and unambiguous, they are conclusive of
that intent, and the court will not construe the contract or look to extrinsic
evidence. Id. at 483. Rather, we will apply the contractual provisions. Id.
Terms of a contract are not ambiguous merely because a controversy exists
between the parties concerning the proper interpretation of terms. Id. Instead
ambiguity will be found in a contract only if reasonable people would find the
contract subject to more than one construction. Id. We construe any contract
ambiguity against the party who drafted it, which, in the case of plea
agreements, is the State. Id.
[11] Rader’s plea agreement required him to enter the Madison County Drug Court
program and, upon successful completion of the program, all charges in the
plea agreement would be dismissed. However, if Rader failed “to graduate
from Drug Court for any reason, sentencing shall be open to the court.”
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 5 of 7
(Appellant’s App. Vol. II, pp. 38-39, 83-84) (emphasis added). Rader now
posits that “[t]he plea agreement lacked precision and is silent as to what is to
happen if Rader is not accepted into the program or deemed ineligible.”
(Appellant’s Br. p. 13). Because of this perceived ambiguity and lack of
specifics, Rader requests the parties to be returned “to their former positions
and have an opportunity to negotiate a new plea agreement.” (Appellant’s Br.
p. 14). We disagree.
[12] The plea agreement clearly states that if Rader fails to graduate from the Drug
Court program for any reason, sentencing shall be open to the trial court. As
such, acceptance into the program is a precondition to graduate. At this point,
Rader’s failure to graduate is definite as he refused to relocate and thus he is no
longer eligible to participate in the program. Under the terms of the plea
agreement, the reason for Rader’s failure to graduate is immaterial as “any
reason” is sufficient to trigger the trial court’s sentencing discretion.
Furthermore, due to his refusal to relocate, Rader was the only one responsible
for his failure to graduate from the program. Rader never presented any
evidence that he misunderstood that his refusal to relocate would make him
ineligible for participation in the Drug Court, had requested additional time to
relocate, or presented circumstances outside of his control that prevented him
from accepting the Drug Court’s eligibility requirements. Moreover, rather
than presenting himself to the trial court upon his refusal to comport to the
requirements of the Drug Court, Rader absconded and failed to appear for his
sentencing hearing, spending the next eight months at large while the record
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 6 of 7
reflects that he was aware that a warrant had been issued for his arrest. Rader’s
argument that “the [t]rial [c]ourt knew at the time of [p]lea [a]greement [] that
Rader was living in another county” is unavailing as Rader himself negotiated
the terms of the plea and the trial court merely accepted the bargain he struck
with the State. (Appellant’s Br. p. 14). Equally without merit is Rader’s claim
that he was not afforded due process “when facing termination of participation
in a drug court program.” Gosha v. State, 931 N.E.2d 432, 434-35 (Ind. Ct. App.
2010). These rights apply when there has been a “violation of at least one of the
conditions of the participation agreement.” See Ind. Code § 33-23-16-14.5.
However, here, Rader, by his own refusal, never entered into a participation
agreement with the Drug Court, let alone violated one of the conditions of the
participation agreement. Accordingly, we cannot conclude that the trial court
violated the terms of the plea agreement by sentencing Rader.
CONCLUSION
[13] Based on the foregoing, we hold that trial court did not violate the terms of the
plea agreement by imposing a sentence after Rader became ineligible for Drug
Court.
[14] Affirmed.
[15] May, J. and Mathias, J. concur
Court of Appeals of Indiana | Memorandum Decision 48A05-1709-CR-2092 | April 5, 2018 Page 7 of 7 | 01-03-2023 | 04-05-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/1028650/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8260
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE PICKENS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:04-cr-00477-TLW-1; 4:07-cv-70006-TLW)
Submitted: April 20, 2009 Decided: April 30, 2009
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Maurice Pickens, Appellant Pro Se. Alfred William Walker
Bethea, Jr., Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Pickens seeks to appeal the district court’s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong and that any dispositive procedural ruling by the district
court is likewise debatable. Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have
independently reviewed the record and conclude that Pickens has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3177400/ | Unable to extract the content from this file. Please try reading the original. | 01-03-2023 | 02-16-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3239192/ | We have examined the evidence in this case, and are of the opinion that the state failed to meet the burden of proof necessary to a conviction. The probabilities of innocence are entirely too numerous to permit the conviction to stand. Jeffries v. State, 7 Ala. App. 144, 62 So. 270; McMickens v. State, 16 Ala. App. 78, 75 So. 626.
The defendant was entitled to the general affirmative charge. For the error, the judgment is reversed, and the cause is remanded.
Reversed and remanded. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3239193/ | The indictment in this case contains two-counts. First, charged that the defendants with two others, not here tried, did unlawfully manufacture whisky, and the second count charged the same parties with being in possession of a still.
The trial resulted in a verdict of guilty, as charged in the indictment as against both defendants, and sentence was properly passed.
We have carefully read and considered the testimony in this case. There were no prejudicial errors in the admission of testimony, and there was sufficient evidence tending to prove the guilt of the parties to justify the verdict.
Charge A refused to the defendants was amply covered in the court's oral charge.
Charges C and D, being the affirmative charge as to each count, were properly refused.
We find no error in the record and the judgment is affirmed.
Affirmed. *Page 593 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1473727/ | 173 F.2d 661 (1949)
The ROCONA et al.
v.
GUY F. ATKINSON CO.
No. 11885.
United States Court of Appeals Ninth Circuit.
April 2, 1949.
*662 Hill, Morgan & Farrer and William S. Scully, all of Los Angeles, Cal., for appellants.
McCutchen, Thomas, Matthew, Griffiths & Greene, Harold A. Black and George E. Toner, all of Los Angeles, Cal., for appellee.
Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.
DRIVER, District Judge.
This is an appeal from an interlocutory decree in admiralty adjudging the appellants liable for damage to appellee's unpowered barge and for the partial loss of its cargo.
In March, 1945, appellee was constructing a mole in Los Angeles Harbor, and, in the prosecution of the work, was using a number of barges to transport rock from Catalina Island. About 1:30 p. m., on March 31, appellant Tug Rocona, hereafter called the Rocona, operating under a contract of hire, took in tow appellee's Barge No. 4414 and another barge, which had been loaded with rock by appellee at the Island, and towed them to the harbor. Barge No. 4414 was 119.7 feet long and 39.5 feet across the beam. It was rectangular, flat on the bottom, and had a "rake" or overhang at both the bow and the stern. At each forward corner there was a mooring bit or Sampson post. Loaded with rock, it had a gross tonnage of 1200 and an average draft of nine feet. Its loading was somewhat uneven. It had about three feet of free-board in the bow and only 10 to 20 inches in the stern, but, beyond question, the craft was seaworthy. The passage across Catalina Channel was accomplished without difficulty and without unusual incident.
Inside Los Angeles Harbor, one of the barges was turned over to another tug, and the Rocona towed Barge No. 4414 to a mooring float, maintained by appellee. The float was a solid, wooden block, ten feet square and four feet thick. On the top and on the bottom there were semi-circular. iron "U" bolts, 1½ inches thick and about 10 inches high. The float was anchored by means of a cable which extended from the lower "U" bolt to heavy bolders resting on the bottom. A steel mooring pendant, approximately 40 feet long was attached to the upper "U" bolt. A large eye had been spliced into its free end. As the Rocona approached the float, one of her crewmen, who had been placed aboard the barge, picked up the pendant with a pike pole and dropped the eye over the starboard forward Sampson post. The tow wire was released from the barge and the Rocona went to her berth some distance away. According to her log, the barge was moored to the float at 12:45 a. m., April 1.
Shortly thereafter, appellee's night superintendent, making a periodic inspection tour of the harbor in a speed-boat, saw the barge and observed that it was "just about trim." When he made his next tour, an "hour or hour and a half later", the barge was listing badly and had slipped a part of its load of rock.
When the barge was capsized the next day, it was discovered that a hole, the size and shape of the "U" bolts on the float, had been punched through the bottom planking, about 22 feet back of the bottom of the forward rake and five feet in from the starboard side. Two of the bottom planks, which were twelve inches wide and four inches thick had been broken. The distance from the starboard Sampson post to the hole, measured around the rake and along the bottom, was approximately forty feet. Extending forward from the hole eight feet or so there was a groove or scratch which appeared to have been caused by some rounded object such as a "U" bolt.
When the barge was moored, the wind was negligible. The ordinary surges and currents of the harbor were present. There was a high tide of 4.91 feet at 11:30 p. m., March 31 and a low tide of .61 feet at 6:12 a. m., April 1.
At the trial, there was competent expert testimony that, with the ordinary conditions of the current, tide, and surge in Los Angeles Harbor, the barge could not have *663 overridden the float and that the application of some additional force or motive power was necessary to accomplish that result. There was also expert testimony that, with the hole discovered when it was capsized, the barge would begin to list in a half hour to an hour and that with such a hole and loaded with rock, it could not have made the crossing from Catalina Island.
The master and two members of the crew of the Rocona testified that the barge was brought up to the mooring float slowly and carefully on the night of March 31, that the Rocona's power was shut off some distance away to allow the barge to drift gently up to the float, and that the barge was dead, or practically dead, in the water when the mooring pendant was attached to it. They also testified that before leaving the barge, they turned a search light upon it and "circled" it to see that everything was in order. They denied that they had caused the barge to override the float.
The Trial Court found that when the barge was brought up to be moored, the momentum of its forward motion carried it over the float until it had taken up the slack in the anchor cable and mooring pendant when it was brought to a stop and a "U" bolt on the float was driven through its bottom planking. The Court further found that the Rocona was negligent in a number of particulars, one of which was that it failed to take any steps to stop the forward motion of the barge, and that the negligence of the tug was the sole and proximate cause of the injury to the barge. The Court also found that appellee was not negligent in any respect in the manner or condition of loading of Barge No. 4414 or in furnishing or maintaining the float to which the barge was moored.
The testimony was all given orally in the presence of the Trial Court and if the findings are supported by substantial evidence and are not clearly erroneous, they should stand undisturbed on this appeal.[1]
The appellants contend that the findings are not supported by the evidence and are erroneous. They point out that there is no direct evidence of negligence and argue that negligence may not be inferred from circumstances under the rule of res ipsa loquitur for the reason that the rule is not applicable here. It may not properly be invoked, they say, for two reasons: first, because it was not shown that at the time of the injury to the barge, the appellants had exclusive control of the instrumentality that caused it, and, second, because the facts are not such as to warrant an inference that appellants were negligent.
A generally recognized prerequisite to the application of the rule of res ipsa loquitur is that the instrumentality causing the injury must have been under the exclusive control of the party charged with negligence.[2] However, in applying the rule in two comparatively recent cases, Jesionowski v. Boston & Maine R. Co., 329 U.S. 452, 67 S. Ct. 401, 91 L. Ed. 416, 169 A.L.R. 947, and Johnson v. United States, 333 U.S. 46, 68 S. Ct. 391, the Supreme Court has indicated that such judicially defined prerequisites should not be taken too literally or followed too closely. The primary consideration should be whether, in the particular case, the circumstances are such as to sustain an inference that the injury was the result of the defendant's negligence. In both cases, the Court called attention to the statement in Sweeney v. Erving, 228 U.S. 233, 240, 33 S. Ct. 416, 418, 57 L. Ed. 815, *664 Ann.Cas.1914D, 905, that "res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference". It is not necessary that the facts be explicable only on the theory of negligence. It is sufficient if the facts are such as to fairly support an inference of negligence. If an inference is justified, it will support, but it does not require, a finding of negligence. It affords merely an evidentiary element to be considered and weighed by the trier of the facts along with all the other evidence in the case.
In the Jesionowski case, an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for damages for the wrongful death of a brakeman, it appeared from the evidence that the railroad did not have exclusive control of all the instrumentalities that may have caused the brakeman's death. Some of them had been under the control of the deceased, but the Court held that since the jury found from conflicting evidence that the instrumentalities under the brakeman's control had no causal connection with his fatal injuries, it was proper to apply the rule of res ipsa loquitur on the assumption that the railroad had exclusive control of the remaining probable causitive instrumentalities. The plain implication of the case is that it is not necessary, as a prerequisite to the application of the rule, that the party having the burden of proof of negligence establish by direct or conclusive evidence that his adversary had exclusive control of the causitive instrumentalities. The trier of the facts may first find that there was exclusive control from conflicting evidence in the same manner as any other ordinary factual issue is resolved in a civil action and then apply the rule.
The evidence in the present case depicts an extraordinary occurrence. We need not rely upon expert testimony to assume that a 1200 ton barge with a nine foot draft, in a sheltered harbor, with no appreciable wind, would not, without extraneous propulsion, ride upon and submerge a solid, wooden, mooring float, ten feet square and four feet thick, with such force as to cause a rounded "U" bolt on the float to break through the sound, four-inch thick planking on the bottom of the barge.[3] The location and character of the scratch or groove leading to the hole in the barge, and the fact that the distance from the Sampson post, to which the mooring pendant was attached, to the hole equaled the length of the pendant, justify the conclusion that just before it was holed, the barge was moving forward and that when it was snubbed at the end of the pendant, the force of its unexpended momentum drove the "U" bolt through the planking. There was no agency present other than the Rocona capable of imparting that amount of momentum to the barge. Without the negligence of the tug in failing to check the forward movement of the barge at the time of mooring, the damage could not have occurred.
Other uncontroverted circumstances are consistent with the conclusion that the barge was damaged at the time it was moored. When appellee's night superintendent made his rounds shortly after the mooring, the barge was riding trim. When he came around again, an hour or an hour and a half later, the barge was listing "quite badly" and had slipped a part of its cargo. The unchallenged, expert testimony was that in its damaged condition, the barge would begin to list in a half hour to an hour.
Appellants suggest that the float may have been waterlogged or its anchor cable too short, thus causing the barge to override the float without the application of any external motive force. Appellants' witnesses testified that moss had accumulated on the sides of the float and that on the night of March 31, the float was low in the water with only about two inches of freeboard, but there is no other evidence in the record to support their theories and there is considerable evidence to the contrary. One witness testified that the anchor cable was 75 feet long and that the water at the float at low tide was approximately 28 feet deep.[4]*665 High tide on March 31 added only about 5 feet to the water's depth. The float was not submerged when the Rocona approached it with the barge in tow. The master of the tugboat testified that when he turned his spot light on it that night, he could see the float from a distance of 1,000 to 1,200 feet. Tidal action and a short anchor cable could not subsequently have submerged it for the reason that the tide had been going down from its flood stage for an hour and a quarter before the barge was moored and continued to ebb until long after the barge was discovered in a damaged condition. That the float was not water logged is indicated by the testimony of a crewman of the Rocona that when he saw it on April 1, the float had some eight or ten inches of freeboard. Moreover, the theory that the float may have been so water-logged that it slipped down under the bottom of the barge is not a logical explanation of the barge's injury. It seems highly improbable that a float in such condition could have exerted sufficient upward buoyant force to drive a blunt and rounded "U" bolt through bottom planking four inches thick.
Appellants argue that the Trial Court erred in finding the Rocona negligent in the mooring of appellee's barge despite the unequivocal and uncontradicted testimony of the master and crew of the tugboat that they exercised due care and were not negligent in any particular whatsoever. Appellee's witnesses were not contradicted by direct evidence, it is true, but their testimony was in sharp conflict with the circumstantial evidence offered by the appellee. As we have pointed out, the evidence is sufficient to support a reasonable inference of negligence on the part of appellants. In fact, it may fairly be regarded as excluding every reasonable theory other than negligence. The Trial Court considered the conflict thus presented and deliberately resolved it against the direct evidence and in favor of the circumstantial evidence.[5] In this connection, it should be remembered that appellants' witnesses, the master and crewmen of the Rocona, could not be regarded as disinterested. It was obviously in their interest to exonerate their vessel and themselves. Aside from the question of the interest of witnesses, however, in such a situation, circumstantial evidence may be as cogent and convincing as direct evidence and may properly be found to outweigh conflicting direct evidence.[6]
The Trial Court's findings that the injury to the barge occurred at the time it was moored and that appellants' negligence proximately caused the injury are amply supported by the evidence and do not appear to be manifestly erroneous. The findings should not be disturbed.[7]
Decree affirmed.
NOTES
[1] The Golden Star, 9 Cir., 82 F.2d 687; Lillig v. Union Sulphur Co., 9 Cir., 87 F.2d 277; Stockton Sand & Crushed Rock Co., Inc., v. Bundensen, 9 Cir., 148 F.2d 159; Stetson v. United States, 9 Cir., 155 F.2d 359; Bornhurst v. United States, 9 Cir., 164 F.2d 789; Meintsma v. United States, 9 Cir., 164 F.2d 976; Heder v. United States, 9 Cir., 167 F.2d 899.
[2] In San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98-99, 32 S. Ct. 399, 401, 56 L. Ed. 680, the rule was defined as follows: "* * * when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care." See also authorities cited in the opinion, p. 99, and IX Wigmore on Evidence, 3rd Ed., Sec. 2509, p. 381.
[3] There was testimony that the barge was built of seasoned lumber in 1944, the year before it was damaged.
[4] The master of the Rocona testified that the depth of the water at the place where the float was anchored was between 18 and 25 feet at low tide.
[5] In orally announcing his decision, the Court said: "The Court reached this conclusion [that the damage to the barge was caused by the negligence of the appellants] from all the evidence. I think that the circumstances, the physical facts, speak louder than the witnesses in this instance." The Court also made the following formal finding: "The Court finds that the testimony of the witnesses of respondents and claimant that they moored said barge properly is not convincing and cannot be accepted."
[6] 32 C.J.S., Evidence, § 1039; Leon v. Kitchen Bros. Hotel Co., 134 Neb. 137, 277 N.W. 823, 115 A.L.R. 1078; Black Motor Co. v. Spicer, 290 Ky. 111, 160 S.W.2d 336; Stark's Adm'x v. Herndon's Adm'r, 292 Ky. 469, 166 S.W.2d 828, 830; Parsons v. Easton, 184 Cal. 764, 195 P. 419; Moffett v. Bozeman Canning Co., 95 Mont. 347, 26 P.2d 973, 978; Fidelity & Casualty Co. v. Yellow Cab Transit Co., 197 Okl. 581, 173 P.2d 432, 436; Gray v. Southern Pac. Co., 23 Cal. 2d 632, 145 P.2d 561, 566.
[7] See footnote 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/996602/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6268
GORDON SEXTON,
Petitioner - Appellant,
versus
W. J. THOMPSON, Warden, FCI-Morgantown; JANET
RENO, Attorney General of the United States,
Respondents - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. William M. Kidd, Senior
District Judge. (CA-96-141-1)
Submitted: September 29, 1998 Decided: October 23, 1998
Before NIEMEYER and HAMILTON, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gordon Sexton, Appellant Pro Se. Rita R. Valdrini, Assistant United
States Attorney, Wheeling, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gordon Sexton appeals a district court order denying relief on
his petition filed under 28 U.S.C. § 2241 (1994). In light of our
recent decision in Pelissero v. Thompson and Hayes v. Federal
Bureau of Prisons, ___ F.3d ___, 1998 WL 559663 (4th Cir. Sept. 3,
1998) (No. 97-6156, 97-6221), we affirm the district court order.
We deny Sexton’s motions for sanctions and for appointment of coun-
sel but grant his motion to present newly discovered case law. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/996650/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7162
JESSE LAMONT SHORT,
Petitioner - Appellant,
versus
STATE OF SOUTH CAROLINA; MICHAEL MOORE, Com-
missioner of the South Department of Correc-
tions; CHARLES MOLONY CONDON, Attorney General
of the State of South Carolina,
Respondents - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. David C. Norton, District Judge.
(CA-97-1847-3-18BC)
Submitted: September 30, 1998 Decided: October 21, 1998
Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jesse Lamont Short, Appellant Pro Se. Donald John Zelenka, Chief
Deputy Attorney General, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court’s order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998). We have reviewed the record and the district court’s
opinion accepting the recommendation of the magistrate judge and
find no reversible error. Accordingly, we deny a certificate of ap-
pealability and dismiss the appeal on the reasoning of the district
court. Short v. South Carolina, No. CA-97-1847-3-18BC (D.S.C.
