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https://www.courtlistener.com/api/rest/v3/opinions/998040/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7800
DANIEL R. MARTIN,
Plaintiff - Appellant,
and
WARREN CHASE; TERRY DORSEY; WILBUR SUTTON;
LEON NOEL; ZACHARY MARTIN; COLANDO COLBERT;
DOMINIC NEWSOME; MARQUIS DEAL; MICHAEL MILLER;
ALVIN JONES; JERMIAH JONES; TROY JONES;
CHARLES REED; KEVIN GRAVES,
Plaintiffs,
versus
JACK KAVANAGH, Warden; BERNARD JONES, Lieuten-
ant; D. WHITE, Sergeant; CORRECTIONAL OFFICER
CARTER; CORRECTIONAL OFFICER FLINT; CORREC-
TIONAL OFFICER QUEEN; H. TOLBERT, Correctional
Officer; CORRECTIONAL OFFICER POTEE; CORREC-
TIONAL OFFICER MCCOY; CORRECTIONAL OFFICER
LASONER; CORRECTIONAL OFFICER BRAXTON,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Chief District Judge.
(CA-98-977-JFM)
Submitted: February 25, 1999 Decided: March 10, 1999
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Daniel R. Martin, Appellant Pro Se. John Jospeph Curran, Jr.,
Attorney General, David Phelps Kennedy, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daniel Martin appeals the district court’s order denying
relief on his 42 U.S.C.A. § 1983 (West Supp. 1998) complaint. We
have reviewed the record and the district court’s opinion and find
no reversible error. Accordingly, we affirm on the reasoning of
the district court. See Martin v. Kavanagh, No. CA-98-977-JFM (D.
Md. Dec. 1, 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.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2907471/ | Donaldson-BC v. State
DISMISSED
APRIL 19, 1990
NO. 10-90-046-CR
Trial Court
# 11,690
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
BATES CROSS DONALDSON,
   Appellant
v.
THE STATE OF TEXAS,
   Appellee
* * * * * * * * * * * * *
                From 52nd Judicial District Court
                       Coryell County, Texas
* * * * * * * * * * * * *
O P I N I O N
* * * * * * *
Appellant filed notice of appeal on March 15, 1990, from a
March 2, 1990, conviction in Coryell County, Texas, for delivery of
a controlled substance. Punishment was assessed by the court at
confinement for a term of ten years in the Texas Department of
Corrections and appellant perfected this appeal.
Appellant has filed a request in this court, personally signed
and verified by appellant and approved as to form and content by
his attorney, to have his notice of appeal withdrawn. No decision
of this court having been delivered prior to the receipt of this
request for withdrawal of his notice of appeal, appellant's request
is granted. The appeal is dismissed.
PER CURIAM
DO NOT PUBLISH
Â
Â
Original Proceeding
Â
Â
MEMORANDUM Opinion
Â
The petition for writ of mandamus is
denied.
Â
Â
Â
Â
                                                                                   BILL
VANCE
                                                                                   Justice
Â
Before
Chief Justice Gray,
           Justice
Vance, and
           Justice
Reyna
Petition
denied
Opinion
delivered and filed September 20, 2006
[OT06]
 | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3212138/ | [Cite as State v. Klinger, 2016-Ohio-3370.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-15-057
Appellee Trial Court No. 2014CR0512
v.
Brian D. Klinger DECISION AND JUDGMENT
Appellant Decided: June 10, 2016
*****
Paul A. Dobson, Wood County Prosecuting Attorney, Alyssa M. Blackburn
and David T. Harold, Assistant Prosecuting Attorneys, for appellee.
Stephen D. Long, for appellant.
*****
YARBROUGH, J.
{¶ 1} This is an Anders appeal. Appellant, Brian Klinger, appeals the judgment of
the Wood County Court of Common Pleas, convicting him of one count of gross sexual
imposition in violation of R.C. 2907.05(A)(4) and (C)(2), a felony of the third degree,
and sentencing him to a thirty-month prison term. For the following reasons, we affirm.
I. Facts and Procedural Background
{¶ 2} On December 4, 2014, appellant was indicted by the Wood County Grand
Jury on one count of gross sexual imposition in violation of R.C. 2907.05(A)(4) and
(C)(2), a felony of the third degree. On June 30, 2015, appellant withdrew his initial plea
of not guilty, and pleaded guilty to the charge as indicted. Prior to accepting the plea, the
court had the following dialogue with appellant:
THE COURT: In so doing, you’re waiving your right to a jury trial.
You understand that?
THE DEFENDANT: Yes.
THE COURT: In fact, one of the forms you signed is a written
waiver of that trial. In waiving that trial you’re giving up certain rights that
I need to explain to you now.
At that trial the prosecution will have the burden of proving your
guilt beyond a reasonable doubt to a jury of twelve of your peers who need
to unanimously find you guilty before you could be convicted.
You could have testified at that trial, but would not have had to.
And your attorney * * * could have cross-examined any witnesses called by
the prosecution. You could have called witnesses on your behalf,
subpoenaing them if necessary to obtain their attendance at trial.
2.
In waiving that trial, you’re giving up all these rights. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: This is a felony, and as such, you face possible
prison time. If you were sent to prison, you would be subject to what is
called post-release control, and that would be for a - - be for a period of
three years.
If during that three years you violated the parole authority’s rules
established at the time of your release, you would then be potentially sent
back to prison for up to and no more than one half of the original prison
term. You understand that?
THE DEFENDANT: Yes.
THE COURT: In lieu of prison, the court could place you on what
is called community control sanctions and the court could establish certain
things for you to do, and if you fail to comply with those, then the court
would sentence you up to thirty-six months in prison. You understand that?
THE DEFENDANT: Yes.
THE COURT: There could be financial obligations as a result of
this as well. You could be required to pay the court costs, fines, or
restitution. You understand that?
THE DEFENDANT: Yes.
3.
THE COURT: Now we’ve gone over these things, do you have any
questions of either your attorney or the court?
THE DEFENDANT: No.
THE COURT: And you still wish to enter your plea of guilty?
THE DEFENDANT: Yes.
{¶ 3} Following the colloquy, the court received a statement from the prosecution
of what the evidence would have shown at the trial. The court then accepted the plea and
found appellant guilty. The matter was continued for a presentence investigation report.
At the sentencing hearing, the trial court found that appellant must be classified as a Tier
II sex offender. The court then sentenced appellant to 30 months in prison. The court
also ordered that appellant would be subject to a mandatory period of five years of post-
release control.
{¶ 4} Appellant has timely appealed his conviction and sentence. Subsequently,
appointed counsel for appellant filed a brief and requested leave to withdraw pursuant to
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Under
Anders, if counsel, after a conscientious examination of the case, determines it to be
wholly frivolous, counsel should so advise the court and request permission to withdraw.
Id. at 744. This request, however, must be accompanied by a brief identifying anything
in the record that could arguably support the appeal. Id. Counsel must also furnish the
client with a copy of the brief and request to withdraw and allow the client sufficient time
to raise additional matters. Id. Once these requirements have been satisfied, the
4.
appellate court must then conduct a full examination of the proceedings held below to
determine if the appeal is indeed frivolous. If the appellate court determines that the
appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal
without violating constitutional requirements, or it may proceed to a decision on the
merits if state law so requires. Id.
II. Assignments of Error
{¶ 5} In his Anders brief, counsel has assigned the following potential errors for
our review:
1. Appellant’s “guilty” plea was not voluntary, intelligent, and
knowing.
2. Automatic classification of Mr. Klinger as a Tier II offender
violates the constitutions of the United States and the state of Ohio.
{¶ 6} Appellant has not filed a pro se brief or otherwise raised any additional
matters.
III. Analysis
{¶ 7} Regarding the first assignment of error, “When a defendant enters a plea in a
criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v.
Engle, 74 Ohio St. 3d 525, 527, 660 N.E.2d 450 (1996). In determining whether
appellant’s guilty plea was made knowingly, intelligently, and voluntarily, we must
review the record “to ensure that Crim.R. 11 was followed by the trial court upon
defendant’s submission of the guilty plea.” State v. Spates, 64 Ohio St. 3d 269, 272, 595
5.
N.E.2d 351 (1992). A trial court must substantially comply with the notification of the
non-constitutional rights contained in Crim.R. 11(C)(2)(a) and (b), and a defendant must
show prejudice before a plea will be vacated for failure to substantially comply with
those notifications. State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, 897 N.E.2d
621, ¶ 14, 17. In contrast, the court must strictly comply with the notification of
constitutional rights contained in Crim.R. 11(C)(2)(c), and failure to do so creates a
presumption that the plea was not knowingly, intelligently, and voluntarily made. Id. at ¶
18, 29. Crim.R. 11(C)(2)(c) requires that the defendant be advised of “the rights to jury
trial, to confront witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt
beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.” In determining whether the defendant was fully informed of
his rights, “an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified
by reference to other portions of the record, including the written plea.” State v. Barker,
129 Ohio St. 3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 25.
{¶ 8} In support of the first potential assignment of error, counsel first asserts that
the trial court failed to inform appellant that he had a right to have the matter tried to the
bench, stating only that he was waiving his right to a jury trial. However, counsel notes,
and we agree, that any ambiguity in that regard was clarified in paragraph E of the
written “Plea of Guilty to Indictment and Waiver of Trial by Jury” form, in which he
acknowledged that he is giving up his right “to a jury trial or court trial.”
6.
{¶ 9} Counsel next argues that the trial court failed to advise appellant of the
maximum penalties he was facing by entering his plea. In our review of the record, we
also note that the trial court improperly informed appellant that he would be subject to
three years of post-release control, yet later sentenced him to five years of post-release
control as required by R.C. 2967.28(B)(1). Despite this failure, we hold that the trial
court substantially complied with Crim.R. 11(C)(2)(a)’s requirement to inform appellant
of the maximum penalty involved. Like the above issue, any ambiguity in the Crim.R. 11
colloquy was clarified in the written waiver, which informed appellant of the maximum
penalties involved and that a mandatory five years of post-release control would be
imposed. Thus, appellant had actual notice that he could receive up to 36 months in
prison and a $10,000 fine, and would receive five years of post-release control. See State
v. Reed, 6th Dist. Lucas No. L-06-1130, 2007-Ohio-4087, ¶ 26 (trial court substantially
complied with Crim.R. 11(C)(2)(a) where although the court orally advised the defendant
that he may be subject to five years of post-release control, the written plea form gave
appellant actual notice that post-release control was mandatory).
{¶ 10} Furthermore, the record does not contain any indication that appellant
would not have entered his plea if he had been so informed. Counsel stated that he had
reviewed the written plea forms with appellant, and appellant signed the forms, and
indicated that after his review he did not have any questions for the court or for his
counsel. Thus, appellant would be unable to demonstrate any prejudice.
7.
{¶ 11} Accordingly, we find counsel’s first potential assignment of error to be
without merit.
{¶ 12} In his second potential assignment of error, counsel offers that the
automatic classification of appellant as a Tier II sex offender constitutes cruel and
unusual punishment in violation of the United States and Ohio constitutions. However,
counsel recognizes that the Ohio Supreme Court has recently addressed this issue,
holding that “the registration and address-verification requirements for Tier II offenders
under R.C. Chapter 2950 do not constitute cruel and unusual punishment in violation of
either the Eighth Amendment to the United States Constitution or Article I, Section 9 of
the Ohio Constitution.” State v. Blankenship, 145 Ohio St. 3d 221, 2015-Ohio-4624, 48
N.E.3d 516, ¶ 38.
{¶ 13} Accordingly, counsel’s second proposed assignment of error is without
merit.
IV. Conclusion
{¶ 14} We have conducted an independent review of the record, as required by
Anders, and find no issue of arguable merit for appeal. Therefore, counsel’s motion to
withdraw is hereby granted.
{¶ 15} For the foregoing reasons, the judgment of the Wood County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
8.
{¶ 16} The clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
9. | 01-03-2023 | 06-10-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/129315/ | 538 U.S. 1008
GREENv.UNITED STATES.
No. 02-9669.
Supreme Court of United States.
April 28, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
2
C. A. 10th Cir. Certiorari denied. Reported below: 42 Fed. Appx. 372. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1948327/ | 637 A.2d 81 (1994)
Joan BINGHAM, et al., Appellants/Cross-Appellees,
v.
GOLDBERG. MARCHESANO. KOHLMAN. INC., Appellee/Cross-Appellant.
GOLDBERG. MARCHESANO. KOHLMAN. INC., Appellant/Cross-Appellee,
v.
Joan BINGHAM, et al., Appellees/Cross-Appellants.
Nos. 89-CV-880, 89-CV-881, 89-CV-1141 and 89-CV-1112.
District of Columbia Court of Appeals.
Argued January 28, 1991.
Decided February 3, 1994.
*83 Ellyn R. Weiss, with whom Richard A. Gross, Washington, DC, was on the brief, for appellants/cross-appellees.
Diana M. Savit, with whom Marvin L. Szymkowicz, Washington, DC, was on the brief, for appellee/cross-appellant.
Before STEADMAN, FARRELL, and WAGNER, Associate Judges.
*84 WAGNER, Associate Judge:
Appellants, Joan Bingham and PFP, Inc. (PFP) appeal from a judgment against them, jointly and severally, in favor of appellee, Goldberg. Marchesano. Kohlman. Inc.[1] (GMK) for $74,195.48, as damages for breach of contract following a non-jury trial. The dispute arose out of GMK's unsuccessful efforts to collect from appellants sums claimed under a contract with PFP for advertising and marketing services rendered by GMK associated with launching The Washington Weekly (WW), a newspaper originated by appellants and others. The trial court found that Washington Weekly Limited (WWL), a limited partnership, assumed the assets and liabilities of PFP and held that appellant Bingham, who was officially a limited partner in WWL, should be treated as a general partner pursuant to D.C.Code § 41-207 (1981) because she exercised control over partnership activities.
Appellants argue that the trial court erred first in imputing PFP's liabilities under the contract to the partnership, and secondly, in holding Bingham personally liable when, they contend, she was acting solely as agent for the general corporate partner of WWL and because there was no evidence that GMK relied on Bingham's involvement as a partner in WWL, which did not even exist at the time the parties entered the contract. Alternatively, Bingham argues that, assuming liability could be imputed to the partnership and that she became a general partner as of June 18, 1984, she can not be held personally liable for debts which accrued prior to that date. Appellants also challenge the trial court's pretrial imposition of sanctions against them. In its cross-appeal, GMK argues that the trial court erred in: (1) denying its claim for judgment for services rendered after June 30, 1984; (2) precluding it from asserting quantum meruit as an alternate theory of liability for services rendered after June 1984; (3) denying the full amount of attorney's fees and costs GMK requested for sanctions; and (4) denying its motion for additional sanctions. We reject the arguments made in the cross-appeal. With respect to the direct appeal, we hold that the trial court erred in imputing PFP's liabilities to the partnership and then to Bingham personally. Therefore, the judgment against Bingham is vacated in all respects. Otherwise, the judgment and orders appealed from are affirmed.[2]
I.
Factual Background
A. Formation of the Corporation and Limited Partnership
We recount in some detail the facts because they are essential to an understanding of the issues raised and the disposition reached. In June 1983, Jeffrey Stein, a journalist, interested appellant, Joan Bingham, in starting a weekly Washington newspaper, and they developed a prospectus to present to other potential investors.[3] Subsequently, Bingham, Mortimer Zuckerman, and Anne Peretz invested $50,000 in seed money to explore the feasibility of publishing the paper.[4] They enlisted the support of other investors and formed PFP, Inc., a corporation, to carry out the idea.
At an organizational meeting in September 1983, Bingham, Zuckerman, and Martin Peretz were named interim directors. James Glassman, who became acting publisher of the newspaper during the pre-publication phase, was named secretary. Bingham was *85 voted PFP's president, and Glassman was voted to serve as its vice president, treasurer and secretary. The corporation authorized the acceptance of an offer of purchase of the following number of shares of stock at a par value of $1.00 each by the following individuals: Bingham, 17,500; Anne Peretz, 13,750; and Zuckerman, 18,750. In December 1983, the shareholders authorized an increase in PFP's shares in order to fund the next phase of the project, which included development of an organization to produce the paper and to undertake a subscription drive. Bingham purchased $427,500 in shares; Anne Peretz, $125,500; Peretz Family Investments, $100,000; Zuckerman, $100,000;[5] and Martin Peretz, $7,000.
In April 1984, PFP signed a lease for rental of office space for the operation at 2028 P Street, N.W. in Washington, D.C. Stein, Bingham, Glassman, and James Rice, who was hired as associate publisher and general manager of the paper in early 1984, signed the lease "corporately and personally." Bingham became publisher and moved into the new offices around the time the first issue of WW was published in June 1984.
James Glassman testified that the limited partnership, WWL, was formed to raise additional capital for the project. The partnership agreement was entered in the District of Columbia on March 1, 1984. Initially, PFP was listed as the general partner, and Susan Greenberg was listed as the sole limited partner. Appellant Bingham signed the certificate and agreement of limited partnership as president of PFP, the corporate general partner.[6] On June 18, 1984, the partnership agreement was amended, and several new limited partners were added.[7] Appellant Bingham was listed in an annex to the agreement as the general partner whose total capital commitment was $1,022,727, with an initial capital contribution of $200,000. However, Bingham signed the amended filing as president of the general partner, PFP, and the body of the amended agreement specifies that PFP, Inc., a District of Columbia corporation, is the only general partner.[8] The agreement was amended a second time on June 21, 1984 to add another limited partner, but the apparent error in the previous annex listing Bingham as a general partner was not corrected.
The amended agreement of June 18th provides for PFP to exercise the "power and authority to do or cause to be done any and all acts deemed by the general partner to be necessary" for the management and control of the affairs of the partnership.[9] The partnership agreement precludes limited partners from participating in the management of the partnership and from representing, signing, or binding the general partner or the partnership.
The amended agreement also provided for the general partner to make its capital contribution of $1,022,727, as set forth in the annex to the agreement, in the following way: (1) the newspaper properties, upon formation;[10]*86 (2) from March 1, 1984, the partnership's formation date, through June 18, 1984, the effective date of the amended partnership agreement, the amount of cash necessary to maintain partnership operations; (3) from the effective date, amounts up to $300,000 as necessary to maintain the partnership's operations until October 1, 1984; and (4) additional cash "as necessary to meet the General Partner's Capital commitment" and to maintain its interest in the partnership at 45% as limited partners made capital contributions. The partnership was to pay "all salaries and associated costs of employees and all other goods or services reasonably required in the management and publication of The Washington Weekly." Under the partnership agreement, all of the partnership's assets were to be applied to payment of such expenses before recourse could be had to the general partner, PFP.
James Glassman, the acting publisher through the pre-publication phase, testified at trial that PFP did not transfer any of its liabilities to the limited partnership for business and tax reasons.[11] He also testified that PFP retained $78,872.74 in cash when it transferred the newspaper properties to the partnership. Glassman said he believed that PFP paid some bills generated by the project even after the partnership's formation and that the partnership may also have paid some bills. He explained that some of the funds raised from PFP shares, which were sold to Bingham, Zuckerman, and the Peretzes in and after December 1983, were invested into the partnership as the corporate general partner's additional capital contributions.
Glassman also testified that as acting publisher in the start-up phase of the paper, he was the principal decision-maker, subject to the control of PFP's Board of Directors. He stated that Joan Bingham was the most active of the three principal investors and that she also had decision-making authority. However, Glassman said that in the event he had a disagreement with Bingham, the issue had to be resolved by PFP's Board, which could overrule Bingham. According to Glassman, Bingham's interest was principally on the editorial side during the start-up phase, and she would not spend any money without asking him first because of her limited business experience.
Jeffrey Stein, WW's editor, left WW in October 1984 because of disagreements over editorial policies.[12] He testified that there were three principal owners of the paper, Bingham, Martin Peretz, and Zuckerman, all of whom had strong views on its editorial content. He said that decision-making at WW, including hiring, firing, and leasing decisions, was a collaborative process, but that Glassman was the principal operations officer. According to Stein, he suggested to Bingham that she take responsibility for the book review section of the newspaper. Bingham also made out checks, according to Stein, and there was evidence that James Glassman as the head or point-man at the newspaper.[13] She testified that Glassman told her that Bingham had to sign-off on the creative materials developed by GMK.
B. GMK's Contract
In late 1983, prior to the formation of the limited partnership, but after PFP's incorporation, James Glassman held preliminary discussions with GMK's chairman, Norman Goldberg, about hiring GMK to assist with advertising and marketing the newspaper. According to Goldberg, Glassman told him that a group of investors, including Bingham, Zuckerman, and Peretz, were backing The Washington Weekly. Goldberg said he believed *87 Glassman mentioned having some interest in it also.[14] Goldberg testified that "I thought it was a partnership of people. It was a group of investors in the way [Glassman] said it." Subsequently, Goldberg testified that Glassman never described the relationship as a partnership; however, he was confronted with an affidavit in which he averred, "Mr. Glassman referred to the group's organization as a partnership on more than one occasion, and we believe that to be the case." Goldberg then said that Glassman referred to the group as a partnership, explaining that he viewed a group of investors and a partnership to be synonymous.
Goldberg testified that he heard the name "PFP" around December 1983, although he did not know the exact legal nature of the entity. He said he never heard of the partnership's name, WWL, until after GMK filed suit. Goldberg said that he relied on Glassman during the contract negotiations. He also testified that he met Bingham for the first time after GMK was hired.[15] He admitted that Bingham never represented herself to be a partner of Glassman, Martin Peretz, and Zuckerman.
After several meetings, GMK sent Glassman a written document signed by Carole Marchesano, President of GMK, covering its proposed advertising and marketing services for the six months from January 1, 1984 through June 30, 1984. After a couple of weeks, Kristine Kohlman, GMK's executive vice president and media director, called Glassman to inquire about the status of the proposal, and Glassman explained that he would return it with an addendum. Glassman and Marchesano subsequently signed the addendum which essentially placed the contract on a month-to-month basis rather than on a six-month term as proposed originally.[16] Glassman wrote to GMK on January 20, 1984 stating that he could not "sign anything that commits PFP long-term" because of problems with a reluctant shareholder which had delayed full capitalization of the company. Neither side disputes that PFP never gave the go-ahead for the six-month commitment.
After the contract was executed, GMK developed a media campaign for WW, and the first issue of the paper was published in June 1984. Goldberg testified that GMK provided services after June 30, 1984, monitoring the commercial and media schedules and developing a potential list of advertisers. Goldberg also testified that he met with Bingham in September at her request to discuss the need for more advertising. According to Goldberg, GMK provided various services up to September 7, 1984. Kristine Kohlman testified that there was an extension of the contract after June for a three-month period, and she thought that Glassman had agreed to GMK's continued services. She said that James Rice, associate publisher and general manager of WW, requested the development of a sales kit after June 30th with which she helped.
James Rice, WW's general manager, testified that in response to GMK's concern over outstanding invoices, he sent a letter to GMK over Bingham's signature, listing her as publisher, on August 28, 1984, terminating the monthly retainer agreement with GMK and assuring GMK that the outstanding invoices would be paid. In a handwritten note on Washington Weekly's letterhead, dated September 27, 1984, Bingham wrote to Norman Goldberg confirming the prior letter terminating the monthly retainer agreement. The letter concluded with the following: "We really appreciated all your good advice last week."
*88 William Schmidt, GMK's comptroller, testified that GMK received a total of $79,369.75 in payments under the contract between February and September 1984. GMK claimed that several invoices remained unpaid for work performed through June 30, 1984: (1) Invoice No. 617 dated June 22, 1984 for $10,534.00 (for services performed between June 11 and 17, 1984); (2) Invoice No. 632 dated June 27, 1984 for $9,126.38 (for work performed prior to June 18, 1984); and (3) Invoice No. 758 dated July 27, 1984 for $19,234.70, for which no dates are specified. The unpaid invoices for work GMK claimed it performed after June 30, 1984 included the following: (1) Invoice No. 702 dated July 1, 1984 for $2,500 (July retainer fee)[17]; (2) Invoice No. 807 dated August 6, 1984 for $2,500 (August retainer fee); and (3) Invoice No. 847 dated September 7, 1984 for $2,761.25 (July client consultation and media work for an unspecified period).
C. Trial Court Rulings
In granting judgment for appellee, the trial court made the following findings: (1) the written contract was between GMK and the corporation, PFP, rather than the partnership, Bingham, or any other individual; (2) the parties operated on a month-to-month basis pursuant to the contract; (3) liability under the GMK contract was transferred from the corporation, PFP, to the partnership, WWL, by operation of law upon the partnership's formation on March 1, 1984, although PFP was not absolved of its liability under the contract; and (4) the evidence was overwhelming that Bingham took part in the control of the partnership business and was therefore liable under the plain language of D.C.Code § 41-207 (1981).[18] The court also found that Bingham had become a limited partner in WWL on June 18, 1984 and that she continued to exercise control over the business at all relevant times thereafter. The court determined that the fact that Bingham was acting for the corporate general partner did not alter the effect of D.C.Code § 41-207, which imposes general partnership liability on limited partners who take part in the control of the business. Appellants argued in the trial court that the statute then in effect implicitly required proof that GMK relied on Bingham's apparent partnership role before liability could be imposed. The court rejected this argument with the following explanation:
First of all, the plain language of the statute... makes no reference to reliance, or notice, or knowledge .... The reason that GMK did not know that Ms. Bingham was acting as a general partner and, therefore, couldn't rely on it was because plaintiff didn't know about the partnership .... Plaintiff did know, however, that Ms. Bingham was exercising control and relied on that and defendants should not be allowed to profit from their failure to disclose the partnership status, which would be the consequence of their position on this point.[19]
Finally, the court found that the contract extended from January 1, 1984 through June 30, 1984 and that appellee had to prove the existence of an oral contract, express or implied, beyond June 30, 1984, which it failed to do. The trial court also ruled that under the plain language of the contract, liability for the invoices arose as of the date they were rendered by GMK.[20] Since the three invoices underlying the judgment were rendered *89 after the date that the court determined that Bingham assumed the status of general partner, i.e., no later than June 18, 1984, the court held her personally liable for the debt.
The trial court precluded appellee from pursuing a claim for the work performed after June 30, 1984 on a theory of quantum meruit because pretrial orders entered by a prior judge precluded it. In view of its holding that Bingham was liable under the partnership statute, the trial court did not reach appellee's theory of liability based on piercing PFP's corporate veil.
II.
A. Standard of Review
The trial court's findings of fact in a non-jury trial will be set aside only if clearly erroneous or without evidentiary support. D.C.Code § 17-305(a) (1989); Byrd v. United States, 614 A.2d 25, 30 (D.C.1992); Wheeler v. Goulart, 593 A.2d 173, 173-74 (D.C.1991); Westbridge Condominium Ass'n, Inc. v. Lawrence, 554 A.2d 1163, 1166 (D.C. 1989). "[W]here the facts admit of more than one interpretation, the appellate court must defer to the trial court's judgment." Davis v. United States, 564 A.2d 31, 35 (D.C. 1989) (citations omitted). Our review of the trial court's legal conclusions is de novo. Id.; Westbridge, 554 A.2d at 1166. Determinations of fact-free principles of law are designated questions of law and require an independent appraisal of the record on appeal without deference to the trial court's findings. Davis, 564 A.2d at 35.
Appellants contend that two of the issues essential to the judgment against them involve questions of law subject to de novo review by this court. Specifically, they contend that the trial court erred as a matter of law in imputing the preexisting corporate contract obligation to the partnership under the undisputed facts, and in holding appellant Bingham liable as a general partner by operation of law.
B. Imputation of Corporation's Liability to the Partnership
Appellants argue that the trial court erred in the first instance in imputing PFP's corporate obligation under the contract to WWL, the partnership. They contend that this ruling is contrary to the undisputed evidence and erroneous as a matter of law. The trial court imputed a transfer of liability to WWL for PFP's obligations under the GMK contract by operation of law from the date of the partnership's formation, March 1, 1984. The factual findings underpinning the court's ruling were these: (1) PFP and the partnership had the same business; (2) the significant persons in the corporation remained as significant persons in the partnership; (3) PFP made no arrangements to meet its obligations under the contract, although it continued to operate under it through June 30, 1984; and (4) PFP failed to inform GMK that it was no longer dealing with the same legal entity. In concluding that successor liability should be imposed on the partnership, the trial court relied on three cases, namely: Colonial Ice Cream Co. v. Southland Ice Utilities Corp., 60 App.D.C. 320, 53 F.2d 932 (1931), Bishop v. Dura-Lite Mfg. Co., 489 F.2d 710 (6th Cir.1973) and Brockmann v. O'Neill, 565 S.W.2d 796 (Mo.App.Div. 1 (1978)). Appellants contend that, unlike this case, each of these cases involved fraudulent conveyances which the original corporation made for the purpose of evading its creditors. Appellee contends that the cases are analogous to this case because each imposed successor liability based upon a "before and after" comparison of how the businesses of the buyers and sellers operated which revealed no essential differences. In any event, appellee argues, the evidence in this case established fraudulent transfers, although the trial court made no finding to that effect.
Ordinarily, a business entity which acquires the assets of another business is not liable for its predecessor's liabilities and debts. Bud Antle, Inc. v. Eastern Foods, Inc., 758 F.2d 1451, 1456, reh'g denied, 765 F.2d 154 (11th Cir.1985) (citations omitted). There are several recognized exceptions to this general rule. Liability will be imposed on the successor entity when
(1) the buyer expressly or impliedly agrees to assume such debts; or (2) the transaction amounts to a de facto merger *90 of the buyer and seller; or (3) the buying corporation is a "mere continuation" of the selling corporation; or (4) the transaction is entered into fraudulently in order to escape liability for such debts.
Id. (quoting Acheson v. Falstaff Brewing Corp., 523 F.2d 1327, 1329-30 (9th Cir.1975)); see also Baltimore Luggage v. Holtzman, 80 Md.App. 282, 562 A.2d 1286, 1289-90 (1989), cert. denied, 318 Md. 323, 568 A.2d 28 (1990); Brockmann, supra, 565 S.W.2d at 798. There is no dispute that the first two exceptions are not involved here. The trial court relied principally upon the "continuation" exception to the general rule against successor liability in imputing liability to WWL for PFP's obligations under the GMK contract. We review first the cases relied upon by the trial court and then their applicability to the facts and issues involved here.
We note at the outset that Colonial Ice Cream, Brockmann, and Dura-Lite are materially distinguishable from the case before this court. In each of these cases, the transferring or selling entity ceased to exist in fact or in effect, and the transferee literally continued the business of the transferor. In Colonial Ice Cream, the seller corporation, Zero Products, Inc. (Zero Company) sold all of its assets, including its plant, stock in trade, fixtures, patents, machinery, other property, and good will to the successor company, Zero Ice Cream Company (Colonial).[21] 53 F.2d at 933. In exchange, the buyer, Colonial, assumed the seller corporation's liabilities, up to a certain amount, and gave the seller 1,785 shares of its second preferred capital stock. Id. The creditor, Southland Ice Utilities Corporation (Merchants),[22] contended that the seller and buyer companies, Zero and Colonial, were essentially the same company, having substantially the same stockholders and officers, and that consolidation of their assets was, in effect, a merger.[23]Id. The appellate court agreed, concluding essentially that the purported sale was no more than a continuation of the seller's business under a new name and that the mere retention by the predecessor company of its corporate charter after the transfer of its assets did not make it any less extinct as an active entity. Id. at 934. Therefore, the court sustained the trial court's determination that the creditor of the seller corporation could follow the seller's assets to the successor company, which was deemed to hold them in trust for the payment of creditors. Id.
In Brockmann, the creditors sued the trustees of the assets of a former corporation, Royal Electric Contractors, Inc. (Royal), on a promissory note for $10,000. 565 S.W.2d at 797. Subsequent to incurring the debt, Royal had ceased operations, and its owners formed a second corporation, Consolidated Electrical Contractors, Inc. (Consolidated), which took over performance of Royal's contracting projects, using Royal's employees, trucks, and equipment. Id. at 797-98. In the meantime, Royal sold its trucks and other assets to an individual who became a director of Consolidated in consideration for the amount of back taxes which Royal owed the government before ceasing operations. Id. at 798. Neither the contractors doing business with Royal nor Royal's employees were notified of the formation of the successor corporation. Id. Although the trial court found in Brockmann that there was sufficient consideration to validate Royal's sale of its assets and that no fraud or merger was shown, the appellate court reversed, finding that there was no significant difference in the selling and purchasing entities, that there was no actual change of ownership, and that a continuation occurred. Id. at 798-99. The Brockmann court was persuaded by the reasoning in Dura-Lite upon which the trial court also relied here. Id. at 799.
*91 In Dura-Lite, the creditors obtained a money judgment against National Outdoor Display, Inc. (National) and National's president. 489 F.2d at 711. In order to satisfy the judgment, the creditors sought to attach an aircraft which National had transferred to Dura-Lite Manufacturing Co. (Dura-Lite) during the pendency of the creditors' law suit against National. Id. The trial court made findings that National and Dura-Lite had the same president, were engaged in the same business, used the same assets and equipment, and operated from the same premises and that National had transferred the aircraft for well below its market value. Id. Therefore, the court concluded that Dura-Lite had been formed with the intent to escape liability on the debts previously accumulated by National. Id. The Sixth Circuit affirmed, holding that the buying corporation was merely a continuation of the selling corporation. Id. at 711-12. The applicable state law provided that "a new corporation which is merely the continuation of an old one and which was formed in order that the old corporation could escape liability on its debts shall be deemed to have assumed the debts and liabilities of its predecessor." Id. at 711 (internal quotation marks and citation omitted).
In contrast, in the case before this court, the undisputed evidence showed that PFP continued to exist as a separate entity after the formation of WWL, the limited partnership. PFP's principals held board meetings, signed leases for partnership office space, and transferred substantial funds into the partnership through late 1984. It is undisputed that PFP retained cash assets of more than $78,000 and continued to pay bills after the partnership's formation. Although there were several principal investors in PFP, only one of PFP's principals, Joan Bingham, took part in the partnership's business on a regular basis. PFP filed its own tax returns through 1986 and maintained separate books.
In all of the cases relied on by the trial court, the transferring entity ceased to exist. Even in Colonial Ice Cream, where the transferring entity retained its corporate charter, the court found that the company effectively had ceased to exist. That is not the case here. The partnership was formed to obtain investors and to raise capital through different investors to fund production of the newspaper, not merely to continue the corporation's business.[24] Although PFP's purpose became to act as general partner and to serve as management agent for the partnership under the terms of the partnership agreement, the partnership's purpose was separate and distinct from that of PFP.
A number of factors must be examined to determine whether one business is a mere continuation of a predecessor. Among these are a common identity of officers, directors, and stockholders in the purchasing and selling corporations. Bud Antle, supra, 758 F.2d at 1458-59. While this factor is a key element in examining transactions between two corporations, its applicability is less useful in considering a situation where the claimed successor is a partnership for which the alleged predecessor corporation serves as corporate general partner.[25] In such a case, the officers for the corporation and for the corporate general partner would necessarily be the same. Therefore, other factors must be considered. Of some significance to our determination is the fact that there were many different limited partners in the partnership who were not shareholders in the corporation. Therefore, we do not view the identity of officers for the corporation as the officers of the corporate general partner to be sufficient on these facts to establish that a continuation occurred. Such an obvious occurrence when the predecessor corporation is the corporate general partner of the partnership is not sufficient to require ignoring the separate identities of the corporation and the partnership and imposing liability on the latter for the former's debts.
*92 Another factor of importance to the determination is the sufficiency of the consideration passing from one entity for the sale of its interest to another. See Baltimore Luggage, supra, 562 A.2d at 1294. The trial court made no finding that the corporation, PFP, gave inadequate consideration for the interest it purchased in the partnership, WWL. The undisputed evidence shows that the corporation originally contributed properties valued at $127,693 to the partnership. Both the general and limited partners contributed cash to the partnership over time.
A major factor relied upon by the trial court in imposing successor liability was its finding that PFP failed to arrange to meet its contractual obligations. This finding is contrary to the undisputed evidence, and therefore, we can not accept it. See Byrd, supra, 614 A.2d at 30. The evidence shows that PFP retained cash assets of $78,830.74 for business expenses after the transfer of properties. Under the partnership agreement PFP could anticipate earning management fees from the venture. It also expected to receive a share of the profits from the venture. The fact that the venture failed ultimately is not determinative of whether the corporation took steps to meet its financial obligation upon the transfer of some of its assets. Moreover, GMK was paid more than $77,000 in payments after the partnership was formed. Therefore, it cannot be said that the transaction was entered by PFP to avoid liability for its debts. See Dura-Lite, supra, 489 F.2d at 711 (new corporation deemed to assume liabilities of predecessor where formed to escape liability of former corporation). Both PFP and WWL paid their debts as long as each had cash to do so.
Another factor relied upon by the trial court in concluding that a mere continuation occurred is that PFP and the partnership had the same business. However, "[i]n determining whether one corporation is a continuation of another, the test is whether there is a continuation of the corporate entity of the sellernot whether there is a continuation of the seller's business operation." Bud Antle, supra, 758 F.2d at 1458. Thus, the fact that both were involved in some phase of the development of the weekly newspaper is not the key factor. Rather, it is whether entities involved remained separate. See id. As we have observed previously, two distinct entities existed during the transactions, a corporation and a limited partnership, and no circumstances have been shown which suggest that their separate identities should not be respected.