July 13, 1998). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2825373/ | appellant's reopening request after finding that no additional medical
treatment for his infarction was warranted. The district court denied
appellant's petition for judicial review, and this appeal followed.
The administrative record contains evidence indicating that
appellant's condition related to his industrial infarction condition had
worsened and also evidence, albeit conflicting, that additional medical
treatment was not warranted for that condition, and thus, substantial
evidence supports the appeals officer's factual determinations. NRS
233B.135(3) (setting forth the standard of review); Nellis Motors v. State,
Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066
(2008) (defining substantial evidence and explaining that this court will
not reweigh the evidence or substitute our judgment for that of the
appeals officer on questions of fact). Nevertheless, the appeals officer
erred when, after finding that appellant's industrially related condition
had worsened, she denied claim reopening without addressing whether the
changed circumstances warranted an increase or rearrangement of
compensation other than medical treatment. See NRS 616C.390(1)
(providing that a claim shall be reopened if there is a change of
circumstances primarily caused by the industrial injury that warrants an
increase of compensation and the reopening request is accompanied by a
physician's certificate showing those changes); NRS 616A.090 (defining
l(
compensation"); Las Vegas Hous. Auth. v. Root, 116 Nev. 864, 868, 8 P.3d
143, 146 (2000) ("NRS 616C.390 requires proof of a change of
circumstances and proof that the primary cause of the change of
circumstances is the injury for which the claim was originally made.");
Jerry's Nugget v. Keith, 111 Nev. 49, 53, 888 P.2d 921, 924 (1995) (holding
that rehabilitation services, not just accident benefits, can be awarded
SUPREME COURT
OF
NEVADA
2
(0) 1947A
upon claim reopening for a change in circumstances); see also Vredenburg
v. Sedgwick CMS, 124 Nev. 553, 557, 188 P.3d 1084, 1087-88 (2008)
(reviewing appeals officer's decision for clear error or an abuse of
discretion). Accordingly, we reverse the district court's order denying
appellant's petition for judicial review and remand this matter to the
district court with instructions to remand the case to the appeals officer
for further proceedings consistent with this order.
It is so ORDERED.
Parraguirre
, J.
cc: Hon. David B. Barker, District Judge
Persi J. Mishel, Settlement Judge
Clark & Richards
Alverson Taylor Mortensen & Sanders
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
(0) 1947A e | 01-03-2023 | 08-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2842986/ | NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
SJC-11776
WILLIAM F. READE, JR. vs. SECRETARY OF THE COMMONWEALTH &
others.1
Barnstable. May 4, 2015. - September 3, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Practice, Civil, Costs. Indigent. Veteran. Statute,
Construction.
Civil action commenced in the Superior Court Department on
June 10, 2013.
A hearing on a request for indigency status and a waiver of
fees and costs was had before Robert C. Rufo, J.
Leave to prosecute an interlocutory appeal was allowed in
the Appeals Court by James R. Milkey, J. The Supreme Judicial
Court on its own initiative transferred the case from the
Appeals Court.
Emily B. Kanstroom (Meredith M. Leary & Robert M. Buchholz
with her) for the plaintiff.
Daniel P. Sullivan, Special Assistant Attorney General
(Gwen A. Werner, Special Assistant Attorney General, with him)
for the intervener.
1
The Attorney General; Office of Court Management of the
Trial Court, intervener.
2
Georgia Katsoulomitis & Phillip Kassel, for Massachusetts
Law Reform Institute, Inc., & another, amici curiae, submitted a
brief.
CORDY, J. Since 1974, the Legislature has demonstrated a
commitment to ensuring that the doors of the Commonwealth's
courts will not be closed to the poor. This commitment is
embodied in the so-called Indigent Court Costs Law, G. L.
c. 261, §§ 27A-27G (§§ 27A-27G), which creates a mechanism for
indigent persons to obtain waivers or reductions of court fees
and other costs incurred during litigation. The statutory
scheme defines "[i]ndigent persons" to include those with income
below the poverty line; those who demonstrate that the payment
of fees and costs would create a hardship; and those who receive
"public assistance" under certain programs, including "veterans'
benefits programs." G. L. c. 261, § 27A. The question
presented in this appeal is whether a litigant such as the
plaintiff, who receives Federal veterans' benefits and a
Massachusetts property tax abatement that are not dependent on
his economic circumstances, is considered indigent under § 27A
and therefore entitled to a waiver despite having ample
financial resources to pay court fees and costs.2
2
By order of this court, all information submitted in an
affidavit of indigency is confidential unless otherwise stated
in a specific court order. Accordingly, the affidavits of
indigency and accompanying papers submitted in connection with
this case were impounded. See S.J.C. Rule 1:15 (2) (b), as
3
We conclude that the statute was not intended to provide
for a waiver under these circumstances. The history of the
statute reveals an unbroken chain of legislative intent to limit
the definition of indigent to persons whose limited financial
resources prevent them from obtaining meaningful access to the
Commonwealth's courts. In light of the statute's history and
purpose, we interpret the phrase "public assistance under . . .
veterans' benefits programs" as referring only to the
Massachusetts need-based programs for veterans presently
administered pursuant to G. L. c. 115, § 5. Because the
plaintiff does not participate in such a program, his request
for a waiver of fees and costs was properly denied.3
1. Background. The plaintiff, William Reade, is a retired
lieutenant colonel of the Unites States Army Reserve and a
resident of Massachusetts. In 1978, the Federal Veterans'
Administration determined that Reade suffered a ten per cent
appearing in 401 Mass. 1301 (1988) ("Unless otherwise ordered by
the appellate court . . . material impounded in the trial court
shall remain impounded in the appellate court"). Yet, because
some of the information contained in those materials is critical
to the resolution of this appeal, we now lift the order of
impoundment to the extent necessary to explain our decision
today. See Adams v. Adams, 459 Mass. 361, 362 n.1 (2011), S.C.,
466 Mass. 1015 (2013).
3
We acknowledge the amicus curiae brief submitted by the
Massachusetts Law Reform Institute, Inc., and Mental Health
Legal Advisors Committee.
4
disability as a result of an injury to his left shoulder and
elbow incurred in connection with his military service. As a
result of his injury, Reade receives a monthly disability
payment pursuant to 38 U.S.C. §§ 1110, 1114 (2012), as well as a
partial property tax abatement pursuant to a Massachusetts
program for resident disabled veterans, see G. L. c. 59, § 5,
Twenty-second. His eligibility for the disability payments and
property tax abatement is not dependent on his income or
resource levels.4
In 2013, Reade commenced an action in the Superior Court,
alleging various constitutional violations with respect to the
presidential ballot. Along with his civil complaint, Reade
filed an affidavit of indigency pursuant to § 27B,5 in which he
4
General Laws c. 59, § 5, Twenty-second, provides for a
partial property tax abatement for certain resident veterans
"who, as a result of disabilities contracted while in the line
of duty, have a disability rating of ten per cent or more as
determined by the Veterans Administration or by any branch of
the armed forces." The abatement applies to the veteran's
domicile in "the amount of [$2,000] of [its] assessed taxable
valuation or the sum of $400, whichever would result in an
abatement of the greater amount of actual taxes due." Id. In
contrast, G. L. c. 59, § 5, Eighteenth, exempts from taxation
"[a]ny portion of the estates of persons who by reason of age,
infirmity and poverty, or financial hardship resulting from a
change to active military status, not including initial
enlistment are in the judgment of the assessors unable to
contribute fully toward the public charges." Reade does not
purport to receive the more generous need-based exemption
afforded by clause Eighteenth.
5
General Laws c. 261, § 27B, provides, in relevant part,
that "[u]pon or after commencing or answering to any civil,
5
requested a waiver of normal court fees and litigation costs,6 as
well as extra fees and costs.7 As grounds, Reade indicated in
criminal or juvenile proceeding or appeal in any court, . . .
any party may file with the clerk an affidavit of indigency and
request for waiver, substitution or payment by the commonwealth
of fees and costs upon a form prescribed by the chief justice of
the supreme judicial court and in accordance with the standards
set forth in [§§ 27C-27F], inclusive, and sworn to under oath by
the affiant." A person qualifies as "[i]ndigent" under the
statutory scheme if he or she:
"(a) receives public assistance under aid to families with
dependent children, program of emergency aid for elderly
and disabled residents or veterans' benefits programs or
who receives assistance under Title XVI of the Social
Security Act or the medicaid program, 42 U.S.C.A. 1396, et
seq.;
"(b) [has an] income, after taxes, . . . 125 per cent or
less of the current poverty threshold established annually
by the Community Services Administration pursuant to
section 625 of the Economic Opportunity Act, as amended; or
"(c) . . . is unable to pay the fees and costs of the
proceeding in which he is involved or is unable to do so
without depriving himself or his dependents of the
necessities of life, including food, shelter and clothing
. . . ."
G. L. c. 261, § 27A.
6
"Normal fees and costs" are those that "a party normally
is required to pay in order to prosecute or defend the
particular type of proceeding in which he is involved,"
including, for example, "filing or entry fees"; "fees and
related costs for service of process"; "fees and costs for the
issuance or service of a subpoena and witness fees for trial or
deposition; jury trial fees; removal fees; costs assessed in a
bill of costs"; and "fees for the issuance of an injunction,
restraining order, writ or other process." G. L. c. 261, § 27A.
7
"Extra fees and costs" are those that "result when a party
employs or responds to a procedure not necessarily required in
the particular type of proceeding in which he is involved,"
6
his affidavit that his income was at or below the poverty
threshold for indigency.8 See G. L. c. 261, § 27A ("Indigent"
definition [b]). Reade also filed a letter in which he detailed
his various sources of income.9 A clerk referred the affidavit
to a judge because Reade's stated income suggested that he was
not indigent and because Reade requested a waiver of extra fees
and costs, which may be approved only by a judge. See G. L.
including, for example, "the cost of transcribing a deposition,
expert assistance and appeal bonds and appeal bond premiums."
G. L. c. 261, § 27A.
8
In his affidavit, Reade indicated a household income of
approximately $3,400 per month.
9
In his letter, Reade indicated that he received "SSI."
Assuming that this was a reference to Supplemental Security
Income, the program set forth in Title XVI of the Social
Security Act, Reade may have qualified as indigent under G. L.
c. 261, § 27A ("Indigent" definition [a]). Whether he actually
received such assistance is a matter of considerable doubt,
however, given his stated income and resource levels. See Roe
v. Rosencratz, 71 Mass. App. Ct. 901, 901 (2007) ("neither the
statute nor the [Instructions to Courts on the Administration of
the Indigency Court Costs Law (Indigency Instructions)] requires
the clerk or the judge to ignore other court filings by the
plaintiff that raise 'significant question[s]' regarding the
indigency of the plaintiff"). See also 20 C.F.R. § 416.1205
(2014) (Supplemental Security Income resource limit for
individual with spouse is $3,000). In any event, Reade does not
make this argument on appeal, and we consider it waived. See
Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 722 n.7
(2013); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921
(1975). If Reade does, in fact, receive Supplemental Security
Income, he is free to file a new affidavit so reflecting. See
G. L. c. 261, § 27B ("indigent party may subsequently file one
or more supplementary affidavits requesting the waiver,
substitution or payment by the commonwealth of fees and costs
not previously granted at any time while the case is still
pending . . .").
7
c. 261, § 27C (3). After holding a hearing, the judge denied
the waiver on the ground that Reade's income exceeded the
poverty threshold for indigency. A single justice of the
Appeals Court affirmed.
Reade then filed a second affidavit of indigency, again
requesting a waiver of both normal and extra fees and costs.
This time, however, Reade claimed indigency on the ground that
he was unable to pay the fees and costs without depriving
himself or his dependents of the necessities of life. See G. L.
c. 261, § 27A ("Indigent" definition [c]). He also submitted
the required supplement to the affidavit in which he detailed
his assets, income, and expenses.10 A clerk referred the
affidavit to the same judge, again because of Reade's stated
income and the request for extra fees and costs. The judge held
a new hearing and, on the basis of Reade's available assets,
determined that he was not indigent and again denied the waiver.
A single justice of the Appeals Court affirmed.
Undeterred, Reade filed a third affidavit of indigency
seeking a waiver of normal and extra fees, claiming indigency on
the ground that he received public assistance in the form of
veterans' benefits. See G. L. c. 261, § 27A ("Indigent"
10
In the supplement to the affidavit, Reade declared after
tax income in excess of $40,000 per year, substantial balances
in his checking and savings accounts, and more than $200,000 of
equity in his house.
8
definition [a]). Reade included documents demonstrating his
receipt of the property tax abatement for Massachusetts veterans
and the monthly disability payments from the Veterans'
Administration. A clerk again referred the affidavit to the
same judge, this time for the additional reason that the
affidavit was not "regular and complete on its face." The judge
held another hearing and, after reviewing all three affidavits,
concluded that Reade was not indigent because he had the ability
to pay the normal and extra fees and costs. A single justice of
the Appeals Court granted Reade leave to file an interlocutory
appeal, observing that whether a judge has authority to deny
indigency status to a person receiving "veteran's benefits" was
a question with "broad policy ramifications for the
administration of justice." Reade filed the appeal, the Appeals
Court allowed the Office of Court Management of the Trial Court
to intervene, and we transferred the case to this court on our
own motion.
2. Discussion. The Indigent Court Costs Law entitles an
indigent person to a waiver or reduction of certain fees and
costs incurred during litigation. G. L. c. 261, § 27C. Under
§ 27A, first definition, a person is "indigent" if, inter alia,
he or she receives "receives public assistance under . . .
veterans' benefits programs." Reade argues that because he
receives Federal disability payments and the Massachusetts
9
property tax abatement for veterans, the plain language of the
statute compels the conclusion that he is indigent and therefore
entitled to a waiver. We disagree.
"[I]t is a well-established canon of statutory construction
that a strictly literal reading of a statute should not be
adopted if the result will be to thwart or hamper the
accomplishment of the statute's obvious purpose, and if another
construction which would avoid this undesirable result is
possible." Watros v. Greater Lynn Mental Health & Retardation
Ass'n, 421 Mass. 106, 113 (1995). "The legislative intent in
enacting a statute is to be gathered from a consideration of the
words in which it is couched, giving to them their ordinary
meaning unless there is something in the statute indicating that
they should have a different significance; the subject matter of
the statute; the preexisting state of the common and statutory
law; the evil or mischief toward which the statute was
apparently directed; and the main object sought to be
accomplished by the enactment." Meunier's Case, 319 Mass. 421,
423 (1946). See Commonwealth v. De'Amicis, 450 Mass. 271, 273-
274 (2007) (interpreting indigent court costs statute in light
of purpose and history). See also Edwards, petitioner, 464
Mass. 454, 461 (2013) (same); Underwood v. Appeals Court, 427
Mass. 1012, 1013 (1998) (same). With these principles in mind,
10
we turn to the legislative history of the statute with an aim
toward gleaning the Legislature's intent in enacting it.
The seeds for the Indigent Court Costs Law were planted in
1970 by the Massachusetts Law Reform Institute, Inc. (MLRI), a
nonprofit legal advocacy group dedicated to promoting systemic
legal changes that benefit the poor. Rodgers, Rap-ups of a
Retired Reformer: Stories About How Legal Services Advocates
Transformed the Laws for Poor People in Massachusetts 81 (2013).
MLRI's efforts were focused on increasing access to the courts
for poor people who could not afford to pay filing fees and
other litigation costs. Id. These efforts eventually blossomed
into 1974 Senate Doc. No. 1099, An Act to relieve indigent
litigants of burdensome court costs in civil and criminal
proceedings. See Rodgers, supra at 81. The proposed bill
defined a litigant as "[i]ndigent" where:
"(1) he receives any federal, state or local public
assistance, including medical assistance or any rental
subsidy, or (2) his net income does not exceed the limits
set out in [§ 27E], or (3) he is otherwise indigent because
wholly unable to pay the expected total of the fees and
costs of the proceeding in which he is involved, or is
unable to do so without depriving himself or his dependents
of the necessities of life, including shelter, food and
clothing."
1974 Senate Doc. No. 1099, § 2. The legislative purpose
statement included in the bill made clear that the legislation
was focused on providing aid to the poor:
11
"The General Court hereby finds and declares that many
litigants in both civil and criminal cases are unable to
secure due process of law and equal protection of the laws
in the courts of Massachusetts by reason of being too poor
to afford the fees and costs (not including attorneys fees)
incident to such litigation.
"Therefore, the purpose of this act is to provide for
the absorption, payment or obviation of such fees and
costs, initially by the counties and ultimately by the
Commonwealth.
"This Act shall be given a liberal construction to the
end that its broad and humane purposes may be served."
1974 Senate Doc. No. 1099, § 1.
The Senate bill was ultimately superseded by 1974 House
Doc. No. 5859, which trimmed the definition of indigent to a
person who "is unable to pay the fees and costs of the
proceedings in which he is involved, or is unable to do so
without depriving himself or his dependents of the necessities
of life, including food, shelter and clothing," making it even
clearer that the statute was only intended to provide waivers to
litigants who could truly not afford to pay litigation costs.
Under this version of the statute, which was enacted into law by
St. 1974, c. 694, § 3, Reade would not have qualified as
indigent.
12
The Senate's version was resurrected in the 1980 amendments
to § 27A,11 which changed the definition of "[i]ndigent" to a
person who:
"(a) . . . receives public assistance under the
Massachusetts Aid to Families with Dependent Children,
General Relief or Veteran's Benefits programs or receives
assistance under Title XVI of the Social Security Act or
the Medicaid program, 42 U.S.C. 1396, et seq.;
"(b) [has] income, after taxes, . . . [125] per cent or
less of the current poverty threshold annually established
by the Community Services Administration pursuant to
[§ 625] of the Economic Opportunity Act, as amended; or
"(c) . . . is unable to pay the fees and costs of the
proceeding in which he is involved, or is unable to do so
without depriving himself or his dependents of the
necessities of life, including food, shelter and clothing."
St. 1980, c. 539, § 5.12 Reade's position is that the 1980
amendments reflected an intention by the Legislature to broaden
the definition of indigent to include a person who receives any
type of veterans' benefit, regardless of the origin of or reason
for that benefit. This position is not sustainable.
11
The amendments were proposed in 1980 Senate Doc. No.
2260.
12
As can be seen, the 1980 definition of indigent is
reminiscent of the original proposed definition found in 1974
Senate Doc. No. 1099, which, in light of the legislative purpose
statement, cannot be interpreted reasonably as applying to
anything other than needs-based benefits. An important
difference between those two versions, however, was in the
language of the first definition of indigent, which in the 1974
version applied broadly to a person receiving "any federal,
state or local public assistance." See id.at § 2. In contrast,
the 1980 version listed five specific public assistance
programs. See St. 1980, c. 539, § 5.
13
The 1980 definitional changes may be best understood in the
context of the amendments as a whole, particularly in tandem
with the changes made to § 27C. Prior to 1980, relief from
court fees and costs had to be approved by a judge. The 1980
amendments to § 27C altered this practice by directing the clerk
to grant relief "forthwith" where a litigant files an affidavit
that "appears regular and complete on its face and indicates
that the affiant is indigent, as defined in [§ 27A], and
requests a waiver, substitution or payment by the commonwealth,
of normal fees and costs." St. 1980, c. 539, § 7. Empowering
the clerk to grant relief clearly was intended to expedite the
waiver process in cases involving routine costs and expenses.
Without the definitional changes to § 27A, the clerk still would
have been required to engage in the cumbersome process of
determining whether the payment of fees and costs would deprive
a litigant of the "necessities of life." The definitional
changes circumvented unnecessary delays by capitalizing on
preexisting systemic determinations of financial need in the
form of income-poverty guidelines and means-tested public
assistance programs.
The first definition of indigent set out in the 1980
statute created two distinct categories of benefits: "public
assistance" under three listed programs, and "assistance" under
two other listed programs. St. 1980, c. 539, § 5. This
14
structure is significant, as "[w]ords grouped together in a
statute must be read in harmony, and we are not free to
interpret [one provision] in a way that makes it exceptionally
broader than its neighbors." Franklin Office Park Realty Corp.
v. Commissioner of the Dep't of Envtl. Protection, 466 Mass.