In summary, we conclude that the undisputed facts fail to show a basis for application of any of the four exceptions to the rule against successor liability. See Bud Antle, supra, 758 F.2d at 1456. Therefore, the trial court erred in imputing the liability of the corporation under the GMK contract to the partnership.[26] Accordingly, its determination that Bingham became personally liable on the GMK contract because she was a limited partner who took part in the control of the business, cannot be upheld.[27]
C. Piercing PFP's Corporate Veil
Appellee argues that the trial court's decision should be affirmed because personal liability should be imposed upon appellant Bingham by piercing PFP's corporate veil. Appellee contends that Bingham used the corporation as an alter-ego and so dominated its affairs that she should be subject to personal liability for the debt owed by PFP to GMK. The trial court made no findings *93 which would support the imposition of liability on this theory. Nevertheless, as appellee points out, this court may affirm on grounds shown by the record, whether or not relied upon by the trial court. See Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C.1982); Joseph H. Munson Co. v. Secretary of State, 294 Md. 160, 448 A.2d 935, 939 (1982), aff'd, 467 U.S. 947, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984). Therefore, we consider briefly whether the record provides any possible support for a trial court finding in favor of appellee's claim.[28]
The general rule has been that the corporate entity will be respected and that its obligations will not be imposed upon a particular individual unless a "party seeking to disregard the corporate entity has proved by affirmative evidence that there is (1) unity of ownership and interest, and (2) use of the corporate form to perpetrate fraud or wrong." Vuitch v. Furr, 482 A.2d 811, 815 (D.C.1984) (citations omitted). We have recognized a modification to this rule which rejects the requirement that fraud must be shown. Id. Instead, considerations of justice and equity may justify piercing the corporate veil. Id. Whether there is a sufficient showing of a unity of ownership and interest will depend upon such factors as (1) whether corporate formalities have been disregarded, (2) whether corporate funds and assets have been extensively intermingled with personal assets, (3) inadequate initial capitalization, and (4) fraudulent use of the corporation to protect personal business from the claims of creditors. Id. at 816.
When the evidence is viewed against these standards, there is no basis to conclude that there was a unity of ownership and interest. The record contains numerous documents evidencing the corporation's observance of corporate formalities. Among them are copies of the articles of incorporation, the D.C. Certificate of Incorporation, the Resolution for Bank Accounts, minutes of meetings of the Board of Directors and of shareholders, consent to postponement of meeting, corporate by-laws, and stock certificates. The undisputed testimony shows that final decision-making authority rested with the Board of Directors of the corporation, and it was the Board's decision to terminate publication of the paper.
There is also no evidence that Bingham's personal funds were commingled with the corporation's assets or that the corporation made a preferential payment to her. What the evidence shows is that, in addition to her capital contribution to the corporation, Bingham loaned the corporation $300,000 and that she later forgave the debt. Contrary to appellee's assertion, there is no evidence that Bingham actually seized the corporation's computer equipment, although there is evidence that she had a security interest in it. Thus, we do not agree with appellee that there was either a commingling of assets or a preferential payment.
Finally, there is no basis to conclude that the corporation was undercapitalized initially or that the transfer of assets to PFP was undertaken as a fraud on creditors. On the contrary, cash in excess of one million dollars was invested into the corporation initially. For the reasons previously stated, we find no attempt to defraud creditors in the formation of WWL and PFP's purchase of a general partnership interest in the partnership. Thus, the basic elements for disregarding the corporate entity are absent here. See Vuitch, supra, 482 A.2d at 816. Accordingly, the trial court's ruling imposing personal liability upon appellant Bingham cannot be premised upon piercing the corporate veil.
III.
Post-June 30th Services and Quantum Meruit Ruling
GMK contends in its cross-appeal that the trial court erred in denying recovery for services rendered after June 30, 1984 based upon an express or implied contract and in declining to consider its claim based upon a theory of quantum meruit. The trial court found that appellee failed to prove the existence of an oral contract after June 30th, *94 either express or implied. We will not set aside the judgment of the trial court in a non-jury case "except for errors of law, [or] unless it appears that the judgment is plainly wrong or without evidence to support it." Robinson v. Jones, 429 A.2d 1372, 1374 (D.C. 1981); D.C.Code § 17-305(a). The record adequately supports the trial court's determination on this issue.[29]
Finally, appellee, GMK, argues that even if there were no contract, express or implied, for services rendered post-June 1984, the trial court abused its discretion in refusing to let GMK amend the complaint to permit recovery based upon quantum meruit. The trial court refused to entertain this theory because of the ruling of the pretrial judge (Judge William Gardner). Initially, the pretrial judge had so ruled because GMK failed to plead the theory in its Third Amended Complaint and because GMK had relied consistently upon an express contract in seeking recovery.[30] GMK filed a motion to clarify, and the pretrial judge reaffirmed its ruling adding that "[w]here the plaintiff had not alleged a claim on the implied contract or quantum meruit in its complaint, it cannot do so by means of a pretrial statement or a pretrial order." We find no abuse of discretion in the pretrial judge's decision to deny GMK leave to amend under the circumstances.[31]See Gordon v. Raven Systems & Research, Inc., 462 A.2d 10, 13-14 (D.C. 1983).
IV.
Sanctions
Appellee/cross-appellant, GMK, argues that the motions judge (Judge Stephen Eilperin) erred in awarding as sanctions only $5,000 of the $12,629 it found that GMK incurred as attorney's fees attributable to Bingham's untimely response to discovery.[32] At the hearing on the motion for sanctions, Judge Eilperin found that although there was no bad faith on the part of Bingham and PFP in withholding the document, their conduct in failing to produce it timely was grossly negligent. The court ordered GMK to submit details of the costs it incurred because of the delay. GMK requested $26,054.25 in attorneys' fees and $787.48 in costs, which appellants opposed. In setting the award at $5,000, the court stated:
[GMK's] failure to timely produce the documents at issue was negligent, not willful, and the amount of time expended by [GMK] on this case given its limited promise has been plainly excessive, at least in *95 terms of seeking reimbursement for the fees that work generated. An award of $5,000 seems reasonable under the circumstances.
The court denied appellee's motion for reconsideration and appellants' motion for clarification and stay pending appeal, expressly stating that the latter was "without merit" and "essentially frivolous." Appellee then moved for Rule 11 sanctions based on the court's denial of the motion for clarification, which the court denied without a hearing. GMK seeks a remand for an award of the entire $12,629[33] and for the imposition of additional sanctions for what it contends was caused by appellees' efforts to avoid the initial sanction.[34]
Sanctions for failure to make discovery are "particularly committed to the trial court's discretion." Corley v. BP Oil Corp., 402 A.2d 1258, 1261 (D.C.1979) (citations omitted). The court's decision imposing sanctions will not be disturbed absent an abuse of discretion. Id. at 1262. Appellee/cross-appellant argues that the court abused its discretion by improperly linking appellants' litigation conduct to the merits of the litigation. We do not read the court's order to mean that it reduced the fee it would have imposed otherwise because of the merits of the underlying claims. Rather, the court determined that in "seeking reimbursement for fees that [discovery] work generated[]," GMK expended excessive time. We find no abuse of discretion in the court's ruling in this regard.[35]
V.
For the foregoing reasons, the judgment for GMK against Bingham is vacated, and the case is remanded with instructions that judgment be entered in favor of Bingham. Otherwise, the judgment and orders appealed from, directly or by cross-appeal, are affirmed.[36]
Reversed in part and affirmed in part.
NOTES
[1] Formerly Goldberg/Marchesano and Associates Inc.
[2] GMK amended the complaint several times. Bingham and PFP, Inc., individually and, apparently, as purported general partners in WWL, were the only remaining defendants at the time of trial. Although PFP, Inc. was formally named in the notice of appeal, appellants' brief focuses primarily on the liability of Bingham. Given our conclusion with respect to the absence of liability of the partnership for the GMK debt by operation of law, the judgment against PFP, Inc. is affirmed only insofar as it imposes liability against the corporation in its individual capacity and not as general partner of WWL.
[3] Bingham served on the Board of Directors of the Louisville Courier Journal, a large newspaper.
[4] Zuckerman was then a principal owner of U.S. News & World Report and The Atlantic Monthly, inter alia. Anne Peretz was married to Martin Peretz, the owner of The New Republic.
[5] James Glassman testified that Zuckerman made two investments of $50,000 each. The second was made well after all the other shareholders had invested.
[6] The agreement provided that up to $1,500,000 could be raised through the sale of additional limited partnership interests. PFP contributed to the partnership "newspaper properties" it had developed for the project which were valued at $127,693 prior to the partnership's formation date. These properties consisted of "prototypes of the newspaper, market research results, and direct mail results." PFP received in exchange a 99.9 percent interest in the partnership. PFP retained $78,830.74 in its own bank account to pay its ordinary business expenses.
[7] Seven investors were listed as limited partners, who were shown to be making an initial total capital contribution of $130,000, with individual capital obligations ranging between $25,000 and $10,000 each for a total of $325,000. Susan Greenberg withdrew in exchange for the return of her capital contribution.
[8] Bingham argues on appeal that her designation as a general partner was in error, as she was only a limited partner, and that the body of the agreement refers to only one general partner, PFP. She offered no testimony at trial; however, the agreement is in evidence.
[9] The agreement provided for the partnership to enter a management agreement with the general partner for a fee. The evidence shows that PFP waived these fees because the venture never generated sufficient cash to pay them. The management agreement was not in evidence at trial.
[10] See supra note 6.
[11] The original partnership agreement contains no provision for the partnership's assumption of any liabilities or operating expenses of the business.
[12] Stein testified that he would receive daily comments from Bingham, Martin Peretz, Mortimer Zuckerman, and James Glassman. He said he left because Peretz and Zuckerman disagreed with some of his editorial decisions.
[13] James Glassman signed checks for PFP, at least in early 1984, including checks to "Goldberg, Marchesano."
[14] Other evidence showed that Glassman had no interest.
[15] Goldberg stated that he met Bingham again in September 1984 after she called to request a meeting to discuss how they could attract more advertisers.
[16] The addendum read:
PFP, Inc., publisher of Washington Weekly, accepts the terms of the six-month contract. However, until we officially notify GMK that PFP, Inc. is funded and will definitely go ahead with publication of WW, we want to be on a month-to-month basis, without a six-month commitment. When we notify you, we will go ahead with the full contract.
We also reserve the right not to go ahead with WW, in which case we will have no commitment beyond the month that we decide not to go ahead.
[17] The record reflects a payment on July 17, 1984 from "The Washington Weekly" account, check no. 618 for the July retainer.
[18] D.C.Code § 41-207 read at the relevant time as follows:
A limited partner shall not become liable as a general partner unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business.
Section 41-202 (1981) provided that "limited partners as such shall not be bound by the obligations of the partnership."
[19] The current law, D.C.Code § 41-433(a) (1987), provides:
If the limited partner does participate in the control of the business, the limited partner is liable only to persons who transact business with the limited partnership reasonably believing, based upon the limited partner's conduct, that the limited partner is a general partner.
[20] Appellee argued that the contract provision which stated that "[a]ll invoices are due upon receipt" meant that the liability arose only when the invoices were sent.
[21] Zero Ice Cream Company changed its name to Colonial Ice Cream Company; thus, it is referred to as Colonial in the cited opinion. Colonial Ice Cream, supra, 53 F.2d at 933.
[22] Southland changed its name to Merchants Co. during the proceedings, and it is referred to as Merchants in the opinion of the court.
[23] Although the de facto merger and "mere continuation" exceptions to the general rule against successor corporate liability have similar characteristics, courts generally treat them separately. Bud Antle, supra, 758 F.2d at 1457.
[24] Under the partnership agreement, PFP retained the right to invest in other businesses.
[25] While not explicitly provided for in the partnership statute in effect at the times relevant to this case, the statute did not preclude a corporation from being a general partner in a limited partnership.
[26] The trial court found that the written contract was between GMK and the corporation and not between GMK and the partnership, Bingham, or any other individual. This factual finding is supported by the evidence, and the parties do not challenge it.
[27] In view of our disposition of this issue, we need not reach the question of whether Bingham became liable as a general partner under prior law, D.C.Code § 41-207 (1981), because she exercised some control of the partnership as an officer or agent for the corporate general partner. See Delaney v. Fidelity Lease Ltd., 526 S.W.2d 543, 545 (Tex.1975); but see Frigidaire Sales Corp. v. Union Properties, Inc., 88 Wash.2d 400, 562 P.2d 244, 246 (1977) (en banc) and Western Camps, Inc. v. Riverway Ranch Enters., 70 Cal. App. 3d 714, 727-28, 138 Cal. Rptr. 918, 926 (1977). For the same reason, we need not consider whether Bingham was a general partner in WWL because she was reported as such on an annex to, although not in the body of, an amended restated certificate of partnership.
[28] By not seeking a remand to the trial court for findings of fact on this issue, appellee concedes that for it to prevail on the point, the record must justify disregard of the corporate form even resolving all factual inferences in favor of appellants.
[29] Mr. Goldberg testified that he did not know who requested GMK's services after June 30th, although he gave inconsistent testimony on the same point a day earlier. He was also unable to state the terms of any agreement allegedly entered after that date. There was a factual and legal basis for the trial court's determination that an oral contract, express or implied, had not been established. See Rosenthal v. National Produce Co., 573 A.2d 365, 369-70 (D.C.1990). Even if there were circumstantial evidence tending to support GMK's theory, we will not retry the issues nor overturn the court's determination where the record supports it. See Robinson, supra, 429 A.2d at 1374.
[30] The two remedies may be joined in the same action. North American Graphite Corp. v. Allan, 87 U.S.App.D.C. 154, 156, 184 F.2d 387, 389 (1950); see also Giordano v. Interdonato, 586 A.2d 714, 718-19 (D.C.1991). However, the assertion of one theory is not implicit in the other such that a party need only plead one to proceed on both as GMK contends. On the contrary, "quantum meruit[] is not applicable when compensation of the parties is covered by an express written contract." Standley v. Egbert, 267 A.2d 365, 368 (D.C.1970); see also Finard & Co. v. Capitol 801 Corp., 749 F. Supp. 15, 18 (D.D.C. 1990), aff'd in part, 298 U.S.App.D.C. 140, 976 F.2d 1444 (1992); Chancellor v. L.J. Hooker Commercial Real Estate, Inc., 690 F. Supp. 35, 39 (D.D.C.1988). In North American Graphite, both theories had been pled properly, and the court simply said that plaintiff could not be forced to choose between the two at trial. Here, GMK did not plead any alternative theory nor seek to do so until too late under the circumstances.
[31] We also reject any claim that the trial court erred in adhering to the pretrial judge's ruling on this record. Further, we find no basis for GMK's argument that its quantum meruit theory was tried by express or implied consent of the parties, thereby providing a basis for a conforming amendment to its final amended complaint. See Super.Ct.Civ.R. 15(b).
[32] The document involved was a copy of the certificate of incorporation of PFP, Inc. The document shows the existence of the corporation prior to the execution of the contract with GMK. In that regard, the document was helpful to appellants/cross-appellees.
[33] The motions judge determined that the costs associated with appellants/cross-appellees' untimely production of the documents were related to (1) holding the pretrial conference, (2) legal research on promoter liability, (3) trial preparation for the first scheduled trial date, and (4) preparation of the fee petition.
[34] In a reply brief, appellant seeks for the first time to challenge the award of $5,000 as a discovery sanction. It appears that appellant's reply brief was allowed to be withdrawn pursuant to order of this court. In any event, the reply brief is limited to responses to the issues presented by the adverse party's brief, and it is not appropriate to raise new issues on appeal. See D.C.App.R. 28(c); see also Joyner v. Jonathan Woodner Co., 479 A.2d 308, 312 n. 5 (D.C.1984). This issue should have been raised in appellant's initial brief, and it is not properly included in the reply brief.
[35] GMK also argues that the trial court erred in declining to impose sanctions based on its finding that appellant's motion for clarification was frivolous and in declining to award the full amount of the costs claimed by GMK for process server fees. Both matters are within the trial court's discretion. See Stansel v. American Sec. Bank, 547 A.2d 990, 995-96 (D.C.1988) (trial court has broad discretion to determine whether rule 11 has been violated), cert. denied, 490 U.S. 1021, 109 S. Ct. 1746, 104 L. Ed. 2d 183 (1989); see also Robinson v. Howard Univ., 455 A.2d 1363, 1369 (D.C.1983) (the award of costs is within the trial court's discretion). Our examination of the record reveals no abuse of discretion by the trial court in making either ruling.
[36] See supra note 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2769690/ | January 13 2015
DA 13-0841
Case Number: DA 13-0841
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 12N
RICHARD PHELPS EDWARDS,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Stillwater, Cause No. DV 12-22
Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Matthew J. Wald, Wald Law Office, PLLC, Hardin, Montana
Lisa J. Bazant, Attorney at Law, Billings, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
Attorney General, Helena, Montana
D. Ole Olson, Special Deputy County Attorney, Helena, Montana
Nancy Rohde, Chief Deputy Stillwater County Attorney,
Columbus, Montana
Submitted on Briefs: November 19, 2014
Decided: January 13, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Richard Phelps Edwards (Edwards) appeals from the order of the District Court
denying his petition for postconviction relief. Edwards argues that the District Court
abused its discretion when it denied his petition for postconviction relief without a
hearing. We affirm.
¶3 In March 2010, a jury in Stillwater County, Montana, convicted Edwards of
deliberate homicide and tampering with evidence for the 2002 murder of Daniel Lavigne.
Edwards’ ex-wife, Sherry Edwards, testified at the trial that she witnessed Edwards shoot
Lavigne. At the beginning of Sherry’s cross-examination, defense counsel stated that she
would be “kind of winging it, because I wasn’t expecting to actually talk to you until
tomorrow.” Defense counsel also stated, “I’m sorry, I’m not as fast or quite as prepared
as I had anticipated being.” Sherry Edwards was later called in the defense’s
case-in-chief and questioned by a different member of the defense team. Edwards asserts
on appeal that his defense counsel was ineffective due to conflicts, lack of preparation,
and failure to confront Sherry Edwards.
2
¶4 Edwards appealed the judgment and sentence, both of which were affirmed by this
Court. The extensive history of this case can be found at State v. Edwards, 2011 MT
210, 361 Mont. 478, 260 P.3d 396 (Edwards I). This Court concluded that Edwards had
not been denied effective assistance of counsel, holding that he was not prejudiced by the
two statements. Edwards I, ¶ 27.
¶5 In March 2012, Edwards filed a petition for postconviction relief and requested an
evidentiary hearing. After Edwards was appointed counsel, he amended his original
petition. The District Court declined to grant a hearing and denied the petition based on
the briefs and affidavits on file. Edwards appeals.
¶6 A petitioner seeking to reverse a court’s denial of a petition for postconviction
relief bears a heavy burden. State v. Cobell, 2004 MT 46, ¶ 14, 320 Mont. 122, 86 P.3d
20 (citations omitted). This Court reviews a district court’s denial of a petition for
post-conviction relief to determine whether the court’s findings of fact are clearly
erroneous and whether its conclusions of law are correct. Beach v. State, 2009 MT 398,
¶ 14, 353 Mont. 411, 220 P.3d 667 (citations omitted). “We review discretionary rulings
in post-conviction relief proceedings, including rulings related to whether to hold an
evidentiary hearing, for an abuse of discretion.” Beach, ¶ 14 (citations omitted). To
prevail on a claim of ineffective assistance of counsel, “the defendant must show that
counsel’s performance was deficient” and that “the deficient performance prejudiced the
defense.” Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861 (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).
3
¶7 The District Court denied the petition on the basis that this Court had already
decided the issue of ineffective assistance of counsel as to the examination of Sherry
Edwards. Edwards contends on appeal that the affidavits of his trial counsel show a level
of “disfunction” [sic] that was not previously evident from the record that was available
to the Court at that time. Edwards was afforded the opportunity for a direct appeal and
raised the issue of effective assistance of counsel in his appeal to this Court. As such,
he is barred from raising the same issue in a petition for postconviction relief. Section
46-21-105(2), MCA; Hagen v. State, 1999 MT 8, ¶ 13, 293 Mont. 60, 973 P.2d 233.
We will not re-litigate an issue that has already been fully and finally litigated.
¶8 While Edwards maintains that he has raised new, non-record based issues, we
disagree. The affidavits add no new facts demonstrating that Edwards was prejudiced
by his trial counsel. As we stated in Edwards I, despite statements by defense counsel
that she was unprepared, the defense obtained concessions by Sherry that she had lied
to the police and made prior inconsistent statements. Edwards I, ¶ 25. The affidavits
offered in Edwards’ post-conviction relief petition do not change our prior holding
that he was not prejudiced.
¶9 Edwards further asserts that had the District Court granted a hearing, his
investigator, Mr. Ewalt, would have discussed facts outside the record related to the
timeline and his defense team’s inadequate investigation of that timeline. At trial, several
witnesses discussed points of time of the relevant day’s events. The transcript clearly
indicates that both parties argued the timeline in closing statements. In the
4
postconviction order the District Court noted, “The jury heard, and rejected, the argument
that there was no opportunity for Edwards to kill Lavigne.” The District Court found that
the timeline presented in the Ewalt affidavit did not constitute new evidence, but “merely
recycles the same evidence presented at trial.” A district court may decline to conduct a
hearing if it finds that the allegations in the petition would not entitle a petitioner to relief.
Cobell, ¶ 12. Edwards has not shown how the hearing would clarify the issue or provide
additional facts other than those already set out in Ewalt’s affidavit. It was not an abuse
of discretion to deny Edwards’ petition without a hearing.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for memorandum opinions. The District
Court’s findings of fact are supported by substantial evidence and the legal issues are
controlled by settled Montana law, which the District Court correctly interpreted.
¶11 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
5 | 01-03-2023 | 01-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892655/ | NO. 07-04-0308-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 7, 2005
______________________________
IN RE THE W. T. WAGGONER ESTATE
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 19,626; HONORABLE TOM NEELY, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINION
This is an interlocutory appeal of an order appointing a receiver for the W. T.
Waggoner Estate and giving the receiver "the duty, responsibility and power," subject to the
court's supervision and direction and subject to other provisions of the order, to "sell all
assets" of the Estate. We will affirm the trial court's order.
Background
The W. T. Waggoner Estate is an entity formed by Articles of Agreement and
Declaration of Trust (hereinafter, the "Articles") dated March 31, 1923, among W. T.
Waggoner and members of his family. The Estate sometimes has been referred to in this
litigation as a business or Massachusetts trust. (1) Originally, and at other times, the Estate
has had a trustee. It also has shareholders and directors. It apparently is treated for
federal tax purposes as a corporation. The parties agree the Texas Trust Code does not
apply to the Estate, (2) and for purposes of this appeal under Texas law it is to be treated as
a partnership subject to the Texas Revised Partnership Act. (3)
The Estate was created for an original term of twenty years but its term was
extended by subsequent amendments to the 1923 Articles. By a 1948 amendment, the
Estate's existence was extended through March 31, 1983. By 1981, half the outstanding
shares of the Estate were owned by A. B. Wharton, III (the "Wharton shares"), and half by
Electra Waggoner Biggs and the trustees of trusts created by her parents E. Paul
Waggoner and Helen Buck Waggoner (the "Biggs shares"). On April 1 of that year, the
Articles were further amended and Bylaws for the Estate were adopted. The amended
Articles extended the term of the Estate through March 31, 2003, subject to prior
termination by any shareholder "pursuant to agreement of the Shareholders." The Bylaws
spelled out that "[n]otwithstanding the intention and desire of the shareholders that the
Estate continue in existence for the full term" [through March 31, 2003], either the holders
of a majority of the Wharton shares or the holders of a majority of the Biggs shares had the
"absolute right, with or without cause," to terminate the Estate as of any one of three dates,
on written notice of intention to terminate.
In February 1989, Wharton gave written notice of his intention to terminate the
Estate, selecting March 31, 1991, as the termination date. Charles M. Prather, who had
served as the Estate's trustee since April 1, 1981, resigned as trustee in April 1989. The
office of trustee has been vacant since Prather's resignation. On March 13, 1991, the
Biggs shareholders filed suit seeking the appointment of a receiver for the Estate. By
agreement, the termination date of the Estate was extended to a date later in 1991, but the
parties made no express agreement for its extension beyond that date. The Estate
nonetheless has continued to operate its properties, (4) under the supervision of its directors. (5)
The trial court entered an agreed scheduling order in September 1992 that abated
the case for 120 days, requiring the parties to explore an agreed resolution of the matters
in dispute, and set the case for trial a year later. A 1997 agreed order noted that the case
had been continued on the court's docket without a specific resetting so the parties could
pursue settlement, and provided either party could request a trial setting at any time if
settlement prospects no longer justified further postponement.
Electra Waggoner Biggs died in April 2001. In January 2003, the Biggs
shareholders (6) filed a third amended petition for appointment of a receiver, and followed that
in March 2003 with a motion for partial summary judgment. That motion stated Wharton
"has sometimes contended in this litigation that the assets of the W. T. Waggoner Estate
should be divided in kind or partitioned between the parties." The motion asserted
undisputed evidence established that the governing documents require liquidation of the
assets of the Estate and distribution of the proceeds in the absence of agreement of the
shareholders to a division in kind of particular assets. The evidence submitted by the Biggs
included the 1923 Articles, and amendments to that document including the 1981
amendments, and the 1981 Bylaws. The evidence also included a May 2002 deposition
given by Wharton.
Wharton opposed the Biggs' motion. After an April 2003 hearing, the court signed
an order of partial summary judgment dated May 8, 2003, decreeing that an event had
occurred requiring the winding up of the Estate; that there then was no agreement among
the shareholders for partition or division in kind of any particular assets of the Estate; and
that except to the extent such an agreement was reached, all of the assets of the Estate
would be sold in liquidation and the proceeds distributed to the shareholders after
satisfaction of obligations of the Estate.
In February 2004, the Biggs shareholders filed a motion for the appointment of John
M. Greer as receiver. Wharton filed a response opposing Greer's appointment and filed
a motion to "correct" the court's May 8, 2003, order of partial summary judgment. The
motion to correct urged the court to delete the language requiring all Estate assets to be
sold absent agreement among the shareholders.
The court conducted an evidentiary hearing on March 17, 2004, on the Biggs' motion
for Greer's appointment as receiver and Wharton's motion to correct. Wharton testified at
that hearing. By a March 29 letter, the court notified the parties of its decision not to
appoint Greer as receiver. Noting that the parties had stated in open court that a receiver
was necessary, the court stated in the letter its intention, subject to objection, to appoint
Wilson D. Friberg as receiver. The court set a hearing for May 4 to hear objections to
Friberg's appointment, and to hear further "argument and authorities" on Wharton's motion
to correct. Neither side voiced objection to Friberg's appointment at the May 4 hearing, but
the parties presented extensive argument concerning the powers that should be given him.
On May 14, the court signed the order made the subject of this appeal. It appointed
Friberg as receiver. The order states that the receiver "shall have, subject to the Court's
continued supervision and direction, the duty, responsibility and power, subject to [a later
provision of the order], to sell all assets of the W. T. Waggoner Estate, except to the extent
that the [shareholders] agree to a partition or division in kind of particular assets," and
states the appointment is made in accordance with Art. 6132b-8.03 of the Texas Revised
Partnership Act. (7) The later provision of the order states that the receiver shall consummate
no sale, irrespective of value, of any real or personal property of the Estate without the
court's approval, after notice and hearing.
Notwithstanding the appointment of the receiver, the order directs that day-to-day
operation of the Estate is to remain, subject to further order of the court, under the control
and direction of the shareholders through the directors.
Issue on Appeal
On appeal, Wharton challenges neither the necessity for a receiver nor the selection
of Friberg to serve in that capacity. He acknowledges the parties agreed the appointment
of a receiver was necessary because of their inability to reach any other agreed course for
winding up the Estate. Wharton states his single issue as follows:
The trial court erred in ordering a receiver for the W.T. Waggoner Estate to
sell all of the assets of the Estate in liquidation when, as a matter of law,
neither the Estate's governing documents nor the controlling law provide for
or allow a sale of all of the assets.
The preliminary statement in his brief restates the relevant issue as "How should the assets
of the W.T. Waggoner Estate be transferred to the Waggoner family when the Estate is
wound up?" It succinctly states the parties' positions: "Appellees [the Biggs shareholders]
suggest that the entire corpus of the Estate, including 520,000 acres of real property, be
sold and the cash proceeds distributed among the shareholder groups. Appellant Wharton
insists he has a legal right, after the liabilities of the Estate are extinguished, to receive his
share or, at a minimum, some portion of the Estate 'in kind' without a forced sale of all the
Estate's assets." (8)
Applicable Law
We review the court's order appointing a receiver under an abuse of discretion
standard. See Balias v. Balias, Inc., 748 S.W.2d 253, 256 (Tex.App.-Houston [14th Dist.]
1988, writ denied); Carroll v. Carroll, 464 S.W.2d 440, 447 (Tex.Civ.App.-Amarillo 1971,
writ dism'd); Strategic Minerals Corp. v. Dickson, 320 S.W.2d 882, 884 (Tex.Civ.App.-
Austin 1959, writ ref'd n.r.e.). A court may abuse its discretion by ruling arbitrarily,
unreasonably or without reference to any guiding rules and principles, or without supporting
evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Morrow v. H.E.B., Inc. , 714
S.W.2d 297, 298 (Tex. 1986); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,
241-42 (Tex. 1985). When conducting an abuse of discretion review, we examine the
entire record. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996);
Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).
The law applicable to construction of contracts has been applied to partnership
agreements, Park Cities Corp. v. Byrd, 534 S.W.2d 668, 672 (Tex. 1976), and we will apply
it here. Neither side contends the governing documents are ambiguous. We agree they
are not ambiguous. The construction of an unambiguous contract is a matter of law for the
court. Edwards v. Lone Star Gas Co., a Div. of Enserch Corp., 782 S.W.2d 840, 841 (Tex.
1990); Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex.App.-Amarillo 2000,
no pet.). When a court construes a written contract, its primary concern is to ascertain the
true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d
391, 393 (Tex. 1983). In so doing, the court considers the entire writing, seeking to
understand, harmonize and give effect to all its provisions so that none are rendered
meaningless. Id. at 393; Cross Timbers, 22 S.W.3d at 26. See Southland Royalty Co. v.
Pan Am. Petroleum Corp., 378 S.W.2d 50, 53 (Tex. 1964). All the shareholders signed the
amendments to the Articles dated April 1, 1981, and the Bylaws dated the same date. We
will construe the amended Articles and the Bylaws together. See Jones v. Kelley, 614
S.W.2d 95, 98 (Tex. 1981) (stating general rule that instruments executed at same time,
for same purpose and in same transaction are read and construed together), cited in Fort
Worth Ind. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000).
Document Provisions
Articles
We find several provisions of the amended Articles and the Bylaws pertinent to the
issue presented. We begin with Article IV, Section 1 of the Articles, which states, in
relevant part:
Section 1. This Trust shall first continue for its original term of twenty
years; and at the end of said period of time, the term of this Trust shall
thereupon and then be extended and continued . . . for a term ending at
midnight on the 31st day of March, 2003, but subject to prior termination
pursuant to agreement of the Shareholders. . . . Upon the expiration of the
last mentioned period of time, or upon earlier termination, the Trustee shall
proceed to wind up the affairs of the Trust and to liquidate its assets and
distribute the proceeds of same among the then existing Shareholders.
Notwithstanding the expiration of the term of the Trust or any voluntary
dissolution of the Trust, the Trust shall continue in existence as an entity until
completion of liquidation and distribution of its assets; and all of the powers
herein granted to the Trustee and which may be necessary, convenient or
useful in winding up the affairs of the trust, in liquidating and distributing its
assets, or in carrying on the business operations of the Trust prior to final
distribution, shall remain in full force and effect until the completion of such
liquidation and distribution. Subject to the approval of the Shareholders, the
Trustee may distribute to the Shareholders in kind, rather than to liquidate,
all or any part of the assets of the Trust as they exist at the termination of the
Trust or at any time thereafter; but in such event the Trustee shall be entitled
to adequate indemnification against any unpaid or unsatisfied obligation,
whether fixed or contingent, of the Trust Estate. Bylaws
The preamble to the Bylaws adopted April 1, 1981, reads as follows:
Reference is made to the Articles of Agreement and Declaration of
Trust of W. T. Waggoner Estate, as amended effective April 1, 1981. In
particular, reference is made to the provisions of Section 5 of Article IV of
said Articles as amended, which states that the Articles of Agreement and
Declaration of Trust, together with the bylaws of the Estate, shall constitute
the instruments governing the relationships between the trustee, the board
of directors, and the shareholders.
These bylaws are adopted for the purposes of supplementing the
provisions of the Articles and the providing means for the coordination of the
activities of the trustee, the directors, and the shareholders. As among such
parties, the provisions of these bylaws shall control over any inconsistent
provisions in the Articles.
Relevant provisions of the Bylaws include those contained in Section 1 (entitled
"Early Termination of the Estate; Control of Termination Procedures") of Article IV (entitled
"Miscellaneous"), paragraphs 1(d) and 1(e) of which read as follows:
(d) If a notice of intention to terminate is executed and delivered by
either group of shareholders, then all shareholders, the directors, and the
trustee shall endeavor to resolve the problems giving rise to such notice. If
the parties are unable to effect a resolution, the parties shall explore the
available alternatives to a liquidation and distribution of the Estate assets,
including such of the alternatives listed in paragraph (d) of Section 1 of Article
II hereof as may be appropriate. In the absence of a revocation of any such
notice of intention to terminate, and in the absence of any agreement of the
shareholders on an alternative to liquidation and distribution, the shareholder
group giving such notice shall be entitled, after the date specified for
termination, to a liquidation and distribution of the assets of the Estate. The
processes of liquidation and distribution may be commenced prior to such
date by consent of the shareholders.
(e) Upon termination or dissolution of the Estate, whether as a result
of early termination under this Section 1 or at the expiration of the term stated
in Section 1 of Article IV of the Articles, the trustee shall be subject to the
control and direction of the board of directors in carrying out the processes
of winding-up the affairs of the Estate, liquidating or dividing its assets,
discharging its obligations, and distributing the remaining assets to the
shareholders. Except to the extent that the holders of a majority of the
Wharton stock and the holders of a majority of the Biggs stock agree to a
partition or division in kind of particular assets, all of the assets of the Estate
shall be sold and the proceeds (after satisfaction of the liabilities and
obligations of the Estate) distributed to the shareholders.
Paragraph (d) of Section 1 (entitled "Appointment and Tenure") of Article II (entitled
"The Trustee") of the Bylaws reads in part as follows:
(d) If the office of trustee becomes vacant for any reason and the
directors are unable to agree on the election of a successor trustee . . . then
the directors and the shareholders shall attempt to resolve the deadlock by
consideration of all of the alternatives which may be available, including
submission to arbitration, sale of stock among the shareholders, sale of stock
to a third party, merger, sale of the assets of the Estate, division in kind or
other form of reorganization, appointment of a trustee or agent for the limited
purpose of liquidating the assets of the Estate, and such other alternatives
as may be proposed by any party. If, within a period of three months from
the date the vacancy occurs, the vacancy in the office of trustee has not been
filled and no alternative solution has been agreed upon by the shareholders,
then the holders of a majority of the Biggs stock or the holders of a majority
of the Wharton stock shall have the right to a liquidation of the Estate by a
receiver appointed by a court of competent jurisdiction.
Section 3 (entitled "Priority of Bylaws") of Article IV of the Bylaws reads:
Notwithstanding any provision of the Articles of Agreement and
Declaration of Trust, these bylaws are and shall be the controlling document
with respect to the rights and powers of the shareholders, the directors, and
the trustee and with respect to the relationships among them. To the extent
that the provisions of these bylaws are in conflict with, or are inconsistent
with, the provisions of the Articles, the provisions of these bylaws shall
control.
Construction of Documents
The logic behind Wharton's contention he is entitled to a distribution of assets in kind
begins with the idea that the language of the Bylaws alone controls the distribution to which
the shareholders are entitled on termination. Wharton's analysis gives little attention to the
Articles. Although the 1981 documents clearly state the parties' intention that the Bylaws
control in the event of conflict with the Articles, the documents do not indicate an intention
of the parties that the two documents conflict. The language of the documents, and
common sense, suggest instead that their provisions were intended to be consistent. The
Bylaws provide it is the "controlling" document, but provide also that both Articles and
Bylaws are governing instruments, and state the purposes of the Bylaws are to supplement
and provide means for coordination, not to amend or override the Articles. Accordingly,
unless required by the language of the Bylaws to find a conflict with applicable language
of the Articles, we will not do so but will construe them to be in harmony. See Southland
Royalty, 378 S.W.2d at 53.
As Wharton reads the Bylaws, paragraphs 1(d) and 1(e) (9) of Section 1 of Article IV
provide for different procedures for disposition of Estate assets following termination. By
his reading, under paragraph 1(d), the shareholder group giving notice of early termination
is entitled to a "distribution of the assets of the Estate," in kind, following liquidation.