454, 462 (2013). The first category began with the word
"Massachusetts," followed by three programs corresponding to
statutes located in the Public Welfare section of the General
Laws: G. L. c. 115 (veterans' benefits); G. L. c. 117, repealed
by St. 1991, c. 255, § 3 (general relief); and G. L. c. 118 (aid
to families with dependent children). Importantly, each of the
three statutes -- consistent with the original intent of § 27A -
- premised the receipt of public assistance on financial need.13
That the Legislature was referring to those specific statutes in
§ 27A is reinforced by other instances in which the Legislature
has referenced them in concert. See, e.g., An Act providing
13
See St. 1936, c. 413 ("before so aiding any parent the
board of public welfare . . . shall make an immediate and
careful inquiry, including the resources of the family and the
ability of its other members, if any, to work or otherwise
contribute to its support"); St. 1961, c. 317 ("such [veterans']
benefits shall not be paid to any person who is able to support
himself or who is in receipt of income from any source
sufficient for his support"); St. 1971, c. 908 ("[general
relief] aid furnished shall be determined by the department on
the basis of the circumstances surrounding each application
[and] shall be sufficient to maintain an adequate standard of
living for the poor and indigent applicant and his immediate
family who are eligible").
15
cost-of-living adjustments for recipients of aid to families
with dependent children, general relief and veterans' benefits,
St. 1974, c. 623 (amending G. L. cc. 115, 117, and 118).14
Further, with respect to the second category, the
Legislature included only Federal programs and referred to those
programs specifically by statute. Had the Legislature intended
to premise qualification for indigency under § 27A on the
receipt of Federal veterans' benefits, we infer that it would
have done so in a manner consistent with its treatment of other
Federal programs in the same section of the statute. See
Commonwealth v. Williamson, 462 Mass. 676, 681 (2012), quoting
Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 316
(1991) ("Statutes should be read 'as a whole to produce an
internal consistency'"). It is also telling that both of the
Federal statutes referred to in the amended version of § 27A --
like the aforementioned Massachusetts statutes -- made the
receipt of benefits contingent on financial need,15 suggesting a
14
See also St. 1978, c. 367, § 54B ("An advisory committee
on the implementation of a wage reporting system is hereby
created consisting of . . . three persons to be appointed by the
chairman of the state welfare advisory board one of whom shall
be a recipient of aid to families with dependent children; one
of whom shall be a recipient of general relief; and one of whom
shall be a recipient of veterans' benefits").
15
See 42 U.S.C. § 1381a (2012) ("Every aged, blind, or
disabled individual who is determined under part A of this
subchapter to be eligible on the basis of his income and
resources shall . . . be paid benefits" [emphasis added]); 42
16
continuation of legislative intent to restrict the meaning of
16
"indigent" to persons with limited financial resources. St.
1980, c. 539, § 5. In view of the foregoing, we conclude that
the 1980 amendment tying indigency to the receipt of "Veteran's
Benefits" was intended to encompass only the receipt of
Massachusetts need-based veterans' benefits under G. L. c. 115,
§ 5. St. 1980, c. 539, § 5. Because Reade did not receive such
benefits, he would not have qualified as indigent under the 1980
version of the statute.
The next relevant modification to the statute occurred in
2000 in connection with a bill introduced pursuant to G. L.
c. 3, § 53 (§ 53). Section 53 allows counsel to the Senate and
House of Representatives, see G. L. c. 3, § 51, to make
recommendations for the "repeal of such statutory provisions as
have become obsolete or the reasons for the enactment of which
have ceased to exist," "rejection of superfluous words, [and]
condensation of all circuitous, tautological and ambiguous
phraseology into as concise and comprehensive a form as is
U.S.C. § 1396-1 (2012) ("For the purpose of enabling each State
. . . to furnish [1] medical assistance on behalf of families
with dependent children and of aged, blind, or disabled
individuals, whose income and resources are insufficient to meet
the costs of necessary medical services" [emphasis added]).
16
Similarly, S.J.C. Rule 3:10, as amended, 416 Mass. 1306
(1993) (assignment of counsel to indigent criminal defendants),
defines the term "[i]ndigent" to include, inter alia, a person
receiving "poverty related veterans' benefits."
17
consistent with the full and clear expression of the will of the
general court." In other words, linguistic changes made
pursuant to § 53 are generally of a technical, rather than
substantive, character. The changes made to § 27A in 2000 are
no exception. See St. 2000, c. 313, § 46.
The 2000 bill, entitled, "An Act making certain corrective
changes in certain general and special laws," suggested several
linguistic changes to § 27A, including the removal of the word
"Massachusetts." See 2000 Senate Doc. No. 2212. The word
"Massachusetts" was likely omitted because it was superfluous.
As observed above, where the Legislature referred to a non-
Massachusetts program in § 27A, it did so explicitly by
including a statutory citation. The omission of such a citation
when referring to the other programs sufficed to indicate their
Massachusetts origins. See G. L. c. 3, § 53. See generally
Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279, 283 (1991) ("As
a general rule, when the Legislature has employed specific
language in one part of a statute, but not in another part which
deals with the same topic, the earlier language should not be
implied where it is not present").17
17
The Legislature has a long history of revising statutes
to remove superfluous language. See, e.g., Commonwealth v.
Dana, 2 Met. 329, 339 (1841) ("One of the objects of the
revision of our laws was to condense them by change of
phraseology, and the rejection of all superfluous words, which
has been frequently done, where there is evidently no change of
18
Other modifications to § 27A were prompted by inaccuracies
in the existing program descriptions.18 The final language
choices in § 27A reflect an intention to conform the text to the
language of the specific statutes referenced therein, which is
consistent with the technical nature of the modifications
contemplated by § 53. See Arthur A. Johnson Corp. v.
Commonwealth, 306 Mass. 347, 353 (1940), quoting Main v.
Plymouth County, 223 Mass. 66, 69 (1916) ("It is a familiar
principle of statutory construction that mere verbal changes in
the revision of a statute do not alter its meaning and are
construed as a continuation of the previous law").
At oral argument, Reade pointed out the Commonwealth has a
long tradition of providing preferential treatment to veterans.
meaning by the change of language or the omission of the
superfluous parts of the former statutes").
18
For example, the term "Veterans' Benefits," as it is
spelled in G. L. c. 115, previously had been spelled incorrectly
as "Veteran's Benefits." The initial draft of the bill
contained an oversight, however, insofar as it retained the
reference to the obsolete general relief statute, G. L. c. 117,
which had been superseded by G. L. c. 117A. See. St. 1991,
c. 255, § 4. Correspondence from the Department of Transitional
Assistance (department) while the "draft technical correction
bill" was still in committee pointed out that "the statutory
definition presently, and as amended, incorrectly cites two
department programs." The DTA then suggested that the term
"General Relief" be replaced with "Emergency Aid to the Elderly,
Disabled and Children." This suggestion was partially adopted
by way of a handwritten modification to the bill, replacing the
term "General Relief" with "program of emergency aid for elderly
and disabled residents," which is the language used in G. L.
c. 117A, § 1.
19
That is undoubtedly true, and where the Legislature has
indicated such an intention, we have not hesitated to recognize
the legitimacy of the public interest at stake. See, e.g.,
G. L. c. 31, § 26 (affording gradations of civil service
priority based on veteran and disabled veteran status); Smith v.
Director of Civil Serv., 324 Mass. 455, 461 (1949) ("it is open
to the Legislature to say that, whereas all veterans may be
preferred because of their service in uniform, the public
interest is served by additionally preferring those who have
incurred disability in the course of their service"). However,
the Indigent Court Costs Law did not originate as a veterans'
preference law and, as the foregoing legislative history
demonstrates, the "principle embodied in the statute," as it
stands today, remains "equal justice under the law: an indigent
party should have the financial resources necessary to mount as
effective a case as a party who is not indigent." Edwards,
petitioner, 464 Mass. at 461. Reade's argument, that the
receipt of any veterans' benefits renders a litigant indigent,
is incompatible with this principle because it would allow
waivers for individuals who already have ample financial
resources to afford court fees and other litigation costs. See
Underwood, 427 Mass. at 1013. We decline to construe § 27A in
a manner that is plainly inconsistent with its central purpose,
20
notwithstanding the susceptibility of the statute's plain
language to such a construction. See Watros, 421 Mass. at 113.
Rather, we continue to read § 27A, "Indigent" definition
(a), as referring to the five specific, need-based public
assistance programs -- three of which derive from Massachusetts
law and two which derive from Federal law -- that are listed on
the form affidavit of indigency prescribed by the Chief Justice
of this court pursuant to § 27B. This includes the
"Massachusetts Veterans Benefits" program, which is presently
codified at G. L. c. 115, § 5. Accordingly, Reade's receipt of
Federal disability payments and the Massachusetts property tax
abatement for veterans, neither of which is contingent on
financial need, did not render him a "person who receives public
assistance under . . . veterans' benefits programs" within the
meaning of § 27A ("Indigent" definition [a]). Therefore, Reade
is not indigent and his request for a waiver of fees and costs
was properly denied by the judge.
The question remains, however, whether Reade's third
request for a waiver of normal fees and costs even should have
been referred to a judge. Reade contends that the clerk was
required to grant the request forthwith, without further
inspection of the circumstances, because his affidavit was (i)
regular and complete on its face; (ii) indicated that he was
indigent by virtue of his selection of "Massachusetts Veterans
21
Benefits" on the form affidavit; and (iii) requested a waiver of
normal fees and costs. We conclude that the clerk was correct
to refer the affidavit to a judge.
The "Instructions to Courts on the Administration of the
Indigent Court Costs Law" of this court direct the clerk to
refer the affidavit to a judge where there is a "significant
question about whether the applicant is indigent." Here, Reade
did not simply select "Massachusetts Veterans Benefits" on the
form affidavit. Rather, he attached a series of documents
indicating that the Massachusetts benefit he was contemplating
was a property tax abatement for disabled veterans, which, as
discussed above, is not the benefit contemplated by the form.
Thus, considered as a whole -- i.e., the form affidavit along
with the attachments -- Reade's affidavit created ambiguity as
to whether he received veterans benefits within the meaning of
the first definition of "Indigent" in § 27A.19 Moreover, the
19
Nonetheless, we reject the argument of the Office of
Court Management of the Trial Court that Reade's affidavit was
"irregular" on its face because it contained an excessive
estimate of his costs. The form affidavit instructs the
applicant to "indicate your best guess as to the cost, if
known." The Indigency Instructions recognize that "[m]ost
applicants will not know the actual costs of many of these
services. Therefore, courts should approve otherwise
appropriate applications for waiver or [S]tate payment and
insert in the approval the actual or estimated amount of the fee
or service, as it is known to the court." In other words, where
the only defect in a qualifying affidavit is an incorrect
estimation of normal fees and costs, the clerk should approve
the request at the correct amount.
22
clerk was entitled to consider Reade's past affidavits pursuant
to Roe v. Rosencratz, 71 Mass. App. Ct. 901, 903 (2007)
("previous court filings by the plaintiff for payment of entry
fees and costs, in which she had represented that she had
significant assets . . . justified further consideration by the
clerk and referral to a judge"). Those affidavits reflected
considerable income and assets, casting additional doubt on
Reade's claim that he received the need-based benefits afforded
by the Massachusetts Veterans' Benefits program, G. L. c. 115,
§ 5. In view of these significant questions about Reade's
receipt of veterans' benefits, we cannot say that the clerk
erred in referring the matter to the judge.20
20
Section 27C (3) also directs the clerk to refer the
affidavit to a judge where the applicant requests not only
normal fees and costs, but also extra fees and costs. This was,
therefore, another ground on which Reade's affidavit was
properly referred to the judge. The intervener goes one step
further, however, by arguing that even if Reade had received
veterans' benefits within the meaning of § 27A ("Indigent"
definition [a]), once the affidavit was before the judge on the
request for extra fees and costs, the judge had discretion under
§ 27C (3) to deny indigency status based on Reade's economic
circumstances. Although the judge in this case appears to have
agreed, we do not. If Reade had, in fact, received
Massachusetts veterans' benefits within the meaning of the first
definition of "[i]ndigent" under § 27A, he would be indigent and
entitled to relief. See G. L. c. 261, § 27C (4) ("If the court
makes a finding of indigency, it shall not deny any request with
respect to normal fees and costs . . ."). Under those
circumstances, the judge's discretion would be limited to
assessing Reade a reasonable partial payment as a substitute for
the waiver. See id. at § 27C (6). See also Underwood v.
Appeals Court, 427 Mass. 1013, 1013 (1998) ("Requiring litigants
23
3. Conclusion. For the reasons set forth herein, we
conclude that the "veterans' benefits" program described in the
first definition of "[i]ndigent" under G. L. c. 261, § 27A,
refers to the need-based Massachusetts veterans' benefits
program presently administered pursuant to G. L. c. 115, § 5.
Reade does not receive such benefits and therefore he is not
indigent on that ground. Consequently, we affirm the judge's
decision denying Reade's request for a waiver of normal and
extra court fees and litigation costs.
So ordered.
to pay a reasonably reduced filing fee, set within their limited
financial means, serves the important dual purpose of providing
equal access to the courts while simultaneously screening out
frivolous claims"). | 01-03-2023 | 09-03-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/126531/ | 537 U.S. 1136
STRICKLANDv.UNITED STATES.
No. 02-7653.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 107. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/996646/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6619
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
VONDIA CLARY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert J. Staker, Senior
District Judge. (CR-88-222, CA-97-385-3)
Submitted: September 30, 1998 Decided: October 21, 1998
Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Vondia Clary, Appellant Pro Se. Amy Michelle Lecocq, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Vondia Clary appeals the district court’s order denying her
motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998).
Clary’s case was referred to a magistrate judge pursuant to 28
U.S.C. § 636(b)(1)(B) (1994). The magistrate judge recommended that
relief be denied and advised Clary that the failure to file timely
objections to this recommendation could waive appellate review of
a district court order based upon the recommendation. Despite this
warning, Clary failed to object to the magistrate judge’s
recommendation.
The timely filing of objections to a magistrate judge’s
recommendation is necessary to preserve appellate review of the
substance of that recommendation when the parties have been warned
that failure to object will waive appellate review. See Wright v.
Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v.
Schronce, 727 F.2d 91, 93-94 (4th Cir.), cert. denied, 467 U.S.
1208 (1984); see also Thomas v. Arn, 474 U.S. 140 (1985). Clary has
waived appellate review by failing to file objections after re-
ceiving proper notice. We accordingly deny a certificate of appeal-
ability and dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8540619/ | per curiam:
La Leda. Edith E. Vázquez Pardo (querella-da) fue admitida al ejercicio de la abogacía el 25 de enero de 2000 y, posteriormente, al ejercicio de la notaría el 3 de abril del mismo año. El 18 de agosto de 2010 el Procurador General de Puerto Rico presentó una querella contra la licenciada Vázquez Pardo. Le formularon dos cargos por alegadas violaciones a la fe pública notarial y al Canon 35 del Código de Ética Profesional, infra. A continuación ex-ponemos un resumen de los hechos que motivaron el pro-ceso disciplinario que hoy atendemos.
I
El 20 de marzo de 2003 el Sr. Carlos Israel Rivera Ro-dríguez, la Sra. Maribel Martínez Isona, el Sr. Benjamín Flores Soto y la Sra. Ada Miriam Palau Inglés (quejosos) presentaron una queja ante este Tribunal contra la licen-ciada Vázquez Pardo.(1) Los quejosos indicaron en la queja *1035que el Ledo. José A. Vázquez Soto fungió como notario en una compraventa en la cual adquirieron dos terrenos de la corporación Nakato, Inc. Además, suscribieron un contrato en el cual Nakato, Inc. construiría varias casas en los te-rrenos adquiridos. Debido a que Nakato, Inc. no terminó la construcción de las casas, los quejosos presentaron una de-manda de daños y perjuicios en su contra. En dicha de-manda los quejosos fueron representados por el Ledo. John Ward Llambías y por la Leda. Rosa I. Ward Cid.(2) Los li-cenciados acordaron con los quejosos que cobrarían el 33% de lo obtenido en la sentencia por honorarios de abogados. Luego de varios trámites procesales, los quejosos obtuvie-ron una sentencia a su favor y el tribunal emitió una orden para que se procediera con la venta en pública subasta de cuatro fincas del demandado. Los quejosos obtuvieron la buena pro de la subasta de dos de las fincas.
Así las cosas, los licenciados Ward Llambías y Ward Cid citaron a los quejosos para que acudieran, el 8 de julio de 2002, al Tribunal de Primera Instancia, Sala de Guayama, para firmar la escritura de venta judicial. Los quejosos acudieron a la cita y allí conocieron por primera vez a la licenciada Vázquez Pardo. Los licenciados Ward Llambías y Ward Cid habían escogido a la querellada para que fun-giera como notario en la otorgación de la escritura. Luego de firmar la escritura de venta judicial, los licenciados pre-sentaron a los quejosos una escritura de dación en pago. En la misma se establecía que los quejosos le otorgaban el 33% de las propiedades adquiridas en la venta judicial a los licenciados Ward Llambías y Ward Cid como pago de los honorarios de abogados. Los quejosos argumentaron que no sabían de qué trataba la escritura y, además, que la escritura no tenía número, tenía espacios en blanco y no contenía el valor de la propiedad. A pesar de los menciona-*1036dos defectos los quejosos firmaron la escritura. Estos tam-bién alegaron que le solicitaron a la querellada copia de las escrituras, pero ésta nunca se la entregó.
Vista la queja, solicitamos a la querellada que contes-tara la queja presentada en su contra. En la contestación a la queja la querellada argumentó que los licenciados Ward Llambías y Ward Cid se comunicaron con ella el 7 de julio de 2002, para solicitarle que otorgara al día siguiente una escritura de venta judicial. La licenciada Vázquez Pardo explicó que el licenciado Ward Llambías redactó el instru-mento público y se lo entregó para examinarlo antes de acudir al otorgamiento de dicha escritura. Indicó, además, que pudo revisar todos los documentos complementarios necesarios para la otorgación y autorización de la escritura.
Por otro lado, la querellada señaló que de camino a Gua-yama el licenciado Ward Llambías le mostró por primera vez la escritura de dación en pago. El licenciado Ward Llambías le explicó que luego del otorgamiento de la escri-tura de venta judicial le presentaría a los quejosos la escri-tura de dación en pago, y si ellos aceptaban lo dispuesto en la misma aprovecharían su presencia para otorgar dicho instrumento público. En ese momento la querellada veri-ficó la escritura de dación en pago y encontró que adolecía de varios defectos, pero entendió que los mismos podían ser subsanados por un acta de subsanación.
Contrario a lo alegado por los quejosos, la licenciada Vázquez Pardo adujo que en la escritura de dación en pago solo existía un espacio en blanco para consignar el método que utilizó para identificar a los otorgantes. La querellada indicó que debido a un problema con la identificación de uno de los otorgantes ella decidió hacer la salvedad a ma-quinilla y llenar el espacio en blanco en su oficina. Por otro lado, argüyó que los quejosos tuvieron la oportunidad de leer y analizar juntos la escritura sin la intervención de los licenciados Ward Llambías y Ward Cid. Explicó que luego *1037de permitir que los quejosos discutieran la escritura a so-las, ella se acercó a ellos para cerciorarse de que entendían el negocio jurídico y aclaró las dudas que tenían. Al quedar convencida de que los quejosos comprendieron la natura-leza y el alcance de la escritura de dación en pago, la licen-ciada Vázquez Pardo procedió con el otorgamiento y auto-rización de la misma. Sobre el incumplimiento de entregar una copia de cada escritura a los quejosos, la querellada alegó que los quejosos en dos ocasiones la contactaron pero luego no acudieron a recoger las copias.
El 11 de julio de 2003 referimos la queja a la Oficina de Inspección de Notarías (ODIN). La ODIN rindió un in-forme el 20 de octubre de 2005 en el cual concluyó que la licenciada Vázquez Pardo violó el Art. 2 de la Ley Notarial de Puerto Rico(3) y el Canon 35 del Código de Ética Profe-sional(4) por apartarse de su deber principal como notario y atentar contra la fe pública notarial. La ODIN entendió que la querellada debió abstenerse de autorizar las escri-turas porque no tuvo oportunidad de examinarlas deteni-damente y tampoco tuvo oportunidad de examinar los do-cumentos complementarios ni los estudios de títulos necesarios. Por otra parte, expresó que la licenciada debió conocer que la escritura de dación en pago no era inscribi-ble en el Registro de la Propiedad por no contener el valor de la propiedad. Indicó, además, que esta omisión evita que se pueda determinar si los sellos de rentas internas fueron cancelados correctamente. Luego de la respuesta de la licenciada Vázquez Pardo, el 16 de febrero de 2007, re-ferimos la queja ante la Oficina del Procurador General para que realizara una investigación y rindiera un informe conforme con la Regla 14(d) del Reglamento de este Tribunal. (5)
Luego de llevar a cabo la correspondiente investigación, *1038la Procuradora General rindió un informe en el cual con-currió con los señalamientos de la ODIN. Así las cosas, mediante resolución del 12 de junio de 2009 autorizamos a la Procuradora General a que presentara la querella co-rrespondiente en conformidad con el contenido de dicho informe. Por consiguiente, el 18 de agosto de 2010 la Pro-curadora General presentó una querella contra la licen-ciada Vázquez Pardo.
En la querella, la Procuradora General formuló dos cargos. En el cargo I la Procuradora General imputó a la querellada la violación al Art. 2 de la Ley Notarial, supra, por haber violado la fe pública notarial. En el cargo II le atribuyó a la querellada infringir el Canon 35 del Código de Ética Profesional, supra, respecto al deber de los aboga-dos de “ajustarse a la sinceridad de los hechos al examinar los testigos, al redactar afidávits u otros documentos, y al presentar sus causas”. La Procuradora General expresó, en lo pertinente, que:
La actuación de la querellada Vázquez Pardo, al autorizar unas escrituras redactadas por otro abogado, con graves defec-tos notariales, no sólo constituye un atentado contra la fe pú-blica notarial y las disposiciones de la Ley y el Reglamento Notarial según [ha] señalado la ODIN en su informe, sino que constituye una violación al Primer Criterio General de los Cá-nones de Ética Profesional, el cual obliga a todo miembro de la profesión legal, individual y colectivamente, a velar por que los distintos procesos legales de la sociedad se incorporen y consagren de manera efectiva y adecuada. Sus actuaciones ne-gligentes impidieron que se ajustara a la sinceridad de los hechos al autorizar el documento objeto de este procedimiento, incurriendo al así hacerlo en violación al Canon 35 de[l] [Código de] Ética Profesional. Informe del Procurador General, pág. 6, Apéndice de la Querella, Anejo II, pág. 258.
Así las cosas, mediante resolución del 15 de marzo de 2011 nombramos al Hon. Carlos Dávila Vélez como Comi-sionado Especial (Comisionado) para que recibiera prueba y nos rindiera un informe con sus determinaciones de he-*1039chos y recomendaciones. Luego de una vista ante el Comi-sionado, éste emitió un informe en el cual concluyó que la licenciada Vázquez Pardo violó el Art. 2 de la Ley Notarial, supra, y el Canon 35 del Código de Etica Profesional, supra.
El Comisionado indicó que al autorizar las escrituras, la querellada dio fe pública de que éstas cumplían con todas las formalidades de la Ley Notarial, aunque estaba cons-ciente de que éstas adolecían de defectos. Al considerar la prueba el Comisionado entendió que quedó establecido lo siguiente: (1) las escrituras fueron redactadas por el licen-ciado Ward Llambías; (2) la querellada examinó por pri-mera vez las escrituras el día del otorgamiento; (3) la que-rellada descansó solo en los documentos que le presentaron los licenciados Ward Llambías y Ward Cid; (4) la licenciada Vázquez Pardo autorizó las escrituras aun cuando se per-cató de que las mismas no contenían el valor de las propie-dades; (5) la querellada omitió en las dos escrituras las advertencias legales expresas sobre los efectos de la adqui-sición de una partición indivisa en una finca según reque-rido por el Art. 15(g) de la Ley Notarial, 4 L.P.R.A. see. 2033(g); (6) omitió las advertencias sobre el estado de las cargas de las propiedades y sobre el hecho de que existían transacciones previas realizadas por Nakato, Inc. relativas a otras dos escrituras de dación en pago; (7) la escritura de dación en pago adolecía del segundo apellido de uno de los comparecientes; (8) la querellada omitió el número de la escritura de dación en pago; (9) ambas escrituras conte-nían guarismos en fechas y cantidades referentes a hipote-cas; (10) la escritura de venta judicial tenía una nota de saca que no contenía el nombre de a quién se hizo la copia; (11) previo al otorgamiento de las escrituras la querellada no examinó los estudios de títulos de las propiedades; (12) la licenciada Vázquez Pardo no hizo constar en la escritura de dación en pago que los otorgantes debían otorgar una *1040escritura de rectificación para asignar el valor de las pro-piedades, y (13) la querellada no llenó los espacios en blancos.
No obstante, el Comisionado indicó en su informe que la licenciada Vázquez Pardo cumple con varios de los ate-nuantes que este Tribunal ha validado en los procedimien-tos disciplinarios. El Comisionado expresó, en lo perti-nente, que
[h]abiendo concluido que la querellada quebrantó el Art. 2 de la Ley Notarial, supra, y el Canon 35 [del Código de] Ética Profesional, supra, procede que llamemos la atención de este Honorable Tribunal sobre varios atenuantes. Éstos son: para la fecha de los hechos la querellada se iniciaba en el ejercicio de la práctica de la abogacía y de la notaría; la querellada goza de una reputación intachable y respetada entre los miembros de la profesión legal ...; no existen quejas, querellas o recla-maciones pendientes contra la querellada; la querellada no actuó de mala fe o con la intención de engañar; y los quejosos no sufrieron daño pecuniario alguno por la actuación u omi-sión de la querellada, ya que la escritura de venta judicial está inscrita en el Registro de la Propiedad y los licenciados Ward retiraron la escritura de dación en pago y renunciaron a cual-quier derecho o interés sobre las fincas. Informe del Comisio-nado Especial de 18 de enero de 2012, págs. 23-24.
II
Como principio del derecho notarial, todo notario está inexorablemente vinculado al estricto cumplimiento de la Ley Notarial de Puerto Rico(6) y a los cánones del Código de Ética Profesional, 4 L.P.R.A. Ap. IX.(7) Los notarios están obligados a respetar la Ley Notarial de Puerto Rico. En el cumplimiento de dicha función el notario puertorriqueño representa la fe pública y la ley para todas las partes.(8) Una vez el notario se aparta de cumplir con estos *1041requisitos y las formalidades, incurre en conducta que aca-rrea una sanción disciplinaria, ya que lesiona la confianza y la función pública investida en él.(9) La sanción discipli-naria correspondiente incluye no solo su función como no-tario, sino también como abogado.!10)
La fe pública notarial constituye la espina dorsal de nuestro sistema notarial.!11) El Art. 2 de la Ley Notarial, supra, consagra el principio de la fe pública notarial. Este artículo dispone que “[l]a fe pública al notario es plena respecto a los hechos que, en el ejercicio de su función, personalmente ejecute o compruebe y también respecto a la forma, lugar, día y hora del otorgamiento”. Así pues, la fe pública notarial es de tan alta importancia que no es necesario que el notario falte a la verdad intencionalmente para que incurra en una violación a ella.!12)
Como sabemos, cuando un notario autoriza un documento da fe y asegura que ese documento cumple con todas las formalidades de ley, formal y sustantivamente, que el documento es legal y verdadero, y que se trata de una transacción válida y legítima.!13) La investidura que conlleva la fe pública notarial va acompañada de una presunción controvertible a los actos que ve y oye el notario de que lo allí consignado es legal y verdadero.!14) Es precisamente esta presunción de legalidad, veracidad y legitimidad lo que le brinda certeza, garantía y eficacia al documento notarial.!15) Por esto, es imprescindible que el *1042notario actúe con el más alto grado de honradez y honesti-dad como custodio de la fe pública notarial/16)
Hemos expresado que la fe pública notarial tiene como base la voluntad ilustrada de los contratantes; no puede ser fruto de la ignorancia y la obscuridad/17) Por esto, al ser el notario el principal instrumento de la fe pública, y conocedor del Derecho y las leyes, tiene la obligación de propiciar y cerciorarse de ese estado de conciencia informada/18) Tiene la obligación de suplir las explicaciones, aclaraciones y advertencias en todo caso en que haga falta para lograr el consentimiento enterado de los otorgantes al acto notarial/19)
Por la importancia que tiene la fe pública notarial en el tráfico de los bienes jurídicos, el notario tiene que ser cuidadoso y debe desempeñar su ministerio con esmero, diligencia y estricto celo profesional/20) La fe pública notarial impone al notario el deber de ser diligente en su gestión y de asegurarse de cumplir con todas las solemnidades de la Ley Notarial al autorizar los instrumentos públicos/21) De acuerdo con lo anterior, un notario debe abstenerse de autorizar instrumentos públicos en forma expedita o incidental, para evitar así la posibilidad de convertirse en un simple observador del negocio jurídico/22)
Consecuentemente, el notario que falte a la verdad, ya sea intencionalmente o no, en el otorgamiento de un instrumento público no solo quebranta la fe pública notarial, sino que socava la integridad de la profesión legal y viola su deber de ser sincero y honrado, conforme a lo dis-*1043puesto en el Canon 35 del Código de Ética Profesional, supra.(23) Conforme a ello, cuando un notario otorga un do-cumento notarial en contravención a la Ley Notarial cons-tituye una violación al Canon 35 del Código de Ética Pro-fesional, supra.(24)
Los abogados tienen la obligación de velar por que los procesos legales se lleven de forma honesta, digna y transparente. (25) El Canon 35 del Código de Ética Profesional, supra, dispone, en lo pertinente, que
[l]a conducta de cualquier miembro de la profesión legal ante los tribunales para con sus representados y en las rela-ciones con sus compañeros debe ser sincera y honrada.
No es sincero ni honrado el utilizar medios que sean incon-sistentes con la verdad ni se debe inducir al juzgador a error utilizando artificios o una falsa relación de los hechos o del derecho. ...
El abogado debe ajustarse a la sinceridad de los hechos al examinar los testigos, al redactar afidávits u otros documen-tos, y al presentar causas. ...
De acuerdo a la disposición anterior, el Canon 35 del Código de Ética Profesional, supra, exige a los abogados ajustarse a la sinceridad de los hechos al examinar los testigos y al redactar documentos. Al respecto, reiteradamente hemos expresado que la conducta de un abogado debe ser sincera y honrada frente a todos y ante todo tipo de acto.(26)
El deber del Canon 35 del Código de Ética Profesional, supra, se infringe por el simple hecho de faltar a la verdad, independientemente de los motivos de la falsedad.(27) En el caso de In re Montañez Miranda, 157 *1044D.P.R. 275, 282 (2002), señalamos que no es necesario que el notario haya faltado a la verdad intencionalmente para faltar a la fe pública y a los cánones del Código de Ética Profesional.” En esencia, se infringe este deber por el simple hecho de faltar a la verdad, pues no es necesario que se haya faltado a la verdad deliberadamente o con la inten-ción de defraudar o engañar.(28) Por lo tanto, no es defensa que no se haya obrado de mala fe o deliberadamente, ni con intención de engañar, como tampoco lo es que no se le haya causado daño a un tercero. (29)
Por otra parte, este Tribunal ha establecido que al determinar la sanción disciplinaria que habrá de imponerse a un abogado podemos tomar en cuenta los factores siguientes: (1) la buena reputación del abogado en la comunidad; (2) el historial previo de éste; (3) si ésta constituye su primera falta y si ninguna parte ha resultado perjudicada; (4) la aceptación de la falta y su sincero arrepentimiento; (5) si se trata de una conducta aislada; (6) el ánimo de lucro que medió en su actuación; (7) resarcimiento al cliente, y (8) cualesquiera otras consideraciones, ya bien atenuantes o agravantes, que medien a tenor con los hechos/(30)
HH I — I H-1
A la luz de lo antes expuesto, concluimos que la licen-ciada Vázquez Pardo infringió el Art. 2 de la Ley Notarial(31) y el Canon 35 del Código de Ética Profesional.(32) Veamos.
De acuerdo con la norma antes señalada, la querellada *1045tenía la obligación de examinar detalladamente no solo las escrituras que iba a otorgar, sino también todos los docu-mentos relacionados con el negocio jurídico. La licenciada Vázquez Pardo no tuvo la oportunidad de examinar deta-lladamente las escrituras redactadas por el licenciado Ward Llambías. No es suficiente examinar las escrituras de manera ligera sin indagar sobre el contenido de las mis-mas ni cerciorarse que cumplen con todos los requisitos que exige la Ley Notarial. La querellada inspeccionó por primera vez el expediente del caso y las escrituras el mismo día que otorgó los instrumentos públicos. Además, previo al otorgamiento y autorización de las escrituras la querellada no tuvo oportunidad de examinar los estudios de títulos de las propiedades. La licenciada Vázquez Pardo simplemente descansó en los documentos que le produje-ron los licenciados Ward Llambías y Ward Cid, sin llevar a cabo diligencias adicionales. No desempeñó su ministerio con esmero, diligencia y estricto celo profesional. La quere-llada violó la fe pública notarial por no cerciorarse de que los instrumentos públicos cumplían con todas las solemni-dades que exige la ley.
Por otra parte, al examinar las escrituras, la querellada se percató de que estas adolecían de ciertos defectos. Sin embargo, entendió que los defectos podían ser luego subsanados por un acta de subsanación y procedió a otorgar las escrituras. Cuando un notario autoriza un documento presuntamente da fe y asegura que ese documento cumple con todas las formalidades que exige la ley. Una vez el notario se percata que la escritura no cumple con las formalidades que exige la Ley Notarial deberá abstenerse de autorizarla. El notario debe proceder a corregir los defectos antes de otorgar la escritura. Si el notario, teniendo conocimiento de los defectos, no los corrige antes de autorizar la escritura, estaría violando la fe pública notarial. Como sabemos, la propia Ley Notarial dispone los mecanismos para corregir los defectos de los cuales puedan *1046adolecer los instrumentos públicos. El notario debe seguir estrictamente lo dispuesto en estos mecanismos. Ahora bien, estos mecanismos fueron creados para utilizarse cuando el notario percibe los defectos luego de autorizar los instrumentos públicos.(33) Una vez la licenciada Vázquez Pardo se percató de los defectos que contenían las escritu-ras debió corregir los defectos antes de proceder a otorgarlas.
Claramente, las escrituras no cumplían con la Ley Notarial y, por lo tanto, la querellada debió abstenerse de otorgarlas. En ambas escrituras se omitieron las adverten-cias legales expresas sobre los efectos de la adquisición de una partición indivisa en una finca según requerido por el Art. 15(g) de la Ley Notarial, supra, las advertencias sobre el estado de las cargas de las propiedades y sobre el hecho de que existían transacciones previas realizadas por Nakato, Inc. relativas a otras dos escrituras de dación en pago. Ambas escrituras contenían guarismos en fechas y en cantidades referentes a hipotecas, y ninguna contenía el valor de las propiedades. Además, la escritura de dación en pago adolecía del segundo apellido de uno de los compare-cientes, no tenía el número de la escritura, no hizo constar que los otorgantes debían otorgar una escritura de rectifi-cación para asignar el valor de las propiedades y la quere-llada no llenó los espacios en blancos. Por otro lado, la es-critura de venta judicial contenía una nota de saca que no contenía el nombre de a quién se hizo la copia. La licen-ciada Vázquez Pardo incurrió en conducta que acarrea una sanción disciplinaria al apartarse de cumplir con los requi-sitos de la Ley Notarial.
La licenciada Vázquez Pardo alega como defensa que no actuó con mala fe ni con intención de engañar. No obstante, la doctrina ha dispuesto que no es requisito que el notario haya obrado de mala fe, deliberadamente o con la inten-*1047ción de engañar. Debido a la importancia que tiene la fe pública notarial, estará sujeto a sanción disciplinaria aquel abogado que infrinja el Art. 2 de la Ley Notarial, supra, y el Canon 35 del Código de Etica Profesional, supra, sin importar si actuó de manera intencional o no.
No obstante lo anterior, es importante señalar que la licenciada Vázquez Pardo cumple con la mayoría de los factores atenuantes que esta Curia ha establecido para to-mar en consideración al momento de determinar la sanción disciplinaria. En primer lugar, la querellada goza de una reputación intachable y es respetada entre los miembros de la profesión legal. Además, ésta constituye la primera falta de la licenciada Vázquez Pardo y no existen quejas, querellas o reclamaciones pendientes. Cabe señalar, que los quejosos tampoco sufrieron daño pecuniario alguno por la actuación u omisión de la querellada. Por otro lado, aun-que hemos mencionado que para infringir la fe pública no es necesario que se haya actuado de mala fe ni con inten-ción de engañar, sí se puede considerar este hecho como un factor atenuante para determinar la sanción disciplinaria. Así las cosas, en el caso de autos, podemos tomar en consi-deración que la querellada no actuó de mala fe ni con in-tención de engañar a los quejosos. Finalmente, es menes-ter destacar, que la licenciada Vázquez Pardo se sometió al proceso disciplinario, cumplió oportunamente con los re-querimientos de este Tribunal, y aseguró que la conducta por la cual hoy es disciplinada no se volvería a repetir.
IV
Por los fundamentos expuestos censuramos enérgica-mente la conducta de la licenciada Vázquez Pardo. De igual forma, se le apercibe que de repetirse esta conducta estará sujeta a sanciones disciplinarias mucho más severas.
Se dictará sentencia de conformidad.
*1048La Jueza Asociada Señora Pabón Charneco y el Juez Asociado Señor Rivera García suspenderían a la Leda. Edith E. Vázquez Pardo del ejercicio de la notaría por un término no menor de seis meses. El Juez Presidente Señor Hernández Denton y la Juez Asociada Señora Rodríguez Rodríguez no intervinieron.
(1) Cabe señalar, que la queja fue presentada contra la Leda. Edith E. Vázquez Pardo, el Ledo. José A. Vázquez Soto, el Ledo. John Ward Llambías, la Leda. Rosa I. Ward Cid y el Ledo. Víctor Vega Ruiz. Sin embargo, la queja contra el licenciado Vega Ruíz fue archivada mediante resolución emitida por este Tribunal el 13 de febrero de 2009. Además, debido al fallecimiento del licenciado Vázquez Soto, la queja en su contra fue archivada mediante resolución emitida por este Tribunal el 12 de junio de *10352009. En torno a los licenciados Ward Llambías y Ward Cid, el proceso disciplinario continúa.
(2) Carlos I. Rivera Rodríguez, et als. v. Nakato, Inc., et als., Civil Núm. GDP-1996-0112 en el Tribunal de Primera Instancia, Sala Superior de Guayama.
(3) Ley Núm. 75 de 2 de julio de 1987 (4 L.P.R.A. see. 2002).
(4) 4 L.P.R.A. Ap. IX, C. 35.
(5) 4 L.P.R.A. XXI-A, R. 14(d) (ed. 2002).
(6) Ley Núm. 75 de 2 de julio de 1987 (4 L.P.R.A. see. 2001 et seq.).
(7) In re Martínez Almodóvar, 180 D.P.R. 805 (2011).
(8) In re González Maldonado, 152 D.P.R. 871 (2000); In re Colón Muñoz, 131 D.P.R. 121 (1992).
(9) In re Capestany Rodríguez, 148 D.P.R. 728 (1999).
(10) In re Martínez Almodóvar, supra.
(11) Id.; In re Rivera Aponte, 169 D.P.R. 738 (2006).
(12) In re Martínez Almodóvar, supra; In re Rivera Vázquez, 155 D.P.R. 267 (2001).
(13) In re González Maldonado, supra; In re Rivera Alvelo y Ortiz Velázquez, 132 D.P.R. 840 (1993).
(14) In re Rodríguez Mangual, 172 D.P.R. 313 (2007); In re Feliciano Ruiz, 117 D.P.R. 269 (1986).