Paragraph 1(e), by contrast, requires the sale of assets and distribution of proceeds, after
satisfaction of any liabilities of the Estate. Wharton points to Article II, Section 1(d) of the
Bylaws, which contains both the phrases "sale of the assets of the Estate" and "liquidating
the assets of the Estate," as evidence the parties intended them to carry different
meanings. Citing dictionary definitions of the term "liquidate" and its usage in other
contexts, Wharton concludes that in the Estate documents the term means "to ascertain
the debts of the Estate and to pay them." He contends the process of liquidation, then,
under the Bylaws involves only the sale of such assets as necessary to pay debts of the
Estate. Since paragraph 1(e) provides for sale of all assets and distribution of proceeds,
he contends the two paragraphs simply are irreconcilable. Because it is undisputed he
gave notice for early termination effective March 31, 1991, Wharton asserts paragraph 1(d)
is the controlling provision and governs his entitlement. Paragraph 1(e), Wharton argues,
can have no application to the present proceeding because it speaks only of actions by a
trustee and the office of trustee is vacant.
We cannot agree with Wharton's construction of the Bylaw provisions. His reading
of these provisions does not harmonize them but unnecessarily brings them into conflict.
In particular, we disagree with Wharton's contention the documents reflect an intention that
the shareholders are entitled to one form of distribution if the Estate terminates on
expiration of its term in 2003 and another if it terminates earlier. Article IV, Section 1 of the
Articles provides that on expiration of the Estate's term on March 31, 2003, or on earlier
termination, the trustee "shall proceed to wind up the affairs of the Trust and to liquidate its
assets and distribute the proceeds of same among the then existing Shareholders." The
Section goes on to provide that the trustee may on termination distribute in kind, "rather
than to liquidate," all or any part of the assets, but subject to shareholder approval.
Whether termination occurs because of expiration of the 2003 term or because of earlier
termination, the procedure used and the shareholders' entitlement to distribution is the
same.
Wharton's reading of paragraph 1(d) to require the sale only of assets necessary to
pay debts, followed by distribution of assets in kind, thus construes it to conflict directly with
the Articles' requirement that Estate assets be liquidated and proceeds be distributed to
shareholders. We see nothing in the language of paragraph 1(d) to make such conflict
necessary. The phrase "liquidation and distribution of the assets of the Estate" can easily
be read simply as the expression in fewer words of the same procedure described in Article
IV, Section 1 of the Articles. (10) The procedure described in paragraph 1(d) by which the
shareholders, directors and trustee were to endeavor to resolve the problems that gave rise
to the notice of early termination and, if that effort failed, explore alternatives to liquidation
and distribution of assets might postpone the liquidation called for by the language of Article
IV, Section 1 of the Articles, but nothing in the language of paragraph 1(d) requires the
conclusion that the liquidation and distribution that would follow the failure of those efforts
is different from the liquidation and distribution described in the Articles.
Too, Wharton's reading would render meaningless the language, contained in Article
IV, Section 1 of the Articles as well as in paragraph 1(e), requiring shareholder approval
of distributions in kind. The right he asserts to receive at least a portion of his share of
assets in kind inevitably conflicts with the right of other shareholders to receive the benefit
of their shares of cash proceeds of all assets, and the Articles and Bylaws both express the
parties' intention that neither shareholder group will be deprived of that benefit without its
approval.
We find Wharton's construction of paragraph 1(d) implausible for another reason.
Wharton acknowledges that paragraph addresses only the events that are to follow the
delivery of notice of early termination. Noting the evidence is undisputed he gave notice
of early termination, he argues that paragraph provides him, following liquidation, a
contractual entitlement to a "distribution of the assets of the Estate." If, as Wharton argues,
the "distribution of the assets of the Estate" is a distribution in kind, we must then conclude
the parties intended a shareholder group giving notice of early termination would thereby
become entitled to a greater right, that of distribution in kind, than that to which paragraph
1(e) would have entitled them in the absence of early termination. Construing the
documents in a way to provide such an inducement to early termination is contrary to the
intention expressed in Article IV, Section 1(a) of the Bylaws, in which the Wharton and
Biggs shareholder groups each were provided the early termination option,
"[n]otwithstanding the intention and desire of the shareholders that the Estate continue in
existence for the full term [through March 31, 2003]."
To the degree paragraph 1(e) addresses the shareholders' entitlement to distribution
following liquidation, we do not agree it is irreconcilable with paragraph 1(d). The
references to liquidation and distribution in paragraph 1(e) describe, in more detail, the
same procedure, resulting in the same shareholder entitlement, as that described in Article
VI, Section 1 of the Articles: (11) liquidation of Estate assets and distribution of proceeds to
the shareholders, subject to the possibility of distribution in kind with shareholder approval.
We find no support in these documents for a contention that the shareholders' entitlements
on distribution of assets following termination are affected by the presence or absence of
a trustee. (12)
Article II, Section 1(d) of the Bylaws, which addresses procedures to be followed
when the trustee's position is vacant and no agreement can be reached on the appointment
of a successor, and to which paragraph 1(d) of Article IV of the Bylaws makes reference,
does, as Wharton notes, contain language referring both to sale of assets of the Estate and
liquidation of the assets. In the context of that Section, we agree with appellees that the
reference to sale of assets reasonably can be read to refer to sale of some but less than
all of the assets of the Estate. In any event, we do not find the language employed in that
Section to persuasively support Wharton's construction of the provisions directly addressing
distribution of assets on termination.
Application of Texas Revised Partnership Act
The trial court's order appointing the receiver states that the appointment is made
in accordance with the provisions of Article 6132b-8.03 of the Texas Revised Partnership
Act ("TRPA"), which authorizes the appointment of a person to carry out the winding up of
a partnership. Tex. Rev. Civ. Stat. Ann. art. 6132b-8.03 (Vernon Supp. 2004). The parties
make reference to the TRPA on appeal but Wharton does not contend the court's order
contravenes its provisions. Appellees cite TRPA Article 6132b-4.02, which states: "A
partner does not have a right to receive, and may not be required to accept, a distribution
in kind." Tex. Rev. Civ. Stat. Ann. art. 6132b-4.02 (Vernon Supp. 2004). Because we do
not construe the Articles and Bylaws to give Wharton the right to receive a distribution in
kind, we need not further consider the application of that provision. See Tex. Rev. Civ.
Stat. Ann. art. 6132b-1.03 (Vernon Supp. 2004) (TRPA governs to extent partnership
agreement does not otherwise provide).
Equity in Appointment of Receiver
Wharton also presents argument based on the precept that rules of equity govern
the appointment, powers and duties of a receiver. See Huston v. F.D.I.C., 800 S.W.2d 845,
849 (Tex. 1990). He asserts a court of equity has inherent authority to vary from the terms
of agreements, citing this court's opinion in Carroll, 464 S.W.2d 440, and argues the trial
court abused its discretion by ordering all assets of the Estate sold without hearing
evidence that their sale is the "proper and just remedy" to maximize the value of the Estate
for its shareholders.
In Carroll, this court considered a trial court order approving a receiver's sale of farm
land that constituted substantially all the corpus of a trust estate created by a joint will that
expressly prohibited any sale of the trust property without consent of the trustee and
various specified beneficiaries. 464 S.W.2d at 442. Some of the beneficiaries opposed the
sale. This court affirmed the trial court's order, citing evidence that the land was subject
to an imminent foreclosure sale and that family dissension precluded any likelihood of
agreement among the beneficiaries, and finding that "the conditions disclosed by the
evidence" justified the trial court's exercise of its inherent equitable powers. Id. at 446.
Wharton also cites Kennedy v. Pearson, 109 S.W. 280 (Tex.Civ.App. 1908, writ
ref'd), on which Carroll relied. In Kennedy, the court found the facts alleged were not
sufficient to justify the trial court's exercise of equitable powers to approve a proposed sale
of land. The court in Kennedy stated, though, that a court of equity might order the sale if
a showing was made that the property was wasting and its sale was necessary to preserve
its value. 109 S.W. at 284, quoted in Carroll, 464 S.W.2d at 445. Wharton argues the
Carroll and Kennedy cases demonstrate a trial court is not free to exercise its powers in
equity without factual findings supported by evidence. We cannot agree that Carroll or
Kennedy suggest the trial court acted without supporting evidence. The important
distinction between those cases and this involving the Waggoner Estate can be found in
the terms of the governing instruments. As noted, in Carroll, the joint will prohibited sale
of the farm land without beneficiary approval, which was not obtained. 464 S.W.2d at 443.
Similarly, in Kennedy, the will under which the trustees held the land was construed not to
authorize the trustees to sell it. 109 S.W. at 283. In those cases, the courts were asked
to approve, under their powers in equity, sales of land either not authorized or expressly
prohibited by the governing instruments. Here, the Waggoner Estate has terminated and
its governing documents require the liquidation described in Article IV, Section 1 of its
Articles and its Bylaws. A trial court abuses its discretion when it rules without supporting
evidence. Bocquet, 972 S.W.2d at 21. The trial court here had before it the Estate's
governing documents, and it did not abuse its discretion by directing the receiver to take,
under court supervision, the action expressly called for by the unambiguous terms of those
documents.
Nor did the court rule without supporting evidence concerning the conditions facing
the Estate. At the March 2004 hearing, the court also heard Wharton's testimony, which
included his descriptions of such topics as a proposal he made in March 2003 to the Biggs
shareholders to extend the term of the Estate; his unsuccessful efforts, following the entry
of the court's May 2003 order, to arrange for sale of all or part of the Estate's ranch
property; efforts made by the shareholders to divide the ranch and other assets; the
working relationship between its directors; his belief it would be possible to distribute the
Estate assets fairly and in kind without their sale; and his preference for such a division of
the assets. No one questions the trial court's finding that no agreement then existed
between Wharton and the Biggs shareholders to a partition or division in kind of any
particular asset of the Estate.
Moreover, the court's action has neither precluded agreement between the
shareholder groups for partition or division in kind of Estate assets nor deprived Wharton
of the opportunity to challenge the terms of any sale of Estate assets proposed by the
receiver. As noted, the order forbids consummation of the sale of any real or personal
property of the Estate without court approval after notice and hearing, and provides the
receiver is to sell all assets except to the extent the shareholders agree to partition or
division in kind of particular assets.
Finding the trial court did not abuse its discretion in the entry of its order appointing
a receiver, we overrule Wharton's sole issue and affirm the trial court's order.
James T. Campbell
Justice
1. This court referred to the Estate in a 1969 opinion as a "common law trust." Van
Hoose v. Moore, 441 S.W.2d 597, 600 (Tex.Civ.App.-Amarillo 1969, writ ref'd n.r.e.). See
Thompson v. Schmitt, 115 Tex. 53, 274 S.W. 554 (1925); Loomis Land & Cattle Co. v.
Diversified Mortgage Investors, 533 S.W.2d 420, 426 (Tex.Civ.App.-Tyler 1976, writ ref'd
n.r.e.) (Massachusetts trust treated under Texas law as partnership or joint stock
company).
2. See Tex. Prop. Code Ann. § 111.003 (Vernon 1995) (excluding business trusts from
operation of Texas Trust Code).
3. See Tex. Rev. Civ. Stat. Ann. art. 6132b-1.01, et seq. (Vernon Supp. 2004). Those
conclusions of the parties are not at issue here, and we accept them without examination.
4. According to Wharton's brief, the Estate's assets include, among other assets,
some 520,000 contiguous acres primarily in Wilbarger County used for ranching and
mineral exploration and production, an office building, apartments, aircraft and facilities,
pipelines, feedlots and livestock.
5. The Bylaws provide for equal representation of the Wharton shares and the Biggs
shares on the board of directors. Since 1981, the board has consisted of two directors,
Wharton and a director representing the Biggs shares. Electra Waggoner Biggs served in
that capacity until April 1989, when she was succeeded as a director by Gene Willingham,
who has served since.
6. After the death of Electra Waggoner Biggs, the Biggs shareholders consist of her
daughters Helen Biggs Willingham and Electra Biggs Moulder and the trustees of the trusts
created by her parents.
7. The May 14 order also reiterates the three holdings of the partial summary
judgment order and denies Wharton's motion to correct that order.
8. Wharton's expressed primary interest lies in retaining a share of the Estate's ranch
property.
9. Unless otherwise indicated, further references to "paragraph 1(d)" or "paragraph
1(e)" are to those paragraphs, as quoted above, of Section 1 of Article IV of the Estate's
Bylaws.
10. Indeed, Article IV, Section 1 of the Articles contains, in its next-to-last sentence,
practically the same phrase.
11. Because we construe paragraphs 1(d) and 1(e) to provide the same entitlement
to distribution on termination of the Estate, we need not address Wharton's contention that
paragraph 1(d) governs the distribution now required. We note, though, that, even if we
agreed with Wharton's contention the shareholders are entitled to one form of distribution
under paragraph 1(e) if the Estate terminated on expiration of its term in 2003, and another
under paragraph 1(d) if it terminated earlier, it does not follow that paragraph 1(d)
necessarily governs. By the time of the trial court's May 2004 order, the Estate had
terminated by the expiration of its term on March 31, 2003, not simply because of
Wharton's 1989 notice of early termination.
12. Wharton refers also to a provision of the Articles authorizing the board of directors
to conduct the business of the Estate while the trustee is temporarily disabled and during
a vacancy in the office of trustee, but denying the directors during such a temporary
disability or vacancy the power to sell real estate except in the ordinary course of business.
He argues this provision demonstrates that only a trustee is authorized to sell all the assets
of the Estate. We cannot agree this provision sets any limit on the actions expressly
required by the Articles on termination of the Estate. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2926078/ | NUMBER 13-09-00094-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RICARDO BARRERA, M.D., Appellant,
v.
CESAR SARMIENTO, ET AL., Appellees.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Benavides
Memorandum Opinion by Chief Justice Valdez
This is a health-care liability lawsuit governed by chapter 74 of the Texas Civil
Practice and Remedies Code. See TEX . CIV. PRAC . & REM . CODE ANN . §§ 74.001-.507
(Vernon 2005 & Supp. 2009). Appellees, Cesar Sarmiento, individually and on behalf of
the estate of Esmeralda Sarmiento, Deceased, and as next friend of Juan Manuel
Sarmiento, Maria Natividad Rodriguez Guillen, and Manuel Garcia Vasquez, filed suit
against appellant, Ricardo Barrera, M.D., alleging wrongful death and medical negligence.
In his sole issue, Barrera contends that the trial court abused its discretion in failing to
dismiss the claims because the expert report was inadequate under the Texas Civil
Practice and Remedies Code. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351 (Vernon
Supp. 2009), § 74.401 (Vernon 2005). Barrera also asserts that the trial court erred in
refusing to award him attorney’s fees under the civil practice and remedies code. See id.
§ 74.351(b)(1). We affirm.
I. BACKGROUND
Sarmiento filed his original petition on June 23, 2008, alleging wrongful death and
medical negligence claims against Barrera, a family practitioner. In his petition, Sarmiento
alleged that Barrera negligently performed a cesarean section and subsequently caused
the death of Sarmiento’s nineteen-year-old wife, Esmerelda. Pursuant to section 74.351
of the Texas Civil Practice and Remedies Code, Sarmiento timely served Barrera with the
expert report of Bruce J. Halbridge, M.D., a board certified obstetrician/gynecologist.
Barrera objected to the report and moved to dismiss on the grounds that Halbridge was not
qualified and that the report failed to set forth the applicable standard of care, identify any
breach of the standard of care, and establish causation. The trial court entered an order
denying Barrera’s Motion for Dismissal and granting Sarmiento a thirty-day extension of
time to cure deficiencies in Halbridge’s original report. See id. § 74.351(c). Sarmiento
subsequently filed a supplemental expert report by Halbridge, and Barrera again objected
and moved for dismissal. After a hearing on the objections, the trial court denied Barrera’s
motion to dismiss, and this interlocutory appeal ensued. See TEX . CIV. PRAC . & REM . CODE
ANN . § 51.014(a)(9) (Vernon 2008) (authorizing an interlocutory appeal of the denial of a
motion to dismiss filed under section 74.351(b)).
2
II. EXPERT REPORT
Barrera contends that the trial court abused its discretion by failing to dismiss the
claims because the expert report was inadequate. See TEX . CIV. PRAC . & REM . CODE ANN .
§§ 74.351, 74.401. Specifically, Barrera argues that dismissal was mandatory because the
expert report proffered by the appellees was (1) authored by an unqualified expert, and (2)
conclusory as to causation. See id. §§ 74.351, 74.401.
A. Standard of Review
We review a trial court’s ruling on a motion to dismiss a case under section 74.351
of the civil practice and remedies code for an abuse of discretion. See Am. Transitional
Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Tesoro v. Alvarez,
281 S.W.3d 654, 656 (Tex. App.–Corpus Christi 2009, no pet.). A trial court abuses its
discretion if its decision is arbitrary, unreasonable, and without reference to any guiding
rules and principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
A plaintiff asserting a health-care liability claim must, within the first 120 days of suit,
serve on the defendant one or more “expert reports.” See TEX . CIV. PRAC . & REM . CODE
ANN . § 74.351(a). If the plaintiff timely serves a report on the defendant, the trial court
cannot dismiss the lawsuit unless the proffered report does not represent an objective
good faith effort to comply with the statutory requirements for such a report. See id. §
74.351(l). “To constitute a good faith effort, an expert’s medical liability report must
establish the expert’s qualifications, the applicable standard of care, how that standard was
breached by the particular actions of the defendant, and how the breach caused the
damages claimed by the plaintiff.” Gelman v. Cuellar, 268 S.W.3d 123, 127 (Tex.
App.–Corpus Christi 2008, pet. denied) (citing Palacios, 46 S.W.3d at 878-79). In
3
determining whether the report manifests a good faith effort to comply with the statutory
definition of an expert report, we are limited to the four corners of the report. See TEX . CIV.
PRAC . & REM . CODE ANN . § 74.351(l); Palacios, 46 S.W.3d at 878. The report “need not
marshal all the plaintiff’s proof;” instead, it must (1) “inform the defendant of the specific
conduct the plaintiff has called into question,” and (2) “provide a basis for the trial court to
conclude that the claims have merit.” Palacios, 46 S.W.3d at 878-79.
B. Halbridge is Qualified to Render a Standard-of-Care Opinion
Barrera contends that Halbridge is not qualified to render an opinion as to the
standard of care applicable to Barrera, a family practitioner who practices obstetrics,
because Halbridge is an obstetrician and not a family practitioner. Moreover, Barrera
asserts that because Halbridge’s report does not state “that the standard of care is the
same for obstetricans and family practitioners [who surgically treat] pregnant patients,”
holding him to the same standard as an obstetrician “requires impermissible references
beyond the four corners of the report.” We disagree.
To be qualified to provide opinion testimony regarding whether a physician departed
from the accepted standard of health care, an expert must satisfy section 74.401 of the civil
practice and remedies code. See TEX . CIV . PRAC . & REM . CODE ANN . § 74.351(r)(5)(A).
Section 74.401 provides in pertinent part:
(a) In a suit involving a health care liability claim against a physician for
injury to or death of a patient, a person may qualify as an expert
witness on the issue of whether the physician departed from accepted
standards of medical care only if the person is a physician who:
(1) is practicing medicine at the time such testimony is given or
was practicing medicine at the time the claim arose;
(2) has knowledge of accepted standards of medical care for the
4
diagnosis, care, or treatment of the illness, injury, or condition
involved in the claim; and
(3) is qualified on the basis of training or experience to offer an
expert opinion regarding those accepted standards of medical
care.
....
(c) In determining whether a witness is qualified on the basis of training
or experience, the court shall consider whether, at the time the claim
arose or at the time the testimony is given, the witness:
(1) is board certified or has other substantial training or
experience in an area of medical practice relevant to
the claim; and
(2) is actively practicing medicine in rendering medical care
services relevant to the claim.
TEX . CIV. PRAC . & REM . CODE ANN . § 74.401(a), (c).
“[A] proffered expert need not practice in the same speciality as the defendant
physician to qualify as an expert for that case.” Carreras v. Trevino, No. 13-08-00222-CV,
2009 WL 2596057, at *3 (Tex. App.–Corpus Christi Aug. 25, 2009, no pet.) (citing Roberts
v. Williamson, 111 S.W.3d 113, 122 (Tex. 2003)). In determining whether the proffered
expert is qualified, “the trial court’s inquiry should not focus on the specialty of the
physician defendant or the medical expert. Instead, . . . the trial court should determine
whether the proffered expert has ‘knowledge, skill, experience, training or education’
regarding the specific issue before the court which would qualify the expert to give an
opinion on that particular subject.” Id. (quoting Broders v. Heise, 924 S.W.2d 148, 153-54
(Tex. 1996)) (internal citations omitted); see also Sanjar v. Turner, 252 S.W.3d 460, 464-65
(Tex. App.–Houston [14th Dist.] 2008, no pet.) (holding that the “accepted standards of
medical care” language in section 74.401(a)(2) relates to the condition at issue and not to
5
the defendant physician’s specialty).
Barrera’s arguments challenging Halbridge’s qualifications fail for two reasons.
First, the determination to perform a cesarean section,1 the performance of the cesarean
section, and the post-delivery care of Esmeralda, were the specific issues before the trial
court. See Carreras, 2009 WL 2596057 at *3-4. Implicit in Barrera’s assertion that
Habridge’s report does not state “that the standard of care is the same for obstetricans and
family practitioners [who surgically treat] pregnant patients” is the presumption that a
different—or, perhaps, more precisely, a lower—standard of care applies to family
practitioners than to obstetricans. Barrera does not cite to authority supporting his implicit
presumption, and we find none.
Second, the record clearly demonstrates Halbridge’s qualification to opine on the
specific issues before the trial court. Halbridge received his medical degree from the
University of Nebraska College of Medicine, completed his residency at the Brookdale
Hospital Medical Center in Brooklyn, New York, and earned board certification in obstetrics
and gynecology in 1978. Since 1981, he has practiced obstetrics and gynecology.
Halbridge’s report provides:
I am familiar with the standard of care for:
1. The clinical diagnosis of cephalopelvic disproportion.
2. The clinical, prenatal evaluation of the maternal pelvis.
3. The indications for performing a Caesarean [sic] section.
4. The evaluation and treatment of a severely anemic post-Caesarian
[sic] section patient.
1
A cesarean section is a surgical procedure in which an incision is m ade “through the abdom inal and
uterine walls for extraction of the fetus.” IDA G. D OX ET AL ., A TTOR NEY ’S ILLU STR ATED M ED IC AL D IC TIO N AR Y S:15
(W est 1997).
6
The report then states that Barrera breached the standard of care required in conducting
the aforementioned obstetric/gynecologic procedures by failing to (1) recognize that
Esmeralda did not require a cesarean section, (2) determine and document Esmeralda’s
pelvic capacity, and (3) evaluate and treat Esmeralda’s post-delivery symptoms of anemia.
We conclude that because Halbridge’s knowledge, education, training and experience
qualifies him as an expert on issues of obstetrics and gynecology, he was qualified to opine
as to the standard of care applicable to Barrera. See Sanjar, 252 S.W.3d at 464-65.
Accordingly, the trial court did not abuse its discretion in denying Barrera’s motion to
dismiss on the grounds that Halbridge was not qualified to render an expert opinion.
C. Causation
Barrera also contends that Halbridge’s expert report “offers only a conclusory stab
at causation” by “fail[ing] to establish the required causal link between [Barrera]’s alleged
breaches of the standard of care and Plaintiff’s injuries.” Halbridge’s supplemental expert
report reads in pertinent part:
The following are the departures from the standard by Dr. Barrera during his
treatment of Esmeralda Sarmiento:
1. The failure of Dr. Barrera to administer a prophylactic antibiotic at the
time of the Caesarean [sic] section on 10/5/07.
The standard of care requires the administration of a prophylactic
antibiotic at the time of Caesarean [sic] section. . . .
The Anesthesia Record as well as the Intraoperative Nursing Record
demonstrates that no antibiotic was administrated to the patient during the
Caesarean [sic] section. . . .
The failure of Dr. Barrera to administer the prophylactic antibiotic at
the time of the Caesarean [sic] section directly resulted in:
7
a) The elimination of the benefit of prophylaxsis.
b) Infection at the placental site resulting in its subinvolution th[at]
directly led to chronic blood loss, severe anemia, hypovolemic shock, and
death.
c) Abscess formation it [sic] the abdominal wall caused by Group B
Streptococci and Staph aureus organisms. . . .
2. The failure of Dr. Barrera to recognize that the risk of infection and its
complications are for [sic] greater after a Caesarean [sic] section than
following a vaginal delivery.
The failure of Dr. Barrera to recognize that the risk of uterine infection
after Caesarean [sic] section was between 5-38 times higher than for a
vaginal delivery directly led to his decision to perform the unnecessary
Caesarean [sic] section on Esmeralda Sarmiento that resulted in:
a) The failure to provide antiobiotic prophylaxsis.
b) Infection in the placental site that caused subinvolution of the
placental site with chronic, excessive blood loss.
c) Severe anemia
d) Hypovolemic shock and death. . . .
3. The failure of Dr. Barrera to recognize during the postoperative office
visit on 10/12/07 that Esmeralda Sarmiento suffered with:
a) Severe anemia
b) Hypovolemia
c) Low blood pressure
d) Abdominal wall abscess
e) Excessive vaginal bleeding
The standard of [c]are requires that a physician carefully examine and
evaluate a patient who has had a Caesarean [sic] section seven days earlier.
8
The items that are to [sic] evaluated include:
a) A comparison of the patient’s preoperative and postoperative blood
pressure.
b) Questioning the patient regarding the number of perineal pads she
has used per day to absorb the vaginal bleeding.
c) Is she experiencing clotting with the vaginal bleeding?
d) Obtaining a CBC complete blood count[.]
e) Examination of the abdominal wall including palpation to determine
if the wound is infected, if an abscess is present, and to see if the wound is
indurated or inflamed.
Dr. Barrera failed on 10/12/07 in the following ways:
a) The blood pressure during the office visit on 10/12/07 was 110/60.
The blood pressure during the last prenatal visit was 132/72; the blood
pressure on 10/5/07 the day of surgery was 132/78. . . . [Dr. Barrera] should
have recognized that the lowered blood pressure was likely due to lowered
blood volume.
b) During the office visit on 10/12/07, Dr. Barrera should have asked
the patient regarding how many pads she was using per day to absorb the
vaginal flow of blood. Asking the above question would have told Dr. Barrera
that the patient who was known to be anemic on 10/6/07, was experiencing
an abnormally heavy blood flow.
An abnormally heavy blood flow following a Caesarean [sic] section
is due to uterine infection or retained products of conception. Dr. Barrera
would have then been required to be [sic] hospitalize the patient, culture for
infection, treat with antibiotics, and tranfuse with blood products. The failure
of Dr. Barrera to do all of the above items was the direct and proximate
cause of Esmeralda Sarmiento’s avoidable death.
c) After the CBC on 10/12/07 was drawn, Dr. Barrera made no
attempt to obtain the results on the same day. If had had [sic] called the
laboratory he would have learned that the patient’s hematocrit had dropped
to 20%. Armed with this knowledge, he would have been required to
hospitalize the patient, culture the uterus, and check for retained products of
conception, treat with antibiotics, and transfuse with blood products. The
failure of Dr. Barrera to do all of the above items was the direct and
proximate cause of Esmeralda Sarmiento’s avoidable death.
9
d) On 10/12/07 Dr. Barrera did not perform an adequate examination
of the Caesarean [sic] section wound and the adjacent abdominal wall. If the
wound & the abdominal was [sic] had been palpated Dr. Barrera would have
recognized . . . the inflamation, induration, and the underlying abscess at the
incision site.
The failure of Dr. Barrera to palpate the incision site on 10/12/07
directly resulted in this failure of [sic] recognize the abscess cavity and
adjacent abdominal wall infection.
If Dr. Barrera had palpated the abdominal wall incision on 10/12/07
and recognized the abscess and adjacent infection, he could have admitted
the patient to the hospital where her severe amenia would have bee[n]
discovered by performing a CBC. Furthermore, she would have been
treated with an antibiotic therapy and transfused with blood products.
Thusly, her life would have been saved.
In summary[,] the departures from the standard of care by Dr. Barrera
were the direct and proximate cause of the avoidable death suffered by
Esmeralda Sarmiento.
We conclude that Halbridge’s report establishes the causal links between the
alleged negligence and Esmeralda’s injuries. Halbridge’s report states that Barrera
breached the standard of care by failing to recognize the increased risk of infections and
complications associated with a cesarean section which lead to an unnecessary cesarean
section. Halbridge then states that Barrera breached the standard of care by failing to
administer a prophylactic antibiotic at the time of the cesarean section and that this breach
caused “[i]nfection at the placental site resulting in its subinvolution th[at] directly led to
chronic blood loss, severe anemia, hypovolemic shock, and death.”
Halbridge’s report also sets out the standard of care required in a post-delivery
evaluation by detailing “items” that must be evaluated. Halbridge states that Barrera failed
to meet the standard of care required in a post-delivery evaluation by failing to: (1)
recognize the significance of Esmeralda’s low blood pressure; (2) ask pertinent questions
to determine whether Esmeralda was experiencing heavy vaginal blood flow; (3) obtain the
results of Esmeralda’s CBC; and (4) adequately examine the cesarean section wound and
10
abdomen wall. According to Halbridge’s report, Barrera’s breaches resulted in a failure to
administer appropriate treatment and caused Esmeralda’s death.
In light of the foregoing, we cannot conclude that the trial court abused its discretion
in denying Barrera’s motion to dismiss. Sarmiento’s expert report adequately sets forth the
applicable standard of care, identifies how Barrera breached the standard of care, and
explains how the breach caused the injuries claimed by Sarmiento. See Palacios, 46
S.W.3d at 878. The report put Barrera on notice of the specific conduct complained of and
provided the trial court a basis on which to determine the claims have merit. See id.
Barrera’s sole issue is overruled.2
III. CONCLUSION
Having overruled Barrera’s sole issue, we affirm the trial court’s order denying his
motion to dismiss.
ROGELIO VALDEZ
Chief Justice
Delivered and filed
the 24th day of November, 2009.
2
Having determ ined that the trial court did not abuse its discretion in denying Barrera’s m otion to
dism iss Sarm iento’s claim s, we need not address Barrera’s argum ent regarding attorney’s fees. See T EX .
R. A PP . P. 47.1.
11 | 01-03-2023 | 09-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7433304/ | Certiorari dismissed without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2966664/ | FILED: May 27, 1997
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 94-1219
Catherine W. Griffin,
Plaintiff - Appellant,
versus
Medtronic, Incorporated,
Defendant - Appellee.
O R D E R
On April 30, 1996, this court affirmed in part and reversed in
part the district court's opinion granting Medtronic, Inc.'s motion
for summary judgment. See Griffin v. Medtronic, Inc., 82 F.3d 79
(4th Cir. 1996). The Supreme Court granted certiorari and vacated
this court's judgment for further consideration in light of
Medtronic, Inc. v. Lohr, 518 U.S. ___, 116 S. Ct. 2240 (1996). See
Griffin v. Medtronic, Inc. , ___ U.S. ___, 117 S. Ct. 939 (1997).
Expressing no opinion on the ultimate decision, and after re-
viewing Lohr and, as well, our decision in Duvall v. Bristol-Myers-
Squibb Co., 103 F.3d 324 (4th Cir. 1996), another case remanded to
us in view of Lohr, we think it better to remand as to each of the
five counts in the Griffin complaint, as named on page two of our
slip opinion in this case, and to require their reconsideration
under Lohr and Duvall, supra.
It is so ORDERED.
Entered at the direction of Senior Judge Michael, with the
concurrence of Judge Widener and Judge Motz.
______________________________
CLERK | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129345/ | 538 U.S. 1011
IN RE McCASKILL.
No. 02-1450.
Supreme Court of United States.
May 5, 2003.
1
ON PETITION FOR WRIT OF MANDAMUS.
2
Petition for writ of mandamus denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3828303/ | Plaintiff's action is to recover damages sustained to three shipments of hogs and one shipment of cattle transported by defendant company over its line of railroad from Keystone, Okla., to Kansas City, Mo. At the trial it developed that the damages sustained under the first cause of action had been settled by defendant company. In its amended answer the defendant set up the live-stock contracts under which said shipments were made, and among other paragraphs thereof, relied upon as a defense, were the following:
"(4) For the consideration aforesaid, it is expressly agreed that the live stock covered by this contract is not to be transported within any specific time nor delivered at any particular hour nor in season for any particular market; that neither the company nor any connecting carrier shall be responsible for any delay caused by storm, failure of machinery or cars, or from obstructions of track from any cause, or any injury caused by fire from any cause whatever."
"(11) That, as a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated; and that a failure to fully comply with the provisions of this clause shall be a bar to the recovery of any and all such claims."
To the paragraphs of the answer, based upon the foregoing provisions of the stock contracts, plaintiff demurred, and the demurrer *Page 305
was by the court sustained, and its ruling is here challenged as error. Before passing upon the court's action in sustaining the demurrer to said two paragraphs of the defendant's amended answer, we will note briefly the claim in the brief of defendant in error that the several shipments were made under oral contracts. The record discloses the fact that, at the time the court sustained the above-mentioned demurrer, plaintiff asked and was given leave of court to amend his petition by adding to each cause of action the following: "That the defendant executed and issued a bill of lading to the plaintiff for such shipment, and plaintiff is the lawful holder thereof."
The act of June 29, 1906 (34 St. at L. 593, c. 351, sec. 7), known as the Carmack Amendment to the original interstate commerce act of February 4, 1887 (24 St. at L. 386, c. 104, sec. 20 [U.S. Comp. St. Supp. 1911, p. 1307]), requires any common carrier, railroad, or transportation company, receiving property for transportation from a point in one state to a point in another state, to issue a receipt or bill of lading therefor. The transactions in question, each being interstate shipments, in which the common carrier issued, and the shipper accepted, bills of lading, covering the shipments, and leave being granted plaintiff to amend his petition by declaring upon said written bills of lading or shipping contracts, it sufficiently appears from the petition as amended that the shipments were made pursuant to the terms of the several bills of lading, regardless of the equivocal allegations of plaintiff's reply.
On the part of plaintiff in error it is urged that paragraph 3 of the defendant's amended answer, to which demurrer was sustained, was objectionable for the following reasons: (1) That said provisions were violative of the federal acts regulating interstate commerce; (2) that said provisions undertook to relieve the defendant company of its own acts of negligence; and that paragraph 4 of said answer was objectionable on the ground that it was in violation of article 23, sec. 9, of the Constitution of this state.
We shall first consider the demurrer to the third paragraph of the answer. The twentieth section of the Act of February *Page 306
4, 1887 (chapter 104, 24 St. at L. 379), as amended by Act of June 29, 1906 (34 St. at L. 584, 595, c. 3591), provides that:
"Any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state, shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by the common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law."
The inhibition imposed by the latter provision of the act has reference to an attempt to relieve the initial carrier of liability for loss, damage, or injury caused by it or by any connecting carrier to whom the freight is delivered for transportation. By the terms of the act, the liability of the initial carrier is extended so as to include acts occurring on those connecting or forwarding lines over which the property may be transported. Atlantic Coast Line R. Co. v. RiversideMills, 219 U.S. 186, 31 Sup. Ct. 164, 55 L.Ed. 167, 31 L. R. A. (N. S.) 7.
It was not the purpose of the act to thereby make the initial carrier an outright insurer of the safe delivery of the freight delivered to it for transportation. There must have been some failure to discharge its common-law duty before liability attached. It was not by the terms of the act intended that the initial carrier, or as here the sole carrier, should be liable for unavoidable loss or damage due to forces beyond its control. As was said by Judge Lurton, in speaking for the Supreme Court, in Adams Express Co. v. Croninger, 226 U.S. 491, 33 Sup. Ct. 148, 57 L.Ed. ___:
"What is the liability imposed upon the carrier? It is a liability to any holder of the bill of lading which the primary carrier is required to issue 'for any loss, damage or injury to such property caused by it' or by any connecting carrier to whom the goods are delivered. The suggestion that an absolute liability exists for every loss, damage, or injury, from any and *Page 307
every cause, would be to make such a carrier an absolute insurer and liable for unavoidable loss or damage though due to uncontrollable forces. That this was the intent of Congress is not conceivable. To give such emphasis to the words 'any loss or damage' would be to ignore the qualifying words 'caused by it.' The liability thus imposed is limited to 'any loss, injury, or damage caused by it or a succeeding carrier to whom the property may be delivered' and plainly implies a liability for some default in its common-law duty as a common carrier."
In Missouri, K. T. Ry. Co. v. Harriman Bros., 227 U.S. 657, 33 Sup. Ct. 397, 57 L.Ed. ___, speaking of the same section of the Carmack Amendment, it was said:
"The liability imposed by the statute is the liability imposed by the common law upon a common carrier and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable and does not exempt from loss or responsibility due to negligence."
Upon another branch of the same case it was held that the shipper and carrier of an interstate shipment were not forbidden to stipulate that an action against a carrier in case of damage to the shipment must be brought within 90 days after the damage was sustained, by the provisions of paragraph 20 of the said amendment, prohibiting exemptions from the liability imposed by that act. It has also been held that the shipper and carrier of an interstate shipment are not forbidden to contract to limit the carrier's liability to an agreed value, made to adjust the rate, by the provisions of the Carmack Amendment, prohibiting exemptions from the liability imposed by that act.Adams Express Co. v. Croninger, supra; Missouri, K. T. Ry.Co. v. Harriman Bros., supra; Kansas City, S. R. Ry. Co. v.Carl, 227 U.S. 639, 33 Sup. Ct. 391, 57 L.Ed. ___; Chicago, St.P., M. O. Ry. Co. v. Latta, 226 U.S. 519, 33 Sup. Ct. 155, 57 L.Ed. ___; Chicago, B. Q. Ry. Co. v. Miller, 226 U.S. 513, 33 Sup. Ct. 155, 57 L.Ed. ___.
The shipment in question being over the fine of the defendant company alone, the act does not change the common-law rule making the carrier liable only in the cases where it has failed in the discharge of some duty. That part of the fourth paragraph of the bill of lading particularly relied upon, and *Page 308
which provides that the live stock shall not be transported within any particular market, does not therefore offend against the amended section of the interstate commerce act, and for that reason the demurrer was improperly sustained.
Does paragraph 3 of the answer attempt to relieve the defendant from liability on account of its own negligent act? It provides: (1) That it does not undertake to transport the live stock to market within any specified time nor to deliver it at any particular hour nor in season for any particular market; (2) that neither it nor any connecting carrier shall be responsible for any delay caused by storm, failure of machinery or cars, or from obstruction of track from any cause, or any injury caused by fire from any cause whatever. It has repeatedly been held by this court that it is not within the power of a common carrier to relieve itself of liability on account of its own negligence. Chicago, R.I. P. Ry. Co. v.Wehrman, 25 Okla. 147, 105 P. 328; Missouri, K. T. Ry. Co.v. Hancock, 26 Okla. 254, 109 P. 220. On the other hand, in a number of cases it has been held that the common-law liability of the carrier for the safe carriage of property may be limited by a special contract with a shipper, where such contract is supported by a consideration, is reasonable and fairly entered into by the shipper and does not attempt to cover losses caused by the negligence or misconduct of the carrier. Chicago, R.I. P. Ry. Co. v. Spears, 31 Okla. 469, 122 P. 228; Missouri, K. T. Ry. Co. v. Hancock Goodbar, 26 Okla. 265, 109 P. 223.
"If," as was said by this court in St. Louis S. F. R. Co.v. Bilby, 35 Okla. 589, 130 P. 1089, "the failure to deliver within a reasonable time, so as to reach a particular market, is occasioned by the negligence or acts of omission on the part of the carrier, it is liable regardless of any contract to the contrary. The carrier is liable for delay occasioned by failure of engines, cars, machinery, obstructions of the track, or for any cause whatever, where such intervening cause results from the negligence or act of omission on the part of the carrier." *Page 309
By this contract, however, it was not bound to transport the shipment within any specified time or to deliver at any particular hour or in season for any particular market. If, in the discharge of its duty to plaintiff, defendant was negligent, it must follow that it would be liable for all damages approximately flowing from such negligent acts. But it cannot be said, because defendant has fairly sought to limit its common-law liability, without attempting to relieve itself of any acts of negligence or misconduct, that therefore the objectionable stipulation is void as a matter of law. If, as has already been observed, upon a trial it should be made to appear that plaintiff sustained injury and loss on account of defendant's negligence, the latter could not defend on the ground that the shipping contract contained a provision relieving it of liability.
It was the duty of the carrier, after the live stock was received and loaded according to agreement, to transport them with all convenient dispatch with such suitable and sufficient means as it was required to provide in its business; that is to say, in a reasonable time. Hutchinson on Carriers, sec. 651; Elliott on Railroads, sec. 1555; Thompson on Negligence, sec. 6601; St. Louis, I. M. S. Ry. Co. v. Jones, 93 Ark. 537, 125 S.W. 1025, 137 Am. St. Rep. 99; Cleveland, C., C. St. L. Ry.Co. v. Heath, 22 Ind. App. 47, 53 N.E. 198; Cincinnati, I., St.L. C. Ry. Co. v. Case, 122 Ind. 310, 23 N.E. 797; Vicksburg M. R. Co. v. Ragsdale, 46 Miss. 458.
Passing to the question of the action of the court in sustaining the demurrer to the fourth paragraph of defendant's answer, we find authority, both of this court and of the Supreme Court of the United States, construing and sustaining like and similar contracts. St. Louis S. F. R. Co. v.Phillips, 17 Okla. 264, 87 P. 470; St. Louis S. F. R. Co.v. Cake, 25 Okla. 227, 105 P. 322; St. Louis S. F. R. Co.v. Ladd, 33 Okla. 160, 124 P. 461; St. Louis S. F. R. Co.v. Bilby, 35 Okla. 589, 130 P. 1089; Missouri, K. T. Ry.Co. v. Walston, 37 Okla. 517, 133 P. 42; Adams Express Co. v.Croninger, supra; Kansas City S. Ry. Co. v. Carl, 227 U.S. 639, 33 Sup. Ct. 391, 57 L.Ed. ___; Missouri, K. T. Ry. Co. v.Harriman Bros., *Page 310 227 U.S. 657, 33 Sup. Ct. 397, 57 L.Ed. ___. Section 11 of the shipping contract, being the section pleaded as a defense in the fourth paragraph of defendant's answer, is identical with the section construed by this court in St. Louis S. F. R. Co.v. Phillips, supra, St. Louis S. F. R. Co. v. Cake, supra.St. Louis S. F. R. Co. v. Ladd, supra, and identical in its meaning with one of the provisions of the contract before the court in St. Louis S. F. R. Co. v. Bilby, supra. In the first three of the latter mentioned cases, as well as a large number of other cases cited by Justice Williams in the Bilby case, the contracts of shipment were entered into prior to the admission of Oklahoma into the sisterhood of states. The decisions of the Supreme Court of the United States were controlling in the construction of said contracts and were followed by this court in deciding said cases. Some of these decisions are YorkManufacturing Co. v. Illinois Central R. Co., 3 Wall. 107, 18 L.Ed. 170; Hart v. Pennsylvania R. Co., 112 U.S. 331, 341, 5 Sup. Ct. 151, 28 L.Ed. 717; Southern Express Co. v. Caldwell,
88 U.S. (21 Wall.) 264, 22 L.Ed. 556; Bank of Kentucky v. AdamsExpress Co., 93 U.S. 174, 23 L.Ed. 872.
It was held in the Bilby case, supra, that as to cases arising in Oklahoma since the erection of the state, where the contracts relate to interstate shipments, the same authority governs. That on account of the passage of the Act of Congress of June 29, 1906 (chapter 3591, 34 St. at L. 584), and of the acts amendatory thereof, the state, under its police power, has ceased to have the authority to pass acts relative to contracts made by carriers, pertaining to interstate shipments, and section 9 of article 23 (section 358, Williams' Ann. Ed.) of the Constitution of this state applies only to intrastate shipments.
The provision of the shipping contract made it a condition precedent to a recovery for any damages for delay, loss, or injury to live stock covered by the contract that the notice therein mentioned should be given. This differs from provisions in many of the contracts requiring that notice be given before any recovery can be had for "loss or injury to the shipment."Missouri, K. T. Ry. Co. v. Fry, 74 Kan. 546, *Page 311
87 P. 754; Cornelius v. Atchison, T. S. F. Ry. Co.,74 Kan. 599, 87 P. 751; Atchison, T. S. F. Ry. Co. v. Poole,73 Kan. 466, 87 P. 465; Kramer Co. v. Chicago, M. St. P. Ry.Co., 101 Iowa, 178, 70 N.W. 119; Libby v. St. Louis, I. M. S.R. Co., 137 Mo. App. 276, 117 S.W. 659; Wright v. Chicago, B. Q. R. Co., 118 Mo. App. 392, 94 S.W. 555.
The provision requiring notice in the present case is not confined to loss or injury to live stock covered by the contract, but as well for any damages for delay, and therefore includes a loss sustained by a decline in the market.
If for any reason the provision of the contract should not be enforced by appropriate pleadings, that issue should have been tendered. If deceit or fraud was practiced upon the shipper by the agent of the railroad company in obtaining his assent to the agreement, or if notice was given by the shipper, or if waived by the railroad company, or if by the act of the latter such notice could not reasonably have been given, or if other valid excuse there be why the provision of the contract should not be enforced, in either event such fact should have been pleaded and proved. The due execution of the shipping contracts was admitted by the demurrer to the amended answer. The demurrer being sustained, these defenses were withdrawn from further consideration at the trial.
In the event of another trial in this case, attention is called to section 5907, Comp. Laws 1909 (section 5114, Rev. Laws 1910), providing that entries in books of account may be admitted in evidence when it is made to appear by the oath of the person who made the entries that such entries are correct and were made at or near the time of the transaction to which they relate or upon proof of the handwriting of the person who made the entries, in case of his death or absence from the county. This section of the statute has been construed by the court in First Nat. Bank of Enid v. Yeoman, 14 Okla. 626,78 P. 388; Missouri, K. T. Ry. Co. v. Davis, 24 Okla. 677,104 P. 34, 24 L. R. A. (N. S.) 866; Missouri, K. T. Ry. Co. v.Walker, 27 Okla. 849, 113 P. 907; Pacific Mutual LifeInsurance Co. v. O'Neil, 36 Okla. 792, 130 P. 270; Muskogee *Page 312 Electric Traction Co. v. McIntire, 37 Okla. 684, 133 P. 213. By this statute the competency of the testimony pertaining to the entries in the books of account, testified to by the witnesses Cooper, Monohan, Smith, and Flaherty, is to be determined.
The judgment of the trial court should be reversed, and the cause remanded for a new trial.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3828305/ | This proceeding in error has been regularly commenced in this court to review an award of the Industrial Commission of this state, which is as follows:
"Now on this 17th day of January, 1922, this cause comes on to be determined on the claimant's claim for compensation for an injury which he alleges occurred to him while in the employment of the Constantin Refining Company on the 4th day of August, 1924, at Tulsa, Okla., and the commission having considered the testimony taken at a regular hearing at Tulsa, Okla., on the 29th day of November, 1921, before a member of the commission, at which hearing the claimant appeared in person and by his attorney, W.B. Richards, and the respondent and insurance carrier were represented by H.N. West, and having examined all the records on file in said cause and being otherwise well and sufficiently advised in the premises, finds the following facts:
"(1) That the claimant herein was in the employment of the Constantin Refining Company, and was engaged in a hazardous occupation within the meaning of the statute, and that while in the employment of *Page 25
said respondent and in the course of his employment received an accidental injury on the 4th day of August, 1921;
"(2) That as a result of said injury the claimant was temporarily totally disabled from performing his work from August 4, 1921;
"(3) That the respondent had proper notice of said accident and the employe filed his claim for compensation with the commission within the statutory period.
"(4) That the claimant's average wage at the time of his injury was $6.07 per day.
"The commission is therefore of the opinion: That by reason of the aforesaid facts the claimant is entitled under the law to compensation at the rate of $17.50 per week, beginning August 4, 1921, and continuing weekly until the termination of disability, or until otherwise ordered by the commission.
"It is therefore ordered: That within ten days from this date the Constantin Refining Company, or the Aetna Life Insurance Company, pay to the claimant compensation at the rate of $17.50 per week, beginning August 4, 1921, and continuing weekly until the termination of disability, or until otherwise ordered by the commission, and also pay all medical expenses incurred by said claimant as a result of said accident."
The petitioners' specifications of error are as follows:
"(1) It appears from the records of the State Industrial Commission that previously to the injury for which the award sought to be reviewed was made, the same claimant had been injured while in the employment of the petitioner, and had been awarded compensation for three hundred weeks at $10 per week, that after making such award the commission had entered an order requiring the Constantin Refining Company and the Aetna Life Insurance Company to pay such award in a lump sum, which was $2,295.10, which the petitioner paid. That said award requiring said lump sum settlement was made on the 8th day of December, 1920, at which time there remained 246 weeks of compensation to be paid out of the 300 weeks originally ordered.
"That in the present award sought to be reviewed, the commission awarded the maximum amount provided by law, which was $17.50 per week, to continue until the termination of the claimant's disability, or until otherwise ordered by the commission, and the commission refused to give the petitioner any credit on account of the lump sum settlement, and erred in not allowing a credit of $10 per week upon the award of $17.50 per week, during the claimant's disability and until the time when the petitioner would have ceased to make the $10 weekly payments under the original claim, if the compensation awarded on account of the first injury had not been commuted into a lump sum.
"(2) The commission erred as a matter of law in not allowing the petitioner a credit of $10 per week upon the weekly payments awarded to the claimant during the time petitioner would have been paying the claimant $10 a week under his former award, if such former award had not been commuted into a lump sum by order of the commission."
There is but one question of law involved herein. The contentions of counsel for petitioners are clearly stated in their brief as follows:
"We think under the law it is impossible for the claimant to receive more than $18 per week at any one time, no matter how many times he may suffer partial disability.
"We think the commission erred as a matter of law in refusing to give credit on account of the $10 weekly payments, which results, as we see it, in the claimant, by reason of the last award, in fact receiving $27.50 per week, whereas the maximum provided by law is $18 per week."
While the Industrial Commission made no conclusions of fact, except that the claimant was in the employment of the respondent, Constantin Refining Company, and was engaged in a hazardous occupation and while in such employment, and in the course thereof, the claimant received an accidental injury on August 4, 1921, as a result of which he was temporarily totally disabled from performing his work, the undisputed facts, as set out in the briefs of counsel for the parties, are stated as follows:
"This is an action wherein the petitioners have appealed from an order of the State Industrial Commission making an award of seventeen and fifty-one hundredths dollars ($17.50) per week during the disability of the respondent herein, Jesse W. Crockett, for injuries received while in the employ of the Constantin Refining Company on the 4th day of August, 1921, at Tulsa, Okla.
"Jesse W. Crockett sustained a previous injury on the 26th day of June, 1919, while in the employ of the Constantin Refining Company. The Aetna Life Insurance Company was the insurance carrier in each instance. A lump sum award was made in the former case on the 8th day of December, 1920, by agreement of all parties concerned. The award was made by order duly entered upon the records of the commission. No appeal was taken from this order by the petitioners herein.
"Jesse W. Crockett later returned to employment for the same company and was so *Page 26
employed at the time of his second injury, receiving wages in the sum of thirty-five dollars ($35.00) per week.
"The question raised herein is that the petitioner should be allowed a credit of ten ($10.00) dollars per week on the compensation for the second injury because of moneys paid in the lump sum award for the prior injuries under the theory that the payments, if they had not been commuted to a lump sum, would be continuing and would continue for an extended period of time, and that the petitioners should be given credit on the present award in the sum of ten ($10) dollars per week so long as the payments would continue. This question was presented to the commission at the hearing for compensation for the second injuries, but was denied.
"The facts surrounding the lump sum settlement in the previous case were considered with the facts in the second injury by the commission. With all these facts before it, the commisssion on the 8th day of December, 1920, found that the respondent herein was entitled to compensation for seventeen and fifty one-hundreth ($17.50) dollars per week during disability from the second injury, and ordered the petitioners herein to pay the same."
Subdivision 6 of section 6, article 2, page 246, Session Laws 1915, under the title, "Previous Disability," provides as follows:
"The fact that an employe has suffered previous disability or received compensation therefor shall not preclude him from compensation for a later injury, but in determining compensation for the later injury his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury."
We think the foregoing provision is plain, unambiguous, and means what it says, and when we attribute such meaning to it, it renders the contention of the petitioners herein untenable. Counsel for petitioners say in their brief in reference to this provision as follows:
"This provision is to the effect that the fact that an employe has suffered previous disability shall not preclude him from compensation for a later injury. We do not contend herein that the claimant is precluded from making a claim for compensation for his present injury. We think he is entitled so to do, but we think the commission erred as a matter of law in refusing to allow the petitioner credit for the $10 per week, which in reality the claimant was receiving at the time of this injury, and is now receiving, and will continue to receive for a long time yet to come. To allow such credit of $10 per week to be deducted would not operate to preclude the claimant from compensation, but merely modify the amount to which he would now be entitled but for the lump sum compensation paid for the previous injury."
Counsel further say in their brief that:
"We have found no case which throws any light upon a determination of the question involved, but we believe that under the provisions of he Workman's Compensation Act the petitioner was entitled to the credit of $10 per week on account of the previous award, during the time the same would have been paid if such award had not been commuted into a lump sum pursuant to an order of the commission with which the petitioner was bound to comply."
We know of no authority to sustain counsel's contention, and to so hold, it seems to us, would do violence to the quoted provision of the act, supra, awarding the compensation provided in the schedule of the act for a subsequent injury, such sum as will reasonably represent his earning capacity at the time of the later injury, and that the fact that the employe had suffered previous disability or received compensation therefor shall not preclude him from compensation for a later injury.
We think it must be conceded that if the personnel of the employer had changed, prior to the time the employe received the subsequent injury, it could not be insisted that the employer, against whom compensation was awarded to the employe, would be entitled to be credited on the award for the amount paid by the other employe for the previous injury; and if this be true, and statute makes no exception in favor of the employer at the time of the subsequent injury who remains the same, then it seems clear to us that no exception exists, the law makes none, and the commission was without authority to read such exception into the law. Hence, it follows that the commission was without authority to make the credit insisted upon by the peitioners. Finding no error in the record, the order of the commission is affirmed.
McNEILL, ELTING, KENNAMER, and NICHOLSON, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2966305/ | IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
IN RE: ADOPTION OF A.R.D. No. 328 WAL 2015
PETITION OF: J.C., MOTHER Petition for Allowance of Appeal from the
Order of the Superior Court
ORDER
PER CURIAM
AND NOW, this 21st day of September, 2015, the Petition for Allowance of
Appeal is DENIED. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3828304/ | On November 4, 1914, Bert Cowan commenced an action in the district court of Creek county against C.B. McBride to recover damages for personal injuries received by him while in the employ of McBride. On December 7, 1914, the attorney for McBride filed a demurrer to the petition. Nothing further was done with the case until October 7, 1916, when the demurrer was overruled and McBride was given five days to answer. The record discloses McBride's attorney was not present at the time. On the 27th day of October, 1916, a default was rendered against defendant McBride. On the 5th day of January, 1917, judgment was rendered against McBride for the sum of three thousand ($3,000) dollars. On September 25, 1919, execution was issued and levied upon certain property of McBride in Creek county, Okla. A stipulation was entered into by attorneys for McBride and Cowan wherein it was stipulated and agreed that, upon McBride executing an undertaking in the sum of five thousand ($5,000) dollars, all proceedings in the former case would be stayed if McBride would, within 15 days from that date, begin proceedings to set aside the judgment in the sum of $3,000.
On the 13th day of October, 1919, McBride filed an independent action to set aside the former judgment on account of fraud. Thereafter, on the 22nd day of October, 1919, attorneys for Cowan filed a demurrer to the petition, and on the 13th day of November, 1919, the demurrer was overruled, and the attorneys for Cowan immediately filed an answer. McBride was represented in said proceedings by his attorneys, Wells
Lee, of Prague.
On the 11th day of December, 1919, W.E. Wells, one of the attorneys for McBride, filed an application for continuance, and as grounds for continuance alleged that the clerk of the district court in mailing notice to attorneys for McBride failed to send the notice to their correct address, but mailed the notice to them addressed to Shawnee, Okla., and by reason of said fact they did not receive the notice that the case was set for trial until the 30th day of November, and were unable to go to trial for the reason McBride was in Texas, and while they had wired him, they were unable to get in communication with him, and asked for continuance. The court overruled the motion for continuance, and dismissed the petition of the plaintiff. From said judgment, McBride has appealed, and for reversal assigns that the court was without authority to dismiss plaintiff's cause of action at plaintiff's costs.
The authority for a trial court to dismiss any action is granted by statute, and the grounds for which a court may dismiss an action are enumerated in section 5125, Rev. Laws 1910, which is as follows:
"An action may be dismissed, without prejudice to a future action:
"First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.
"Second. By the court, where the plaintiff fails to appear on the trial.
"Third. By the court, for the want of necessary parties.
"Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.
"Fifth. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.
"Sixth. In all other cases, upon the trial of the action, the decision must be upon the merits."
The record does not disclose upon what ground the court dismissed the plaintiff's *Page 73
petition. The record contains only the judgment, which is as follows:
"The court, having examined said motion and having heard the argument of counsel, and being fully advised in the premises, finds that said motion should be, and the same is hereby overruled, to which ruling of the court the plaintiff excepts. Whereupon, the plaintiff, by his attorneys in open court, gave notice of appeal to the Supreme Court of the state of Oklahoma, which is entered upon the trial docket, and the plaintiff asks an extension of time in which to make and serve case-made herein, which is denied by the court, to which ruling of the court the plaintiff excepts.
"Whereupon the plaintiff asks that the judgment heretofore rendered in cause No. 3993, entitled Bert Cowan v. McBride, be superseded, pending the giving of the supersedeas bond, which is allowed by the court; which bond is hereby fixed by the court at double the amount of the judgment, to wit: the sum of seven thousand ($7,000) dollars, said bond to be filed in this court within ten days from the date hereof, with good and sufficient sureties to be approved by the clerk of this court, and thereafter said judgment and execution thereon to be further stayed, pending the filing of appeal in the Supreme Court of the state of Oklahoma, said appeal to be lodged in the Supreme Court within sixty days from this date.
"It is further ordered by the court that the petition of the plaintiff herein be dismissed at the costs of the plaintiff, taxed at $8.10, to all of which the plaintiff excepts."
It will be necessary to consider whether any of the statutory grounds existed for which the court could dismiss the action.
The first ground enumerated for dismissing a cause of action by the court in section 5125 is: "Where the plaintiff falls to appear for trial." The record discloses that the plaintiff, while not present in person, was present by his attorney, so the court could not have dismissed the case upon that ground.
The next ground enumerated is "for want of necessary parties." This question was not presented, so a dismissal could not be sustained upon this ground. The next ground enumerated is, "on the application of some of the defendants." The record discloses that no application was made by the defendant to dismiss the petition, so the judgment cannot be sustained upon this ground.
The next ground is "for disobedience by the plaintiff of an order concerning the proceedings in the action." The record falls to disclose that the court made any order, and fails to disclose that the court ordered the case to proceed to trial; so, if the defendant disobeyed any order of the court concerning the proceedings, it does not appear in the record, and, not appearing in the record, we cannot assume that any such grounds existed.
The next subdivision provides that "in all other cases upon the trial of the action, the decision must be upon the merits." There was no trial, and therefore this subdivision can have no application to the case.
The attorneys for defendant in error contend that when the trial court overruled plaintiff's motion for continuance, and the attorneys for plaintiff gave notice of appeal in open court from the overruling of said motion for a continuance, and asked for an extension of time in which to make and serve a case-made, which was denied by the court, and asked that the court fix a supersedeas bond in the case No. 3993, which was allowed by the court, this was tantamount to a refusal to proceed further with the trial of the case; but this contention we do not think is tenable. There is nothing that prevents an attorney from praying an appeal from an order to this court from a motion overruling a continuance, nor should he be penalized by having his case dismissed for so doing. While the order may not be an appealable order, still the attorney in the trial case has a right to protect his record in the way and manner that he thinks proper subject to certain limitations.
It is further contended that the motion for a continuance contains the information that the attorneys for McBride could not have proceeded with the trial of the case without the presence of the plaintiff himself and that the plaintiff failed to offer any evidence, and therefore the court had authority to dismiss the petition. While it is true the motion for a continuance alleges that the plaintiff could not proceed to trial without the presence of the plaintiff, yet the only question presented to the court upon the motion for continuance was whether the motion should be sustained or overruled, and when the court overruled the same, the motion was disposed of, and nothing more. If after overruling the case the record would disclose the case was called for trial and the plaintiff refused to offer the testimony, the court then would have the right to dismiss the case, but the record is silent as to any such proceeding; the record does not disclose that the plaintiff refused to offer testimony, nor does the record disclose the case was ever called for trial. The record simply discloses that the court overruled the motion for continuance and dismissed the petition.
While it may seem unreasonable that a trial court in passing upon a motion for continuance *Page 74
would overrule the same and dismiss the plaintiff's cause of action without first calling the case for trial, yet in this case the record discloses that condition to exist, and we are unable to sustain the judgment upon the record as it appears here.
For the reasons stated, the case is reversed and remanded, with instructions to reinstate plaintiff's cause of action.
All the Justices concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444975/ | Reversing.
This action in the nature of a quo warranto was instituted to prevent the usurpation by Clarence (Buster) Broyles of the office of member of the Board of Education of Whitley County. Secs. 483, 485, Civil Code of Practice. It is based on the ground of ineligibility due to the alleged fact that the defendant had not "completed at least the eighth grade in the common schools" or possessed the equivalent education. KRS160.180.
The action was filed January 1, 1949. The petition states that the defendant had been elected at the November, 1948, election, had received a certificate of election to the office, and was assuming to be a member of the board. It charges him to be a usurper by reason of his ineligibility. The term of office of his predecessor did not expire until the first Monday in January, which was January 3, 1949. KRS 160.200(2). The question of the action being premature was seasonably raised. In his answer and counterclaim, which was filed after the first *Page 839
Monday in January, the defendant admitted he was assuming and claiming to be the duly elected and qualified member of the board and alleged that he had taken the oaths of office on December 28, 1948, and had then filed the same with the Secretary of the Board of Education. KRS 160.170. He further alleged that since January 3 he had been acting as a member of the board. An amended petition filed January 11 undertook to adopt all the allegations of the original petition.
A trial of the issue of qualification was had, and on the evidence the court sustained the petition, declared the defendant to be a usurper, and enjoined him from continuing to act as a member of the board. He appeals.
A usurper is one who intrudes himself into an office that is vacant or without color of title or right ousts the incumbent and assumes to act as an officer by exercising some of the functions of the office. Commonwealth v. Bush, 131 Ky. 384,115 S.W. 249. At the time this action was instituted the defendant was not a usurper. The taking of the oaths of office before January 3 was merely anticipating and getting ready to assume the duties at the appointed time. The defendant could not enter upon the discharge of the duties of his office or become entitled to its emoluments until that date.
An injunction to prevent him from assuming the office was prayed. But title or right to an office cannot be tested by the process of injunction, that remedy being an ancillary aid to the action at law in lieu of quo warranto. Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26; Richardson v. Commonwealth, 275 Ky. 486, 122 S.W.2d 156.
No action can be maintained if it is commenced before the accrual of the cause of action which is sought to be enforced. 1 Am.Jur., Actions, Sec. 63; Holton v. Jackson, 184 Ky. 559,212 S.W. 587; Bate v. Davis, 309 Ky. 709, 218 S.W.2d 958. So a cause of action should exist and be completed when a quo warranto proceeding is commenced. It will not lie against one who merely lays claim to the office. The term must have begun and the defendant have assumed, usurped or taken possession of the office. 51 C.J. 329; 44 Am.Jur., Quo Warranto, Secs. 26, 61. *Page 840
The later assumption of the office and the amendment of the petition thereafter could not give life to the premature petition.
An amended or supplemental petition in any action is permissible where it sets up facts material to the case as presented or serves to explain or perfect or cover proof of the cause of action originally stated except where it sets up lien notes which have become due pendente lite. A new or additional cause of action cannot be thus begun and made retroactive. In such a case the amendment only takes effect from the time of filing it. Secs. 134, 135, Civil Code of Practice; Taylor v. Moran, 4 Metc. 127, 61 Ky. 127; Hawes v. Orr, 10 Bush 431,73 Ky. 431; Bamberger v. Moayon, 91 Ky. 517, 16 S.W. 276; Fentzka's Adm'r v. Warwick Construction Co., 162 Ky. 580,172 S.W. 1060; Lilly v. O'Brien, 224 Ky. 474, 6 S.W.2d 715.
In Reader v. Farriss, 49 Okl. 459, 153 P. 678, L.R.A. 1916D, 672, we have an exact case. The same kind of action was instituted prior to the time the term began of the person elected. The case was continued to a day after he had assumed the office. The defendant at that time again objected to the proceeding because it had been prematurely begun. The court granted leave to file a supplemental petition alleging, in effect, that subsequent to the filing of the original petition the defendant had entered into the actual possession of the office and was then performing the duties thereof. The Supreme Court of Oklahoma, citing an early English case, stated that from that time to the present an unbroken line of authorities, both in England and this country, is to the effect that an information in the nature of quo warranto cannot be maintained where the party against whom it was applied for had not been in the actual possession of the office. Upon abundant authority the court also held under the general rule of pleading to which we have referred that the filing of the petition prematurely was not aided or cured by the filing of the supplemental petition setting up matters subsequently occurring as the cause of action.
We are of opinion that the action should have been dismissed without prejudice.
Judgment reversed. *Page 841 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4358581/ | FILED
NOT FOR PUBLICATION
JAN 14 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50211
Plaintiff-Appellee, D.C. No.
2:16-cr-00256-PSG-1
v.
DEBRA CHRISTINE CLARK, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted December 4, 2018
Pasadena, California
Before: O’SCANNLAIN and IKUTA, Circuit Judges, and KENNELLY,** District
Judge.
Defendant Debra Clark appeals the order of restitution entered following her
guilty plea. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
We review Clark’s challenge to the restitution order for plain error. See
United States v. Yijun Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016). Clark is not
entitled to de novo review of her claim even though she objected to the amount of
restitution at sentencing, because her argument on appeal is materially different
than the argument made to the district court. See United States v. Wahid, 614 F.3d
1009, 1013 (9th Cir. 2010); see also Fed. R. Crim. P. 52(b).
The district court erred in awarding $112,996 in restitution because a court
may award restitution under the Mandatory Victims Restitution Act “only for loss
that flows directly from the specific conduct that is the basis of the offense of
conviction.” United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013) (quoting
United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 (9th Cir. 2001))
(internal quotation marks omitted). Here, the specific conduct charged in the
indictment, which was the basis of Clark’s guilty plea, gave rise to losses totaling
only $40,036. The district court’s award of more than $40,036 in restitution was
therefore an error, and the error was plain because it was “clear or obvious under
current law.” United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).
Further, the district court’s error affected Clark’s substantial rights because she has
shown “a reasonable probability that, but for the error,” the amount of restitution
ordered would have been different. United States v. Dominguez Benitez, 542 U.S.
2
74, 76 (2004). Lastly, the error “seriously affect[ed] the fairness, integrity, or
public reputation of [the] judicial proceedings,” because the district court lacked
the legal authority to order restitution in an amount exceeding the losses caused by
the charges specifically pleaded in the indictment. See United States v. Fu Sheng
Kuo, 620 F.3d 1158, 1164–66 (9th Cir. 2010); see also United States v. Ameline,
409 F.3d 1073, 1102 (9th Cir. 2005) (en banc) (holding that imposition of an
illegal sentence is “a miscarriage of justice” that satisfies the fourth element of the
plain error test). We therefore exercise our discretion to correct a forfeited error,
United States v. Olano, 507 U.S. 725, 732 (1993), and we reverse the district
court’s ruling.
REVERSED.
3
FILED
United States v. Clark, No. 17-50211 JAN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
IKUTA, Circuit Judge, dissenting:
In a statement submitted to the district court before her guilty plea, at her
change of plea hearing, and at her sentencing hearing, Debra Clark stipulated that
she unlawfully obtained $112,996 from the Social Security Administration. On
appeal, she does not dispute this fact.
Because the specific conduct charged in the indictment gave rise to losses
totaling only $40,036, the district court erred in ordering Clark to pay $112,996 in
restitution. See United States v. May, 706 F.3d 1209, 1214 (9th Cir. 2013).
However, a court’s imposition of a sentence that is inconsistent with the indictment
is not necessarily a plain error if the sentence was based on evidence that “was
overwhelming and essentially uncontroverted.” United States v. Cotton, 535 U.S.
625, 632-33 (2002) (internal quotation marks omitted). Under those
circumstances, the error does not “seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Rather, the Supreme Court has told us, “[t]he
real threat” to the “fairness, integrity, and public reputation of judicial
proceedings” would be if the defendants, “despite the overwhelming and
uncontroverted evidence,” were to receive a lesser sentence “because of an error
that was never objected to at trial.” Id. at 634.
Because “overwhelming and uncontroverted evidence” supports the district
court’s restitution order here, I would hold that the district court did not plainly err,
and I would affirm the district court. Therefore, I dissent. | 01-03-2023 | 01-14-2019 |
https://www.courtlistener.com/api/rest/v3/opinions/998069/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7546
In Re: WAYNE E. WASHINGTON,
Petitioner.
On Petition for Writ of Mandamus. (CR-92-94-A)
Submitted: February 25, 1999 Decided: March 9, 1999
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Wayne E. Washington, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wayne Washington filed this petition for a writ of mandamus
seeking to have this court direct the district court to act on his
motion filed pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998). Our review of the district court docket sheet, however,
reveals that no such motion has been filed in the district court.
Therefore, while we grant leave to proceed in forma pauperis, we
deny the petition. 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.
PETITION DENIED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/998075/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7425
MICHAEL EDWARD BROOKS,
Plaintiff - Appellant,
versus
H. L. BUNCH, individually and in his official
capacity as Police Chief; J. L. SPEAR, indi-
vidually and in official capacity as Police
Lieutenant; MARK BYRUM, individually and in
official capacity as Police Officer; ALFRED
SANDERLIN, individually and in official capac-
ity as Police Officer; JAMIE LACOMBE, individ-
ually and in official capacity as Police
Officer; MALCOLM MOURING, individually and in
official capacity as Police Officer; AUBREY
NMI SAMPLE, individually and in official ca-
pacity as Police Officer; RICKY KING, indi-
vidually and in official capacity as Police
Officer; ROGER JONES, individually and in
official capacity as Police Sergeant; KEITH
TEAGUE; ELIZABETH CITY POLICE DEPARTMENT; CITY
OF ELIZABETH CITY; SAM KEITH, individually and
in official capacity as Deputy,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W. Boyle,
Chief District Judge. (CA-98-15-2-BO)
Submitted: February 25, 1999 Decided: March 9, 1999
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Edward Brooks, Appellant Pro Se. Kevin Neil Lewis, BAKER,
JENKINS, JONES & DALY, P.A., Ahoskie, North Carolina; David Keith
Teague, Danny Ray Glover, Jr., Elizabeth City, North Carolina; Mark
Allen Davis, WOMBLE, CARLYLE, SANDRIDGE & RICE, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael E. Brooks appeals the district court’s order denying
relief on his civil rights and state law claims complaint. We have
reviewed the record and the district court’s opinion and find no
reversible error. Accordingly, we affirm on the reasoning of the
district court. See Brooks v. Bunch, No. CA-98-15-2-BO (E.D.N.C.
Sept. 4, 1998). We deny Appellee Keith Teague’s motions for sum-
mary affirmance and damages and costs under Fed. R. App. P. 38. 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/7433305/ | Certiorari dismissed without opinion. 215 So.2d 764. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/998129/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7678
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY ARNOLD YOUNG,
Defendant - Appellant.
No. 98-7679
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY ARNOLD YOUNG,
Defendant - Appellant.
No. 98-7746
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY ARNOLD YOUNG,
Defendant - Appellant.
No. 99-6035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY ARNOLD YOUNG,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Bluefield. Elizabeth V. Hallanan,
Senior District Judge. (CR-88-112)
Submitted: March 11, 1999 Decided: March 18, 1999
Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry Arnold Young, Appellant Pro Se. Michael Lee Keller, 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).
2
PER CURIAM:
Larry Arnold Young appeals the district court’s order denying
his motion for reduction of sentence, motion for reconsideration,
and motion for appointment of counsel and motion for leave to
proceed in forma pauperis (IFP). We have reviewed the record and
the district court’s opinion and find no reversible error. We note
also that Young was not entitled to relief under the version of
Fed. R. Crim. P. 35 which was applicable to offenses committed
prior to November 1, 1987. Accordingly, we affirm on the reasoning
of the district court. See United States v. Young, No. CR-88-112
(S.D.W. Va. Sept. 25, Oct. 29, Nov. 12, & Dec. 16, 1998). We deny
Young’s renewed motion for appointment of counsel and motion for
leave to proceed IFP. 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.
AFFIRMED
3 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1231522/ | 648 S.E.2d 71 (2007)
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Julian R. SMITH, Defendant Below, Appellant.
No. 33171.
Supreme Court of Appeals of West Virginia.
Submitted: May 9, 2007.
Decided: June 13, 2007.
Concurring Opinion of Justice Albright June 28, 2007.
Dissenting Opinion of Justice Maynard June 27, 2007.
Paula M. Cunningham, Esq., Deputy Public Defender, Wendy A. Campbell, Esq., Assistant Public Defender, Kanawha County, Office of the Public Defender, Charleston, for the Appellant.
Darrell V. McGraw, Jr., Esq., Attorney General, James W. Wegman, Esq., Assistant Attorney General, Charleston, for the Appellee.
PER CURIAM.
This case is before this Court upon the appeal of Julian R. Smith from the June 4, 1993, order of the Circuit Court of Kanawha County. This order sentenced Smith to a term of forty years in the penitentiary upon his conviction of the offense of aggravated robbery. Pursuant to an intervening proceeding in habeas corpus, the Circuit Court entered an order on July 18, 2005, reimposing the forty year term and restoring Smith's right to appeal to this Court. The appeal was granted in September 2006 and concerns Smith's alleged participation with three others in the robbery of a Taco Bell restaurant in South Charleston, West Virginia.