(15) In re Rivera Aponte, supra.
(16) íd.
(17) In re Hernández Vázquez, 180 D.P.R. 527 (2010).
(18) In re Hernández Vázquez, supra.
(19) Id.; In re Meléndez Pérez, 104 D.P.R. 770 (1976).
(20) In re Martínez Almodovar, supra; In re Rivera Vázquez, supra.
(21) In re Rivera Vázquez, supra.
(22) In re Meléndez Pérez, supra.
(23) In re Martínez Almodóvar, supra.
(24) In re Charbonier Laureano, 156 D.P.R. 575 (2002).
(25) In re Pons Fontana, 182 D.P.R. 300 (2011).
(26) In re Iglesias García, 183 D.P.R. 572 (2011); In re Pons Fontana, supra; In re Collazo Sánchez, 159 D.P.R. 769 (2003).
(27) In re Iglesias García, supra; In re Nieves Nieves, 181 D.P.R. 25 (2011); In re Curras Ortiz, 174 D.P.R. 502 (2008).
(28) In re Iglesias García, supra.
(29) In re Nieves Nieves, supra; In re Astado Caraballo, 149 D.P.R. 790 (1999).
(30) In re Plaud, González, 181 D.P.R. 874 (2011); In re Colón Morera, 172 D.P.R. 49 (2007); In re Quiñones Ayala, 165 D.P.R. 138 (2005).
(31) Ley Núm. 75 de 2 de julio de 1987 (4 L.P.R.A. see. 2002).
(32) 4 L.P.R.A. Ap. IX, C. 35.
(33) In re Rivera Vázquez, 155 D.P.R. 267, 279 (2001). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/126537/ | 537 U.S. 1136
LALO-MENDOZAv.UNITED STATES.
No. 02-7647.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Certiorari denied. Reported below: 302 F. 3d 679. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/126542/ | 537 U.S. 1137
HOLLIMANv.UNITED STATES.
No. 02-7674.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
2
C. A. 8th Cir. Certiorari denied. Reported below: 291 F. 3d 498. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/126545/ | 537 U.S. 1137
POMPA, AKA CARDENAS, AKA MORENO, AKA JAIMESv.UNITED STATES.
No. 02-7655.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 48 Fed. Appx. 107. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1106896/ | 981 So.2d 1218 (2008)
MORGAN
v.
STATE.
Nos. 4D07-239, 4D07-242.
District Court of Appeal of Florida, Fourth District.
May 14, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3456545/ | Dismissing appeal.
This cause is before us on various motions, including a motion to dismiss the appeal. The motion to dismiss is the only one we need consider. Appellant was found guilty of a forcible detainer by a verdict and judgment thereon entered in the Fayette circuit court on December 14, 1935. Thereafter, on February 1, 1936, the trial court overruled a motion for a new trial, granted an appeal to this court, and allowed appellant 60 days within which to file her bill of exceptions. Instead of prosecuting the appeal granted below, appellant filed a copy of the judgment in this court on March 25, 1936 (within 60 days of the order of February 1, 1936), and asked that the clerk of the Court of Appeals grant her an appeal.
Until the motion and grounds for a new trial were overruled, the judgment was suspended. The Fayette circuit court is a court of continuous session, and it therefore had exclusive jurisdiction for 60 days after the order overruling the motion for a new trial to grant an appeal to this court. Wermeling v. Wermeling, 224 Ky. 107, 5 S.W.2d 893; Miller, Appellate Practice, sec. 83. The appeal granted by the clerk of the Court of Appeals, within the 60-day period, is a nullity, and must be dismissed.
Appeal dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/126565/ | 537 U.S. 1138
BENTONv.UNITED STATES.
No. 02-7703.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
2
Ct. App. D. C. Certiorari denied. Reported below: 802 A. 2d 389. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2883501/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00043-CR
______________________________
JOHN RAYMOND LANDIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 22148
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Lindell Bradford Brown died as a result of injuries sustained in a two-vehicle accident in
Fannin County shortly before Christmas 2006. The other vehicle's driver, John Raymond Landis,
was subsequently charged with intoxication manslaughter. See TEX . PENAL CODE ANN . § 49.08
(Vernon Supp. 2008). A Fannin County jury found Landis guilty and returned a sentence of
seventeen years' imprisonment. Landis now appeals, raising several points of error. We overrule
his contentions of error and affirm the trial court's judgment.
I. Admission of the Blood Sample
In one point of error, Landis contends the trial court erred by admitting the laboratory test
results of a blood sample drawn from him shortly after the accident in question. Landis's theory of
why the trial court erred rests on either of two alternatives: (a) that the requirements of Section
724.012(b) were not met or (b) that "a proper chain of custody pertaining to the blood sample was
not provided prior to testimony regarding its analysis." The exhibits at issue are State's Exhibit 16
(a toxicology report from the Texas Department of Public Safety's (DPS) Crime Laboratory in
Austin) and State's Exhibit 13 (155 pages of Landis's medical records from Methodist Dallas
Medical Center).
A. Section 724.012 of the Texas Transportation Code
Generally, law enforcement may not take a specimen of a suspect's blood without that
person's consent. TEX . TRANSP . CODE ANN . § 724.013 (Vernon 1999). There are, however,
2
exceptions to this general prohibition. One such exception arises when the suspect has been
involved in a motor vehicle accident in which another person has died or might die. More
specifically, our law provides,
(a) One or more specimens of a person's breath or blood may be taken if
the person is arrested and at the request of a peace officer having reasonable grounds
to believe the person:
(1) while intoxicated was operating a motor vehicle in a public
place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage
Code.
(b) A peace officer shall require the taking of a specimen of the person's
breath or blood if:
(1) the officer arrests the person for an offense under Chapter 49,
Penal Code, involving the operation of a motor vehicle or a watercraft;
(2) the person was the operator of a motor vehicle or a watercraft
involved in an accident that the officer reasonably believes occurred as a
result of the offense;
(3) at the time of the arrest the officer reasonably believes that as
a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has suffered
serious bodily injury; and
(4) the person refuses the officer's request to submit to the taking
of a specimen voluntarily.
(c) The peace officer shall designate the type of specimen to be taken.
(d) In this section, "serious bodily injury" has the meaning assigned by
Section 1.07, Penal Code.
TEX . TRANSP . CODE ANN . § 724.012 (Vernon Supp. 2008).
The appellate record in this case shows Landis consented to providing officers with a blood
specimen. Therefore, the State did not have to present evidence to show the officers could
reasonably rely on Section 724.012 to take a specimen of Landis's blood without his consent. Landis
3
may not rely on Section 724.012 as a basis for contending that the trial court erred in admitting the
analysis of the consensual blood draw.
B. Chain of Custody
Landis further contends the trial court abused its discretion by admitting, over his objection,
"the physical evidence of the blood test and the lab results because the State failed to establish a
chain of custody for the blood evidence."
A defendant who affirmatively states, "No objection," when evidence is offered waives his
right to complain on appeal that the evidence was erroneously admitted. Moraguez v. State, 701
S.W.2d 902, 904 (Tex. Crim. App. 1986); Malone v. State, 163 S.W.3d 785, 794 (Tex.
App.—Texarkana 2005, pet. ref'd). When State's Exhibit 13 was offered for admission, Landis
stated he had "No objection." Landis, therefore, waived his right to complain on appeal about the
trial court's decision to admit Exhibit 13.
The record shows Landis did not, at trial, challenge the State's failure to prove chain of
custody for State's Exhibit 16. Instead, Landis's trial objection to State's Exhibit 16 concerned
whether the laboratory report tracking numbers corresponded with the various officers' testimonies.
By failing to challenge Exhibit 16's chain of custody at trial, Landis cannot now raise this complaint
on appeal. See Lucero v. State, 246 S.W.3d 86, 98 (Tex. Crim. App. 2008); Parson v. State, 193
S.W.3d 116, 125 (Tex. App.—Texarkana 2006, pet. ref'd); see also TEX . R. APP . P. 33.1(a)(1).
4
Additionally, the propriety of an exhibit's chain of custody goes to that exhibit's weight rather
than its admissibility. DeLeon v. State, 505 S.W.2d 288, 289 (Tex. Crim. App. 1974); Ingram v.
State, 213 S.W.3d 515, 521 (Tex. App.—Texarkana 2007, no pet.). Landis cannot now properly rely
on his appellate objection to the chain of custody as a basis for contending the trial court erred by
admitting the analysis of the consensual blood draw.
We overrule Landis's challenge to the trial court's decision to admit the laboratory results of
his blood test.1
II. Admission of Laboratory Analysis of Drug Paraphernalia
In another appellate issue, Landis contends the trial court "erred in admitting the lab analysis
of the marijuana and paraphernalia because a proper chain of custody was not provided prior to
testimony regarding its analysis." Landis's appellate complaint concerns State's Exhibits 16A
through 20.
At trial, Landis raised his chain of custody challenge with respect to the admission of these
exhibits. Thus, this issue was preserved for appellate review. However, as noted above, the
propriety of an exhibit's chain of custody goes to that exhibit's weight rather than its admissibility.
DeLeon, 505 S.W.2d at 289; Ingram, 213 S.W.3d at 521. The trial court committed no error by
admitting these exhibits over Landis's chain-of-custody challenge.
1
We also note that Landis did not object to the admission of State's Exhibit 11, which
included the plastic bag containing the marihuana at issue.
5
III. Evidentiary Sufficiency
Finally, Landis contends the evidence is both legally and factually insufficient to support his
conviction. Landis contends that "[e]ven if the State's evidence of the blood intoxication level is
accepted, there is still no connection made between that and the accident."
In a legal sufficiency review, we examine the evidence from the court below, as measured
by the hypothetically correct jury charge, in the light most favorable to the trial court's judgment.
Grotti v. State, No. PD-134-07, 2008 Tex. Crim. App. LEXIS 761, at *15 (Tex. Crim. App. June 25,
2008) (not designated for publication); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge sets forth the applicable law, is authorized by the charging
instrument, does not necessarily increase the State's burden of proof or restrict the prosecution's
theories of criminal liability, and adequately describes the particular offense for which the accused
is being tried. Grotti, 2008 Tex. Crim. App. LEXIS 761, at *23; Malik, 953 S.W.2d at 240.
A factual sufficiency review requires us to assess all the evidence adduced at trial in a neutral
light. Grotti, 2008 Tex. Crim. App. LEXIS 761, at *15 (citing Roberts v. State, 220 S.W.3d 521,
524 (Tex. Crim. App. 2007); and referencing Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App.
2000)). We must then determine whether the jury was rationally justified in finding the accused
guilty beyond a reasonable doubt. Id. (citing Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App.
2006)). "Evidence can be factually insufficient in one of two ways: (1) when the evidence
supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and
6
(2) when the supporting evidence is outweighed by the great weight and preponderance of the
contrary evidence so as to render the verdict clearly wrong and manifestly unjust." Id. (citing
Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 414–15; Johnson, 23 S.W.3d at 11; and
referencing Castillo v. State, 221 S.W.3d 689, 693 (Tex. Crim. App. 2007)). To hold that the
evidence is factually insufficient, we must be able to state objectively that the verdict is against the
great weight and preponderance of the evidence. Id.; Roberts, 220 S.W.3d at 524; Watson, 204
S.W.3d at 417. Like a legal sufficiency review, a factual sufficiency review requires that the
evidence be measured under the framework of the hypothetically correct jury charge. Id. at *15;
Wooley v. State, No. PD-0861-07, 2008 Tex. Crim. App. LEXIS 762 (Tex. Crim. App. June 25,
2008).
Intoxication manslaughter is a result-oriented offense. TEX . PENAL CODE ANN . § 49.08; cf.
Perez v. State, 216 S.W.3d 855, 857 (Tex. App.—Corpus Christi 2006, pet. ref'd) (manslaughter is
result-oriented offense). The statutory elements the State must prove are (1) the defendant; (2) on
or about the date alleged in the indictment; (3) operated; (4) a motor vehicle, aircraft, watercraft, or
amusement ride; (5) while intoxicated; and (6) by reason of that intoxication; (7) by accident or
mistake; (8) caused the death of an individual. TEX . PENAL CODE ANN . § 49.08; see also Daniel v.
State, 577 S.W.2d 231, 233 (Tex. Crim. App. [Panel Op.] 1979); Martinez v. State, 883 S.W.2d 771,
773 (Tex. App.—Fort Worth 1994, pet. ref'd). The indictment alleged Landis did
then and there operate a motor vehicle in a public place while the said defendant was
intoxicated by not having the normal use of mental or physical faculties by reason of
7
the introduction of a combination of marijuana, and controlled substances into the
body, and did by reason for such intoxication cause the death of another, namely
Lindell Bradford Brown, by accident or mistake, to wit: by driving said motor
vehicle into the person of said injured party.
Therefore, the applicable hypothetically correct jury charge would, in this case, require proof that
(1) Landis; (2) on or about December 8, 2006; (3) operated; (4) a motor vehicle; (5) while
intoxicated; and (6) by reason of that intoxication; (7) by accident or mistake; (8) caused the death
of Brown. With these thoughts in mind, we turn to a review of the evidence presented to the jury.
Jared Ball, Krystal Clark, and Brittany Hill each testified that on the afternoon of
December 8, 2006, Landis arrived at the house occupied by Ball and Clark and appeared to be
intoxicated. Ball described Landis's speech that day as being slurred. Landis also seemed unsteady
on his feet, a fact to which Clark also testified. When asked by the prosecutor whether he thought
it was safe for Landis to drive on that day, Ball responded, "I can't say so." Hill offered similar
testimony, telling the jury, "I told Krystal that she needed to say something to him [Landis] because
he was -- he shouldn't have -- he could barely walk, much less drive." On cross-examination, none
of the witnesses remembered seeing Landis consume any drugs or alcohol in their presence.
Tammie Hayes was driving her vehicle on the evening of December 8, 2006, on Highway
898 in Fannin County. While driving on Highway 898, she was passed by a white pickup truck
being driven in an erratic manner. The truck was weaving in and out of its lane and driving into the
oncoming lane of traffic. Hayes then decided to follow the white pickup truck. Eventually, both
Hayes and the driver of the white pickup truck stopped at the same location. The driver of the truck
8
exited, and Hayes described the driver as "a boy . . . he was just kind of, well, wobbling, just
wobbling around is what you would say." The driver eventually approached Hayes's vehicle, which
prompted her to call 9-1-1. On cross-examination, Hayes admitted she did not see the driver of the
white pickup truck consume alcohol or drugs in her presence. On redirect, Hayes identified the
driver of the white pickup truck as being the Appellant.
Grover Russell came in contact with Landis shortly before the accident at issue in this case.
According to Russell's testimony, Landis appeared intoxicated at the time. Russell admitted on
cross-examination that he never saw Landis consume any alcohol or narcotics on the date in
question.
Wade Lowery witnessed the accident that resulted in Brown's death. He offered the
following description of events:
I was coming along 78 going north towards my house. A truck come off of 121, got
right in front of me. We topped that hill, started coming down and it just started just
veering off left into the oncoming traffic and it hit a truck that was going south, and
the truck that it hit spun around behind me and went off in a ditch behind me and hit
a tree. And the one that veered off, it spun around, the tires broke off of it, went in
the ditch, and it eventually stopped right directly in front of my road.
Carolyn Malone also witnessed the accident at issue in this case. Immediately following the
crash, Malone went to aid Landis. Malone then heard Landis admit that he had been drinking earlier.
Landis also admitted that he had smoked marihuana.
Paramedic Wade Jackson responded to the scene of the accident. He testified that he
believed that Landis had admitted to using illegal drugs before the accident.
9
Troopers Cory Hale and Eric Estes of the DPS—Highway Patrol responded to the accident
in question. During his investigation, Hale found marihuana laying right outside the driver's door
on the roadway next to Landis's truck; Hale also found a marihuana pipe inside Landis's truck. Hale
also told the jury that he contacted a fellow DPS trooper to meet Landis at an area hospital with a
blood draw kit because, based on what other witnesses told Hale and the drug use evidence he found
in Landis's vehicle, Hale suspected the accident was a result of Landis's drug use. On cross-
examination, Hale admitted he found no evidence in Landis's truck to suggest Landis had been
smoking marihuana at the time of the accident. Estes testified that Landis "had slurred speech" and
had admitted to smoking marihuana prior to the accident.
Trooper Dexter Barkley, also of the DPS—Highway Patrol Division, met Landis at Dallas
Methodist Hospital. Barkley testified that he told Landis at the hospital that he and other police
officers had reason to believe that drugs or alcohol were a contributing factor in causing the wreck
in which Landis was involved. Barkley then requested a blood sample from Landis, which Landis
provided following Barkley's reading of the required statutory warning and consent form.
Lisa Skinner works for Methodist Health Systems in Dallas and analyzed the blood taken
from Landis by the hospital on December 8, 2006. Landis's blood test results were positive for
benzodiazepines, cocaine, amphetamines, and marihuana. Testing of Landis's blood by the DPS
crime laboratory showed similar results: Landis's blood was positive for high amounts of
methamphetamine, amphetamine, Alprazolam, and cocaine.
10
Dr. Jeffrey Barnard, the chief medical examiner for Dallas County and the director of the
Southwestern Institute of Forensic Sciences, performed the autopsy of Brown. Dr. Barnard said
Brown's death was the result of the blunt force injuries and severe blood loss (nearly half his blood
volume) that Brown sustained in the automobile accident.
We believe this evidence was legally and factually sufficient to prove, beyond a reasonable
doubt, that Landis, on or about December 8, 2006, operated a motor vehicle while intoxicated (by
reason of ingesting alcohol, marihuana, other controlled substances, or any combination thereof), and
by reason of that intoxication, by accident or mistake, caused the death of Brown. Accordingly, we
overrule Landis's challenges to the evidentiary sufficiency.
IV. Conclusion
For the reasons stated, we overrule each of Landis's appellate issues and affirm the trial
court's judgment.
Bailey C. Moseley
Justice
Date Submitted: November 12, 2008
Date Decided: November 13, 2008
Do Not Publish
11 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892578/ | NO. 07-03-0098-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 28, 2005
______________________________
THEODORE COOK, APPELLANT
V.
U-HAUL OF WEST TEXAS, INC., APPELLEE
_________________________________
FROM THE 99
TH
DISTRICT COURT OF LUBBOCK COUNTY;
NO. 96-555,661; HONORABLE MACKEY HANCOCK, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following a jury trial, Theodore Cook appeals the judgment of the trial court that he recover nothing on his action for breach of contract and wrongful foreclosure against U-Haul of West Texas, Inc. Presenting ten issues, Cook contends the trial court erred in denying and overruling his motions for new trial and motions for judgment notwithstanding the evidence on multiple grounds.
(footnote: 1) We affirm.
On November 29, 1989, Cook signed a Storage Customer Application and a Storage Rental Contract with U-Haul covering space no. 561 at the U-Haul facility at 1613 34
th
St. in Lubbock at a rental of $20 per month, to be paid by a monthly charge on Cook’s credit card, for a term of one month and as long as continued thereafter on a month to month basis. Cook provided his daughter’s address and phone number for both his contact information and his emergency contact information. Per application, which was expressly incorporated into the continuation agreements, Cook agreed to comply with all regulations of U-Haul including his responsibility to notify U-Haul in writing of any change of address. Thereafter, the monthly rentals continued until November 1995. In September 1991, Cook’s daughter moved from the address given in the application and contract but neither Cook nor his daughter notified U-Haul of the change in contact information.
Beginning in November 1995, Cook’s monthly rental payments ceased. U-Haul maintained that it made repeated attempts to debit Cook’s account, but that each attempt was unsuccessful. U-Haul also contended that it made numerous unsuccessful attempts to contact Cook. Among other things, Cook contended that the responsibility for effecting payment rested with U-Haul by virtue of his authorization. When all efforts to contact Cook or his daughter failed, U-Haul proceeded to enforce its lien and conduct a foreclosure sale of the contents stored in the rental space, which later prompted Cook’s suit.