Smith contends that the Circuit Court abused its discretion in not dismissing the case upon the appearance at trial of an undisclosed rebuttal witness called by the State. The witness, disclosed after Smith testified before the jury, recanted his pretrial statement, also undisclosed, which supported Smith's defense of alibi, and, instead, gave testimony incriminating Smith in the robbery. Asserting extreme prejudice, Smith argues that the Circuit Court should have declared a mistrial.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Upon careful examination, this Court finds merit in Smith's assignment of error. As discussed below, manifest necessity for a mistrial is demonstrated in the record in the following respects: (1) the State failed to provide notice of the rebuttal witness whose testimony was elicited to contradict Smith's alibi defense; (2) the State advised Smith that it was unaware of any evidence favorable to Smith and, further, failed to disclose to Smith the pretrial statement of the rebuttal witness which initially had supported Smith's alibi defense; and (3) although stating to the Circuit Court that no formal plea agreement had been made with the rebuttal witness, the State failed to disclose that the witness had been offered the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial. For these reasons, Smith's conviction is reversed, and the case is remanded to the Circuit Court for a new trial.
I.
Factual Background
At approximately 5:00 a.m. on August 24, 1991, two men, their faces hidden with clothing, *73 entered a Taco Bell restaurant in South Charleston with a revolver, forced the employees into a walk-in cooler and left the restaurant with $3,088.13. According to the State, the two men were appellant Julian R. Smith and Freeman Caffee, III. They were assisted by Harold Lee Jones, who waited in a nearby car, and Beverly Lynn Pauley, the shift manager at Taco Bell that morning. Pauley, who was Smith's girlfriend, allegedly opened the safe for Smith and Caffee before she too was placed in the walk-in cooler.
After the robbery was reported, Jones, found waiting in the car by the police, was taken in for questioning. The car, a Chevy Lumina, belonged to the Avis Corporation and was rented to appellant Smith's uncle who stated that Smith was going to use it for a trip to Ohio. Neither Smith nor Caffee were found in the vicinity of the restaurant. During the subsequent investigation, a number of items allegedly discarded by Caffee were found in some weeds near Smith's residence on Hanna Drive in Charleston. The items included a Taco Bell bag, various receipts, coin wrappers, empty money bags and some clothing allegedly worn by the assailants.
Caffee, Jones and Smith gave separate statements to the police indicating that they were together at a nightclub called the Warehouse, in Charleston, until shortly after 3:00 a.m. on August 24, 1991. According to Jones, whose statement was given on August 27, 1991, he drove the rental car and dropped Smith off on Second Street in Charleston where Smith's mother lived. He then dropped Caffee off in St. Albans several miles west of Charleston. Jones stated that, on the way back toward Charleston, he stopped near the Taco Bell to rest because he had been drinking and was tired. He was, thus, in the car when the police found him. Smith, who talked to the police at his mother's house at 6:00 a.m. on the morning in question, maintained that he had been sleeping and was not involved in the robbery.
II.
Procedural Background
In April 1992, a Kanawha County grand jury indicted Smith, Caffee, Jones and Pauley for aggravated robbery (by the threat or presenting of a firearm) pursuant to W. Va. Code, 61-2-12 (1961).[1] Thereafter, appellant Smith filed twenty-three pretrial motions, several of which requested the State to disclose: (1) information beneficial to the preparation of a defense, (2) exculpatory material, including information relevant to Smith's innocence or which may be used for impeachment and (3) the identity of individuals who have knowledge relevant to the case.
In particular, Smith filed motions: (1) for a list of witnesses, including "those to be called in the State's case-in-chief and on rebuttal," (2) for any statements of any witnesses, (3) for Smith's own statements and "any statements alleged to have been made by any co-defendants which may be considered to be in furtherance of any alleged conspiracy, criminal enterprise or joint criminal activity" and (4) for disclosure of impeaching information relating, inter alia, to promises extended to witnesses by the State.[2]
The State replied by stating that it was "unaware of any evidence favorable to the defendant." Moreover, the State's witness *74 list filed in the Circuit Court included neither Caffee nor Jones, although Smith was provided with their "rap sheets." The State replied to the motion for statements of witnesses and the motion for the disclosure of impeaching information by asserting that the requests were "beyond the scope" of the law.
In January 1993, Smith was tried separately from his co-defendants. Caffee, who had already entered a plea to unaggravated robbery in the case, was among those called by the State in its case-in-chief. Caffee testified that he had not been driven to his home in St. Albans prior to the robbery. Rather, he stated that he and Smith robbed the Taco Bell with the assistance of Pauley who opened the safe and Jones who waited in the car. After the State rested its case, Smith took the stand as the sole witness for the defense, insisting that he was sleeping at his mother's house in Charleston at the time of the robbery.
Therefore, the State called Harold Lee Jones to the stand as a rebuttal witness and disclosed to the defense, for the first time, Jones' pretrial statement supporting Smith's alibi defense.[3] Jones testified, contrary to the statement, that he provided the revolver and remained in the car during the period in question after Caffee and Smith exited the vehicle in the area of the restaurant. Following Jones' direct testimony, Smith moved that the case be dismissed, suggesting extreme prejudice based upon the untimely disclosure of exculpatory evidence in the form of Jones' pretrial statement.[4] In addition, Smith argued that Jones should have been called during the State's case-in-chief. During the ensuing argument, the State told the Circuit Court that there was "no plea agreement" between the State and Jones. The Circuit Court refused to dismiss the case, and, on cross-examination, Jones' pretrial statement was used in an effort to impeach his inculpatory testimony. During cross-examination, Jones stated that the State had offered him the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial.
The jury found appellant Smith guilty of aggravated robbery, and on June 4, 1993, he was sentenced to a term of forty years in the penitentiary. As stated above, he was resentenced on July 18, 2005, for purposes of appeal to this Court.[5]
III.
Standard of Review
Pursuant to W. Va.Code, 62-3-7 (1923), a circuit court may discharge a jury in a criminal case during trial if it appears that there is "manifest necessity for such discharge." As syllabus point 1 of State v. Shelton, 116 W.Va. 75, 178 S.E. 633 (1935), holds: "In the trial of a criminal case the trial court, acting under Code, 62-3-7, may, for manifest necessity, discharge the jury and order a new trial. Such action will not afford basis for a plea of former jeopardy." Syl. pt. 1, State ex rel. Bailes v. Jolliffe, 208 W.Va. 481, 541 S.E.2d 571 (2000). See, syl. pts. 1 and 3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972), employing the term "mistrial" in that context and noting that, before a manifest necessity exists warranting such a discharge of the jury, the circumstances must be "forceful" and "prejudicial" to the accused.[6] Accordingly, *75 this Court recognized in State v. Swafford, 206 W.Va. 390, 395, 524 S.E.2d 906, 911 (1999), that the decision to declare a mistrial and discharge the jury "is a matter within the sound discretion of the trial court." State v. Brewer, 204 W.Va. 1, 5, 511 S.E.2d 112, 116 (1998); State v. Williams, 172 W.Va. 295, 304, 305 S.E.2d 251, 260 (1983).
IV.
Discussion
This Court has "traditionally accorded to the trial judge broad discretion in the admission of rebuttal evidence." State v. Massey, 178 W.Va. 427, 433, 359 S.E.2d 865, 871 (1987). State v. Oldaker, 172 W.Va. 258, 264, 304 S.E.2d 843, 849 (1983) (A trial court has wide discretion in allowing rebuttal testimony after a party has rested.) See also, State v. Scurlock, 99 W.Va. 629, 130 S.E. 263 (1925), indicating that the admission of rebuttal evidence is within the discretion of the trial court and that the exercise thereof is rarely reversed, "unless the defendant is clearly shown to have been prejudiced [.]" 99 W.Va. at 638, 130 S.E. at 267.[7]
As applied to this case, however, the above principle must be viewed in the context of the West Virginia Rules of Criminal Procedure and the pretrial motions and responses filed by the parties herein. Pursuant to Rule 16 concerning discovery, a defendant is entitled: (1) to a list of witnesses the State intends to call in its case-in-chief and (2) to inspect and copy papers or documents "which are material to the preparation of the defense" or are intended for use by the State as evidence in chief at trial. The Rule further provides a continuing duty to disclose and sanctions for the failure to furnish discoverable material.[8]
More specifically, Rule 16(e). states that the discovery of alibi witnesses is governed by Rule 12.1. The latter Rule, in subsection (b), provides that, upon notice of an alibi defense, the State shall disclose "the names and addresses of the witnesses upon whom the State intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witness to be relied on to rebut testimony of any of the defendant's alibi witnesses."
Nevertheless, the failure of the State to disclose rebuttal witnesses before they take the stand, and even such witnesses in alibi cases, has not required the reversal of a criminal conviction. In State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995), this Court rejected the defendant's assertion that the appearance at trial of an undisclosed rebuttal witness required the setting aside of the defendant's sexual assault conviction. The witness, called by the State, testified that the defendant had a reputation for untruthfulness. This Court, in Roy, held that, inasmuch as the defendant failed to request a recess or a continuance in order to prepare a challenge to the witness' testimony, the nondisclosure did not warrant disturbing the conviction. In so ruling, however, this Court noted that "even rebuttal witnesses should be disclosed when the State has a reasonable anticipation that they will be used during trial." 194 W.Va. at 286-87, 460 S.E.2d at 287-88.
Similarly, in State v. Miller, 195 W.Va. 656, 466 S.E.2d 507 (1995), the defendant challenged his sexual assault convictions by asserting, inter alia, that he was prejudiced at trial by an undisclosed rebuttal witness who gave testimony contrary to the defendant's alibi defense. Although the defendant maintained that he moved out of the county prior to the assaults, the testimony of the rebuttal *76 witness concerning the school records of the defendant's children suggested that the defendant may have been in the area during the period in question. This Court, in Miller, affirmed the convictions because: (1) the testimony of the rebuttal witness was limited to the issue of the defendant's residence, an issue the defendant raised, and (2) the defendant, upon the appearance of the witness, failed to request a recess or continuance of the proceedings.
Significant guidance in this area of the law is found in syllabus point 2 of State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994), in which this Court observed: "The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case." Syl. pt. 1, State v. Keenan, 213 W.Va. 557, 584 S.E.2d 191 (2003). In Rusen, this Court upheld the dismissal of an indictment because of the State's failure to obtain and disclose corporate records in an embezzlement case. As this Court stated:
We believe that it is necessary in most criminal cases for the State to share its information with the defendant if a fair trial is to result. Furthermore, we find that complete and reasonable discovery is normally in the best interest of the public. One consequence of full and frank discovery is that it may very well encourage plea negotiations. As Dean Pye has noted: . . . "It may be impossible for counsel to make any intelligent evaluation of the alternatives if he knows only what his client has told him and what he has discovered on his own. [33 F.R.D. 82, 83]"
193 W.Va. at 139, 454 S.E.2d at 433. As the Rusen opinion concluded: "[W]e do not mean to suggest that a defendant has a right to fabricate a defense, but we strongly note that our Rules of Criminal Procedure have provided a right to discovery, and correspondingly, a right to devise a defense and trial strategy on the basis of the evidence disclosed by the prosecution." 193 W.Va. at 143 n. 14, 454 S.E.2d at 437 n. 14.
When an undisclosed rebuttal witness in an alibi case is called by the State and the defendant objects on the basis of surprise, prejudice and an alleged violation of the discovery rules, the Circuit Court is faced with the difficult task of having to consider an appropriate sanction at a moment in the case when pretrial matters, evidentiary matters before the jury and the probable outcome of the trial are, as quoted in Rusen, "seen through a glass, darkly." 193 W.Va. at 143, 454 S.E.2d at 437. In the case before us, however, the Circuit Court's consideration should have been less difficult because, when Jones was called as a rebuttal witness, his August 27, 1991, statement supportive of appellant Smith's alibi was only then revealed for the first time, after the State had represented during the discovery process that it was unaware of any evidence favorable to Smith. In addition, Jones testified that he was offered the possibility of entering a plea to unaggravated robbery, after the State, though literally correct, had represented to the Circuit Court, and Smith, that no plea agreement with Jones had been made. As stated above, Smith moved prior to trial for: (1) a list of the State's witnesses, including those to be called on rebuttal, (2) statements of co-defendants, (3) information relating to promises extended to State witnesses, (4) information beneficial to the preparation of a defense and (5) exculpatory material.[9]
*77 Although no motion was made for a recess or a continuance when Jones was called to testify, his pretrial statement was not properly revealed in violation of Smith's request and was only disclosed just prior to him taking the stand. This failure to disclose during the discovery in the case created clear prejudice to Smith's ability to prepare his defense. Furthermore, the State's dilatory disclosure, apparently precipitated by the trial court's requirement that witness' statements be disclosed prior to a witness taking the stand, does nothing to minimize this prejudice. We conclude that Smith is correct in his assessment that Jones could have been included in the State's case-in-chief. Beyond contradicting Smith's assertion that he was at his mother's residence at the time of the robbery, Jones testified that before he, Smith and Caffee drove to the Taco Bell, they went to Jones' house where he got a .357 Magnum revolver and gave it to Smith. Thus, the State must have anticipated that Jones would be used at trial. Roy, supra. See, 1, F.D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 6-11(D)(3)(b) (4th ed.2000) (indicating that rebuttal is not proper if it could have been presented in the case-in-chief).
Accordingly, this Court is of the opinion that, viewing the record in its entirety, the calling of Harold Lee Jones, an undisclosed rebuttal witness, whose pretrial statement and pending plea agreement were also undisclosed, denied Smith a fair trial and constituted grounds for a mistrial based upon manifest necessity. The transgressions which occurred were prejudicial both to Smith's preparation of a defense and at trial. A reversal and remand for new trial is, thus, appropriate because this case includes additional factors which plainly distinguish it from the circumstances found in Roy and Miller, supra, in which the convictions were affirmed.
V.
Conclusion
Upon all of the above, this Court holds that the Circuit Court abused its discretion in this case in not granting a mistrial based upon manifest necessity. Therefore, the orders of the Circuit Court of Kanawha County, West Virginia, entered on June 4, 1993, and July 18, 2005, with regard to appellant Smith's conviction and sentencing for aggravated robbery are reversed, and this case is remanded to that Court for a new trial.
Reversed and Remanded
ALBRIGHT, Justice, concurring.
I fully agree with the outcome reached by the majority in this case as the defendant was denied a fair trial due to the State's failure to disclose information which was not only relevant to the preparation of the defense plan but is also required by the West Virginia Rules of Criminal Procedure[1] and ordered by the trial court.[2]
What is most disconcerting about this case is that the State refused to disclose three significant pieces of information which the defense had specifically and repeatedly requested by pretrial motion in order to adequately prepare a trial defense. As the majority opinion makes clear, the State failed not only to disclose the rebuttal witness, it withheld the statement the rebuttal witness had initially given to the police directly related to the defendant's alibi defense, and it apparently lied about any type of plea agreement offered to the witness in exchange for his rebuttal testimony. The dissent questions that manifest necessity for a mistrial exists because it examines each of these omissions separately and therefore dilutes the cumulative significance of the State's improper actions. It is that cumulative effect of the State's willful or inadvertent suppression of this evidence that establishes such necessity which demands that a new trial be *78 had. For some reason the dissent refuses to acknowledge that the State's actions created a less than level playing field by withholding information that could prove beneficial to the development of the defense. The dissent filed in the case compounds the willingness to require the effects of the State's intransigence by proceeding to divine what the jury might have done had the defense been given a level playing field. That is a flight of fantasy in which we should not participate.
Our system of justice, based on the rudimentary principle that a person is considered innocent until fairly proven guilty, was respected and preserved by the decision reached in the majority opinion. Accordingly, I concur.
I am authorized to state that Justice Starcher joins in this concurring opinion.
MAYNARD, Justice, dissenting.
In this case, the majority bootstraps a few arguable disclosure violations into cause for a mistrial based on manifest necessity.
The majority finds that manifest necessity for a mistrial is appropriate because the State failed to provide notice of a rebuttal witness; the State failed to disclose Jones's pretrial statement which the majority deems to be exculpatory; and the State failed to disclose that Jones had been offered the possibility of entering a plea to unaggravated robbery in exchange for his testimony. This Court has held that "[b]efore a manifest necessity exists which would warrant the declaring of a mistrial and the discharging of the jury and ordering a new trial, the circumstances must be prejudicial, or appear to be prejudicial, to the accused or the state." Syllabus Point 3, State ex rel. Brooks v. Worrell, 156 W.Va. 8, 190 S.E.2d 474 (1972). It is clear that the alleged errors cited by the majority were not prejudicial to the defendant.
First, the majority readily acknowledges that the failure of the State to disclose a rebuttal witness in an alibi case before the witness testifies does not require the reversal of a criminal conviction. As noted by the majority, in State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995), we held that the nondisclosure did not necessitate reversing the conviction because the defendant did not request a recess or a continuance in order to prepare a challenge to the witness's testimony. Also, in State v. Miller, 195 W.Va. 656, 466 S.E.2d 507 (1995), this Court affirmed the conviction where an undisclosed rebuttal witness gave testimony contrary to the defendant's alibi defense because, inter alia, the defendant failed to request a recess or a continuance of the proceedings. In the instant case, the defendant did not move for a recess or a continuance when Jones was called to testify. Therefore, application of our precedent in Roy and Miller mandates that no reversible error occurred and likewise no manifest necessity for a mistrial.
Second, I do not believe the defendant was prejudiced by the State's failure to disclose Jones's pretrial statement. Significantly, it is questionable whether the statement is exculpatory. At trial, the defendant testified that he was sleeping at his mother's house in Charleston at the time of the robbery at approximately 5:00 a.m. Jones indicated in his pretrial statement that he dropped the defendant off at the house in Charleston at 3:00 a.m. Thus, even if the jury had believed Jones's pretrial statement, the statement is not inconsistent with the fact that the defendant robbed the Taco Bell two hours later at 5:00 a.m. In addition, I fail to see, and the majority does not explain, how the State's failure to disclose the statement hampered the defendant's preparation of his case. Finally, I do not believe, in light of the strong circumstantial and physical evidence of the defendant's guilt, that disclosure of Jones's pretrial statement would likely have changed the outcome of the trial. Therefore, any error in the State's failure to disclose Jones's pretrial statement was harmless and certainly did not necessitate a mistrial based on manifest necessity.
Finally, I am at a complete loss as to how the State's failure to disclose that Jones had been offered the possibility of entering a plea to unaggravated robbery in exchange for his testimony prejudiced the defendant. Jones testified at trial that he was offered the possibility of a plea. Because the jury heard this evidence, how could the nondisclosure of *79 the plea offer prior to trial amount to prejudicial error?
In sum, there simply was no basis in this case for the grant of a mistrial based on manifest necessity. When one considers the totality of the evidence at trial, it is clear that the defendant had a fair opportunity to prepare and present his defense. Any surprise to the defendant arising from the State's nondisclosure could easily have been dealt with simply by moving for a recess or continuance to prepare to challenge Jones's testimony. That the defendant was unsuccessful in his defense is not due to any nondisclosure on the part of the State but rather to the substantial evidence of guilt. The bottom line is that the defendant was properly tried, and the jury, which heard all of the relevant evidence, found the defendant guilty of aggravated robbery. There simply is no sound legal reason why this conviction should not stand.
Accordingly, I dissent.
NOTES
[1] W. Va.Code, 61-2-12 (1961), provides in part: "If any person commit, or attempt to commit, robbery . . . by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years." Subsequent amendments to the statute are not relevant to this appeal.
[2] The motion for disclosure of impeaching information sought:
[a]ny and all consideration or promises of consideration given to or on behalf of the witnesses or expected or hoped for by the witness. By "consideration," defendant refers to absolutely anything, whether bargained for or not, which could be of value or use to a witness or to persons of concern to the witness, including, but not limited to, criminal, civil or tax immunity grants, relief from forfeiture, assistance of favorable treatment or recommendations with respect to any criminal, civil[,] tax court, court of claims, administrative or other legal dispute with plaintiff . . . and anything else which arguably could reveal an interest or bias in the witness in favor of the plaintiff against the defense or an inducement to testify or to color testimony.
[3] It should be noted that earlier, during the State's case-in-chief, the Circuit Court granted the request of Smith's counsel that the State provide reports and witness statements, not previously disclosed, prior to the State's witnesses taking the stand. As Smith's counsel explained to the Circuit Court: "[w]e're trying to read these and listen to the testimony at the same time, which makes it hard to do an appropriate cross-examination." No such advance disclosure of Jones' pretrial statement, however, was made.
[4] In this appeal, Smith indicates that his motion to dismiss was the functional equivalent of a motion for a mistrial.
[5] As reflected in the June 4, 1993, order, Smith entered pleas of guilty in May 1993 to murder of the first degree and murder of the second degree. Those convictions, under a separate indictment from the one charging aggravated robbery, are not related to the matters concerning this appeal.
[6] 1, F.D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 1-7(F) (4th ed.2000), states in part: "A defendant's motion for a mistrial should be granted only if during the trial there occurs an error or legal defect in the proceedings or conduct outside or inside the courtroom resulting in substantial and irreparable prejudice to the defendant's case." In that regard, Rule 26.3. of the West Virginia Rules of Criminal Procedure suggests that both the State and the defendant have a right to "comment on the propriety" of an order granting a mistrial.
[7] Rule 611(a). of the West Virginia Rules of Evidence provides, in part, that a circuit court "shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence [.]"
[8] Rule 16(d)(2). states in part:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.
[9] Smith maintains that the August 27, 1991, statement given by Jones to the police was exculpatory insofar as it was consistent with his alibi defense. Thus, he cites the decision of the Supreme Court of the United States in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which holds that the suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material to either guilt or punishment. Similarly, this Court stated in syllabus point 4 of State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), that "[a] prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." W. Va. Const. art. III, § 10; syl. pt. 4, State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999). In that regard, it should be noted that Rule 26.2(a) of the Rules of Criminal Procedure providing for the disclosure of statements of witnesses does not include language concerning exculpatory material.
[1] See e.g. W.Va. R.Crim. P. 12.1(b) (requiring disclosure by the State of witnesses to be relied on to rebut defendant's alibi witnesses.)
[2] See State v. Smith, ___ W.Va. ___, ___, 648 S.E.2d 71, 77, 2007 WL 1729991 * n. 3 (June 13, 2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2774665/ | Filed 1/29/15 Tessie Cleveland Communityh Services v. Loghmani CA2/2
NOT TO BE PUBLISHED IN THE 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
SECOND APPELLATE DISTRICT
DIVISION TWO
TESSIE CLEVELAND COMMUNITY B251944
SERVICES CORP.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. TC023641)
v.
MOHSEN LOGHMANI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
William B. Barry, Judge. Affirmed.
Mohsen Loghmani, in pro. per., for Defendant and Appellant.
J.J. Little & Associates, James J. Little for Plaintiff and Respondent.
___________________________________________________
A jury returned a verdict against appellant. Following entry of judgment, the trial
court ordered appellant to pay respondent’s attorney fees. Appellant appeals from the
attorney fees order but makes no pertinent argument. We affirm.
BACKGROUND
Mohsen Loghmani, a licensed provider of contracting, professional engineering,
and architectural services, entered into a number of agreements with respondent Tessie
Cleveland Community Services Corp. (Tessie). In November 2011, a jury found
Loghmani liable for professional negligence, misrepresentation, and breach of contract.
Tessie was awarded net damages of $388,325.47.
Judgment was entered on March 7, 2013. The trial court denied Loghmani’s
motions for new trial and for judgment notwithstanding the verdict.1
On August 6, 2013, the trial court granted Tessie’s motion for attorney fees,
awarding $1,458,101.25. Loghmani’s appeal from that order is timely.2
DISCUSSION
An order awarding attorney fees is generally reviewed for an abuse of discretion,
though the issue of whether fees are awardable by contract or otherwise is a question of
law. (Chodos v. Borman (2014) 227 Cal.App.4th 76, 91.)
The record on appeal does not contain Tessie’s motion for attorney fees or any
opposition papers, and Loghmani’s appellate brief does not contain an independent
argument for overturning the attorney fees award. Instead, Loghmani argues that the trial
1 On November 13, 2014, we dismissed Loghmani’s appeal from the judgment and
denial of these motions (B250392) as untimely. We also denied his request to
consolidate that appeal with this one.
2 Following our dismissal of Loghmani’s prior appeal (B250392), Tessie filed a
motion to dismiss this appeal and a motion for sanctions against Loghmani. We elect to
definitively decide this appeal by this opinion and therefore the motion to dismiss is
denied. In addition, although this appeal potentially could be considered frivolous and/or
moot following the dismissal of the prior appeal, given the facts of this case, we decline
to impose sanctions. The motion for sanctions is denied.
2
court improperly denied his motion for judgment notwithstanding the verdict and his
motion for new trial, and simply requests that the subsequent fees award be “waived.”
The appeal concerning these motions was dismissed, however, leaving us without
jurisdiction to review the denials. Since Loghmani provides no independent basis for
reversal of the order awarding attorney fees to Tessie, we must affirm.
DISPOSITION
The August 6, 2013 order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
3 | 01-03-2023 | 01-29-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1029662/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6420
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON JOSEPH KNOX, a/k/a Bryon Joseph Knox, a/k/a Joe Knox,
a/k/a Fort Knox,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:98-cr-00192-RLV-1)
Submitted: July 30, 2009 Decided: August 5, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Byron Joseph Knox, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron Joseph Knox appeals the district court’s order
denying his motion for reduction of sentence under 18 U.S.C.
§ 3582(c)(2) (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. See United States v. Knox, No. 5:98-cr-
00192-RLV-1 (W.D.N.C. Mar. 3, 2009). We deny Knox’s motion for
appointment of counsel. 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/3218544/ | Filed 6/29/16 In re Francisco S. CA1/2
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 TWO
In re FRANCISCO S., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A146349
FRANCISCO S.,
Defendant and Appellant. (Solano County
Super. Ct. No. J43051)
Francisco S. appeals after the juvenile court sustained five allegations stemming
from his driving under the influence and engaging law enforcement in a high-speed
chase, in a juvenile wardship petition. (Welf. & Inst. Code, § 602.)1 On appeal, he
requests that we conduct an independent review of the sealed transcript of the in camera
hearing held on his Pitchess2 discovery motion to determine whether the juvenile court
made an adequate record and whether the court abused its discretion in finding there was
no discoverable material. We shall affirm the juvenile court’s order.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
Pitchess v. Superior Court (1974) 11 Cal. 3d 531 (Pitchess).
1
PROCEDURAL BACKGROUND
On June 16, 2015, a juvenile wardship petition was filed, pursuant to section 602,
alleging that appellant had committed the following offenses: assault upon a peace
officer (Pen. Code, § 245, subd. (c)—count 1); evading an officer (Veh. Code, § 2800.2,
subd. (a)—count 2); driving under the influence of alcohol or drugs (Veh. Code, § 23152,
subd. (a)—count 3); driving while having a 0.08 percent or higher blood alcohol level
(Veh. Code, § 23152, subd. (b)—count 4); and hit and run driving (Veh. Code, § 20002,
subd. (a)—count 5).
On August 19, 2015, following a contested jurisdictional hearing, the juvenile
court sustained the petition as to all five counts.
At the September 2, 2015 dispositional hearing, the court adjudged appellant a
ward of the court and placed him in the custody of the probation department for suitable
placement.
On September 22, 2015, appellant filed a notice of appeal.
FACTUAL BACKGROUND
James Jones, a lieutenant with the Department of Fish and Wildlife and a
designated peace officer, testified at the jurisdictional hearing. On June 14, 2015,
approximately 11:10 a.m., Jones was in uniform, driving his marked patrol vehicle on
Highway 12 in Napa County, when he observed a pickup truck in front of him swerving
slightly in its lane. Jones drove past the truck and saw that the driver’s “eyes were almost
closed and he was trying to keep them open.” At the hearing, Jones identified appellant
as the driver. After appellant made an unsafe lane change, Jones activated the siren and
lights on his vehicle, intending to conduct a traffic enforcement stop. Appellant then
accelerated to 65 miles per hour and Jones pursued him. During the pursuit, appellant
accelerated up to 90 miles per hour, at times using the shoulder of the road to pass other
cars.
Jones and appellant entered Solano County, and appellant continued to drive
erratically, weaving between other cars and driving between 65 and 80 miles per hour.
While they were on Interstate 80, a Highway Patrol officer joined in the pursuit,
2
activating her vehicle’s lights and siren, and Jones took a secondary position behind the
Highway Patrol vehicle. They continued to pursue appellant when he exited the freeway
in Fairfield, driving 80 miles per hour and running red lights. Appellant eventually struck
another vehicle, but continued driving.
About 15 minutes into the pursuit, the Highway Patrol officer successfully
conducted a pursuit intervention technique, which involved tapping the rear of appellant’s
truck with her vehicle and “spinning it out,” to stop it. With the Highway Patrol vehicle
stopped behind appellant’s truck, Jones pulled his vehicle in front of the truck. Appellant
drove forward a short distance, striking Jones’s vehicle, then backed up and drove
forward, striking the vehicle again. At that point, Jones exited his vehicle, drew his
weapon, and pointed it at appellant while saying, “Stop. Get your hands up. Police.”
Appellant was still in his truck; he was looking down as he again hit Jones’s vehicle in an
effort to drive away. Jones continued to shout commands and appellant finally looked
up, stopped, and put his hands up.
Fairfield police officers arrived and appellant slowly put his hands back down.
The Fairfield officers then tased appellant before removing him from the truck. Jones
later met with appellant at a hospital, where appellant waived his Miranda rights and
acknowledged that he had consumed a half liter of red wine that morning.3
DISCUSSION
Appellant requests that we conduct an independent review of the sealed transcript
of the in camera hearing held on his Pitchess motion to determine whether the juvenile
court made an adequate record and whether it abused its discretion in finding there was
no discoverable material. Respondent does not oppose appellant’s request.
In Pitchess, supra, 11 Cal. 3d 531, the California Supreme Court “recognized that a
criminal defendant may, in some circumstances, compel the discovery of evidence in the
arresting law enforcement officer’s personnel file that is relevant to the defendant’s
3
Appellant’s blood alcohol level was tested at the hospital and was found to be
0.17 percent. He was 16 years old at the time he committed the offenses.
3
ability to defend against a criminal charge. ‘In 1978, the California Legislature codified
the privileges and procedures surrounding what had come to be known as “Pitchess
motions” . . . through the enactment of Penal Code sections 832.7 and 832.8 and
Evidence Code sections 1043 through 1045.’ [Citation.] By providing that the trial court
should conduct an in camera review, the Legislature balanced the accused’s need for
disclosure of relevant information with the law enforcement officer’s legitimate
expectation of privacy in his or her personnel records. [Citation.]” (People v. Mooc
(2001) 26 Cal. 4th 1216, 1219-1220 (Mooc).)
In Mooc, our Supreme Court set forth the procedure for the filing and review of a
Pitchess motion: If, after a defendant files a motion for discovery of a peace officer’s
personnel records, and “the trial court concludes the defendant has fulfilled [the]
prerequisites and made a showing of good cause, the custodian of records should bring to
court all documents ‘potentially relevant’ to the defendant’s motion. [Citation.]” (Mooc,
supra, 26 Cal.4th at p. 1226.) The trial court should then examine the documents in an in
camera hearing and, subject to certain exceptions and limitations, disclose to the
defendant “ ‘such information [that] is relevant to the subject matter involved in the
pending litigation.’ [Citation.]” (Ibid., quoting Evid. Code, § 1045, subd. (a).)4 When
examining the records, the trial court must “make a record of what documents it
examined before ruling on the Pitchess motion. Such a record will permit future
appellate review. If the documents produced by the custodian are not voluminous, the
court can photocopy them and place them in a confidential file. Alternatively, the court
can prepare a list of the documents it considered, or simply state for the record what
documents it examined. Without some record of the documents examined by the trial
4
Under Evidence Code section 1045, subdivision (b), the trial court “shall exclude
from disclosure: [¶] (1) Information consisting of complaints concerning conduct
occurring more than five years before the event or transaction that is the subject of the
litigation in aid of which discovery or disclosure is sought. [¶] (2) In any criminal
proceeding the conclusions of any officer investigating a complaint filed pursuant to
Section 832.5 of the Penal Code. [¶] (3) Facts sought to be disclosed that are so remote
as to make disclosure of little or no practical benefit.”
4
court, a party’s ability to obtain appellate review of the trial court’s decision, whether to
disclose or not to disclose, would be nonexistent.” (Mooc, at p. 1229.)
We review a trial court’s ruling on a Pitchess motion for an abuse of discretion.
(Mooc, supra, 26 Cal.4th at p. 1228.)
In this case, defense counsel filed a Pitchess discovery motion on July 15, 2013.
At the hearing on the motion, counsel narrowed the request to include only Lieutenant
Jones and limited the issues to his veracity, use of force, and racial bias. The court
granted the discovery motion and held an in camera hearing. After the hearing, the court
informed counsel that it had found no records responsive to the motion, at which point
the court ordered the transcript sealed.
We have reviewed the sealed transcript from the in camera hearing on appellant’s
Pitchess motion. The custodian of records testified under oath that he had brought all
potentially relevant materials from Jones’s personnel files, which the juvenile court
reviewed and described on the record. (See Mooc, supra, 26 Cal.4th at p. 1229.) The
custodian of records also described the few documents that were withheld and why they
were not responsive to the motion. (See id. at p. 1230.) Based on our review of the
sealed transcript, we conclude the trial court made an adequate record and properly
exercised its discretion in finding that there was no discoverable material in Jones’s
personnel files. (See id. at pp. 1228-1229.)
DISPOSITION
The juvenile court’s order is affirmed.
5
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
In re Francisco S. (A146349)
6 | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/998090/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7324
ALFREDO SIMPSON,
Petitioner - Appellant,
versus
STEPHEN DEWALT, Warden of the Federal Correc-
tional Institute at Petersburg, Virginia;
ATTORNEY GENERAL OF NORTH CAROLINA,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CA-98-269-5-BR)
Submitted: February 25, 1999 Decided: March 8, 1999
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Alfredo Simpson, Appellant Pro Se. Clarence Joe DelForge, III,
OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alfredo Simpson appeals 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
appealability and dismiss the appeal on the reasoning of the dis-
trict court. See Simpson v. DeWalt, No. CA-98-269-5-BR (E.D.N.C.
Aug. 17, 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/2840731/ | Opinion issued March 2, 2007
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-06-01105-CV
____________
IN RE GENERAL ELECTRIC COMPANY, WARREN PUMPS, L.L.C.,
AND INGERSOLL-RAND COMPANY, Relators
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Relators, General Electric Company, Warren Pumps, L.L.C., and Ingersoll-Rand Company have filed a petition for writ of mandamus complaining of Judge
Davidson's (1) November 3, 2006 order denying their motions to dismiss on grounds of
forum non conveniens.
We deny the petition for writ of mandamus. See Tex. R. App. P. 52.8 (a),(d).
We withdraw our order dated January 26, 2007, staying the underlying case
in the trial court. All other pending motions filed in this cause number with the Clerk
of this Court are denied as moot.
PER CURIAM
Panel consists of Justices Taft, Alcala, and Hanks.
1. The Honorable Mark Davidson, judge of the 11th District Court of Harris
County, Texas. The underlying lawsuit is Austin Richards & Gwendolyn
Richards v. Acrowood Corp., et al., trial court cause no. 2006-22116. | 01-03-2023 | 09-03-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3815784/ | This is an appeal from the district court of Washington county, wherein on the 29th day of May, 1919, plaintiff in error, Charles Killion, hereinafter designated defendant, was convicted of the crime of robbery, and sentenced to serve a term of 10 years' imprisonment in the state penitentiary.
From the judgment rendered against him he has appealed to this court, and relies for reversal on the following assignments of error: (1) That the court erred in not sustaining the *Page 216
demurrer to the information; and (2) that the court erred in overruling the motion for a continuance.
The case-made as originally filed contained an incomplete copy of the amended information. The Attorney General, on May 24, 1921, filed a motion in this court to correct the case-made by insertion of a correct copy of the amended information. In reply to said motion, counsel for defendant has admitted that the copy of the amended information contained in the original case-made was defective, and joins in the request of the Attorney General that the same be corrected. Upon said motion and agreement of counsel for defendant, this court made an order correcting the case-made by insertion therein of a correct copy of the amended information.
The amended information, upon which the cause was tried, reads as follows:
"Now comes W.B. Allen, the duly qualified and acting county attorney, in and for Washington county, state of Oklahoma, and gives the district court of Washington county, state of Oklahoma, to know and be informed that Charlie Killion did, in Washington county, and in the state of Oklahoma, on or about the 30th day of March, in the year of our Lord one thousand nine hundred and nineteen, and anterior to the presentment hereof, commit the crime of robbery in the first degree in the manner and form as follows: That in the county and state aforesaid, the said Charlie Killion, on the day and year aforesaid, did knowingly, willfully, unlawfully wrongfully and feloniously, make an assault in and upon Fred Stepp, J.M. Ernest, Warnie Catlin, Bud Stepp and R.E. Henson and others, with a certain weapon, to wit, a revolver, then and there had in the hands of him, the said Charlie Killion, and did then and there and thereby putting the said Fred Stepp, J.M. Ernest, Warnie Catlin, Bud Stepp and R.E. Henson and others in fear of an immediate injury to their lives and persons by threatening to shoot them, the said Fred Stepp, J.M. Ernest, Warnie Catlin, Bud Stepp and R.E. Henson and others, and did then and there by the *Page 217
use of said force and putting in fear unlawfully, willfully, wrongfully and feloniously and against the will of them, the said Fred Stepp, J.M. Ernest, Warnie Catlin, Bud Stepp and R.E. Henson and others, take, steal and carry away from the possession and persons of them the said Fred Stepp, J.M. Ernest, Warnie Catlin, Bud Stepp and R.E. Henson and others, certain personal property, to wit, $97.00 good and lawful money of the United States, with the unlawful, wrongful and felonious intent then and there on the part of him the said Charlie Killion to rob and deprive the said Fred Stepp, J.M. Ernest, Warnie Catlin, Bud Stepp and R.E. Henson and others of the said property and convert the same to the use and benefit of him the said Charlie Killion, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the state."