By his live pleading, Cook sought to recover his damages alleging breach of contract, claims under the Texas Deceptive Trade Practices Act, conversion and violations of Chapter 59 of the Texas Property Code. In response, among other things, in addition to a general denial and affirmative defense, U-Haul also alleged Cook had failed to plead compliance with all conditions precedent per Rule 54 of the Texas Rules of Civil Procedure, and asserted that Cook had failed to advise U-Haul in writing or otherwise, of his change of address and change of telephone number, and that he had failed to pay the rentals or provide a credit card from which charges for November and December 1995 and January 1996 could be made. By its answer to ten questions, the jury found that (1) U-Haul did not fail to comply with the contract, (2) U-Haul’s failure to comply, if any, was excused, (3) U-Haul failed to comply with its duty to perform the terms of the contract with care, skill, and reasonable expedience, (4) but its failure was not a proximate cause of damages to Cook, (5) U-Haul did not declare an unenforceable lien on the contents of the storage unit, (6) U-Haul did not fail to deliver notice to Cook, (7) per instruction, did not answer question of producing cause of damages, (8) per instructions, did not answer question eight, (9) U-Haul did not wrongfully assume and exercise dominion and control over Cook’s property, and (10) $25,000 would fairly and reasonably compensate Cook for his damages that “resulted from the occurrence in question.”
(footnote: 2) Based on the jury’s answers, the trial court rendered judgment that Cook take nothing.
By issue one, Cook contends the trial court erred in overruling his motion for judgment notwithstanding the verdict because the evidence established the lack of the required statutory notification as a matter of law. Then, by his second issue, he contends the trial court erred in overruling his motion for new trial because the jury finding that U-Haul had complied with the statutory notice on the non-judicial foreclosure sale was contrary to the evidence as a matter of law and, alternatively, was against the great weight and preponderance of the evidence. We disagree.
Cook’s exhibits two and three introduced by him for all purposes provided, among other things, that U-Haul was given a contractual landlord’s lien upon all property stored at the facility to secure the payment of all rentals and that the liens and rights were in addition to any statutory liens. Further, Cook assumed the duty to notify U-Haul in writing of any change of address per his agreement to comply with the U-Haul storage regulations. However, Cook’s issues are directed to a statutory lien, not the contractual lien.
Moreover, Cook expressly plead that U-Haul did not comply with sections 59.042 through 59.045 of the Texas Property Code and that such failure was a proximate cause of damages. However, Cook’s failure to request an issue at trial regarding its claim of non-compliance with section 59.043 waived that issue for purposes of appeal. Tubb v. Bartlett, 862 S.W.2d 740, 750 (Tex.App.--El Paso 1993, writ denied). Further, even if U-Haul did not comply with section 59.043, a question we need not decide, any failure would not be reversible error per Rule 44.1 of the Texas Rules of Appellate Procedure because by its answer to question four, the jury found that the failure, if any, of U-Haul to comply with the contract was not a proximate cause of any damages to Cook. Issues one and two are overruled.
By issues three, four, five, and six, presented as a group, Cook challenges the jury finding to question one that U-Haul did not fail to comply with the storage rental contract. By his issues, he contends that the contrary was established as a matter of law or that the jury’s answer was against the great weight and preponderance of the evidence. We disagree.
As support for his contentions, Cook alleges the contract signed by him did not require him to notify U-Haul of his change of address or telephone number. Then, he argues that he was not in default and that U-Haul’s reliance on such default was not justified. However, he overlooks that he himself introduced exhibits (1) application (2) contract, and (3) continuation contract, without making a request that they be admitted for any limited purpose. Accordingly, they were before the jury for all purposes. Tex. R. Evid. 105(a); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987).
As material here, by the application, Cook agreed to abide by the U-Haul regulation that he would be responsible to notify U-Haul in writing of any change of address. Further, the contract which he signed expressly incorporated the rental application in the contract Issues three, four, five, and six are overruled.
By issues seven and eight, Cook contends that U-Haul converted his property as a matter of law or that the jury finding was against the great weight and preponderance of the evidence. We disagree. Cook challenges the jury’s finding to question nine that U-Haul did not wrongfully assume and exercise dominion and control over his property. He then argues that U-Haul had the burden to prove its right to the goods by a valid foreclosure of its statutory lien. However, as submitted to the jury, the burden of proof was not placed on U-Haul and Cook did not object to the question as submitted at the charge conference.
The contracts introduced by Cook and admitted for all purposes contained provisions granting U-Haul a contractual lien to secure the payment of all rentals, provided that the property stored “may be sold to satisfy the lien if the occupant is in default for 30 days or more,” and the continuation contracts state that the contract lien is in addition to all statutory liens.
Moreover, even if the provisions of Chapter 59 of the Texas Property Code are controlling, a question we do not decide here, Cook’s argument does not detail or identify in what respect he contends U-Haul failed to comply with the statute. Further, even if the statute is controlling, Cook does not identify in what respect the acts of U-Haul were deficient. Finally, we have not overlooked the several cases cited by Cook, but we do note that all of those cases consider foreclosure of statutory liens, not contractual liens. Accordingly, issues seven and eight are overruled.
Our disposition of the foregoing issues pretermits our consideration of Cook’s remaining issues. Accordingly, the judgment of the trial court is affirmed.
Per Curiam
Johnson, C.J., not participating.
FOOTNOTES
1:Controlling issues restated below.
2:The jury also found $12,500 attorney’s fees in the trial court but none on appeal. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2897067/ | NO. 07-08-0065-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 2, 2008
______________________________
ELIZABETH C. BRENT, APPELLANT
v.
MARTHA C. FIELD AND J & J CATTLE FAMILY
LIMITED PARTNERSHIP, APPELLEES
_________________________________
FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;
NO. 4300H; HON. RONALD E. ENNS, PRESIDING
_______________________________
Before CAMPBELL and PIRTLE, JJ., and BOYD, S.J.
ORDER
          Pending before the Court is Appellantâs Second Motion to Review Security for
Supersedeas or Alternatively Reconsider June 17 Opinion, filed June 19, 2008. On that
date, we issued an order in this appeal, containing the following:
It is ordered that enforcement of the following are stayed pending further
order from this Court:
Â
1. the district courtâs judgment signed on January 25, 2008 in Cause
No. 4300H, styled Elizabeth C. Brent v. Martha C. Field and J & J
Cattle Family Limited Partnership, et al., from the 69th District Court
of Hartley County; and,
Â
2. the Order to Hartley County District Clerk to Disburse Funds
signed on June 18, 2008.
          According to a sworn motion filed in this Court on June 26, 2008, by appellant
Elizabeth C. Brent, on June 19, the Hartley County District Clerk issued checks disbursing
funds pursuant to the trial courtâs June 18 order, despite this Courtâs stay order.
          We are authorized by Rule of Appellate Procedure 24.4(c) to âissue any temporary
orders necessary to preserve the partiesâ rights.â Tex. R. App. P. 24.4(c). In addition, a
court has the inherent power to enforce its orders. See Humble Exploration Co. v.
Browning, 690 S.W.2d 321, 327 (Tex.App.âDallas 1985, writ refâd n.r.e.) cert. denied, 475
U.S. 1065, 106 S. Ct. 1376, 89 L. Ed. 2d 602 (1986); Tex. Govât Code Ann. §§ 21.001(a),
22.221(a) (Vernon 2004). To enforce our June 19 stay order, appellant Elizabeth C. Brent
and appellees Martha C. Field and J & J Cattle Family Limited Partnership, and their
agents, are enjoined from transferring, encumbering, hypothecating, and in any way
dissipating funds disbursed from the registry of the Hartley County District Clerk pursuant
to the trial courtâs June 18 order, until further order of this Court.
          Oral argument on Appellantâs Second Motion to Review Security for Supersedeas
or Alternatively Reconsider June 17 Opinion is set for 11:00 a.m. on Monday, July 7, 2008,
in the courtroom of this Court. Counsel for Brent and Field should be prepared to discuss
the status of the funds apparently disbursed on June 19, as well as the status of all other
post-trial events and proceedings concerning suspension of the judgment of January 25
and the funds originally held by Amarillo National Bank in escrow.
          It is so ordered.
                                                                           Per Curiam
ception Locked="false" Priority="29" SemiHidden="false"
UnhideWhenUsed="false" QFormat="true" Name="Quote"/>
NO. 07-10-0251-CR
Â
IN
THE COURT OF APPEALS
Â
FOR
THE SEVENTH DISTRICT OF TEXAS
Â
AT
AMARILLO
Â
PANEL
B
Â
                                                            OCTOBER 4, 2010
                                           ______________________________
Â
                                                      JULIE
MARIE ST. CLAIR,
Â
Appellant
Â
                                                                            v.
Â
                                                       THE STATE OF TEXAS,
Â
Appellee
                                        _________________________________
Â
                      FROM THE 181ST DISTRICT COURT OF POTTER
COUNTY;
Â
NO. 58,965-B; HON. JOHN BOARD.,
PRESIDING
_______________________________
Â
Abatement and Remand
_______________________________
Â
Before
QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
           Pending
before us is a joint motion to abate the appeal and remand the matter back to
the trial court so that findings of fact and conclusions of law can be filed. The record reflects that
appellant, timely, filed a request for findings of fact and conclusions of
law. However, none were ever filed. In State v. Cullen, 195 S.W.3d 696,
699 (Tex. Crim. App. 2006), the Court of Criminal Appeals held that, "[u]pon the request of the losing party on a motion to suppress
evidence, the trial court shall state its essential findings." Â In Cullen, the Court explained that,
the trial court's refusal to state its findings and conclusions prevented the
court of appeals from a meaningful review of the decision to grant or deny the
motion to suppress. Id. at 698.
Accordingly,
we abate the appeal and remand the matter back to the trial court.Â
See Tex. R. App. P. 44.4. We
further direct the Honorable John Board, judge of the 181st Judicial District
Court, Potter County, Texas, to execute findings of fact and conclusions of law
in this cause as required by State v.
Cullen, supra. We also direct him to
execute his findings and conclusions and file them with the clerk of this
court, via a supplemental clerk's record, on or before November 3, 2010. Upon the filing of the supplemental clerk's
record containing the findings and conclusions, the appeal will be reinstated.
It is so ordered.
Per Curiam | 01-03-2023 | 09-08-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3218080/ | Dismissed and Opinion Filed June 28, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00497-CV
IN THE INTEREST OF F.C.
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JD-82096-X
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Bridges, and Justice Lang
Opinion by Justice Lang
This is an accelerated appeal from the trial court’s order waiving its jurisdiction and
transferring appellant to a criminal district court for criminal proceedings. See TEX. FAM. CODE
ANN. §54.02(a) (West Supp.2015). When appellate counsel filed a motion to withdraw, we
abated the appeal for the trial court to hold a hearing to determine whether appellant desired to
prosecute the appeal and, if so, whether he was entitled to appointed counsel. The trial court
held the hearing and determined appellant does not wish to prosecute the appeal. We reinstated
the appeal, adopted the trial court’s finding, and directed appellant to file a motion to dismiss.
We expressly cautioned appellant that the failure to file the motion within the time stated would
result in the appeal being dismissed for want of prosecution.
Based on the trial court’s finding and appellant’s failure to file a motion, we dismiss the
appeal. See TEX. R. APP. P. 42.3(b), (c); TEX. FAM. CODE ANN. § 56.01(b) (requirements
governing appeal in juvenile proceedings are as in civil cases generally).
/Douglas S. Lang/
160497F.P05 DOUGLAS S. LANG
JUSTICE
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF F.C On Appeal from the 305th Judicial District
Court, Dallas County, Texas
No. 05-16-00497-CV Trial Court Cause No. JD-82096-X.
Opinion delivered by Justice Lang, Chief
Justice Wright and Justice Bridges
participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered this 28th day of June, 2016.
–2– | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/808609/ | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LASERFACTURING, INC.
AND THE TWENTYFIRST CENTURY
CORPORATION
(doing business as TC Arts & Laserfactures),
Plaintiffs-Appellants,
v.
OLD CARCO LIQUIDATION TRUST,
Defendant-Appellee.
__________________________
2009-1013
__________________________
Appeal from the United States District Court for the
Southern District of Texas in Case No. 4:07-CV-00207,
Judge Melinda Harmon
_____________________
Decided: September 17, 2012
_____________________
EDWARD E. GOLDSTEIN, Goldstein, Faucett & Prebeg,
LLP, of Houston, Texas, for plaintiffs-appellees. With
him on the brief was CALIFF T. COOPER,
JENNIFER L. SWIZE, Jones Day, of Washington, DC, for
defendant-appellee.
LASERFACTURING v. OLD CARCO 2
FRANK C. CIMINO, JR., Dickstein Shapiro LLP, of
Washington, DC for amicus curiae Chrysler Group, LLC.
With him on the brief was MEGAN S. WOODWORTH.
__________________________
Before RADER, Chief Judge, BRYSON and PROST, Circuit
Judges
RADER, Chief Judge.
The United States District Court for the Southern
District of Texas, on summary judgment, determined that
DaimlerChrysler Corporation (“DaimlerChrysler”) did not
infringe U.S. Patent No. 5,595,670 (the ’670 patent)
owned by Laserfacturing Inc. and The Twentyfirst Cen-
tury Corporation d/b/a TC Arts & Laserfactures (collec-
tively “Laserfacturing”). Because the trial court correctly
construed the claim term “sheet” and properly discerned
no infringement, this court affirms.
I.
The ’670 patent discloses a method of welding using a
laser or electron beam. See ’670 patent at col. 4 ll. 18-22.
The invention discloses ways to weld more quickly and
with fewer defects by focusing the welding beam in an
oblong shape. Id. at col. 4 ll. 18-22. The independent
asserted claim reads:
1. A method of welding using a high energy den-
sity radiation beam comprising the steps of:
(a) providing 1) a pair of sheets to be welded to-
gether with the sheets being constructed of a ma-
terial having a Pdens min characteristic value
with Pdens min being the minimum average
power density of a high energy density radiation
beam focused as a beam spot on at least one of the
3 LASERFACTURING v. OLD CARCO
sheets necessary to achieve deep penetration key-
hole welding for the type of sheet material being
welded in Watts per square centimeter, 2) a high
energy density radiation beam source capable of
generating a high energy density radiation beam
having an average power, P, of at least one kilo-
watt and which is great enough to achieve deep
penetration keyhole mode welding for the mate-
rial being welded, and 3) a beam delivery system
capable of focusing the beam into an oblong
shaped spot onto at least one of the sheets;
(b) positioning one sheet in close proximity to the
other sheet forming a weld line;
(c) focusing the high energy density radiation
beam into an oblong focused beam spot shape hav-
ing a longitudinal length, L, in millimeters, and a
width, w, in millimeters, such that the focused
beam spot width, w, satisfies:
w2 ≤ (P/15) * (106/Pdens min)
and the length, L, of the oblong focused beam spot
is within the following limits:
1.5*w ≤ L ≤ (P/w) * (10/Pdens min)
(d) training the oblong focused beam spot onto at
least one of the sheets for welding the one sheet to
the other sheet, and wherein a longitudinal axis of
the oblong focused beam spot is acutely angled
within the range of +45 degrees from a direction
parallel to a direction tangent to the weld line;
and
(e) moving the beam relative to at least one of the
sheets in a welding direction along the weld line
at a welding speed of at least two meters per min-
ute.
LASERFACTURING v. OLD CARCO 4
Id. at col. 20 ll. 50 - col. 21 ll. 24 (emphasis added to
disputed term).
Laserfacturing alleges that three of DaimlerChrysler’s
laser welding stations at its transmission manufacturing
plants infringe the ’670 patent. The court held a claim
construction hearing to address several disputed claim
terms, including the term “sheet.” DaimlerChrysler
proposed that “sheet” means a “broad thin piece of mate-
rial with generally uniform thickness” while Laserfactur-
ing proposed “element to be welded.” DaimlerChrysler
also moved for summary judgment of non-infringement
based on its proposed construction of “sheet,” arguing that
it welds “transmissions” not “broad thin pieces of material
each with generally uniform thickness.” In response,
Laserfacturing attacked both the motion as premature
and DaimlerChrysler’s proposed construction as incorrect.
The district court adopted DaimlerChrysler’s construction
and granted summary judgment of non-infringement.
The trial court reasoned that the welded “transmission” is
not a “sheet” under the court’s construction. Moreover the
district court discerned that the accused devices do not
practice at least one limitation of the asserted claim.
Laserfacturing appeals only the construction of “sheets.”
II.
As a preliminary matter, this court examines jurisdic-
tion. After this appeal was instituted, DaimlerChrysler
filed for Chapter 11 bankruptcy protection. This court
stayed the appeal pending resolution of the bankruptcy
proceedings. During the bankruptcy proceedings, Daim-
lerChrysler became known as Chrysler LLC, which be-
came known as Old Carco. The Liquidation Trust is Old
Carco’s successor-in-interest. Old Carco and Laserfactur-
ing filed a joint stipulation requesting this court to pro-
ceed with this appeal. The bankruptcy court approved
5 LASERFACTURING v. OLD CARCO
that stipulation. Following Laserfacturing’s request, this
court reinstated the appeal.
Chrysler Group LLC, who purchased substantially all
of the Liquidation Trust’s operating assets, submitted an
amicus curiae brief urging this court to dismiss for lack of
jurisdiction. Chrysler contends the appeal is moot because
Laserfacturing stipulated that it waived its claim against
the estate relating to the current litigation.
The stipulated waiver, however, does not resolve the
parties’ infringement dispute. As this court explained in
Kimberly-Clark Corp. v. Procter & Gamble Distribution
Co., settlements generally render a case moot, unless “the
case as a whole remains alive because other issues have
not become moot.” 973 F.2d 911, 914 (Fed. Cir. 1992)
(citing Local No. 8–6, Oil, Chem. & Atomic Workers Int’l
Union v. Missouri, 361 U.S. 363, 368–69 (1960) and
quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 394
(1981).) In the present case, the stipulation does not
address the issue of infringement, which could have
downstream effects on the parties or their successors;
accordingly, the issue remains live and in dispute. Be-
cause the question of infringement is not moot, this court
has jurisdiction under 28 U.S.C. § 1295.
III.
Claim construction is an issue of law which this court
reviews without deference. Markman v. Westview In-
struments, 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)
aff’d 517 U.S. 370 (1996). The best evidence of the proper
meaning of a claim term is the patent itself, and the
prosecution history if available. Id. A claim term is
typically construed as it would be by one of ordinary skill
in the art in the context of the entire patent. Phillips v.
AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en
banc). In order to help determine how one of ordinary
LASERFACTURING v. OLD CARCO 6
skill in the art would interpret a claim term, the court
may consider extrinsic sources that inform the judge on
the relevant scientific principles and state of the art.
InnovalPure Water, Inc. v. Safari Water Filtration Sys.,
Inc., 318 F.3d 1111, 1116 (Fed. Cir. 2004). If the patentee
clearly defines a claim term in the specification differently
from what the word would ordinarily mean, the patentee’s
definition governs. CCS Fitness, Inc. v. Brunswick Corp.,
288 F.3d 1349, 1366 (Fed. Cir. 2002).
Laserfacturing argues the specification supports its
broad construction of “sheet” as an “element to be
welded.” Laserfacturing contends the patent’s welding
descriptions are not limited to the court’s construction of a
“broad thin piece of material with generally uniform
thickness” and references the patent’s description of
welding in the prior art for support. ’670 patent at col. 1
ll. 22-26 (“For example, when laser welding metal sheets,
the suitable welding speeds that can be achieved are
typically a direct function of the penetration depth re-
quired. Hence, as sheet thickness increases welding
speed typically decreases.”). Laserfacturing argues the
art of welding is only concerned with the region being
welded and the court’s limitation restricting the word
“sheet” to objects having uniform thickness is arbitrary,
improperly narrow, and limited to the certain embodi-
ments disclosed in the specification. Laserfacturing also
contends the patent’s use of the term “workpiece” sup-
ports its broad construction of “sheets” as simply the
material that is being welded.
The specification’s references to other various mate-
rial shapes do not require an all-inclusive construction of
“sheets.” As the district court noted, all “sheets” are
“workpieces” but not all “workpieces” are “sheets.” The
patent consistently discusses the term “sheets” according
to its plain and ordinary meaning. By staying within the
7 LASERFACTURING v. OLD CARCO
term’s customary use, the intrinsic record does not sup-
port a definition that reaches beyond or differs from what
one of ordinary skill in the art understands as “sheets.”