"Robbery" is defined by section 2364, Revised Laws 1910, as follows:
"Robbery is a wrongful taking of personal property in the possession of another from his person or immediate presence and against his will, accomplished by means of force or fear."
In the opinion of the court the amended information contains a sufficient charge of robbery as defined by said section.
The motion for continuance was based on the ground of the absence of certain alleged material witnesses for defendant. After an examination of the motion, this court is convinced that the trial court properly overruled the same. There is no sufficient showing of diligence used to obtain these witnesses, nor is there a showing of facts indicating that there is any reasonable likelihood of obtaining the attendance of these witnesses or their testimony in behalf of defendant at any future date to which the cause might have been continued. We find no abuse of discretion on the part of the trial court in overruling the motion.
Upon the whole record, the conclusion is reached that defendant was fairly tried and properly convicted. *Page 218
The judgment is affirmed.
DOYLE, P.J., and BESSEY, J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2912082/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
************************ *
FREDERICK INSCHO and SHERRI
*
INSCHO, legal representatives of a minor
* No. 11-599V
child, GABRIELLE INSCHO, * Special Master Christian J. Moran
*
Petitioners, * Filed: July 27, 2015
*
v. * Attorneys’ fees and costs; award in
* the amount to which respondent
SECRETARY OF HEALTH * does not object.
AND HUMAN SERVICES, *
*
Respondent. *
************************ *
Stephen P. O’Keefe, The O’Keefe Firm, Dayton, OH, for Petitioners;
Heather L. Pearlman, United States Dep’t of Justice, Washington, DC, for
Respondent.
UNPUBLISHED DECISION ON FEES AND COSTS1
On July 21, 2015, respondent filed a stipulation of fact concerning final
attorneys’ fees and costs in the above-captioned matter. Previously, petitioners
informally submitted a draft application for attorneys’ fees and costs to respondent
for review. Upon review of petitioners’ application, respondent raised objections to
certain items. Based on subsequent discussions, petitioners amended their application
to request $63,000.00, an amount to which respondent does not object. The Court
awards this amount.
1
The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule 18(b), the
parties have 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master
will appear in the document posted on the website.
1
On September 19, 2011, Frederick and Sherri Inscho filed a petition for
compensation on behalf of their daughter, Gabrielle Inscho, alleging that the flu mist
vaccine, which Gabrielle received on or about September 22, 2008, caused her to
develop transverse myelitis. Petitioners received compensation based upon the
parties’ stipulation. Decision, issued June 5, 2015. Because petitioners received
compensation, they are entitled to an award of attorneys’ fees and costs. 42 U.S.C. §
300aa-15(e).
Petitioners seeks a total of $63,000.00 in attorneys’ fees and costs. In
compliance with General Order No. 9, petitioners state that they have incurred no
out-of-pocket litigation expenses while pursuing this claim. Respondent has no
objection to the amount requested for attorneys’ fees and costs.
After reviewing the request, the Court awards the following:
A lump sum of $63,000.00 in the form of a check made payable to
petitioners and petitioners’ attorney, Stephen P. O’Keefe, of The
O’Keefe Firm, for attorneys’ fees and other litigation costs available
under 42 U.S.C. § 300aa-15(e).
The Court thanks the parties for their cooperative efforts in resolving this
matter. The Clerk shall enter judgment accordingly.
Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2 | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540812/ | PER curiam:
I
El Ledo. Eddie A. Pérez Pérez (licenciado Pérez Pérez) fue admitido al ejercicio de la abogacía el 30 de junio de *992008 y prestó juramento como notario el 19 de febrero de 2009.
Mediante Moción Informativa y en Auxilio de Jurisdic-ción de 21 de mayo de 2012 compareció ante nos la Leda. Lourdes I. Quintana Lloréns, Directora de la Oficina de Inspección de Notarías (ODIN). Nos indicó las múltiples e infructuosas gestiones realizadas para contactar al licen-ciado Pérez Pérez a fin de dar cumplimiento a una citación que le refiriera la Secretaría de este Tribunal el 2 de marzo de 2012. Esta citación fue diligenciada por el agente Jere-mías Meléndez Del Valle de la Unidad de Investigaciones de Carolina, División de Vehículos Hurtados, y requiere informar si se registró la Declaración Núm. 255 de 21 de noviembre de 2011 con relación a un vehículo en el Regis-tro de Testimonios del Ledo. Eddie A. Pérez Pérez.
Algunas de las gestiones de la ODIN para contactar al letrado y responder a la citación fueron: comunicarse con el licenciado Pérez Pérez y acordar su comparecencia el 7 de marzo de 2012. No obstante, el notario no compareció ni se excusó por su incomparecencia. Además, la ODIN le cursó una comunicación escrita requiriéndole su comparecencia el 19 de marzo de 2012 a las 10:00 a. m. Nuevamente el notario no compareció ni se excusó por su incomparecencia.
Así las cosas, mediante Resolución de 29 de mayo de 2012 ordenamos al Alguacil General de este Tribunal a in-cautar el Registro de Testimonios del Ledo. Eddie A. Pérez Pérez. Igualmente concedimos al letrado un término de quince (15) días para que nos indicara las razones para incumplir con los requerimientos de la ODIN. Luego de múltiples gestiones para localizar al licenciado Pérez Pé-rez, se le notificó esta Resolución personalmente el 10 de julio de 2012. Durante la notificación de la Resolución, el letrado indicó a los alguaciles que no sabía dónde estaba el Registro de Testimonios solicitado, pero que lo buscaría y entregaría el 13 de julio de 2012. Aún el licenciado Pérez Pérez no ha entregado el Registro ni ha contestado las *100llamadas. Asimismo, adeuda los índices notariales men-suales desde mayo de 2012 hasta el presente, así como el índice anual de 2012.
Por este motivo, el 14 de marzo de 2013 la ODIN com-pareció nuevamente ante nos y detalló las nuevas gestio-nes que había realizado para lograr la comparecencia del licenciado Pérez Pérez y la producción de su Registro de Testimonios para fines de inspección.
A estos efectos, el 25 de marzo de 2013 concedimos al letrado un término final e improrrogable de veinte (20) días para cumplir con lo ordenado. En vista de ello, la ma-dre del licenciado Pérez Pérez informó a este Tribunal que su hijo se encontraba en Estados Unidos recibiendo trata-miento médico y que regresaría en mayo de 2013. Sin embargo, aún el licenciado Pérez Pérez no ha comparecido.
II
El Canon 9 del Código de Ética Profesional, 4 LPRA Ap. IX, dispone que “[e]l abogado debe observar para con los tribunales una conducta que se caracterice por el mayor respeto”. En virtud de este precepto, reiteradamente hemos expresado que los abogados tienen la ineludible obligación de responder diligentemente a los requerimientos de este Tribunal y que no toleraremos la incomprensible y obstinada negativa de un miembro de nuestro foro de cumplir con las órdenes de este Tribunal. In re Piñeiro Vega, 188 DPR 77 (2013); In re Montes Díaz, 184 DPR 90 (2011); In re Sigurani Medina, 160 DPR 769 (2003).
Asimismo, hemos señalado que esta obligación no se limita a los requerimientos formulados por este Tribunal, sino que se extiende a aquellos formulados por el Procurador General y la Oficina de Inspección de Notarías. In re Piñeiro Vega, supra; In re Montes Díaz, supra; In re Santiago García, 175 DPR 990 (2009).
*101A pesar de esto, el licenciado Pérez Pérez ha hecho caso omiso de nuestras órdenes y de los múltiples requerimien-tos de la ODIN. Por ello, ha pasado más de un año sin que la ODIN haya podido dar cumplimiento a la citación referida. Este comportamiento no lo toleraremos.
III
Por los fundamentos antes expresados, suspendemos al Ledo. Eddie A. Pérez Pérez del ejercicio de la abogacía y de la notaría de forma inmediata e indefinida. El licenciado Pérez Pérez tiene el deber de notificar a todos sus clientes de su inhabilidad para continuar representándoles y devol-verá a estos los expedientes de los casos pendientes así como los honorarios recibidos por trabajos no realizados. Deberá también informar oportunamente de su suspensión a los foros judiciales y administrativos del país. De igual forma, debe certificar a este Tribunal dentro del término de treinta (30) días el cumplimiento con lo aquí dispuesto. La Oficina del Alguacil de este Tribunal procederá, de inmediato, a incautarse de la obra y el sello no tarial de Eddie A. Pérez Pérez, los cuales entregará a la Oficina de Inspección de Notarías para el examen e informe a este Tribunal.
Se dictará sentencia de conformidad.
La Juez Asociada Señora Rodríguez Rodríguez no intervino. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3813649/ | Plaintiffs in error, hereinafter referred to as plaintiffs, have perfected this appeal from an order sustaining a demurrer to their petition for an alternative writ of mandamus *Page 399
against the defendant in error, hereinafter referred to as defendant.
The facts alleged in the petition and accepted as true for the purpose of deciding the question submitted are substantially as hereinafter related.
The defendant is the county court reporter of Tulsa county, Okla. Plaintiffs are the owners of real estate in the city of Tulsa. Sometime previous to May, 1940, they filed with the county assessor of Tulsa county their application to secure an ad valorem tax exemption on said property on the ground that it was their homestead. The assessor denied or rejected said application, and upon a hearing before it, the board of equalization of Tulsa county arrived at a similar decision. At the request of plaintiffs and the board, the defendant in her capacity of court reporter or stenographer attended said hearing and took shorthand notes of said proceeding. Within due time plaintiffs gave notice of their appeal to the district court of Tulsa county from the finding of the county board of equalization, and the defendant completed a transcript of the proceedings before said board, but it appears from the allegations of the petition filed herein that she refuses to file said transcript in the district court as requested by plaintiffs unless and until they pay her for the preparation of said transcript and furnish the fee for such filing.
Plaintiffs' alleged right to an alternative writ of mandamus to compel the defendant to file said transcript is based upon the claim that it is her mandatory duty under our statutes to do so without payment of the fees in question. To support their position plaintiffs rely particularly upon section 8, Laws 1936 (S. L. 1936-37, c. 66, p. 54, the Laws enacted by the Extraordinary Session of the Sixteenth Legislature) 68 Okla. St. Ann. § 40, and section 12660, O. S. 1931, as amended by section 7 of chap. 115, S. L. 1933, 68 Okla. St. Ann. § 258. The first of these sections grants taxpayers the right of appeal from findings of county boards of equalization with reference to applications for homestead exemption and provides that such appeals shall be taken in the same manner and subject to the same requirements as are, or may be, provided by law for appeals from such boards on questions concerning the valuation of property. The last section cited, as amended, prescribes the method of procedure for the latter class of appeals, and among others contains the following provisions:
". . . The stenographer of the county court is directed, at the request of the board or taxpayer, to take shorthand notes of such testimony and to transcribe such complaint and evidence, and a full transcript of the orders of the board thereon; to file the same, with his certificate as to its accuracy, in the district court, the filing of which transcript shall complete said appeal. . . ."
In defense of her action in refusing to file the transcript until she is paid the fees in question, the defendant relies upon the general statutes describing the official duties of county court reporters in counties of more than 80,000 population. Those which pertain more particularly to the making and delivery of transcripts by such reporters are section 1, art. 13, chap. 35, S. L. 1936-37 (amending section 8210, O. S. 1931), and section 8211, O. S. 1931. The first of these sections provides in part as follows:
"The county court reporter . . . shall receive as compensation for his services the same salary as the court reporters of the district court, to be paid monthly, . . . and in addition to such monthly salary, said reporter shall charge and receive, and may retain, the same rate per folio as provided for said court reporters of the district court, for writing transcripts of appeals of all probate matters to the district court, and casemades and transcripts of all appeals to the Supreme Court and the Criminal Court of Appeals, also, transcripts of evidence taken in cases involving probate of wills and in all probate matters where minors are concerned, all evidence taken on application for approval of deeds or other instruments in which the court acts in the capacity of a federal agent as well as judge of the county court, and all other cases not heretofore provided for where the taking of testimony is necessary and the transcript *Page 400
thereof is ordered, and copies of all other proceedings in the county court, said fees to be taxable as costs in the case or proceedings."
Section 8211, supra, provides:
"Said reporter shall upon the request of either party, in a civil or criminal case, make out a transcript or case-made for the purpose of appeal or proceedings in error and deliver the same to the party desiring it upon the payment of his fees therefor by such party at the rate of ten (10) cents per folio, and the amounts so received by him shall be taxable as costs in the case or proceedings."
It seems to be the defendant's contention that she has a right under the provisions of section 1, art. 13, chap. 35, S. L. 1936-37, quoted supra, to a fee for the transcript involved herein calculated at the same rate that is provided for the transcripts specifically mentioned therein, but, as we view the issues presented herein, there is no necessity of passing upon that contention. Whether the defendant is entitled to such remuneration for her work in making the transcript, as well as whether plaintiffs may be charged a fee for filing it, are collateral matters not squarely at issue here. The only question which requires an answer in determining the correctness of the trial court's decision is whether or not defendant may refuse to file the transcript until receiving the payment which, according to plaintiffs' petition, she has demanded. It will be seen by a comparison of the quoted provisions of section 12660, as amended, supra, and section 8211, supra, that there is no express conflict between them. A reading of the two sections discloses that they apply to different situations. Thus the latter section applies to the reporter's delivery of a transcript, such as is therein described, "to the party desiring it," while the former pertains to the filing of the transcripts it describes. While there is obviously a basis in the express wording of section 8211, supra, for the position that the reporter is not obliged to make the delivery mentioned therein until his fees have been paid, it is equally obvious that the section dealing with the act that the plaintiffs have requested the defendant to perform contains no such language. It expressly requires her to file the transcript in the district court "at the request of the board or taxpayer." Since such a request is alleged to have been made in the present case, and we find no authority supporting the excuse offered by the defendant for her refusal to comply with said request, the trial court's decision upon her demurrer is hereby reversed.
WELCH, C. J., CORN, V. C. J., and RILEY and BAYLESS, JJ., concur. OSBORN, GIBSON, HURST, and ARNOLD, JJ., dissent. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/998091/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-7242
JAMES LEE POWERS, JR.,
Petitioner - Appellant,
versus
A. DAVID ROBINSON, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CA-98-193)
Submitted: February 25, 1999 Decided: March 8, 1999
Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Lee Powers, Jr., Appellant Pro Se. Richard Bain Smith,
Assistant Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Lee Powers, Jr., 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 dis-
trict court’s opinion and find no reversible error. Accordingly,
we deny a certificate of appealability and dismiss the appeal on
the reasoning of the district court. See Powers v. Robinson, No.
CA-98-193 (E.D. Va. July 31, 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/129396/ | 538 U.S. 1015
NEWLANDv.WARDEN TURPIN.
No. 02-9335.
Supreme Court of United States.
May 5, 2003.
1
CERTIORARI TO THE SUPREME COURT OF GEORGIA.
2
Sup. Ct. Ga. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4538791/ | Supreme Court of Florida
____________
No. SC19-1266
____________
ADVISORY OPINION TO THE ATTORNEY GENERAL
RE: PROHIBITS POSSESSION OF DEFINED ASSAULT WEAPONS.
June 4, 2020
PER CURIAM.
The Attorney General of Florida has requested this Court’s opinion as to the
validity of a citizen initiative petition circulated pursuant to article XI, section 3 of
the Florida Constitution. We have jurisdiction. See art. IV, § 10, art. V, §
3(b)(10), Fla. Const. For the reasons explained below, we conclude that the
proposed initiative, titled “Prohibits possession of defined assault weapons” (the
“Initiative”), should not be placed on the ballot.
BACKGROUND
On July 26, 2019, the Attorney General petitioned this Court for an opinion
as to the validity of the Initiative, which is sponsored by Ban Assault Weapons
NOW. The sponsor submitted a brief supporting the validity of the Initiative, as
did Brady and Team ENOUGH and the Municipalities. 1 The Attorney General,
the National Rifle Association, and the National Shooting Sports Foundation
submitted briefs in opposition.
The Initiative would amend article I, section 8 of the Florida Constitution as
follows:
ARTICLE I, SECTION 8. Right to Bear Arms.-
(a) The right of the people to keep and bear arms in defense of
themselves and of the lawful authority of the state shall not be
infringed, except that the manner of bearing arms may be regulated by
law.
(b) There shall be a mandatory period of three days, excluding
weekends and legal holidays, between the purchase and delivery at
retail of any handgun. For the purposes of this section, “purchase”
means the transfer of money or other valuable consideration to the
retailer, and “handgun” means a firearm capable of being carried and
used by one hand, such as a pistol or revolver. Holders of a concealed
weapon permit as prescribed in Florida law shall not be subject to the
provisions of this paragraph.
(c) The legislature shall enact legislation implementing subsection (b)
of this section, effective no later than December 31, 1991, which shall
provide that anyone violating the provisions of subsection (b) shall be
guilty of a felony.
(d) This restriction shall not apply to a trade in of another handgun.
(e) The possession of an assault weapon, as that term is defined in this
subsection, is prohibited in Florida except as provided in this
subsection. This subsection shall be construed in conformity with the
Second Amendment to the United States Constitution as interpreted
by the United States Supreme Court.
1. The City of Weston, City of Coconut Creek, City of Coral Gables, City of
Fort Lauderdale, City of Lauderhill, City of Miami Beach, City of Miramar, City
of North Bay Village, City of Pembroke Pines, City of Safety Harbor, City of
South Miami, Village of Pinecrest, and Town of Surfside were identified as
interested parties.
-2-
1) Definitions -
a) Assault Weapons - For purposes of this subsection,
any semiautomatic rifle or shotgun capable of holding
more than ten (10) rounds of ammunition at once, either
in a fixed or detachable magazine, or any other
ammunition-feeding device. This subsection does not
apply to handguns.
b) Semiautomatic - For purposes of this subsection, any
weapon which fires a single projectile or a number of ball
shots through a rifled or smooth bore for each single
function of the trigger without further manual action
required.
c) Ammunition-feeding device - For purposes of this
subsection, any magazine, belt, drum, feed strip, or
similar device for a firearm.
2) Limitations -
a) This subsection shall not apply to military or law
enforcement use, or use by federal personnel, in conduct
of their duties, or to an assault weapon being imported
for sale and delivery to a federal, state or local
governmental agency for use by employees of such
agencies to perform official duties.
b) This subsection does not apply to any firearm that is
not semiautomatic, as defined in this subsection.
c) This subsection does not apply to handguns, as defined
in Article I, Section 8(b), Florida Constitution.
d) If a person had lawful possession of an assault weapon
prior to the effective date of this subsection, the person’s
possession of that assault weapon is not unlawful (1)
during the first year after the effective date of this
subsection, or (2) after the person has registered with the
Florida Department of Law Enforcement or a successor
agency, within one year of the effective date of this
subsection, by providing a sworn or attested statement,
that the weapon was lawfully in his or her possession
prior to the effective date of this subsection and by
identifying the weapon by make, model, and serial
number. The agency must provide and the person must
retain proof of registration in order for possession to
remain lawful under this subsection. Registration records
-3-
shall be available on a permanent basis to local, state and
federal law enforcement agencies for valid law
enforcement purposes but shall otherwise be confidential.
3) Criminal Penalties - Violation of this subsection is a third-
degree felony. The legislature may designate greater but not
lesser, penalties for violations.
4) Self-executing - This provision shall be self-executing except
where legislative action is authorized in subsection (3) to
designate a more severe penalty for violation of this subsection.
No legislative or administrative action may conflict with,
diminish or delay the requirements of this subsection.
5) Severability - The provisions of this subsection are
severable. If any clause, sentence, paragraph, section or
subsection of this measure, or an application thereof, is
adjudged invalid by any court of competent jurisdiction, other
provisions shall continue to be in effect to the fullest extent
possible.
6) Effective date - The effective date of this amendment shall
be thirty days after its passage by the voters.
The ballot title for the Initiative is “Prohibits possession of defined assault
weapons,” and the ballot summary reads as follows:
Prohibits possession of assault weapons, defined as semiautomatic
rifles and shotguns capable of holding more than 10 rounds of
ammunition at once, either in fixed or detachable magazine, or any
other ammunition feeding device. Possession of handguns is not
prohibited. Exempts military and law enforcement personnel in their
official duties. Exempts and requires registration of assault weapons
lawfully possessed prior to this provision’s effective date. Creates
criminal penalties for violations of this amendment.
STANDARD OF REVIEW
When this Court renders an advisory opinion concerning a proposed
constitutional amendment arising through the citizen initiative process, “[the
Court’s] review of the proposed amendment is confined to two issues: (1) whether
-4-
the proposed amendment itself satisfies the single-subject requirement of article
XI, section 3, of the Florida Constitution; and (2) whether the ballot title and
summary satisfy the requirements of section 101.161(1), Florida Statutes
(201[9]).” Advisory Op. to Att’y Gen. re Voter Control of Gambling in Fla., 215
So. 3d 1209, 1212 (Fla. 2017) (quoting Advisory Op. to Att’y Gen. re Use of
Marijuana for Certain Med. Conditions, 132 So. 3d 786, 791 (Fla. 2014) (Medical
Marijuana I)). In addressing these two issues, the Court must not address the
merits or wisdom of the Initiative. Advisory Op. to Att’y Gen. re Amend. to Bar
Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d
888, 891 (Fla. 2000). Further, the Court has a “duty . . . to uphold the proposal
unless it can be shown to be ‘clearly and conclusively defective.’ ” Medical
Marijuana I, 132 So. 3d at 795 (quoting Advisory Op. to Att’y Gen. re Fla.’s
Amend. to Reduce Class Size, 816 So. 2d 580, 582 (Fla. 2002)). “This Court has
traditionally applied a deferential standard of review to the validity of a citizen
initiative petition and ‘has been reluctant to interfere’ with ‘the right of self-
determination for all Florida’s citizens’ to formulate ‘their own organic law.’ ” Id.
at 794 (quoting Advisory Op. to Att’y Gen. re Right to Treatment & Rehab. for
Non-Violent Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002)).
-5-
ANALYSIS
While the parties have raised a number of issues for this Court’s
consideration, we address only one issue that is dispositive—the ballot summary
affirmatively misleads voters regarding the exemption addressed in the next to last
sentence of the ballot summary, which provides that the Initiative “[e]xempts and
requires registration of assault weapons lawfully possessed prior to this provision’s
effective date.” This misleading language violates section 101.161(1), Florida
Statutes (2019), which sets forth the requirements for the ballot title and summary
of an initiative petition and provides as follows:
[A] ballot summary of such amendment or other public measure shall
be printed in clear and unambiguous language on the ballot . . . . The
ballot summary of the amendment or other public measure shall be an
explanatory statement, not exceeding 75 words in length, of the chief
purpose of the measure. . . . The ballot title shall consist of a caption,
not exceeding 15 words in length, by which the measure is commonly
referred to or spoken of.
§ 101.161(1), Fla. Stat. (2019).
These statutory requirements serve to ensure that the ballot summary and
title “provide fair notice of the content of the proposed amendment” to voters so
that they “will not be misled as to [the proposed amendment’s] purpose, and can
cast an intelligent and informed ballot.” Advisory Op. to Att’y Gen. re Right of
Citizens to Choose Health Care Providers, 705 So. 2d 563, 566 (Fla. 1998)
(quoting Advisory Op. to Att’y Gen.—Fee on Everglades Sugar Prod., 681 So. 2d
-6-
1124, 1127 (Fla. 1996)). This Court has explained that “the ballot title and
summary may not be read in isolation, but must be read together in determining
whether the ballot information properly informs the voters.” Advisory Op. to Att’y
Gen. re Voluntary Univ. Pre-Kindergarten Educ., 824 So. 2d 161, 166 (Fla. 2002).
“Ballot language may be clearly and conclusively defective either in an
affirmative sense, because it misleads the voters as to the material effects of the
amendment, or in a negative sense by failing to inform the voters of those material
effects.” Advisory Op. to Att’y Gen. re Right to Competitive Energy Mkt. for
Customers of Inv’r-Owned Utilities, 287 So. 3d 1256, 1260 (Fla. 2020) (quoting
Dep’t of State v. Fla. Greyhound Ass’n, Inc., 253 So. 3d 513, 520 (Fla. 2018)).
Therefore, “the Court must consider two questions: ‘(1) whether the ballot title and
summary . . . fairly inform the voter of the chief purpose of the amendment; and
(2) whether the language of the title and the summary, as written, misleads the
public.’ ” Fla. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008) (quoting
Advisory Op. to Att’y Gen. re Prohib. State Spending for Experimentation that
Involves the Destruction of a Live Human Embryo, 959 So. 2d 210, 213-14 (Fla.
2007)).
Here, the ballot summary fails to satisfy the requirements of section
101.161(1) and is affirmatively misleading because the meaning of the text of the
ballot summary does not accurately describe the meaning of the Initiative’s text
-7-
regarding the exemption.
Specifically, the next to last sentence of the ballot summary informs voters
that the Initiative “[e]xempts and requires registration of assault weapons lawfully
possessed prior to this provision’s effective date” (emphasis added), when in fact
the Initiative does no such thing. Contrary to the ballot summary, the Initiative’s
text exempts only “the person’s,” meaning the current owner’s, possession of that
assault weapon. The Initiative’s text provides:
If a person had lawful possession of an assault weapon prior to the
effective date of this subsection, the person’s possession of that
assault weapon is not unlawful (1) during the first year after the
effective date of this subsection, or (2) after the person has registered
with the Florida Department of Law Enforcement or a successor
agency, within one year of the effective date of this subsection, by
providing a sworn or attested statement, that the weapon was lawfully
in his or her possession prior to the effective date of this subsection
and by identifying the weapon by make, model, and serial number.
(Emphasis added.) While the ballot summary purports to exempt registered assault
weapons lawfully possessed prior to the Initiative’s effective date, the Initiative
does not categorically exempt the assault weapon, only the current owner’s
possession of that assault weapon. The ballot summary is therefore affirmatively
misleading.
The Proponents argue that, notwithstanding this divergence in text and
meaning, voters will understand that the registered assault weapon itself would not
be exempt, just the current owner’s possession of it. We reject this argument. The
-8-
ballot summary informs voters that registered assault weapons lawfully possessed
prior to the Initiative’s effective date are exempt from the scope of the Initiative
altogether, which misleads voters to believe that any lawfully possessed assault
weapons will continue to remain lawful. However, the Initiative contemplates the
eventual criminalization of the possession of assault weapons, even if the assault
weapon itself was lawfully possessed and registered prior to the Initiative’s
effective date. As the Opponents argue, if an individual registers and attests to
lawful possession of an assault weapon, and then lends, gifts, or leaves in a will
that assault weapon to a family member or friend, then that family member or
friend would be in criminal violation of the Initiative—a felony offense. The
summary indicates the opposite, that once registered, the assault weapon will be
exempt. Therefore, because the ballot summary is affirmatively misleading, it
does not satisfy the requirements of section 101.161.
CONCLUSION
For the reasons stated, we conclude that the ballot summary is misleading
and does not comply with section 101.161(1), Florida Statutes. Accordingly, this
Initiative cannot be placed on the ballot.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LABARGA, J., dissents with an opinion.
COURIEL, J., did not participate.
-9-
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LABARGA, J., dissenting.
Because I conclude that the ballot summary satisfies the requirements of
section 101.161(1), Florida Statutes (2019), I believe the Initiative should appear
on the ballot for voter consideration.
The ballot title clearly communicates the chief purpose of the Initiative, and
the ballot summary clearly summarizes the content of the proposed amendment.
The language with which the majority takes exception, “[e]xempts and requires
registration of assault weapons lawfully possessed prior to this provision’s
effective date,” is not affirmatively misleading. In fact, the language is accurate,
and the majority simply concludes that the language is insufficiently narrow.
In applying the requirements of section 101.161(1), this Court must be
mindful that the ballot summary is just that—a summary—consisting of no more
than seventy-five words. As this Court has stated: “We recognize that the seventy-
five word limit on ballot summaries prevents the summary from revealing all the
details or ramifications of the proposed amendment. Accordingly, we have never
required that the summary explain the complete details of a proposal at great and
undue length, nor do we do so now.” Smith v. Am. Airlines, Inc., 606 So. 2d 618,
621 (Fla. 1992); see also Advisory Op. to Att’y Gen. re Right to Treatment &
- 10 -
Rehab., 818 So. 2d 491, 498 (Fla. 2002); Advisory Op. to Att’y Gen. re Ltd.
Casinos, 644 So. 2d 71, 74-75 (Fla. 1994).
“[V]oters are generally required to do their homework and educate
themselves about the details of a proposal and about the pros and cons of adopting
the proposal.” Smith, 606 So. 2d at 621. The ballot title and summary provide fair
notice and equip voters to educate themselves about the details of the Initiative.
Consequently, the Initiative should be placed on the ballot.
I dissent to the majority’s decision precluding the Initiative from voter
consideration.
Original Proceeding – Advisory Opinion – Attorney General
Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, and James H.
Percival, Deputy Solicitor General, Tallahassee, Florida,
for Petitioner
Jon Lester Mills of Boies Schiller Flexner LLP, Miami, Florida, Stuart H. Singer
and Corey P. Gray of Boies Schiller Flexner LLP, Fort Lauderdale, Florida, and
Andrew M. Starling, Orlando, Florida,
for Interested Party, Ban Assault Weapons Now
Benjamin Gibson, Jason Gonzalez, Daniel Nordby, Amber Stoner Nunnally, and
Rachel Procaccini of Shutts & Bowen, LLP, Tallahassee, Florida,
for Interested Party, National Shooting Sports Association
Matthew Triggs, Proskauer Rose LLP, Boca Raton, Florida, Lindsey Olson Collins
and Nathaniel J. Miller, Proskauer Rose LLP, New York, New York, Kyle A.
Casazza and Christina H. Kroll, Proskauer Rose LLP, Los Angeles, California; and
Jonathan E. Lowy of Brady, Washington, District of Columbia,
- 11 -
for Interested Parties, Brady Center to Prevent Gun Violence and Team
ENOUGH
Edward G. Guedes, Jamie A. Cole, and Adam Hapner of Weiss Serota Helfman
Cole & Bierman, P.L., Coral Gables, Florida,
for Interested Parties, City of Weston, City of Coconut Creek, City of Coral
Gables, City of Fort Lauderdale, City of Lauderhill, City of Miami Beach,
City of Miramar, City of North Bay Village, City of Pembroke Pines, City of
Safety Harbor, City of South Miami, Village of Pinecrest, and Town of
Surfside
Andy Bardos, Ashley Hoffman Lukis, George T. Levesque, and Jason Unger of
GrayRobinson, P.A., Tallahassee, Florida,
for Interested Party, National Rifle Association of America
- 12 - | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/7433306/ | Certiorari dismissed without opinion. 216 So.2d 261. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2668583/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FARHI SAEED BIN MOHAMMED, :
et al., :
:
Petitioner, :
:
v. : Civil Action No. 05-1347 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
ORDER
For the reasons stated in the Court’s February 25, 2009, Order in Al-Adahi v. Obama, Civ.
No. 05-280 [Dkt. No. 291], it is hereby
ORDERED, that by no later than 5:00 p.m., March 13, 2009, Respondents shall submit a
Response containing the requested refinement of their position as to the appropriate definition of
“enemy combatant.” Respondents are also required to indicate what, if any, response they have to
footnote one of the very recent Court of Appeals decision in Kiyemba v. Obama, No. 08-5424, slip
op. at 3 n.1 (D.C. Cir. Feb. 18, 2009).
February 25, 2009 /s/
Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record | 01-03-2023 | 04-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3999554/ | 1 Reported in 139 P.2d 1019.
This is an appeal from a judgment entered upon a verdict in favor of plaintiffs on account of injuries sustained by plaintiff Harold Barton in a collision between a motor power bicycle, which he was riding, and a truck owned and driven by Howard Wilcox. The collision occurred at the intersection of two county roads — Normandy Terrace and Brittany Drive Circle. The former extends in an easterly-westerly direction; the latter, in a northerly-southerly. It is a "T" intersection, Brittany Drive Circle intersecting on the south side of Normandy Terrace.
The accident occurred midday of July 21, 1941. Plaintiff Harold Barton was riding his bicycle northerly on Brittany Drive Circle. Wilcox was driving his truck westerly on Normandy Terrace. Coming to Normandy Terrace, Barton turned east. Just as he made the turn he collided head-on with the Wilcox truck. Harold and his parents brought this action to recover damages for injuries sustained by Harold and damage to his bicycle as a result of the collision. From judgment entered in their favor, defendant county appeals.
It appears from the evidence that both Normandy Terrace and Brittany Drive Circle are dedicated to a width of sixty feet. At the time of the accident, however, each had been opened and improved only to the extent of graveled roadways, about fourteen feet wide, extending along the middle of the dedicated portions. Outside the graveled roadways, the rights of way were left in a state of nature. At the southeast corner of the intersection there was a heavy growth of weeds and vegetation so high as to obscure the vision of persons traveling on each highway. It is alleged in the complaint:
". . . that on account of said weeds and vegetation growing at said point, it was impossible for plaintiff, *Page 575
Harold Barton, or the said truck driver to observe any traffic that was approaching or about to cross the intersection of said two roads, and the said collision between the said truck and thebicycle of the minor plaintiff was caused solely by thenegligence of the defendant in failing to remove saidvegetation; . . ." (Italics ours.)
This is the only claim of any delict in duty on the part of King county. No claim is made that the surfaces of the graveled roadways were not in a reasonably safe condition for ordinary public travel. So, the only question for determination is whether the county was negligent in failing to keep the natural growth on the unimproved portions of the highways cut down so that it would not obscure the vision of travelers approaching the intersection.
[1, 2] The question is a novel one, at least in this jurisdiction. It is a general rule, which respondents recognize, that a municipal corporation is under no obligation to open a street or highway to its full width. The extent to which the improvement shall extend is a matter resting in the sound discretion of municipal authorities. As a corollary, it is established that a municipality is not liable for injuries sustained outside the improved portion of the street or highway. 7 McQuillin, Municipal Corporations (2d ed.), p. 71, § 2931; 29 C.J. 683, § 445; Blankenship v. King County, 68 Wash. 84,122 P. 616, 40 L.R.A. (N.S.) 182; Matson v. Pierce County,94 Wash. 38, 161 P. 846. McQuillin states the principles as follows, p. 74:
"If the injury occurs on a part of a street which the city had not invited pedestrians to use, but which had been left in a state of nature, and which had not been thrown open to the use of the public, frequently municipal liability is denied. In such case it is argued that the city's obligation towards persons using its public streets springs from invitation, express or implied, and unless the city does something or omits to do something, from which such invitation reasonably may be inferred or implied, it cannot be said to have assumed *Page 576
any obligation towards the public with respect to merely platted or dedicated streets or public ways on paper. The city has a right, therefore, to prepare a way of a width which in its discretion will accommodate the public in the middle of a dedicated or platted street, without assuming any duty or liability with respect to the portion of the street allowed to remain in a state of nature."
[3] Respondents urge, however, that the situation presented here brings this case within an exception to this general rule. This exception has been recognized in cases where it has been contended that a municipality was negligent in failing to maintain warning signs or barriers along a street or highway.Neel v. King County, 53 Wash. 490, 102 P. 396; Leber v. KingCounty, 69 Wash. 134, 124 P. 397, 42 L.R.A. (N.S.) 267;Wessels v. Stevens County, 110 Wash. 196, 188 P. 490; Tylerv. Pierce County, 188 Wash. 229, 62 P.2d 32; Johanson v.King County, 7 Wash. 2d 111, 109 P.2d 307; Simmons v.Cowlitz County, 12 Wash. 2d 84, 120 P.2d 479. The gist of the decisions in these cases, in so far as they are pertinent to the question under consideration, is that the municipality may be chargeable with negligence for failure to maintain warning signs or barriers if the situation along the highway is inherentlydangerous or of such character as to mislead a travelerexercising reasonable care.
[4] It is respondents' contention that, at their intersection, Normandy Terrace and Brittany Circle Drive were rendered inherently dangerous to travelers exercising reasonable care, by reason of natural vegetation obscuring the view. We think the contention is untenable. To allow it would be to hold, literally, that thousands of county road intersections are inherently dangerous. To so hold would impose an imponderable responsibility upon counties. As was said in Leber v. KingCounty, p. 136:
"Here we have a road graded and in repair, fifteen feet wide, which is wide enough for all ordinary travel *Page 577
unless it be in the populous centers of the state. We think it will require no argument to make plain the fact that here there was no extraordinary condition or unusual hazard of the road. A similar condition is to be found upon practically every mile of hill road in the state. The same hazard may be encountered a thousand times in every county of the state. Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones. The unusual danger noticedby the books is a danger in the highway itself." (Italics ours.)
Furthermore, such a holding would tend to relieve the operators of vehicles approaching such an intersection of their statutory duty to "operate the same in a careful and prudent manner and at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account . . . freedom of obstruction to view ahead andconsistent with any and all conditions existing at the point ofoperation. . . ." (Italics ours.) Rem. Rev. Stat., Vol. 7A, § 6360-64(1) [P.C. § 2696-891].