Moreover, a broad meaning of the term would discount
the claim’s choice of the word “sheets.” Thus, the lan-
guage of the claim itself supports the trial court’s con-
struction.
The district court accurately referenced the specifica-
tion and reviewed the term’s use in the specification to
support its reading of the claim. The district court quoted
three parts of the patent as support for its construction.
The first sets out the preferred thickness of the sheet
material, “[p]referably, the sheet material to be welded
using this invention has a thickness of at least 0.5 milli-
meters . . . and the maximum sheet thickness is no
greater than about 5 millimeters.” ’670 patent at col. 8 ll.
54-57. The second describes the preferred starting mate-
rial, “this method of welding . . . can preferably be imple-
mented for use with . . . sheets uncoiled from coiled stock.”
Id. at col. 8 ll. 12-16. The third describes the preferred
shape after the welding process, “[a]fter welding, the
sheets . . . preferably form a blank that can be formed
using conventional forming methods such as bending,
deep drawing . . . or another shaping or forming process.”
The district court reasoned that using the term “sheet” in
claims made it clear the material at issue was something
“broad and thin” because broad, thin materials may more
easily undergo “bending, . . . another shaping or forming
process” and “uncoiled from coiled stock.” The court
further noted the specification was consistent with the
term’s plain and ordinary meaning.
The district court’s construction was well-reasoned
and supported by the ’670 patent. The district court did
not import the specification’s limitations or preferred
embodiments. Instead, the court gave meaning to the
LASERFACTURING v. OLD CARCO 8
term as it was used throughout the specification. In
addition, the trial court’s claim construction does not
depart from a customary understanding of the term in
this area of art. The record does not support construing
“sheets” to include any and all elements that may be
welded together. Therefore, the district court’s construc-
tion is consistent with the term’s use in the ’670 patent
and its ordinary and customary meaning. Accordingly,
the district court’s determination is affirmed.
AFFIRMED | 01-03-2023 | 09-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4050709/ | RECEIVED IN
CAUSE NO.PD-0150-15 COURT OF CRIMINAL APPEALS
AUG 03 2015
IN THE
TEXAS GOURT OF CRIMINAL APPEALS
Ab®!Acosla,GteJfc
AT AUSTIN, TEXAS
I
FILED IN
DANNY RAY RAJS^ER,APPELLANT PRD SE, COURT OF CRIMINAL APPEALS
Abel AcOSla, Clerk
CHE STATE OF TEXAS,
Tl APPELLEE
PRO SE MOTION FOR EN BANC RECONSIDERATION OF APPELLANT'S
PRO SE MOTION TO EXCEED THE -15- PAGE LIMIT AS DENIED WITHOUT
ANY CONSIDERATION OF ALTERNATIVE RELIEF TO REDRAW STRICKEN "PDR"
TO THE HONORABLE JU0GES OF SAID COURTS
NOW <20ME3,DANNY RAY RANCHER, Appellant/Pro se and pursuant to USCA.CONST.
vAMENDS.ist/5th,14th;Tex*Const.Arts.5§4,5§5,l§13(Open Courts);TRAP.Rules 49.7,
49-*-$?,2(c), and files Motion for En Banc Reconsideration of Appellant's Pro
se Motion to Exceed the -15- page Limit As Denied Without any Further Consider
ation of Requested Alternative Relief to Redraw Stricken "PDR". And in support
there of would respectfully show as follows!
I.
On July 14,2015, Post Card Notice was entered in absence of any OUurt of
Criminal Appeals' Signature or Action Taken Sheet signatured by any Panel of
Judges to constitute a Quorom's Denial of Appellant's Pro se Motion to Exceed
the page Limit regarding the stricken Pro se "PDR".
Only on July 27,2015, was Appellant Pro se made aware of this Court of Crim
inal Appeals' Notice denying his Motion to exceed the page limit when prison mail
room officials deliverd such Notice. Which entailed a-13- day delay wherein the
Post Card Notice was/is Postdated JULY 22,2015, which was/is another -8- full days
after such denial was entered on July 14,2015.
II.
TEX.CONST.ART.5§4(a)(b),pertinent here provides: "COURT OF CRIMINAL APPEALS;JUDGES."
(a) The Court of Criminal Appeals Shall consist of Bight Judges and One Presiding
1
Judge." (fc# "For the purpose of hearing acses, the Court of Criminal Appeals
may sit in panels of Three Judge, the designation thereof to be under Rules
established by the court. In a panel of Three Judges, Two Judges Shall const
itute a Qugurom and the concurrence of two judges Shall be Necessary for a de^-
cision. The presiding Judge,under the rules established by the court,shall
convene the court en banc for the purpose of hearing cases. . . When convened
en banc, five judges shall constitute a quorom and the concurrence of five
judges shall be necessary for a decision."
8 "The question of the number of judges necessary to authorize the transact
ion of business by a cm'rt is as a general rule to be determined from the Con
stitution or statutory provisions creating and regulating courts,and as a general
rule a majority of the members of a court is a "quorom" for the transaction of
business and the decision of cases and in the absence of a "quorom",or the number
required by law to hold court, a judgement rendered by the remaining judges is a
nullity." See LONG V. STATE, (GR.APP. 1910) 59 TEX, GRIM... 103,127 SW. 551, AM.ANN.
CAS.ill2h,1244.
TRAP. RULE 67.1, provides: "FOUR JUDGE VOTE." "By at least Four Judges,the Court
oi Criminal Appeals may grant review of a court of appeals' decision in a criminal
case at any time before the mandate of the court of appeals issued,"
TRAP.RULE 69.1, provides: "GRANTING OR REFUSAL." "If Four Judges do not vote
to grant a Petition for Discretionary Review* the Court will enter a docket not
ation that the Petition is Refused. "If Four Judges Vote to Grant the Petition
the Court will enter a docket notation that the Discretionary Review is Granted."
TEX.CONST.ART.5§5, pertinent here provides: "JURISDICTION OF COURT OF CRIMINAL
APPEALS*" (a) "The Court of Criminal Appeals shall have final appellate juris
diction coextensive with the limits of the State, and its determinations shall
be final, in all criminal cases of whatever grade, with such exceptions and un
der such regulations as may be provided in this Constitution or as prescribed
by law."
(b) "The appeal of all other criminal cases shall be to the Courts of Appeals*
as prescribed by law. In addition,the Court of Criminal Appeals may,on its own
motion review a decision of a Court of Appeals in a criminal case as provided by
law. DISCRETIONARY REVIEW BY THE COURT OF CRIMINAL APPEALS IS NOT A MATTER OF RIGHT,
BUT OP SOUND JUDICIAL DISCRETION."
"THE FUNDAMENTAL REQUIREMENT OF DUE PROCESS IS THE OPPORTUNITY TO BE HEARD.
IT IS AN OPPORTUNITY WHICH MUST BE GRANTED M A MEANINGFUL TIME AND IN A MEAN
INGFUL MANNER."ARMSTRONG V. MANZO, 85 S.CT. 1187 (1965).
"WHETHER A STATE: LAW *S PROPERLY CHARACTERIZED AS FALLING UNDER THE EX POST
FACTO CLAUSE IS A FEDERAL QUESTION THAT THE SUPREME COURT DETERMINES FOR ITSELF."
USCA.CONST. ART.l§10,CL.l. CARMBLL V. TEXAS, 120 S.CT. 1620 (2000).
"IN BEAZELL V. OHIO, 46 S.CT. 68 (1925). THE S!P?®!K COURT SUMMARIZED THE
CHARACTERISTICS OF AN EX POST FACTO LAW: IT IS SETTLED BY DECISIONS OF THIS COURT
SO WELL KNOWN THAT THIS CITATION MAY BE DISPENSED WITH THAT ANY STATUTE WHICH
PUNISHES AS A CRIME ANY ACT PREVIOUSLY COMMITTED WHICH WAS INNOCENT WHEN DONE,
WHICH MAKES MORE BURDENSOME THE PUNISHMENT FOR A GRIME, AFTER ITS COMMISSION, OR
DEPRIVES ONE CHARGED WITH CRIME OF ANY DEFENSE AVAILABLE ACCORDING TO LAW AT THE
TIME WHEN THE ACT WAS COMMITTED IS PROHIBITED AS EX .POST FACTO."
"Defendant's claim that his convictions were barred by EX POST FACTO CLAUSES
OF TEXAS AND UNITED STATES CONSTITUTIONS BECAUSE STATUTE UNDER WHICH THEY WERE
PROSECUTED HAD NOT YET BEEN K3ACTED AT TIME OF HIS ALLEGEDLY CRIMINAL CONDUCT
WAS NOT FORFEITABLE IRREGULARITY OF TRIAL PROCESS AND COULD BE RAISED FOR FIRST
2.
TIME ON APPEAL;DEFENDANT WAS NOT OBJECTING TO SUFFICIENCY OP CHARGING
-f<9nmY orJ,,^S «oio;* 292(a). See NGUYEN V. UNITED STATES, 123 S CT 31*n
op £SZ££ S ^S
waw rauus&s T
.snasB- ^ Bro *£"?•*
V. N.L.R.B., 130 S*CT. 2535'""*-*
(2010).
"BECAUSE THE EXHAUSTION DOCTRINE FOR FEDERAL HABEAS RELIPp re; ruKTrtn*
SL22L™8 S!BMB C0URTS * ™-' AND FAIR OPP^TuSto%£»£fSS^
SS51S2!Mi (XAIMS «*• ^^ 1^ See also ;
•'**** !'•'
FURTHER ISSUES PRESENTED r''*Y '
Whether Strict Application of the Judfemade TRAP.Rule 9 a(U(o\tn\ i«_
e iS xn "ittuct with and Repugnant to USCA.CONST.ARTS.
3 | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3062986/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15131 ELEVENTH CIRCUIT
APRIL 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-01030-CV-T-TGW
ANNIE SALAZAR,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 6, 2010)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Annie Victoria Salazar appeals the district court’s order affirming the Social
Security Administration’s (the “Agency”) denial of her application for
supplemental security income (“SSI”). On appeal, Salazar argues that the
administrative law judge (“ALJ”) erred in finding that she was not disabled
because his determination that Salazar’s hand injuries did not constitute a severe
impairment was not supported by substantial evidence. Salazar asserts that this
determination contradicted the medical evidence in the record, and alternatively
asserts that, because the hearing was held several years after her hand injuries, the
ALJ should have ordered an updated consultative examination to determine if her
hand injury allegations were consistent with her current medical condition. Salazar
further argues that the ALJ erred by excluding limitations on hand use from the
hypothetical question he presented to a vocational expert (“VE”) at the hearing,
and by relying on the VE’s answer. Upon review of the record and consideration
of the parties’ briefs, we affirm.
I. STANDARD OF REVIEW
We review the Agency’s legal conclusions de novo, and its factual findings
to determine whether they are supported by substantial evidence. Ingram v.
Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citations
omitted). Substantial evidence is defined as “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Miles v.
2
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996) (per curiam) (citation and quotation
omitted). We do not re-weigh the evidence or substitute our own judgment for that
of the Commissioner. Id. (citation omitted). “If the [Agency]’s decision is
supported by substantial evidence we must affirm, even if the proof preponderates
against it.” Id. (citation omitted). However, there is no presumption “that the
[Agency] followed the appropriate legal standards in deciding a claim for benefits
or that the legal conclusions reached were valid.” Id. (citation omitted).
II. DISCUSSION
The social security regulations establish a “five-step sequential evaluation
process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920(a)(1).
If the Agency finds a claimant disabled or not disabled at any given step, it does
not go on to the next step. Id. §416.920(a)(4). Under the first step, the ALJ must
determine whether the claimant is currently engaged in substantial gainful activity.
Id. § 416.920(b). At the second step, the ALJ must determine whether the
impairment or combination of impairments from which the claimant allegedly
suffers is “severe.” Id. § 416.920(c). If there is no severe impairment, then the
claimant is not disabled, and the claim is denied. Id. At the third step, the ALJ
must decide whether the claimant’s severe impairment meets or medically equals a
listed impairment. Id. § 416.920(d). If the claimant meets or medically equals a
3
listed impairment, then the claimant is conclusively presumed disabled. Id. If the
claimant has a severe impairment that does not meet or equal a listed impairment,
the ALJ must then determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. Id. § 416.920(e) & (f).
“[RFC] is an assessment, based upon all of the relevant evidence, of a claimant’s
remaining ability to do work despite his impairments.” Lewis v. Callahan, 125
F.3d 1436, 1440 (11th Cir. 1997) (citation omitted). Finally, if the claimant cannot
perform her past relevant work, the ALJ must then determine whether the claimant
can perform other work that exists in the national economy. 20 C.F.R.
§ 416.920(g).
The sequential process places a “very heavy burden on the claimant to
demonstrate both a qualifying disability and an inability to perform past relevant
work.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam)
(citation omitted). Until step five is reached, the burden is on the claimant to
introduce evidence in support of her application for benefits. Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003) (per curiam).
A. Severe Impairment
Salazar argues that the ALJ erred in finding that she was not disabled
because he failed to find that her hand injuries constituted a severe impairment.
4
With regard to step two of the sequential process, an impairment is “severe” if it
“significantly limits claimant’s physical or mental ability to do basic work
activities.” Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997) (citation
omitted). An impairment is not severe if it is a “slight abnormality” that has “a
minimal effect on the individual that . . . would not be expected to interfere with
the individual’s ability to work, irrespective of age, education, or work
experience.” Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984) (per curiam).
Although the claimant bears the burden of showing severity, the burden is mild,
such that a claimant need only show “her impairment is not so slight and its effect
is not so minimal” as to be trivial. McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th
Cir. 1986).
In cases where a claimant attempts to establish disability through her own
testimony concerning pain or other subjective symptoms, we apply a three-part
“pain standard.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (per
curiam). This standard requires “(1) evidence of an underlying medical condition
and either (2) objective medical evidence that confirms the severity of the alleged
pain arising from that condition or (3) that the objectively determined medical
condition is of such a severity that it can be reasonably expected to give rise to the
alleged pain.” Id.
5
If the ALJ decides not to credit a claimant’s subjective testimony, “he must
articulate explicit and adequate reasons for doing so.” Id. (citation omitted). If the
ALJ fails to articulate reasons for discrediting the claimant’s testimony, then that
testimony must be accepted as true. Id. (citation omitted). In evaluating a
claimant’s credibility, the ALJ may consider, among other things, the claimant’s
daily activities. See 20 C.F.R. § 404.1529(c)(3)(i); Watson v. Heckler, 738 F.2d
1169, 1172 (11th Cir. 1984) (per curiam). Additionally, the ALJ may consider the
claimant’s “appearance and demeanor during the hearing” as a basis of credibility,
although he cannot weigh it above objective medical evidence. Norris v. Heckler,
760 F.2d 1154, 1158 (11th Cir. 1985).
The ALJ is responsible for developing a full and fair record. Ellison, 355
F.3d at 1276 (citation omitted). In determining whether it is necessary to remand a
case for development of the record, this Court considers “whether the record
reveals evidentiary gaps which result in unfairness or clear prejudice.” Brown v.
Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (per curiam) (citation and quotation
omitted). Under the social security regulations, the ALJ may order additional
consultative examinations if the medical evidence submitted by the claimant does
not provide enough information about an impairment to determine whether the
claimant is disabled. 20 C.F.R. § 416.917. Nevertheless, the ALJ is not required
6
to order additional examinations if the evidence in the record is sufficient to allow
him to make an informed decision. Ingram, 496 F.3d at 1269 (citation omitted).
The ALJ found that Salazar’s hand injuries were not severe for the purposes
of step two of the sequential analysis. The ALJ based his finding on Salazar’s
failure to attribute certain alleged limitations to her hand injuries. Furthermore,
between October 8, 2003, her disability onset date, and December 28, 2006, the
date of the ALJ’s decision, a consultative physician examined Salazar and
observed no weakness in her hand, and numerous other medical sources during that
time were consistent with this. Additionally, during a hearing at which a qualified
representative was present on her behalf, Salazar did not request a new exam.
Moreover, Salazar’s daily activities were a permissible factor for the ALJ to
consider in evaluating whether Salazar’s account of her hand injuries was credible.
See Watson, 738 F.2d at 1172. To this extent, the record reflects that Salazar
reported the ability to cook, care for herself, perform household chores, shop, and
drive, albeit with some difficulty. At her hearing she testified that she could dress,
groom, and bathe, although it took longer than normal. Any difficulty that Salazar
reported in performing these tasks was attributed to chest pain or shortness of
breath, and not to inability to use her hands. Therefore, the ALJ properly
7
concluded that evidence of Salazar’s activities tended to undermine the severity of
her hand injuries.
Similarly, the ALJ was permitted to consider his observation that Salazar
“firmly” grasped her walker at the hearing, which directly contradicted her
testimony that she was unable to clench her hands into a fist. See Norris, 760 F.2d
at 1158. To the extent that reliance on this observation is limited, it is not
inconsistent with the objective medical record. See id. Rather, the medical record
indicates that after Salazar received surgery on her left wrist in 2001, she attended
emergency rooms and other medical appointments, but did not complain about any
problems with her hands. On at least one occasion, she declined to tell an
examining physician that she hand a history of hand injuries. On several
occasions, Salazar’s hand strength was observed to be weaker than normal.
However, none of these examiners opined that the weakness in Salazar’s hand
would impair her ability to perform light work. By contrast, an examiner reported
in 2003 that she could perform light work with limitations in her right hand, which
was superseded in 2004 by two different examiners’ reports that she had no
manipulative limitations at all in her hands. By including this evidence in his
written decision, the ALJ presented “explicit and adequate” reasons for
8
discrediting Salazar’s allegations regarding the intensity of her hand injuries and its
effect on her ability to use her hand. Holt, 921 F.2d at 1223.
In light of medical evidence indicating that her hand injuries were not
severe, and Salazar’s own observed and reported behavior indicating that her
injuries had no effect on her ability to perform work, Salazar did not meet her
burden of showing that her hand injuries constituted a “severe impairment.”
Accordingly, we hold that substantial evidence supported the ALJ’s finding that
Salazar’s hand injuries were not severe.
B. Hypothetical Question
Salazar argues that the ALJ erred by relying on the testimony of a VE who
responded to an incomplete hypothetical question. Salazar asserts that the ALJ
excluded limitations on hand use from the hypothetical question without setting
forth specific and legitimate reasons. This caused the ALJ to pose an incomplete
hypothetical to the VE, whose answer included jobs that required frequent
handling. Because the question to the VE was incomplete, Salazar asserts, the
VE’s answer did not constitute substantial evidence to support the ALJ’s
determination on her disability.
Under step five of the sequential evaluation process, the ALJ must determine
whether the claimant is able to perform other work that exists in the national
9
economy. 20 C.F.R. § 404.1520(g). At this step, the claimant has shown that she
cannot perform past relevant work, and the burden then temporarily shifts to the
Commissioner to determine whether there is other work available in significant
numbers in the national economy that the claimant is able to perform. Doughty v.
Apfel, 245 F.3d 1274, 1278 n.2 (11th Cir. 2001).
If the ALJ finds that the claimant is able to perform other work, he “must
articulate specific jobs that the claimant is able to perform, and this finding must be
supported by substantial evidence, not mere intuition or conjecture.” Wilson v.
Barnhart, 284 F.3d 1219, 1227 (11th Cir. 2002) (per curiam). One way in which
the ALJ may determine whether the claimant is able to perform other jobs is by
posing a hypothetical question to a VE. See id. “In order for a vocational expert’s
testimony to constitute substantial evidence, the ALJ must pose a hypothetical
question which comprises all of the claimant’s impairments.” Id. Nevertheless, the
ALJ’s hypothetical need not include a claimant’s asserted impairments that are not
supported by medical evidence, or that are controlled or alleviated by medication.
Ingram, 496 F.3d at 1270 (“The hypothetical need only include ‘the claimant’s
impairments,’ not each and every symptom of the claimant.”) (internal citation
omitted).
10
Having found that the record does not support Salazar’s contention that her
ability to use her hands was limited, the ALJ was under no obligation to include
such limitations in his hypothetical question to the VE. Therefore, the hypothetical
question was not incomplete. Accordingly, we hold that substantial evidence
supported the ALJ’s reliance on the response to the hypothetical in determining
that Salazar was not disabled.
III. CONCLUSION
In sum, the ALJ had substantial evidence upon which to base his finding that
Salazar’s hand injuries were not severe. Similarly, the ALJ properly relied on the
VE’s answer to his complete question regarding the existence of jobs.
Accordingly, we affirm the Agency’s denial of SSI.
AFFIRMED.
11 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540620/ | SENTENCIA
Comparece ante nos la Junta de Planificación de Puerto Rico et al., y nos solicita que revoquemos una Resolución emitida por el Tribunal de Apelaciones el 16 de diciembre *1049de 2011. Mediante esta, el foro apelativo intermedio de-claró “ha lugar” una Moción en Auxilio de Jurisdicción pre-sentada por Iniciativa para un Desarrollo Sustentable (en adelante I.D.S. o los recurridos), lo cual tuvo el efecto de paralizar todo procedimiento administrativo en cuanto a la solicitud y concesión de permisos de desarrollo o construc-ción en el área conocida como la Reserva Natural del Co-rredor Ecológico del Noreste (en adelante R.C.E.N.).
Evaluada la controversia entre las partes, resolvemos que el Tribunal de Apelaciones erró al declarar “ha lugar” la Moción en Auxilio de Jurisdicción presentada por I.D.S. ante ese foro. Ello, toda vez que la referida moción no cum-plió con los estándares jurisprudenciales necesarios para emitir una Orden de Paralización en Auxilio de Jurisdic-ción Apelativa.
i — I
El Corredor Ecológico del Noreste (en adelante C.E.N.) es una zona de terrenos que consta de una superficie aproximada de tres mil cincuenta y siete (3,057) cuerdas de terreno entre los municipios de Fajardo y Luquillo. Por años varias agencias federales y estatales han reconocido esta zona como de alto valor ambiental para Puerto Rico.
La controversia del caso de autos tiene su génesis espe-cíficamente luego de la aprobación de la Orden Ejecutiva OE-2007-37 el 4 de octubre de 2007, en la cual se le ordenó a la Junta de Planificación de Puerto Rico (en adelante J.P.) a establecer la Reserva Natural del C.E.N. (en ade-lante R.C.E.N.) y al Departamento de Recursos Naturales y Ambientales (en adelante D.R.N.A.) a adquirir los terre-nos que componen esa área.
De acuerdo con esa Orden, la J.P. emitió el 6 de febrero de 2008 la Resolución PU-02-24(23) mediante la cual se creó, designó y delimitó la R.C.E.N. Esta Resolución fue posteriormente aprobada el 24 de abril de 2008 mediante *1050la Orden Ejecutiva OE-2008-22. Debido a ciertos defectos procesales y errores de notificación durante el proceso de adopción, el 21 de octubre de 2009, la J.P. dejó sin efecto la referida Resolución.
Días después, el 30 de octubre de 2009, el Gobernador de Puerto Rico, Hon. Luis G. Fortuño Burset, emitió la Orden Ejecutiva OE-2009-42 que ordenó a la J.P. designar un Area de Planificación Especial del C.E.N. (A.P.E.C.E.N.) la cual debía incluir en su interior una re-serva natural. También se revocó la Orden Ejecutiva OE-2007-37 y se le ordenó a la J.P. que considerara las reco-mendaciones del D.R.N.A. en cuanto a los terrenos que se debían proteger, conservar o restaurar para la eventual creación de la reserva natural dentro del A.P.E.C.E.N. Por último, se le ordenó a la J.P. que adoptara un Plan de Usos y Reglamento de Calificación Especial para el área, con el propósito de lograr un adecuado balance entre la protec-ción del ambiente y el desarrollo ecoturístico de la región.
Luego de varios incidentes, el 18 de enero de 2011 se publicaron anuncios de vista pública sobre la propuesta de adopción de un Plan y Reglamento sobre los terrenos en controversia. Posteriormente, varios ciudadanos e I.D.S. enviaron comunicaciones escritas a la J.P. en las cuales solicitaron que se suspendiera y pospusiera la vista pública anunciada. Consideradas las comunicaciones, el 4 de fe-brero de 2011, la J.P. las declaró “no ha lugar” y determinó que la vista pública se celebraría a las 10:00am del día siguiente.
La Leda. Rosalía Cruz Niemiec presidió la vista. Du-rante la audiencia se documentó el registro de visitantes y la cantidad de deponentes. El 30 de marzo de 2011, la li-cenciada Cruz Niemiec rindió su informe, el cual incluyó un análisis de comentarios recibidos durante la vista pública.
Así las cosas, el 13 de abril de 2011, la J.P. presentó ante la Oficina de Gerencia de Permisos (en adelante O.G.Pe.) *1051una Solicitud de Determinación de Cumplimiento Ambien-tal Vía Exclusión Categórica sobre el propuesto Plan y Re-glamento para el A.P.E.C.E.N. Dicha solicitud fue apro-bada por la O.G.Pe.
Posteriormente, el 16 de mayo de 2011, la J.P. emitió la Resolución Número PU-002-CEN-24(23) en la cual adoptó la designación del A.P.E.C.E.N. y, entre otras cosas, adoptó el Plan y Reglamento de Calificación Especial para esa zona. El 28 de junio de 2011, el Gobernador de Puerto Rico emitió la Orden Ejecutiva OE-2011-026 mediante la cual aprobó la acción de la J.P. por cumplir con la política pú-blica establecida mediante la anterior Orden Ejecutiva.
Inconforme con todo este proceder administrativo, la parte recurrida de epígrafe presentó el 28 de julio de 2011 un recurso de revisión judicial ante el Tribunal de Apelaciones. En este cuestionó la conducta de las agencias concernidas, particularmente en cuanto a la determinación de cumplimiento ambiental mediante exclusión categórica.
Luego de varios trámites procesales, el 7 de noviembre de 2011, I.D.S. presentó una Moción en Auxilio de Jurisdic-ción ante el foro apelativo intermedio en la cual solicitó la paralización de todo trámite relacionado a la solicitud de permisos, licencias y/o autorizaciones de cualquier índole dentro de los terrenos de la R.C.E.N. Argumentó, escueta-mente, que se sufriría un irreparable daño ambiental si no se paralizaban los procedimientos antes descritos. El 9 de noviembre de 2011, la J.P. se opuso a la referida moción.
Posteriormente, el Tribunal de Apelaciones declaró “con lugar” la moción que presentó I.D.S. el 16 de diciembre de 2011. Cónsono con esto, emitió una Orden de Paralización de todo trámite administrativo en cuanto a los terrenos del R.C.E.N. mientras ese foro apelativo dilucidaba los méritos del caso de autos.
Inconformes, la J.P. recurrió mediante recurso de certio-rari ante este Tribunal el 17 de enero de 2012 y argumentó la comisión del siguiente error:
*1052Erró el Tribunal de Apelaciones al paralizar todo trámite ad-ministrativo relacionado a la solicitud de concesión de permi-sos de desarrollo y lo construcción de terrenos presente o fu-tura, mientras se dilucida la presente causa, en el área comprendida en la llamada reserva natural del corredor eco-lógico del noreste (CEN) de 2008 incluida en el APEGRN tras la adopción de la Resolución P4-002-CEN-24(23) por la Junta de Planificación, mientras dilucida el Recurso de Revisión que fue presentado ante sí. Petición de certiorari, pág. 2.
La J.P. acompañó el recurso con una Moción en Auxilio de Jurisdicción en la cual planteó que se afectaría el inte-rés público con la paralización de los procedimientos admi-nistrativos dentro del R.C.E.N., y que mediante el recurso de certiorari presentaba un caso con altas probabilidades de prevalecer en los méritos. Atendida la moción, el 19 de enero de 2012 procedimos a declararla “ha lugar”, dejando sin efecto la Orden de Paralización emitida por el Tribunal de Apelaciones. A su vez, emitimos a la parte recurrida de epígrafe una Orden para que mostrara causa por la cual no debíamos revocar la Resolución del foro apelativo intermedio.
I.D.S. ha comparecido y, contando con el beneficio de los escritos de amicus curiae presentados por el Colegio de Ar-quitectos y Arquitectas Paisajistas de Puerto Rico, la So-ciedad Puertorriqueña de Planificación, el Reverendo Edward Rivera Santiago y el Monseñor Eusebio Ramos Morales, estamos en posición de resolver sin ulterior trá-mite y conforme intimado.
1 — I { — I
Como hemos discutido recientemente, una moción en auxilio de jurisdicción “es, en esencia, un llamado a la uti-lización del poder inherente que tiene todo tribunal para constituir los remedios necesarios que hagan efectiva su jurisdicción y que eviten fracasos en la administración de la justicia”. García López y otros v. E.L.A., 185 D.P.R. 371, 377 (2012). Por ende, se trata de un mecanismo que va *1053dirigido a la discreción de los tribunales para proveer re-medios en equidad similares al entredicho provisional y al injunction preliminar. Pantoja Oquendo v. Mun. de San Juan, 182 D.P.R. 101, 109 (2011).
Es indudable la facultad de los tribunales apelativos en nuestro ordenamiento para emitir órdenes en equidad como producto de una moción en auxilio de jurisdicción. Por eso, la Regla 79 del Tribunal de Apelaciones en su in-ciso (A) establece, que:
(A) Para hacer efectiva su jurisdicción en cualquier asunto pendiente ante sí, el Tribunal de Apelaciones podrá expedir cualquier orden provisional, la cual será obligatoria para las partes en la acción, sus oficiales, agentes, empleados(as) y abogados(as), y para aquellas personas que actúen de acuerdo o participen activamente con ellas y que reciban aviso de la orden mediante cualquier forma de notificación. 4 L.P.R.A. Ap. XXII-B.(1)
En cuanto a la utilización de este mecanismo extraordi-nario, hemos establecido claramente que el remedio que ofrece esta Regla es “excepcional de trascendental impor-tancia en casos donde existan situaciones de verdadera urgencia”. (Énfasis suplido.) Marrero v. Dolz, 142 D.P.R. 72, 73 (1996). Es por eso que “al invocar la facultad discre-cional de los tribunales apelativos, no se puede utilizar este remedio para casos o situaciones que no conlleven el nivel de importancia adecuado”. García López y otros v. E.L.A., supra, pág. 8.
*1054Ello tiene que ser así, ya que el uso inadecuado de las mociones en auxilio de jurisdicción afecta injustificada-mente el funcionamiento interno de los tribunales apelati-vos, “lo cual tiene un efecto detrimental en la administra-ción expedita de la justicia”. Marrero v. Dolz, supra, pág. 73. Es por eso que hemos establecido que los abogados que utilicen de manera inadecuada o abusiva las mociones en auxilio de jurisdicción estarán sujetos a la imposición de sanciones. García López y otros v. E.L.A., supra, pág. 10.
Por otra parte, la presentación de una moción en auxilio de jurisdicción también le impone ciertas obligaciones al Tribunal de Apelaciones. Si la situación planteada en la moción es de verdadera urgencia, el Tribunal de Apelacio-nes abusa de su discreción si no la atiende con la celeridad y premura debida. Véase Pantoja Oquendo v. Mun. de San Juan, supra, pág. 114. Incide también el foro apelativo in-termedio si concede términos a las partes para que se ex-presen en cuanto al remedio solicitado en una moción en auxilio de jurisdicción si con ello se crea un riesgo de con-vertir la controversia en académica o se fomenta un in-aceptable panorama de incertidumbre jurídica. García López y otros v. E.L.A., supra, pág. 16.
En cuanto a los remedios que puede constituir el Tribunal de Apelaciones en auxilio de jurisdicción se encuentran las órdenes de paralización. Desde Peña v. Federación de Esgrima de P.R., 108 D.P.R. 147, 154 (1978), establecimos que los foros apelativos pueden constituir esas órdenes a su discreción siempre y cuando la parte que lo solicita cum-pla con los requisitos siguientes: “(a) que el peticionario presente un caso fuerte de probabilidad de prevalecer en los méritos de la apelación; (b) que demuestre que a menos que se detenga la ejecución sufrirá [un] daño irreparable; (c) que ningún daño substancial se causará a las demás partes interesadas, y (d) que la suspensión de la sentencia no peijudica el interés público”. (Enfasis suplido.) Estos requisitos han sido recientemente reiterados por nuestra *1055jurisprudencia. Véanse: García López y otros v. E.L.A., supra, pág. 12; Pantoja Oquendo v. Mun. de San Juan, supra, pág. 109; Plaza Las Américas v. N & H, 166 D.P.R. 631, 642-643 (2005).
III
Según el análisis que antecede, pasamos a determinar si la Moción en Auxilio de Jurisdicción presentada por I.D.S. ante el Tribunal de Apelaciones cumplió con estos requisitos jurisprudenciales.
De una simple lectura de la moción presentada podemos constatar que no se cumplió con el requisito indispensable de demostrar que, de no paralizar los procedimientos ad-ministrativos dentro del área del C.E.N., I.D.S. sufriría un daño irreparable. Nos explicamos.
A través de cinco (5) párrafos, los recurridos presenta-ron unas alegaciones en el vacío sobre el daño que sufriría el medio ambiente en el área del C.E.N. si se comenzaba con el proceso de meras solicitudes de Consultas de Ubica-ción y Permisos de Desarrollo o Construcción. No se hace mención en cuanto a algún permiso ya aprobado o cuya aprobación sea inminente. Tampoco se presentó evidencia o alegación en cuanto a presentes construcciones en el área del C.E.N.
Lo que sí incluyó la Moción en Auxilio de Jurisdicción presentada ante el Tribunal de Apelaciones fueron alega-ciones generales sobre “el alto interés de diversos interesa-dos en utilizar y explotar los terrenos valiosos del CEN, lo cual se evidencia por el largo historial de proyectos...”(2) que los recurridos mencionan en sus escritos. No obstante, no se colocó el foro apelativo intermedio en posición de dilucidar si ese alegado historial de interés por desarrollar proyectos en el área del C.E.N. se traducía a un daño irre*1056parable inminente que conllevara la necesidad de una or-den de paralización de procedimientos administrativos.
Como hemos visto, las órdenes de paralización que se pueden conceder a consecuencia de una moción en auxilio de jurisdicción apelativa solo están disponibles para situa-ciones de verdadera urgencia. Al igual que en otras áreas del Derecho, no podemos permitir que el concepto “daño irreparable” incluido entre los factores a considerar para emitir una orden de paralización se convierta en un “inge-nioso ejercicio académico de lo concebible”. Véanse: Lujan v. Defenders of Wildlife, 504 U.S. 555, 566 (1992), citando a United States v. SCRAP, 412 U.S. 669, 688 (1973).
Al no cumplir con uno de los requisitos jurisprudencia-les necesarios para la emisión de una Orden de Paraliza-ción, el Tribunal de Apelaciones erró al declarar “con lu-gar” la Moción en Auxilio de Jurisdicción presentada por I.D.S. ante ese foro. Los requisitos expuestos en Peña v. Federación de Esgrima de P.R., supra, y confirmados en Pantoja Oquendo v. Mun. de San Juan, supra, y García López y otros v. E.L.A., supra, no son guías discrecionales, sino elementos constitutivos que deben ser analizados en conjunto para determinar si la solicitud en auxilio de juris-dicción es meritoria.
Conforme discutido, en el caso de autos, I.D.S. no pudo articular la existencia de un daño irreparable que ameri-tara la concesión de una Orden de Paralización de los pro-cedimientos administrativos de Consultas de Ubicación, Permisos de Desarrollo o Construcción. Como mucho, sus alegaciones son prematuras. Por esa razón incidió el Tribunal de Apelaciones al emitir una Resolución en la que ordenó la paralización de estos procedimientos.
IV
Por los fundamentos que anteceden, se expide el auto de “certiorari” y se declara “ha lugar”. Por ende, se revoca la *1057Resolución del Tribunal de Apelaciones de 16 de diciembre de 2011. A tales efectos, se devuelve el caso al Tribunal de Apelaciones para que atienda los méritos del recurso de revisión presentado por la parte recurrida de epígrafe ante ese foro.
Lo acordó y ordena el Tribunal y lo certifica la Secreta-ria del Tribunal Supremo. El Juez Presidente Señor Her-nández Denton disintió sin opinión escrita. La Jueza Aso-ciada Señora Fiol Matta emitió una opinión disidente, a la cual se unió la Juez Asociada Señora Rodríguez Rodríguez.
(Fdo.) Aida Ileana Oquendo Graulau
Secretaria del Tribunal Supremo
— O —
(1) Este Tribunal también está facultado para expedir órdenes en auxilio de su jurisdicción apelativa. A tales efectos, la Regla 28 de este establece que:
“(a) El Tribunal podrá expedir una orden provisional en auxilio de su jurisdic-ción cuando sea necesario hacer efectiva su jurisdicción en un asunto pendiente ante su consideración.
“A los fines de esta regla, se entenderá que el tribunal atenderá, sin sujeción al trámite ordinario, cualquier asunto relacionado con el recurso presentado o pen-diente para evitar alguna consecuencia adversa que afecte su jurisdicción o que pueda causar un daño sustancial a una parte mientras resuelve el recurso”. 4 L.P.R.A. Ap. XXI-B.
Para un estudio sobre el linaje basado en principios de equidad sobre la figura de las mociones en auxilio de jurisdicción, véase García López y otros v. E.L.A., 185 D.P.R. 371 (2012).
(2) Véase Apéndice de la Petición de certiorari, pág. 126. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/126594/ | 537 U.S. 1140
SCOTTv.UNITED STATES.
No. 02-7746.
Supreme Court of United States.
January 13, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 40 Fed. Appx. 807. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1018317/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1351
In Re: PHILIP M. KLEINSMITH,
Petitioner.
On Petition for Writ of Mandamus.
Submitted: December 28, 2005 Decided: January 24, 2006
Before WILKINS, Chief Judge, and LUTTIG and TRAXLER, Circuit
Judges.
Petition denied by unpublished per curiam opinion.
Philip M. Kleinsmith, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Philip M. Kleinsmith has filed an action in this court
requesting that we “overrule [the district court’s] taking and
thereby make Mr. Kleinsmith an attorney in good standing in the
Maryland U.S. District Court.” The United States District Court
for the District of Maryland declined to renew Kleinsmith’s
admission to the bar of that court because he refused to agree to
pro bono assignments in that district. We construe Kleinsmith’s
filings as a request for mandamus relief and deny it.
Mandamus relief is available only when the petitioner has
a clear right to the relief sought. See In re First Fed. Sav. &
Loan Assn., 860 F.2d 135, 138 (4th Cir. 1988). Further, mandamus
is a drastic remedy and should be used only in extraordinary
circumstances. See Kerr v. United States Dist. Court, 426 U.S.
394, 402 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir. 1987).
Mandamus may not be used as a substitute for appeal. See In re
United Steelworkers, 595 F.2d 958, 960 (4th Cir. 1979).
The relief sought by Kleinsmith is not available by way
of mandamus. Accordingly, we deny his request for mandamus relief.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
- 2 - | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/996667/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-6917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDWARD L. TROWELL, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Cameron McGowan Currie, District
Judge. (CR-96-234, CA-98-448-22-4)
Submitted: September 30, 1998 Decided: October 20, 1998
Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Edward L. Trowell, Jr., Appellant Pro Se. Alfred William Walker
Bethea, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Edward L. Trowell, Jr., seeks to appeal the district court’s
order denying his motion filed under 28 U.S.C.A. § 2255 (West 1994
& Supp. 1998) and his petition for a writ of mandamus. We have
reviewed the record and the district court’s opinion accepting the
recommendation of the magistrate judge and find no reversible
error. Accordingly, we deny a certificate of appealability and
dismiss the appeal on the reasoning of the district court. United
States v. Trowell, Nos. CR-96-234; CA-98-448-22-4; CA-98-379-22BE
(D.S.C. May 28, 1998). We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the court and argument would not aid the decisional
process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
Subsets and Splits