We are of the opinion that the intersection at Normandy Terrace and Brittany Circle Drive was not inherently dangerous or of such a character as to mislead a traveler exercising reasonable care. We hold, therefore, that King county was not negligent "in failing to remove [the] vegetation" which obscured the vision of the rider of the bicycle and the driver of the truck. While no case involving identical facts has been called to our attention, we find substantial support for our position in the following authorities: 25 Am. Jur. 784, § 500; Bohm v. Racette,118 Kan. 670, 236 P. 811, 42 A.L.R. 571; Earle v. Inhabitants ofConcord, *Page 578 260 Mass. 539, 157 N.E. 628, 53 A.L.R. 762; Jones v. Fort Dodge,185 Iowa 600, 171 N.W. 16; Goodaile v. Board of County Commissioners ofCowley County, 111 Kan. 542, 207 P. 785; Lambel v. Florence,115 Kan. 111, 222 P. 64; Moore v. State Highway Commission,150 Kan. 314, 92 P.2d 29.
In conclusion, distinguishing features should be noted in the case of Berglund v. Spokane County, 4 Wash. 2d 309,103 P.2d 355, upon which respondents put much reliance. In that case, the negligence charged was that the county constructed and maintained a bridge designed "for pedestrian and vehicular traffic . . . with no footpath or sidewalk for pedestrians." Obviously, the case falls within the general rule that a municipality must maintain the improved portion of the highway in a reasonably safe condition for ordinary travel.
The judgment is reversed, and the cause remanded with direction to dismiss.
SIMPSON, C.J., BEALS, ROBINSON, and GRADY, JJ., concur. *Page 579 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/129413/ | 538 U.S. 1016
POWELLv.ST. PAUL POLICE DEPARTMENT ET AL.
No. 02-9355.
Supreme Court of United States.
May 5, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 49 Fed. Appx. 448. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3183073/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1261
___________________________
United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Leonard S. Ellis,
lllllllllllllllllllll Defendant - Appellant.
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 16, 2015
Filed: March 7, 2016
____________
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Leonard Ellis pleaded guilty to unlawful possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court1 sentenced him to sixty-one months’ imprisonment. Ellis reiterates on appeal
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
a claim of procedural error at sentencing that was rejected by the district court. He
also advances two new challenges to the sentence that are raised for the first time in
this court. We conclude that the district court ruled correctly on the first argument,
and that neither of the forfeited arguments establishes a plain error warranting relief.
We therefore affirm the judgment.
At sentencing, the district court calculated an advisory sentencing range for
Ellis. Under USSG § 2K2.1, the base offense level for an offender convicted as a
felon in possession of a firearm depends in part on his criminal history. If Ellis
sustained a prior felony conviction for a crime of violence, then his base offense level
is 20. Without a prior conviction for a crime of violence, his base offense level would
be 14. The district court found that Ellis’s prior felony conviction for resisting arrest
by fleeing, in violation of Mo. Rev. Stat. § 575.150, was a “crime of violence” within
the meaning of USSG § 4B1.2(a) and applied the higher offense level. Given a base
offense level of 20, a three-level reduction for acceptance of responsibility, and a
criminal history category of VI, the court determined an advisory sentencing range
of 51 to 63 months’ imprisonment. After considering the factors set forth in 18
U.S.C. § 3553(a), the court sentenced Ellis to 61 months.
Ellis objected to the district court’s finding on the ground that his prior offense
of conviction for resisting arrest by fleeing in Missouri is not categorically a crime
of violence. The district court relied on the residual clause of § 4B1.2(a)(2), which
defines “crime of violence” to include any offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to another.” Ellis contends that
a person can violate § 575.150 by “fleeing from [an] officer,” and that some
violations—such as merely fleeing on foot—would not present a sufficient risk of
injury to be crimes of violence.
In United States v. Hudson, 577 F.3d 883 (8th Cir. 2009), however, this court
held that a felony violation of § 575.150 is categorically a crime of violence. Because
-2-
one element of a felony violation requires proof that the defendant’s flight created a
“substantial risk of serious physical injury,” we concluded that the offense necessarily
“presents a serious potential risk of physical injury to another” within the meaning
of § 4B1.2(a)(2). Id. at 885-86; accord United States v. Hollis, 447 F.3d 1053, 1054-
55 (8th Cir. 2006) (per curiam). Any flight that does not present a substantial risk of
serious injury constitutes only a misdemeanor under the statute. Mo. Rev. Stat.
§ 575.150(5). Therefore, the district court correctly overruled Ellis’s objection.
Ellis, relying on Johnson v. United States, 135 S. Ct. 2551 (2015), argues for
the first time on appeal that the residual clause of § 4B1.2(a)(2) is unconstitutionally
vague, and that the court’s finding of a prior crime of violence under the residual
clause is therefore erroneous. Johnson held that a similarly worded residual clause
in 18 U.S.C. § 924(e), which affected the statutory minimum and maximum penalties
for a defendant, is unconstitutionally vague. Id. at 2557. The government responds
that Ellis’s claim was forfeited and thus should be reviewed under the plain-error
standard. Gov’t Supp. Br. 5; see Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 732 (1993). The government agrees with Ellis that the residual clause is
unconstitutionally vague, but argues that Ellis cannot show a reasonable probability
that he would have received a lighter sentence even if the court had applied a lower
base offense level under the advisory guidelines.
We conclude that if there was error in applying the residual clause to Ellis’s
prior conviction, then the error is not “obvious” or “plain,” and relief is not warranted
under the plain-error standard of review. Although the government agrees with
Ellis’s argument that the holding of Johnson applies to the residual clause of
§ 4B1.2(a)(2), the government’s concession is not conclusive. United States v. Dawn,
685 F.3d 790, 795 (8th Cir. 2012). Whether a vague advisory sentencing guideline
could violate the Due Process Clause is an open question in this circuit, and the
answer is not obvious.
-3-
This court held in United States v. Wivell, 893 F.2d 156 (8th Cir. 1990), that
the guidelines “are simply not susceptible to a vagueness attack.” Id. at 159; see also
United States v. Tichenor, 683 F.3d 358, 363-65 (7th Cir. 2012); United States v.
Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221,
223 (5th Cir. 1990). Recently, this court concluded that the “reasoning in Wivell that
the guidelines cannot be unconstitutionally vague because they do not proscribe
conduct is doubtful after Johnson.” United States v. Taylor, 803 F.3d 931, 933 (8th
Cir. 2015). But Taylor did not decide whether the guideline is unconstitutionally
vague and did not address other reasoning in Wivell, to wit: “Because there is no
constitutional right to sentencing guidelines—or, more generally, to a less
discretionary application of sentences than that permitted prior to the Guidelines—the
limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s
right to due process by reason of being vague.” Wivell, 893 F.2d at 160. Nor did
Taylor consider the reasoning of United States v. Matchett, 802 F.3d 1185, 1193-96
(11th Cir. 2015), where the Eleventh Circuit held after Johnson that the residual
clause of § 4B1.2(a)(2) is not unconstitutionally vague. Instead, Taylor “le[ft] for the
district court on remand the question of whether the residual clause of the career
offender guideline is unconstitutional.” 803 F.3d at 933.
If it were obvious that the guidelines are susceptible to a constitutional
vagueness challenge and that the residual clause of § 4B1.2(a)(2) is unconstitutional,
then it seems unlikely that this court in Taylor would have left the question open for
consideration by the district court in that case. See also United States v. Benedict,
No. 14-3412, slip op. at 12 (8th Cir. Mar. 2, 2016) (assuming without deciding that
Johnson applies to the residual clause in the sentencing guidelines). Whatever the
dissent believes that Taylor “necessarily” concluded, post, at 9, the opinion by its
terms did not apply plain-error review and did not identify an error, much less an
obvious error, in applying the residual clause of § 4B1.2(a)(2). See Webster v. Fall,
266 U.S. 507, 522 (1925) (“Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to be considered as
-4-
having been decided as to constitute precedents.”); Prince v. Kids Ark Learning Ctr.,
622 F.3d 992, 995 n.4 (8th Cir. 2010) (per curiam) (“[U]nstated assumptions on non-
litigated issues are not precedential holdings binding future decisions.”) (internal
quotation omitted). Without rehearsing all of the arguments for and against applying
the vagueness doctrine to the advisory guidelines, it is sufficient to say that the
answer is not obvious or plain. Ellis is therefore not entitled to relief based on
Johnson.2
Ellis also argues for the first time on appeal that the district court erred by
considering his prior conviction for resisting arrest by fleeing because it was not a
conviction for which he received criminal history points under USSG § 4A1.1(a), (b),
or (c). When determining a defendant’s base offense level for unlawful possession
of a firearm, the sentencing court should consider only prior sentences for which the
defendant received criminal history points. USSG § 2K2.1, comment. (n.10). Ellis
reasons that when a defendant receives concurrent sentences for two prior offenses,
only the “longest sentence of imprisonment” counts as a prior sentence for which
points are assessed. See USSG § 4A1.2(a)(2). And he contends that because his
conviction for resisting arrest by fleeing was sentenced concurrently with a
conviction for tampering with a motor vehicle and the term for both offenses was the
same, the sentence for resisting arrest by fleeing was not the “longest sentence of
imprisonment.”
2
Taylor does not explain directly why the case was returned to the district
court, but the panel might have acted on the government’s agreement that the case
should be remanded. See 803 F.3d at 932. Here, the government urges affirmance
on the ground that Ellis cannot show a plain error that affected his substantial rights.
Insofar as the Taylor panel thought the government could “waive” plain-error review,
see United States v. Encarnacion-Ruiz, 787 F.3d 581, 586-87 (11th Cir. 2015), the
decision would be contrary to United States v. Bain, 586 F.3d 634, 639 n.4 (8th Cir.
2009) (per curiam), and we would follow the earlier precedent even if there were a
purported waiver here. United States v. Mader, 654 F.3d 794, 800 (8th Cir. 2011) (en
banc); Avon State Bank v. BancInsure, Inc., 787 F.3d 952, 959 n.3 (8th Cir. 2015).
-5-
A panel of this court accepted a comparable argument in King v. United States,
595 F.3d 844, 850 (8th Cir. 2010), reasoning that when a defendant receives two
concurrent sentences of equal length, “[e]ither both of them are ‘the longest sentence
of imprisonment’ or neither is.” Id. (internal citation omitted). King said it was
“plausible” to conclude that neither sentence is the “longest,” and held that the rule
of lenity required the court to forego counting a crime of violence when the defendant
also received a concurrent sentence of equal or greater length for a nonviolent crime.
Id. at 850-52.
King quickly proved to be an outlier. Before King, the Eleventh Circuit had
rejected a similar contention, concluding that “[i]t would be illogical . . . to ignore a
conviction for a violent felony just because it happened to be coupled with a
nonviolent felony conviction having a longer sentence.” United States v. Cornog,
945 F.2d 1504, 1506 n.3 (11th Cir. 1991). Shortly after King, the Sixth Circuit
rejected the decision as a “nonsensical” interpretation of the guidelines that would
lead to a “ridiculous result.” United States v. Williams, 753 F.3d 626, 639 (6th Cir.
2014). Williams reasoned that a defendant should not earn lenient treatment by
committing more crimes than the qualifying offense. The Sixth Circuit ruled that
each of two convictions resulting in equal concurrent sentences independently
supports the assessment of criminal history points. Therefore, either sentence may
serve as a predicate under the career offender guideline or USSG § 2K2.1, if the
offense underlying the sentence was a crime of violence. Id.
Another panel of this court later agreed with the Sixth Circuit that King was
wrongly decided. Donnell v. United States, 765 F.3d 817, 819-20 (8th Cir. 2014).
The Sentencing Commission promptly amended the guidelines to follow the Sixth
Circuit’s approach in Williams. USSG § 4A1.2, comment. (n.3(A)); Sentencing
Guidelines for United States Courts, 80 Fed. Reg. 25,782-01, at 25,794 (May 5,
2015).
-6-
The government appears to acknowledge that the district court’s calculation
would be plainly erroneous under the reasoning of King, but contends that there is no
reasonable probability that Ellis would have received a lighter sentence in any event.
Without a prior crime of violence, the advisory guideline range for Ellis would have
been 30 to 37 months’ imprisonment. The government contends, however, that Ellis
has not shown a reasonable probability that the district court would have sentenced
him to a term of fewer than 61 months after considering the factors under 18 U.S.C.
§ 3553(a). The government cites the district court’s comment that even with an
advisory range of 51 to 63 months, there were reasons to consider varying upward
from that range: Ellis possessed drugs and ammunition when committing the instant
firearms offense; he had sustained seven prior felony convictions; and he performed
poorly while on supervision after the prior convictions. S. Tr. 10-12.
Whether or not it could be said that Ellis has shown a reasonable probability
of a more favorable outcome under a different guideline calculation, this is not an
appropriate case for relief under the plain-error standard. The plain-error rule is
permissive, not mandatory, and a court of appeals has authority to order correction
of an error, but is not required to do so. See Olano, 507 U.S. at 735. Affirming the
sentence imposed in this case works no miscarriage of justice. Ellis’s forfeited
argument based on King relies on a temporary quirk of jurisprudence that was
promptly rejected by a sister circuit, another panel of this court, and the Sentencing
Commission. The sentence imposed is well within the statutory range authorized for
the offense of conviction, and it is consistent with the better view of the Sentencing
Commission’s advice, both past and present. In our view, it will not seriously affect
the fairness, integrity, or public reputation of judicial proceedings to leave the
judgment in place. See id. at 735-36.
The judgment of the district court is affirmed.
-7-
SHEPHERD, Circuit Judge, dissenting in part.
I concur with the conclusion that Ellis’s felony conviction under Mo. Rev. Stat.
§ 575.150 is categorically a crime of violence as found by our previous cases. I also
concur with the conclusion that Ellis is not entitled to plain error relief on his
argument that the district court erred in considering his prior conviction for resisting
arrest by fleeing because it was not a conviction for which he received criminal
history points. However, I respectfully dissent from the majority’s determination that
Ellis has not established plain error in his argument that the residual clause of
§ 4B1.2(a)(2) is unconstitutionally vague after the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). The majority’s rejection of this
claim is in direct contradiction to this court’s action in United States v. Taylor, 803
F.3d 931 (8th Cir. 2015).
In Johnson, the Supreme Court held that the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. The
Supreme Court struck the ACCA’s language: “or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 135 S. Ct. at 2563.
This language is identical to the residual clause in the career offender Guideline §
4B1.2(a)(2). We have long treated “crime of violence” under § 4B1.2(a) of the
Guidelines the same as “violent felony” under the ACCA. See United States v.
Johnson, 417 F.3d 990, 997 (8th Cir. 2005) (“The statutory definition of ‘violent
felony’ is viewed as interchangeable with the guidelines definition of ‘crime of
violence.’”), overruled on other grounds by United States v. Williams, 537 F.3d 969,
973 (8th Cir. 2008).
Although the government concedes § 4B1.2(a)(2) is unconstitutionally vague
and thus it was error for the court to apply the higher base offense level, the majority
concludes the error was not “plain” or “obvious” under the case law of this circuit.
The majority has determined our prior decision in Taylor is not binding on the
-8-
handling of this case because the court did not “decide whether the guideline is
unconstitutionally vague” or address other arguments that support applying the
vagueness doctrine to the advisory Guidelines. I dissent because this panel should
follow our Taylor precedent and vacate Ellis’s sentence and remand to the district
court for resentencing.
As the majority points out, we did not determine in Taylor whether Johnson’s
holding applies to § 4B1.2(a)(2), although the government concedes that it does.
Instead, we vacated the sentence and “le[ft] for the district court on remand the
question of whether the residual clause of the career offender guideline is
unconstitutional.” Taylor, 803 F.3d at 933. In Taylor, the defendant argued before
the district court and on appeal that his possession of a shank while an inmate in a
penal institution did not qualify as a crime of violence under the Guidelines. No
constitutional argument was mentioned either before the district court or on appeal.
While the case was pending before our court, the Supreme Court decided Johnson.
After the Johnson decision, we ordered and received supplemental memoranda from
the parties as to the application of Johnson. At that time, the government conceded
that Johnson applied to Guidelines and thus to the Taylor case.
In Taylor, we vacated the sentence and remanded to the district court. Taylor,
803 F.3d at 933. We did not address the appropriate standard of review. But what
is clear is that before the district court and before this court in his initial briefing,
Taylor did not raise the issue of whether the crime of violence definition was
unconstitutionally vague. He focused instead on whether his crime met the
Guidelines definition of a “crime of violence.” Necessarily then, the court applied the
plain error standard in Taylor for the same reasons that standard applies here—the
issue of whether the Guidelines’s language was unconstitutionally vague was never
raised to the district court.
-9-
There is nothing to distinguish the presentation of issues in this case from
Taylor. Ellis objected to the proposed base offense level of 20, arguing that his prior
conviction for resisting arrest cannot be classified as a crime of violence under
§ 2K2.1(a)(4)(A).3 Ellis did just as much as Taylor, and to not send this case back to
the district court as we did in the Taylor case is inequitable and directly contrary to
our Taylor precedent.
I dissent.
______________________________
3
Section 2K2.1(a)(4)(A) applies the same meaning to “crime of violence” as
§ 4B1.2. See U.S.S.G. § 2K2.1, comment. (n.1).
-10- | 01-03-2023 | 03-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2864583/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00022-CR
Alton Walker Jones, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 1010264, HONORABLE FRED A. MOORE, JUDGE PRESIDING
A jury found appellant Alton Walker Jones guilty of two counts of indecency with a child by
contact and one count of indecency with a child by exposure. See Tex. Pen. Code Ann. ' 21.11 (West
Supp. 2003). The jury assessed punishment at imprisonment for five years for each count. In two points of
error, appellant contends the district court erroneously admitted hearsay testimony. Although we find that
hearsay was erroneously admitted, we find no reversible error and thus affirm the judgments of conviction.
Outcry testimony
In his first point of error, appellant complains that the court should not have allowed the
testimony of two outcry witnesses. The first of these witnesses was Margaret Martin, a Child Protective
Services investigator, who interviewed the nine-year-old complainant on October 26, 2000. Martin
testified that the boy told her appellant touched him on his Aweewee@ and Abottom,@ and that he, the
complainant, touched appellant Aon his weewee and butt.@1 The second witness was Marsha Wilson, who
interviewed the complainant on October 27, 2000, at the Children=s Advocacy Center. Wilson testified that
the boy said appellant Atouched his weewee and had him touch his weewee, and that he squeezed Al=s
weewee until pee came out.@ According to both witnesses, the complainant said this conduct took place
when he was alone with appellant at appellant=s residence.2
The court permitted both Martin and Wilson to testify pursuant to code of criminal
procedure article 38.072. Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2003). Under this
statute, the first adult to whom a child makes an outcry regarding physical or sexual abuse may testify to that
outcry as an exception to the hearsay rule. Id. ' 2. The statute has been construed to apply to the first
adult to whom the child makes a statement that in some discernable manner describes the alleged offense.
Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). A trial court has broad discretion in
determining which of several witnesses qualifies as the outcry witness. Id. at 92. Appellant contends the
district court, having admitted Martin=s outcry testimony, abused its discretion by permitting Wilson to testify
as an outcry witness.
The State relies on this Court=s opinion in Hernandez v. State, 973 S.W.2d 787 (Tex.
App.CAustin 1998, pet. ref=d), in which we concluded that a trial court did not abuse its discretion by
1
There is evidence that the complainant used the word Aweewee@ to refer to the penis.
2
Appellant was a friend of the complainant=s mother. The complainant spent three afternoons a week
with appellant at his apartment over a period of several months.
2
permitting two witnesses to testify pursuant to article 38.072. In that case, the first outcry witness described
the child=s account of an incident that took place in the defendant=s truck while it was parked in woods near
a lake. Id. at 788. The second witness testified to the child=s outcry regarding conduct that took place
while the defendant and the child were showering together in the defendant=s bathroom. Id. We held that
when a child describes to different witnesses discrete events occurring at different locations and times, each
witness may testify as an outcry witness even though the two occurrences constituted the same statutory
offense. Id. at 789.
The State argues that the events described by Martin and Wilson in their testimony
constituted separate and distinct occurrences, as in Hernandez. We disagree. Martin and Wilson
described essentially the same conduct: appellant touched the complainant=s penis and the complainant
touched appellant=s penis. The conduct described by the two witnesses took place at the same location,
appellant=s apartment. Due to the lack of specificity in the child=s statements, it is impossible to say that the
described conduct took place at different times. While the outcry to Wilson added a new detail (squeezing
appellant=s penis), this does not support the conclusion that the two witnesses were describing separate and
distinct events.3 On this record, the court did not have the discretion to allow both Martin and Wilson to
testify as outcry witnesses.
3
We understand the district court=s ruling to have been that the additional detail made Wilson=s
testimony admissible. A court has the discretion under article 38.072 to admit a later, more detailed
3
Statements to counselor
In point of error two, appellant contends the district court erroneously permitted Margaret
Creasy, a licensed professional counselor, to testify regarding statements made to her by the complainant.
Creasy testified that she was the complainant=s therapist and had met with him twenty-two times beginning in
December 2000, when he was referred to her by Child Protective Services, and continuing until the time of
trial. Creasy related statements the complainant made to her during counseling sessions describing his
relationship to appellant, including the instances of exposure and touching. The court admitted these
statements pursuant to the hearsay exception for statements made for the purpose of medical diagnosis or
treatment. Tex. R. Evid. 803(4).
Appellant objected to Creasy=s testimony on the ground that rule 803(4) is limited to
Ainformation that is gathered and used for the purpose of diagnosis. . . . Course of treatment and statements
made during course of treatment is not part of the hearsay exception.@ He also makes this argument on
appeal, urging that the complainant=s statements to Creasy were not made Afor the purpose of securing
treatment . . . [but] as part of a course of treatment.@ Appellant=s contention is that rule 803(4) is limited to
statements made by a person seeking diagnosis or treatment, and that the rule does not extend to statements
made during the actual course of treatment.
outcry statement in lieu of an earlier, more general statement describing the same event to a different
witness, but a court does not have the discretion to admit both statements. Garcia v. State, 792
S.W.2d 88, 91-92 (Tex. Crim. App. 1990).
4
The rule against hearsay is a rule of exclusion. Courts have long recognized exceptions to
that exclusion tailored to allow the introduction of evidence that is likely to be trustworthy. Common to the
various hearsay exceptions is the notion that circumstances attendant to the out-of-court statement provide
sufficient guarantees of the statement=s trustworthiness, thus rendering unnecessary the normal judicial
assurances of trustworthiness secured by cross-examination and the oath. 5 Wigmore on Evidence ''
1420, 1422 (3d ed. 1940).
So it is with the medical diagnosis and treatment exception. Rule 803(4) excepts from the
general hearsay rule statements Amade for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.@ Tex. R.
Evid. 803(4). The two-part test for admitting these statements is: (1) the declarant must make the
statements for the purpose of receiving medical treatment, and (2) Athe content of the statement must be
such as is reasonably relied on by a physician in treatment or diagnosis.@ United States v. Renville, 779
F.2d 430, 436 (8th Cir. 1985); see also Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th Cir.
1991).4 Thus, the declarant must first have a motive consistent with obtaining medical care, knowing that
proper diagnosis or treatment depends upon the veracity of such statements. White v. Illinois, 502 U.S.
346, 356 (1992) (A[A] statement made in the course of procuring medical services, where the declarant
knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of
4
Because Texas rule 803(4) is based on and identical to the federal rule, federal case law is
persuasive authority for interpreting and understanding the Texas rule. See Fleming v. State, 819
S.W.2d 237, 247 (Tex. App.CAustin 1991, pet. ref=d).
5
credibility.@); United States v. Iron Shell, 633 F.2d 77, 83-84 (8th Cir. 1980). Further, the statement
must concern facts that are Areasonably pertinent to diagnosis or treatment@: medical history, symptoms, or
the cause or general character of the cause or external source. Tex. R. Evid. 803(4).
ARule 803(4) is premised on the patient=s selfish motive in receiving appropriate treatment.@
Moore v. State, 82 S.W.3d 399, 413 (Tex. App.CAustin 2002, pet. ref=d) (Patterson, J., concurring).
This motive is no longer present once a diagnosis has been made and treatment has begun. The details a
patient may report during an extended course of treatment may be prompted by other motives, such as
denial or deception, or be influenced by the treatment process itself. See id. (safeguards inherent in rule not
present when statements were made during counseling sessions years after events discussed, after
allegations had been made repeatedly, and after child declarants had heard their mother=s rendition of facts).
This Court has recognized that a child=s statements to a physician or other health care
professional describing sexually abusive acts and identifying the abuser can be admissible under the medical
diagnosis or treatment exception. Fleming v. State, 819 S.W.2d 237, 247 (Tex. App.CAustin 1991, pet.
ref=d); see also Moore, 82 S.W.3d at 403-05. Neither Fleming nor Moore, however, broadens the
medical diagnosis or treatment exception to encompass every statement made by a child victim of sexual
abuse to a therapist, or supports the blanket conclusion that statements made to a therapist regarding
6
specific offenses are admissible as having been made for the purposes of treatment. See Moore, 82
S.W.3d at 413.5
In this case, Creasy was permitted to testify to statements made by the complainant during
numerous counseling sessions over a ten-month period. According to Creasy, one of her goals in
counseling the complainant was to help him Ato clarify exactly what is appropriate behavior and not
appropriate behavior between a care-giving adult and child.@ In other words, by her counseling Creasy
sought to alter the complainant=s perception of and attitude toward appellant=s conduct. The complainant=s
statements made during the course of such counseling did not possess the guarantees of trustworthiness on
which the medical diagnosis or treatment exception is founded. The district court abused its discretion by
admitting the complainant=s statements to Creasy under the rule 803(4) exception.
Harm
Error may not be predicated upon a ruling admitting or excluding evidence unless a
substantial right of the party is affected. Tex. R. Evid. 103(a); see Tex. R. App. P. 44.2(b) (error that does
not affect substantial right must be disregarded). The complainant testified that appellant sometimes touched
his penis and bottom, and that he sometimes touched appellant=s penis. When he touched appellant,
5
Appellant does not contend that Creasy was not a member of the medical profession. See Moore
v. State, 82 S.W.3d 399, 405 (Tex. App.CAustin 2002, pet. ref=d) (clinical social
worker/psychotherapist not shown to be member of medical profession; statements to witness
erroneously admitted under rule 803(4)).
7
appellant=s penis would be Ahalf soft, half hard.@ Appellant also testified. He acknowledged that he had
often touched the complainant=s penis, and that he had allowed the complainant to touch his penis.
Appellant testified that Aone time [the complainant] grabbed ahold of me and squeezed as hard as he could.@
Appellant also described the Abathtub basketball@ game he and the complainant would often play while
naked. In essence, it was appellant=s contention that the complainant had looked at and touched his penis
as a result of a boy=s natural curiosity, and that he had incidentally touched the complainant=s penis while
they were engaged in games or other nonsexual activities.
In short, appellant did not deny the acts alleged in the indictment. Instead, appellant=s
defense was that the touching and exposure had not been committed with the intent to arouse or gratify his
or anyone else=s sexual desire. See Tex. Pen. Code Ann. '' 21.01(2), 21.11(a)(2), (c) (West Supp.
2003). Because appellant admitted that he engaged in the conduct described in the complainant=s
statements to Martin, Wilson, and Creasy, permitting both Martin and Wilson to testify as outcry witnesses
and Creasy to testify regarding the complainant=s statements during counseling, while erroneous, did not
affect appellant=s substantial rights. We therefore overrule points of error one and two.
The district court issued a separate judgment for each count. We affirm the judgments of
conviction.
__________________________________________
Jan P. Patterson, Justice
8
Before Chief Justice Aboussie, Justices Patterson and Puryear
Affirmed
Filed: December 5, 2002
Publish
9 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2907453/ | Manax (MD) v. Ballew
AFFIRMED
MAY 31, 1990
NO. 10-89-074-CV
Trial Court
# 86-4095-3
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
* * * * * * * * * * * * *
WILLIAM G. MANAX, M.D.,
   Appellant
v.
DAVID BALLEW, ET UX,
   Appellees
* * * * * * * * * * * * *
From 74th Judicial District Court
McLennan County, Texas
* * * * * * * * * * * * *
This is a medical malpractice case. The appeal resulted from
the judgment rendered on a verdict in which the jury awarded
personal injury damages on findings that appellant William G.
Manax, M.D., negligently removed a wrong lipoma from the back of
appellee David Ballew.
Evidence showed that David Ballew went to Dr. Manax for
inspection of a lump on his back. The growth had been detected by
David's wife, appellee Mary Ballew, a registered nurse. While
visiting relatives, Mary Ballew again noticed the growth and
pointed it out to her sister-in-law, Susan Ashcraft. They both
felt the lump which was located high on David's right shoulder next
to the shoulder blade. Dr. Manax diagnosed the growth as a large
lipoma of the back immediately medial to the right scapula.
At the time of the office visit, Dr. Manax sketched a diagram
of the mass. His diagram reflected that the lipoma was located
adjacent to the right shoulder blade. This drawing was consistent
with his written description of the lipoma. Dr. Manax never noted
in his records the presence of more than one growth or lipoma. He
told David to report the next morning for surgery to remove the
lipoma.
Following surgery, Mary Ballew was changing the surgical
dressing when she discovered that the actual incision was two
inches below the mass which she and David thought was to have been
removed. After visiting with Dr. Manax about the matter on the
second day after surgery and not getting "a good answer," the
Ballews went to see another surgeon, Dr. Nicholas Bellegie, M.D.,
on the fifth day after surgery. Dr. Bellegie probed the incision
made by Dr. Manax and then later removed the lipoma which the
Ballews had sought to have removed by Dr. Manax.
Dr. Manax testified directly that the Ballews were mistaken in
their testimony and that he had removed the lipoma agreed upon by
them. Apparently believing the Ballews, the jury found that Dr.
Manax was negligent and that this proximately caused the injuries
complained about by the Ballews.
The charge to the jury included an instruction on the doctrine
of res ipsa loquitur. Dr. Manax contends this instruction was
improper under the facts of this case. He also asserts the
evidence was factually insufficient to support the jury's findings
that he acted negligently and that such negligence was the
proximate cause of injuries to David Ballew.
The doctrine of res ipsa loquitur will imply negligence in
situations where (1) the character of the accident and the
circumstances surrounding it lead to the conclusion that it would
not occur in the absence of negligence, and (2) the injury is
caused by some instrumentality or agency within defendant's
exclusive control. Honea v. Coca Cola Bottling Co., 183 S.W.2d
968, 969 (1944). As a general rule, the doctrine is inapplicable
in medical malpractice cases. Harle v. Krchnak, 422 S.W.2d 810,
815 (Tex.Civ.App.--Houston [1st Dist.] 1967, writ ref'd n.r.e.).
However, the Texas courts have allowed the doctrine to be applied
in a medical malpractice case where the nature of the act and
injuries are obvious to a layman and are within the common
knowledge of laymen. The courts have held that an example of a
correct application is where a physician operates on the wrong part
of the body. Roberson v. Factor, 583 S.W.2d 818, 820
(Tex.Civ.App.--Dallas, writ ref'd n.r.e.). Where the doctrine
applies, the requirement of expert medical testimony is eliminated;
however, the necessity of proof of causal negligence by the
defendant physician still remains. Pekar v. St. Luke's Episcopal
Hospital, 570 S.W.2d 147, 150 (Tex.Civ.App.-Waco 1978, writ ref'd
n.r.e.).
In our case the Ballews contended that Dr. Manax operated on
the wrong part of David's body. They testified that they went to
Dr. Manax's office and pointed out the lipoma that was causing
David discomfort. They discussed with Dr. Manax the possibility of
surgery to remove the lipoma and decided to have it removed the
following day. Both testified that Dr. Manax palpated the lipoma
which was to be removed and that it was the same area of complaint
by the Ballews. Mary Ballew testified that a day after David's
surgery she discovered that a different portion of his body had
been operated on and that the lipoma that was to be removed
remained. Under these circumstances any person in the position of
the Ballews, whether a physician or not, would be able to look at
the back and determine that the area operated on was not the same
area agreed upon for surgery less than a week earlier.
Furthermore, the nature of the injuries complained about are within
a layman's knowledge. The evidence did not show that David's
injuries could have occurred from causes other than Dr. Manax's
negligent acts. If the Ballews had merely shown an injury without
proving the manner in which it was received and the circumstances
surrounding it, then the evidence would have been insufficient to
warrant an inference of negligence by the doctrine of res ipsa
loquitur. Wendenburg v. Williams, 784 S.W.2d 705, 707 (Tex.App.--Houston [14th Dist.] 1990, no writ). The Ballews sufficiently
proved that they went to Dr. Manax's office, that he palpated the
lipoma the Ballews intended to be removed, and that when David
returned home from surgery for removal of the lipoma agreed upon
they discovered that the wrong area of the body had been operated
on by Dr. Manax. The injury was discovered the first time the
dressing was removed after the surgery. Clearly, an operation by
Dr. Manax on the wrong part of David's back was within the common
knowledge of laymen. Therefore, the doctrine of res ipsa loquitur
applies and expert medical testimony was not required. The
testimony of the Ballews was sufficient to support the jury's
finding of negligence. The fact of resulting injury to David's
body by the surgical incision was indisputable.
Even if the rule of res ipsa loquitur did not apply in this
case, the Ballews still met their burden of proof using expert
testimony. The testimony of Dr. Bellegie, the second surgeon, was
sufficient expert testimony to support the jury determination of
negligence and proximate cause of injury. Dr. Manax's records
reflected that the location of a lipoma on David's back was one
that was medial to the right scapula. At no time did Dr. Manax's
records indicate that there was more than one lipoma. Dr. Bellegie
testified that the area of surgery by Dr. Manax was not consistent
with the description of the area of the lipoma in his records; that
most physicians would describe that area as the site of the second
operation; and that Dr. Manax's incision bore no relationship to
the area of the drawing in his records. Dr. Bellegie's testimony
established causal negligence against Dr. Manax. He testified that
surgery on a wrong part of the body cannot occur without negligence
by the surgeon, and his testimony also established that the
operation on the wrong lipoma proximately caused injury to David.
Dr. Manax asserts that in any event his actions were not
malpractice because the lipoma he removed needed to be removed. We
reject this argument since it seeks approval of medical procedures
that are performed without the authority or consent of the patient
and are thus illegal, denying the patient the right to determine
what shall be done to his own body. Johnson v. Whitehurst, 652
S.W.2d 441, 444 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd
n.r.e.); Anderson v. Hooker, 420 S.W.2d 235, 237 (Tex.Civ.App.--El
Paso 1967, writ ref'd n.r.e.).
All points and contentions raised by Dr. Manax are overruled.
His complaints about the sufficiency of the evidence have been
considered in light of the tests for such questions set forth in
Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex.1986), and
Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980).
The judgment is affirmed.
Â
                          VIC HALL
PUBLISHJustice
liance with the Family Code, at both the adjudication and disposition
hearings. See Tex. Fam. Code
Ann. § 54.03 (Vernon Supp. 2007); see also Tex. Fam. Code Ann. § 54.04 (Vernon Supp. 2007). The child victim testified that K.M.C. made him Âsuck his wiener and
that it had happened before. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005) (uncorroborated
testimony of the child victim alone is sufficient to establish aggravated
sexual assault)[1]; see
also In re A.B., 162 S.W.3d 598, 601Â (Tex. App.ÂEl Paso 2005, no pet.)
(same). The record
contains several objections lodged by K.M.C., none of which give rise to any
issues of arguable merit. Moreover, K.M.C.Âs sentence is within the applicable
punishment range for the charged offense. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003) (punishment for first
degree felony is five to ninety-nine years or life in prison).
However, the record does not show that the trial
court advised K.M.C. of the sealing procedures for the record in accordance
with section 54.04(h)(2). See Tex.
Fam. Code Ann. § 54.04(h)(2). Such error is harmless. See In re J.L.R., No. 04-99-00217-CV, 2000 Tex. App. Lexis 2523, at *9 (Tex. App.ÂSan Antonio April 19, 2000, no pet.) (not designated for publication) (failure to advise the juvenile of sealing
procedures could not have caused the rendition of an improper judgment or
prevented the juvenile from presenting a case on appeal). Neither does the trial courtÂs order contain K.M.C.Âs thumbprint as required by
section 54.04(j). See Tex. Fam.
Code Ann. § 54.04(j) (ÂIf the court or jury found that the child engaged
in delinquent conduct that included a violation of a penal law of the grade of
felony or jailable misdemeanor, the courtÂ
shall require that the childÂs
thumbprint be affixed or attached to the orderÂ). Because this is a clerical
error that may be remedied by a modified judgment, the trial court is ordered
to modify the judgment to include K.M.C.Âs thumbprint. See In re R.W.G., No. 2-02-083-CV, 2003 Tex. App. Lexis 2653, at *7-8 (Tex. App.ÂFort Worth March 27, 2003, no pet.) (mem. op.) (In Anders
appeal, trial court ordered to modify judgment to affix the juvenileÂs
thumbprint).
Accordingly, we agree
with counsel that K.M.C.Âs appeal presents no issues of arguable merit. We affirm the judgment subject to modification of the
order.
Counsel must send K.M.C. and
his father a copy of our decision, at their last known addresses, and notify them of the
right to file a pro se petition for discretionary review. See Ex
parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva,
209 S.W.3d at 249; see also Tex.
R. App. P. 53. We grant counselÂs motion to withdraw, effective upon
counselÂs compliance with the aforementioned notification requirement as
evidenced by Âa letter [to this Court] certifying [] compliance.ÂÂ See Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex.
Crim. App. 2006); see
also Villanueva, 209 S.W.3d at 249.
Â
Â
FELIPE REYNA
Justice
Â
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
(Chief Justice Gray concurs in the judgment which
affirms K.M.C.Âs adjudication. A separate opinion will not issue.)
Affirmed
Opinion delivered and
filed August 6, 2008
[CV06]
Â
Â
[1] Â Â Â Â Â Â Â Â Â Â Â Â Â Chapter 38 of the Code of Criminal
Procedure generally applies in juvenile delinquency proceedings. See Tex. Fam. Code Ann. § 51.17(c) (Vernon Supp. 2007). | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3444500/ | Affirming.
The Town of Martin instituted this action to condemn a small strip of land owned by the appellants. The appellants did not file an answer to the original petition, *Page 525
but did file exceptions to the commissioners' report. The trial in the county court resulted in an award of $500. The Boyds appealed to the circuit court, and, after hearing evidence on the question of the necessity of taking the land, the court adjudged that it was necessary for the city to do so. The question of damages was submitted to the jury and an award of $700 was made. The appellants failed to file their bill of exceptions in time and the lower court refused to sign or approve it when it was offered for filing. When the appeal was filed in this Court the tendered bill of exceptions was incorporated in the record and the appellee promptly made a motion that it be stricken. This motion was sustained.
We are confronted, therefore, with the question as to whether or not the pleadings support the judgment. Feltner v. Smith,283 Ky. 783, 143 S.W.2d 505. We have examined them carefully and find that they do.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3816626/ | This is an appeal from the county court of Payne county. The parties here occupy the same relative position which they occupied in the trial court, and will be referred to as plaintiff and defendants.
The action was instituted by the county attorney of Payne county for the purpose of recovering a judgment against the defendant Vending Machine Corporation of America, a corporation, and Hartford Accident Indemnity Company, a corporation, based upon an alleged breach of the conditions of a bond given by the Vending Machine Corporation of America, a corporation, as principal, with the Hartford Accident
Indemnity Company, a corporation, as surety, under the provisions of section 1952, O. S. 1931, in the principal sum of $1,000, conditioned upon the faithful compliance with the provisions of section 1947, O. S. 1931, on the part of the principal. The bond was required by the statutes to be given by vendors of cigarettes, and is conditioned upon compliance with the law which makes it illegal to furnish to any minor by gift, sale, or otherwise any cigarettes or cigarette papers. The cause was dismissed as to the defendants, except those hereinabove named. Upon trial the court sustained the defendants' demurrer to plaintiff's evidence, and rendered judgment accordingly. The appeal presents questions of alleged errors of the court in sustaining the demurrer to the evidence.
The evidence discloses that the defendant Vending Machine Corporation of America was engaged in the retail sale of cigarettes by means of a mechanical vending machine so constructed that upon depositing coins in the machine and pulling a lever there would be released to the operator a package of cigarettes. Said defendant had procured a license in Payne county as provided in section 1952, O. S. 1931, and had executed the bond in the principal sum of $1,000, as provided therein, and conditioned in accordance with the statutes, with the surety company defendant as surety thereon. The bond was in full force and effect at the time of the transaction herein discussed, and plaintiff sought judgment for the full amount thereof. One of the machines belonging to the first-named defendant was located in the place of business of Jake Moore, a former defendant in the case, in the town of Yale. The evidence further shows that the county attorney of Payne county had received numerous complaints that the owners, operators, and keepers of cigarette vending machines were dispensing cigarettes to minors in various parts of the county, and sent his assistant, with other persons, to the town of Yale to investigate such complaints. One of the persons employed in this investigation was a small boy 14 years of age. The investigating party parked their automobile at the front entrance of the place of business of the said Jake Moore, in view of the vending machine owned by the first-named defendant. The minor entered the place of business alone, and was immediately followed therein by a lady who appeared to be in charge of the establishment at the time, and under her instructions and with her assistance the boy deposited coins in the machine and upon operation of the lever as directed, secured therefrom a package of cigarettes. Upon inquiry by the lady the boy answered that his folks did not object to his smoking cigarettes.
It appears from plaintiff's brief that the defendants, in the trial court in support of their argument, on demurrer urged that the plaintiff obtained its evidence by entrapment, and, therefore, would not be permitted to use the same in a trial of this nature. The plaintiff argues this question *Page 605
in its brief in anticipation of the argument being urged on appeal by the defendants. We observe that the question is not urged by the defendants in their brief, and the same, if ever a proper question under the issues here, will be considered as abandoned, and will not be here considered.
Plaintiff's brief, although divided into several parts, is directed generally to the alleged error of the court in sustaining the defendants' demurrer to plaintiff's evidence. It contends that the evidence and the inferences to be reasonably drawn therefrom made out a prima facie case against the defendants.
The defendants in their brief, and in support of the action of the trial court, urge the following propositions:
"(1) The amount recoverable on said bond is limited to the actual damages suffered by the state, and plaintiff failed to allege and prove damages.
"(2) The evidence disclosed that the cigarettes were sold to Henry W. Hoel, an adult.
"(3) Plaintiff failed to prove that the party who sold the cigarettes was an agent of the defendant Vending Machine Corporation of America."
Our examination of the record convinces us that the trial court erred, unless its action is supported by one or more of the propositions of law urged by the defendants, and we will therefore consider the questions of law in the order above named.
In considering the question whether the amount recoverable on the bond is limited to the actual damage suffered by the state, and whether the state must prove damages in order to recover, we first examine the statutory provisions providing for the bond and prescribing the conditions thereof. Section 1977, C. O. S. 1921, which was in force at the time of the transaction here involved, provided as follows:
"It shall be the duty of the county clerk, upon the application of any responsible person, to issue annual license to such person for the sale of cigarettes and cigarette papers for each place of business in such county upon the payment of a license fee of twenty-five dollars and the execution of a good and sufficient bond in the sum of one thousand dollars with a surety company as surety, or two or more individual sureties, one of whom shall be a resident of the county, to be approved by the county clerk, conditioned for the faithful compliance with the provisions of section 1 of this act. All license fees provided for herein shall go into the county road fund and be used in the construction and maintenance of public roads."
These provisions of law now appear as a part of section 1952, supra.
This law was passed in 1917, and section 1 of the act, which is referred to, is to be found as section 1, chapter 148, S. L. 1917, and appears now as section 1947, O. S. 1931; it provides as follows:
"Any person who shall furnish to any minor by gift, sale or otherwise, any cigarettes or cigarette papers, shall be guilty of a misdemeanor and upon conviction thereof shall be sentenced to pay a fine of not less than twenty-five dollars nor more than two hundred dollars and be confined in the county jail not less than ten days nor more than ninety days for each offense."
In connection with the statutory provisions the defendants say:
"We call attention to the fact that the above statute prescribes that the maximum fine for one offense of selling cigarettes to a minor shall be two hundred dollars. If the bond of the defendants involved in this action is subject to forfeiture and the entire amount thereof due and payable to the state, it is apparent that the defendant would not only be subject to payment of a fine of two hundred dollars for one offense of selling cigarettes to a minor, but in addition, would be penalized the sum of one thousand dollars, or a total of twelve hundred dollars for such offense. It is our contention that a fair and reasonable construction of sections 1973 and 1977 is that it was not the intention of the Legislature to impose such an extreme and excessive penalty for one offense of selling cigarettes to a minor. We submit that the bond required by law is the state's security and its guarantee that any fine imposed upon conviction of a violation of said section 1973, and the costs of prosecution thereunder will be paid by the party convicted. If the principal obligor has been convicted of selling cigarettes to a minor and has paid the fine imposed, together with the costs of prosecution, there is no obligation whatever on the bond. If the fine imposed and the costs of prosecution are not paid, then an action will lie against the obligor on the bond for such damages as may have been suffered by the state, and it has been held that the measure of damages is the fine imposed and cost of prosecution."
And after quoting from a number of authorities, they end their argument on the point with the following summary:
"We submit that the great weight of authority supports the proposition herein contended for, that the plaintiff is limited in its recovery on the bond in controversy, to the *Page 606
actual damages which must be alleged and proved, as shown by the cases herein cited, and that in view of the fact that this plaintiff did not allege damages or prove any damages, and further in view of the fact that no damages had been sustained by the state for the reason that the defendant Vending Machine Corporation of America has not even to this date been convicted of a violation of said section 1973, the court below properly sustained the defendants' demurrer to the evidence of the plaintiff."
The principal authority relied upon in support of their argument on the point is the case of State of Kansas v. Estabrook et al., 29 Kan. 739. Therein the Supreme Court of Kansas, in considering the extent of the recovery on a bond executed by a liquor dealer, apparently held substantially in accordance with the defendants' contention. We have carefully considered the cited case and do not agree that the same is in accord with the weight of authority on the question, but, on the contrary, and after a rather extensive research, we are rather of the opinion that the case as written either does not reflect the entire state of facts, the condition of the bond, and the provisions of the statute under which it was executed, or that the ease stands in a field almost entirely by itself, and is against practically every authority on the question which has come to our attention.
The defendant also cites O'Kane v. Lederer, 4 F.2d 418
as supporting their views. Our examination of that case leads us to the conclusion that it supports the contrary view of the law as applied to bonds such as we have here under consideration. The O'Kane Case, supra, in the first syllabus thereof lays down the general rule which we consider applicable here. We quote the same as follows:
"Generally, where statute requires execution of bond for fixed penalty, conditioned on compliance with law, penalty named in bond is measure of damages for its breach or is punishment inflicted for violation of pledge to observe laws, unless statute or bond, read in light of statutes, indicates a less or different measure."
It is true that the court in that case held that the bond therein involved did not come within the general rule, and that the face of the bond was not a fixed penalty. This holding appears to have been based largely upon the fact that the bond there provided among other things, that it should insure payment of any taxes and penalties imposed. The condition of the bond, and the law under which it was given, indicates that the bond was not given as a fixed penalty for the face amount thereof. It is interesting and enlightening to observe that court's discussion, wherein it says:
"It will be noted that, although the statute provides simply for a bond to insure compliance with the terms of the permit and the provisions of title 2 of the National Prohibition Act, the regulation goes further and provides, in addition, that the bond shall insure the payment of 'any taxes and penalties which may be imposed under the internal revenue laws.'
"* * * The construction and effect that should be given to bonds required by statute, and conditioned upon a compliance with the laws of a state or of the United States, have been frequently before the courts, and have usually presented questions of some difficulty. Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed., 780; U.S. v. Alcorn (C. C.) 145 F. 995; U.S. v. Oteri, 67 F. 146, 14 C. C. A. 344; U.S. v. U.S. Fidelity Guaranty Co. (C. C.) 151 F. 534; U.S. v. Montell, 26 F.Cas. No. 15,798; U.S. v. Dieckerhoff, 202 U.S. 302, 26 S.Ct. 604, 50 L.Ed. 1041; State v. Larson, 83 Minn., 124, 86 N.W. 3, 54 L. R. A. 487; State v. Estabrook, 29 Kan. 739; U.S. v. Cutajar (D.C.) 59 F. 1000; also, 32 Opinions of Attorneys General, 365. Generally speaking, where a statute requires the execution of a bond to a state or to the United States for a fixed penalty, conditioned upon a compliance with certain laws of a state or of the United States, the penalty named in the bond is the measure of damages for its breach, or rather is a punishment inflicted by the sovereign for the violation of a pledge to observe its law unless the statute or the bond, read in the light of the statute, indicates a less or a different measure. The question is always one of construction, having regard to the entire statute, the governmental regulations framed to carry out the statute, and the language of the bond.
"If the regulations and the language or the bond had followed the provision of the statute, I am inclined to think that the government could recover the penal sum named in the bond, and that the counterclaim would therefore be properly pleaded although there is some force in the argument that, since the National Prohibition Act is a criminal statute, providing fines or imprisonment, or both, for violations of its terms, the provision as to bonds contained in section 6, was not intended as an additional punishment, but simply as a protection to the government for moneys due from the permittee. Be that as it may, and without considering what forms and amounts of bonds might be required by the Commissioner in the exercise of the power delegated to him, it is evident that the particular bond now before the *Page 607
court, read in connection with the regulation under which it was executed, does not name $2,000 solely as a penalty or punishment for a noncompliance with the terms of the permit and title 2 of the act.
"The amount named is expressly stated to cover also any taxes and penalties imposed under the internal revenue laws and to insure compliance also with all the laws thereafter enacted, and regulations issued pursuant thereto, respecting the sale and use of wines and spirits for other than beverage purposes. It follows that the $2,000 named in the bond cannot all have been intended as a fixed penalty or punishment for a violation of the permit and title 2 of the Prohibition Act. I cannot but conclude, therefore, that the amount named in the bond represents a limit, and not a measure, of liability."
The defendants also cite the case of United States v. United States Fidelity Guaranty Co., 1 F.2d 335. An examination of that case will disclose the same distinction as we find in the O'Kane case, supra.
We find an exhaustive and learned discussion of the question in the case of United States v. Engelberg et al.,2 F.2d 720. We consider the correct rule aptly stated in the first and second syllabus thereof, which we quote as follows:
"1. United States can recover on bond conditioned on principal's compliance with the laws and regulations relating to sale of liquor executed on issuance of permit to principal by federal prohibition commissioner, without regard to damage actually sustained; the forfeiture in such case being imposed by statute.
"2. Generally, where a bond is given as an indemnity between private persons, the sum fixed will usually be regarded as a penalty, which limits the amount of recovery for the damage actually sustained, unless the amount named is clearly intended as stipulated or liquidated damage; but such rule does not apply, where penalty or forfeiture is imposed by statute upon the doing or omission of certain acts, nor where bonds are given to state."
The bond in the case there considered was not designed to secure any obligation of taxes penalties, etc., as were the bonds in the two cases discussed immediately heretofore. The condition of the bond in the Engelberg Case, supra, is stated as follows:
"Now, therefore, the condition of this obligation is such that if the said principal shall fully and faithfully comply with all the requirements of the laws of the United States now or hereafter enacted, and regulations issued pursuant thereto, respecting the sale or use of distilled spirits and wines for other than beverage purposes, then this obligation to be void; otherwise, to remain in full force and virtue."
The condition of the bond which we have under consideration in the case at bar is found in the following language contained therein:
"The condition of the foregoing obligation is such that
"Whereas, under the provisions of House Bill 3 of the session of the Legislature of 1917, being entitled 'An act amending sale of Cigarettes, and the sale thereof to minors, and others' etc., approved March 31, 1917, and retail dealer in cigarettes and cigarette papers, before opening up or operating a place for conducting such business, shall, in addition to the other legal requirements, execute a good and sufficient bond in the sum of one thousand dollars to be approved by the county clerk, conditioned for the faithful compliance with the provisions of section 1 of said act; and
"Whereas, the above bounden principal has applied to the county clerk of Payne county, for a license to sell at retail, cigarettes and cigarette papers at their place of business in M. W. A. Cafe 118 So. Main in the city of Yale, said county and state; and
"Whereas, said license has been granted by said county clerk for a period of one year beginning on the 18th day of July, 1929, to be issued and delivered on the approval of said bond. The bond shall be in effect for one year from date of said license but may be renewed from year to year by continuation certificates executed by duly authorized officers or attorneys of the surety,
"Now, therefore, the conditions of the above obligation are such that if none of the provisions of section 1, said act shall be violated by the above bounden principal, within the life of said license, this obligation shall become null and void, otherwise, it shall remain in full force and effect."
It is to be observed that the condition of the bond in the Engelberg Case, supra, and in the instant case both contemplate only the compliance with the law. Neither bond was designed to insure the payment of any taxes, penalties, or damages. Much the same contentions were made in the Engelberg Case as are made here. The court therein said:
"It is averred that between the 24th day of January, 1920, and the 17th of August, 1921, the defendant Engelberg wholly failed to comply with the requirements of the laws of the United States and regulations issued pursuant thereto, respecting the sale of distilled spirits for other than beverage purposes, *Page 608
and violated the requirements of the laws and regulations, in that he failed and neglected to keep records of the purchase, receipt, and sale of distilled spirits as required by the laws and regulations, and that he had and possessed whisky on his premises of which no record appears upon the books required to be kept, and that he unlawfully sold whisky for beverage purposes on March 5, 1920, and on March 9, 1920, and unlawfully transported whisky on the last-named date, and did not in good faith conform with and otherwise violated the laws of the United States and the regulations pursuant thereto, respecting the sale of distilled spirits for other than beverage purposes; that on the 17th day of August, 1921, because of such violations the said permit which had been granted to the said Engelberg was canceled upon due and proper notice, and that notice of such cancellation was given to the said defendant; that by reason of these facts the defendant made and suffered a breach of the conditions in each of the bonds, and that thereupon the full amounts became forfeited to the United States to recover the amounts of which the action has been brought.
"Assuming the truth of these averments, must the United States aver the specific damage suffered, and is its recovery limited to such loss? Or, on the other hand, is the sum named in the bond a penalty or forfeiture, inflicted by the government for a breach of its laws? It seems to me that this question 'is definitely answered, the answer being based on the soundest reasoning, by the textbook writers and the decisions of the Supreme Court. It may be stated as a general rule that, where a bond is given as an indemnity between private persons, the sum fixed will usually be regarded as a penalty, which limits the amount of recovery for the damage actually sustained. But this is by no means a universal rule. It is sometimes evident' that the amount named is clearly intended as stipulated or liquidated damages, in which case the intention thus manifested will be given effect. In some cases such intention is expressed in the obligation itself, and in others the intention is manifest or will be presumed because of the difficulty or impossibility of measuring the damages sustained. But this rule does not apply where a penalty or forfeiture is imposed by statute, upon the doing or omission of certain acts, nor to those cases where bonds are given to the state. In Clark v. Barnard, 108 U.S. 436, 2 S.Ct. 878, 27 L.Ed. 780, Justice Matthews discusses the question on principle and with great clearness, and reviews the authorities, reaching a decisive conclusion on the question. In that case the state of Rhode Island authorized by an act of the Legislature a railroad company to extend within the limits of the state a certain road which it had acquired. The act of assembly contained these words:
" 'This act shall not go into effect unless the * * * company shall within ninety days from the rising of this General Assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the Governor of this state, in the sum of $100,000, that they will complete their said road before the first day of January, 1872.' Loc. Priv. Acts. R. I. 1869, p. 193, sec. 12.
"The bond containing that condition was given, the road was not completed, and an action was brought and recovery had for the penal sum named in the bond. Justice Matthews cites the case of United States v. Montell, 26 Fed. Cas. 1293, No. 15,798, wherein it was held, Chief Justice Taney writing the opinion, that a sum secured by bond under an act of Congress, conditioned that the registry of a vessel should be used solely for the vessel for which it was granted, and should not be disposed of to any person whatsoever, and if the vessel was lost or prevented from returning to port, or the vessel be sold, that the registry shall be delivered up to the collector, was a penalty or forfeiture inflicted by the sovereign power for a breach of its laws, not a liquidated amount of damages due under a contract, but a fixed and certain punishment for the offense, and not the less so because security was taken before the offense was committed. Justice Matthews held that the bond in question required the railroad company to obey the law and complete their road as the law required; that the language meant that in case of failure they should forfeit and pay the sum named; that, if it did not mean that, it did not mean anything, and the court was not at liberty to adopt such a meaning; that no rule of construction would be adopted which defeated the very object of the law; that the state was dealing with one of its own corporations, and had a right to act upon its own policy and prescribe its own terms as conditions of powers and privileges sought from its authority. A decree was accordingly entered for the sum of $100,000, the penal amount of the bond, although there was neither averment nor proof that the state or its citizens had suffered any actual loss.
"In Illinois Surety Co. v. United States, 229 F. 527, 143 C. C. A. 595, the Circuit Court of Appeals of the Second Circuit said: 'The general rule is that in case of a penalty the measure of damages is the actual loss which has been sustained as a result of the breach where this can be ascertained. But in the case of liquidated damages there can be a recovery of the whole amount where such a recovery is consistent with the policy of the law. And generally the courts construe the sum mentioned in a bond as a penalty, considering it merely as a security for the damage actually sustained by the breach of the condition and they limit the recovery to an *Page 609
amount compensatory therefor. But while the above doctrine is that which courts usually enforce they do not apply it in all cases. And they do not apply it in the case of bonds running to the government.'
"In that case the bond involved contained different conditions, and the court held that, if it had been given to an individual instead of to the government, it might be important that it contained no less than 16 conditions of varying importance, as courts have held that where an agreement contains several distinct and independent covenants, upon which there may be several breaches, and one sum is stated to be paid upon the breach of performance, that sum is to be regarded as a penalty, and not liquidated damages. But in the case at bar, as the bond was given to the government, it would not be in the least material whether the bond contained 16 conditions or only one. The same rule has been laid down in Lyman v. Perlmutter,166 N.Y. 410, 60 N.E. 21. In this case it was held that in cases between the government and a private party, in which the purpose of the bond is to secure an observance of law, in pursuance of which the bond is given, the penalty named in the bond is the measure of damages for its breach, unless the statute under which the bond is given, or the bond itself, indicates a less or different measure; that the affront is to the state and its sovereign will, and that when the statute has fixed its measure in money the court must award it.
"It is true there is some conflict in the decisions, the defendant relying mainly on State v. Estabrook, 29 Kan. 739, State v. Larson, 83 Minn. 124, 86 N.W. 3, 54 L. R. A. 487, and United States v. Wandmaker, 292 F. 24, the last case being a decision by the Circuit Court of Appeals of the Eighth Circuit. The decisions in these cases may or may not be justified by the facts upon which they are based. I will not attempt such reconciliation.
"I think the general rule above stated is in harmony with the great weight of authority. In most if not in every case, where the bond is given to the state, or to the government, to compel obedience of its law, no definite loss could be truly averred or definitely proved. To treat the sum named otherwise than as a penalty or forfeiture inflicted by the sovereign power for the breach of its laws, as a sum fixed as a certain punishment for the offense, would be to render worse than worthless the obligation so taken."
It is interesting to observe the court's remarks as to the meaning of the statute in requiring the bond, and the suggestion that a contrary view than there expressed would render the statutory provisions requiring the bond absolutely useless and meaningless. We consider the expressions therein in that regard equally applicable in the instant case. The only condition in the bond which we have under consideration was that the licensee would not violate the law prohibiting the sale of cigarettes to minors. There is nothing in our statute requiring a bond to be given for damages, nor do the statutes indicate that any damages are contemplated to have been guarded against, nor are there any taxes or statutory penalties secured thereby. The penalty provided in section 1, chapter 148, S. L. 1917, was not a civil penalty, but was a criminal penalty inflicted as an aid in deterring crime. We think it could scarcely be said that criminal penalties, even though they may involve the payment of a fine, are inflicted for the purpose of procuring revenue.
The case of Illinois Surety Co. v. United States, 229 F. 527, is likewise authority for the view we take on the question. Syllabus paragraphs 4 and 5 thereof provide:
"As a general rule, the measure of damages in the case of a penalty is the actual loss sustained; but in the case of liquidated damages there can be a recovery of the whole amount, where such recovery is consistent with the policy of the law.
"In an action on a bond running to the United States and given to procure the admission into the country of alien children under 16 years of age, a breach of any of the various conditions in the bond entitled the government to recover the full penalty of the bond, whether it had suffered damages or not, since, while the sum mentioned in a bond is generally construed as a penalty, and as security for the damages actually sustained, and the recovery is limited to an amount compensatory therefor, this rule does not apply in the case of bonds running to the government, and which are given to secure performance by means of a forfeit."
The case abounds with authorities supporting the view we have taken. We quote therefrom:
"The answer simply denies that the alleged breach of the bond has been committed, and also that the sum of $1,000 is due and owing to the United States by reason of the premises set forth in the complaint. At the close of the case counsel for the defendant moved to dismiss the complaint. In so far as the motion was based on the absence of adequate proof showing any breach of the condition of the bond, this court is not at liberty, for the reason above stated, to consider it. And for the same reason this court *Page 610
cannot look into the record to discover whether there is proof that the plaintiff suffered any damages because of any omission on the part of defendant to perform the obligation imposed by the bond. But if we were at liberty to do so, and should find a total absence of proof that the United States had suffered any damages, it could not defeat the action or afford any reason for the dismissal of the complaint. If this bond had been given to an individual, instead of to the government, it might be important that it contained no less than 16 conditions of varying importance for courts have held that where an agreement contains several distinct and independent covenants, upon which there may be several broaches, and one sum is stated to be paid upon the breach of performance, that sum is to be regarded as a penalty and not liquidated damages. Lampman v. Cochran, 16 N.Y. 275; Hoagland v. Segur, 38 N.J. Law, 230; Chase v. Allen 13 Gray (79 Mass.) 42; Keck v. Bieber, 148 Pa. 645, 24 A. 170, 33 Am. St. Rep. 846. That doctrine was applied by the Supreme Court in Bignall v. Gould,119 U.S. 495, 7 Sup. Ct. 294, 30 L.Ed. 491 (1886). But in the case at bar, as the bond was given to the government, it would not be in the least material whether the bond contained 16 conditions or only 1.
"The general rule is that in case of a penalty the measure of damages is the actual loss which has been sustained as a result of the breach where this can be ascertained. But in the case of liquidated damages there can be a recovery of the whole amount where such a recovery is consistent with the policy of the law. And generally the courts construe the sum mentioned in a bond as a penalty, considering it merely as a security for the damage actually sustained by the breach of the condition and they limit the recovery to an amount compensatory therefor. But while the above doctrine is that which courts usually enforce, they do not apply it in all cases. And they do not apply it in the case of bonds running to the government. The rule is correctly stated in Sedgwick on Damages (9th Ed. 1912) section 416a, as follows:
" 'In the case of a bond in a penal sum given to the state or a city not to secure it against actual ascertainable loss, but in order to secure performance by means of a forfeit, of a contract entered into for the public benefit the recovery is for the full amount of the penalty; for the damages would usually be difficult or impossible of ascertainment and the intention of the parties is held to be that an absolute forfeiture is contemplated.'
"In Sutherland on Damages (3d Ed.) vol 1, sec. 279, the law is stated as follow:
" 'Without express statutory authority, officers who are authorized by law to make contracts for a state or municipality have power to fix a sum as liquidated damages for their violation. The sum designated in the contract or subsequently agreed upon becomes, in the happening of the event on which its payment depends, the precise sum to be recovered and the jury are confined to it. Nor will equity relieve from it.'
"The question came before Chief Justice Taney in United States v. Montell, Taney, 26 Fed. Cas. p. 1293, No. 15,798 (1841) — a case in the Circuit Court for the District of Maryland. The bond was conditioned that the registry of a vessel should be used solely for the vessel for which it was granted, and should not be disposed of to any person whatsoever, and that if the vessel should be lost or sold the registry should be delivered up to the collector. The condition had been broken and the government was allowed to recover the full amount of the bond. Chief Justice Taney said:
" 'The United States are entitled to recover the whole sum, for which the party is bound, if any one of the conditions is broken. Besides, how could the United States prove any particular amount of damages to have been sustained by them in a suit on this bond? What do they lose? It would be difficult, I think, by any course of proof, or any process of reasoning, to show that the United States had sustained any particular amount of damages in a case of this description or to adopt any rule by which the damages could be measured by a jury, or be liquidated by agreement between the parties. The sum, for which the parties are to become bound, is manifestly a penalty or forfeiture, inflicted by the sovereign power for a breach of its laws. It is not a liquidated amount of damages due upon a contract, but a fixed and certain punishment for an offense. And it is not the less a penalty and a punishment, because security is taken before the offense is committed, in order to secure the payment of the fine if the law should be violated.'
"The leading case upon the subject is that of Clark v. Barnard, 108 U.S. 436, 2 Sup. Ct. 878, 27 L.Ed. 780 (1883). In that case a bond had been given to the state of Rhode Island in the sum of $100,000 to secure the construction by a given date of a railroad extension. The bond was declared forfeited in the full amount by reason or the obligor's default, although no pecuniary damages were shown to have been sustained by the state In the opinion Mr. Justice Matthews pointed out the distinction between private obligations and bonds given to the sovereign for the purpose of promoting a public interest or policy, and he stated that in the latter class of cases there can be no intention of indemnification, for the reason that the state can gain nothing in its political or sovereign character by the performance of the conditions nor lose anything by a default."
As further illustrative of the rule that the *Page 611
courts will construe a bond in accordance with its terms and obligations, and in accordance with the statutes requiring the giving of same, there has come to our attention the early case of Lightner v. Commonwealth, 31 Pa. 341, decided by the Supreme Court of Pennsylvania in 1858. Therein the same contention was made as here. Therein we find the following:
"* * * and paid the fine imposed, with the costs. In obedience to the tenth section of the act, the District Attorney then caused judgment to be entered upon the bond, and proceeded to enforce its collection. Upon the trial, the defendant contended that the bond was intended only as security for whatever fines and costs might be imposed, and that a breach of the condition worked a forfeiture only to that extent. The court, however, ruled that the forfeiture was entire instead of partial, and this presents the principal question in the case.
"Under the Act of Assembly, the required condition of the bond is, not that the obligor will pay whatever penalties may be imposed upon him by the Court of Quarter Sessions, but that he will faithfully observe all the laws of this Commonwealth, relating to his business. The bond would seem, therefore, to be substantially an agreement by the obligor to pray the stipulated sum, on condition that he fails to observe all the laws of the commonwealth relative to the sale of intoxicating liquors.
"That it was not intended merely to secure the payment of fines imposed, and costs may also he argued from the fact that the statute requires imperatively, 'Whenever any judgment for any forfeiture or fine shall have been recovered, or conviction had for any violation of the provisions of this act, or any other law for the observance of which said bond shall be conditioned that the district attorney shall enter judgment upon it, and institute suit upon that judgment; without regard to the fact that the fine imposed may have been paid. Why institute suit if nothing can be recovered?
"Again the proceedings directed to be instituted upon the judgment are declared by the statute to be 'with like effect,' as those upon forfeited bonds and recognizances. Yet, in suits upon these the whole penalty is recovered, unless it has been remitted or moderated, by the court in which the bond or recognizance has been taken. It must not be overlooked that the effect spoken of by the statute is not such as attends a suit upon an official bond; in which, though the judgment is for the penalty the execution is awarded only for the amount of damages sustained by the party aggrieved, by the act which works a forfeiture.
"If anything more were needed, to show that this is a correct construction of the obligation, it might be found in the 31st section of the act. That section makes provision for the distribution of the fines recovered, and, after enacting that a portion of the fine or penalty shall be awarded to the informer, declares that 'the residue, as well as the proceeds of all forfeited bonds, as aforesaid, shall be paid to the directors of the public schools,' etc. Those directors are therefore entitled, not only to the fine recovered, that is, actually paid, but in addition thereto, to the proceeds of the forfeited bond. Yet, there can be no such proceeds, if the construction of the plaintiffs in error prevails."
And that the Legislature may provide otherwise is further illustrated by a subsequent case from the Courts of the Several Counties of Pennsylvania in Commonwealth v. Johnson, 8 Pa. Co. Ct. R. 378, where it was held that the amount of the recovery was limited to the amount of a fine or forfeiture by reason of later enactments of the Legislature.
A further case supporting our conclusion is Lyman v. Rochester Title Ins. Co. (Schenck et al.), 55 N.Y.S. 770. Syllabus one thereof is in point as follows:
"Sec. 18 (Laws 1896, c. 112) requires applicants for liquor tax certificates to execute a bond conditioned that the applicant will not violate the liquor tax law, and that, if a certificate be issued, and he violates said law, the penalty of the bond shall become due, and the principal and surety shall be jointly and severally liable. Section 34 provides, that violations of said act shall be punishable by fine or imprisonment or both, and section 36 provides that on conviction for a violation of the act judgment shall be entered against accused for the amount of fine and cost imposed, and, if it be not paid, execution shall issue thereon; and, if the judgment debtor shall have given the bond provided for in section 18, the county treasurer or special deputy commissioner may proceed to collect the judgment from the sureties. Held, that in case of a violation of the law by the principal the surety is liable for the penalty of the bond, and not merely for the amount of fine and costs imposed on the principal on conviction for such violation."
Therein the court, in discussing the question, said:
"The bond in question was given, and all the alleged breaches of its conditions occurred, during the year 1896, and therefore the liability of the appellant must be determined by the bond itself, and by the statute as it existed at that time. It is elementary that, where a bond is given in pursuance of *Page 612
a statute, the provisions of the statute are, in effect, a part of the bond. McCluskey v. Cromwell, 11 N.Y. 593. People v. Chalmers, 60 N.Y. 154. The statute constitutes a part of the contract of the surety. People v. Pennock, 60 N.Y. 421, 425, Section 11 of chapter 112 of the Laws of 1896 specifies the amount of tax which must be paid for a liquor tax certificate. The defendants Schenck were lawfully required to pay, and did pay, the sum of $300, and a liquor tax certificate in due form was issued to them. Section of the act provides, in substance, that the applicant for a liquor tax certificate must execute a bond to the people of the state of New York, with sureties, in double the amount of the sum paid for the liquor tax certificate, containing, among others, the provision that, if such certificate is given, he, the applicant, will not violate any of the provisions of the liquor tax law while engaged in the business of trafficking in liquors under such certificate. And the section further provides that the bond so executed must contain, in substance, the agreement that, if a liquor tax certificate is issued to such applicant, and be violates any of the provisions of said liquor tax law, the penalty of such bond shall become due and payable to the people of the state, and that the principals and sureties upon said bond shall be jointly and severally liable for the payment of the same. The bond in this case follows substantially the language of the section. Section 31 of the act provides, among other things, that it shall be unlawful for any person holding a liquor tax certificate of the kind issued to the defendants Schenck to sell liquor on Sunday. It is clear that, if the language of the bond and of section 18 of the act, under which it is given, is only considered the liability of the defendant insurance company would be established upon proving that the defendants Schenck sold liquor on Sunday, as alleged in the complaint. The contention of the defendant insurance company, stated broadly, is that no liability can exist against it upon the bond which it executed as surety, until the liability of its principals has been established, as provided by section 36 of the liquor tax law. That section provides, in substance, as follows:
"'Upon the conviction and sentence of any person for a violation of the provisions of this act, the court imposing the sentence, or the clerk of the court, if there be a clerk, shall forthwith make and file in the office of the clerk of the county in which such conviction shall have been had, a certified statement of such conviction and sentence, and the clerk of said county shall immediately thereupon enter in the docket book kept by said clerk for the docketing of judgment in said office, the amount of the penalty or fine and costs imposed, as a judgment against the person or persons * * * so convicted and sentenced, and in favor of the state commissioner of excise. * * * If said judgment shall not be paid within five days after such conviction and sentence, the clerk of said county shall issue an execution against the property of said judgment debtor or debtors against whom such judgment is docketed, to the sheriff of the county, who shall forth with proceed to collect the amount due on said judgment, together with his legal fees and costs, by levy and sale in the manner now provided by law * * * In case said judgment debtor or debtors shall have given the bond provided for in section 18 of this act, such county treasurer or special deputy commissioner may proceed to collect the amount of such judgment, together with the costs of collection, from the sureties on such bond by due process of law.'
"Section 34 of the statute specifies the penalty which may be imposed for a violation of the provisions of the liquor tax law. In substance, it provides that any violation of the law by the holder of a liquor tax certificate shall be a misdemeanor, and that upon conviction therefor he may be punished by fine or imprisonment, or both, in the discretion of the court before whom such conviction is had; and, in addition, in most cases, upon such conviction the liquor tax certificate is required to be canceled by the judgment of the court, and the holder thereof disqualified from again engaging in the business of trafficking liquors for a period of five years. If the defendants Schenck are guilty of violating one of the provisions of section 31, as alleged in the complaint, to wit, guilty of selling liquor upon Sunday, upon conviction for such offense they may be punished by fine or imprisonment, or both, in the discretion of the court before whom such conviction is had; and the sureties upon the bond, if given, are liable to the amount of the fine imposed. But if this is the entire liability of the obligors upon a bond like the one in question, no force or effect is given to the express agreement contained in the bond. That agreement, which is in accordance with the provisions of section 18, under which it is given, is that, it a person holding a liquor tax certificate violates any of the provisions of the liquor tax law, the obligors upon the bond will forfeit to the people of the state double the amount of the tax paid by the holder of such certificate. The meaning of the agreement cannot be uncertain if words are given the ordinary significance. It is that the obligors upon the bond will pay to the people of the state of New York the sum of $600, in case the principals in the bond violate any of the provisions of the liquor tax law. It is urged that such is not the true meaning of the bond by reason of the provisions of the other sections of the statute, which have been referred to. If such was not the agreement intended, but instead it was intended that the liability of the sureties *Page 613
should be limited to such fine as might be imposed upon the holder of the liquor tax certificate in case of conviction for such violation by him, hardly less appropriate language could have been used by the Legislature to express such intention. We think that the scope and purpose of the statute in question is plain; that when the language of the bond, of section 18 under which it is given, and of the other provisions of the act, is all considered, and the words used are given their ordinary meaning, the different provisions of the statute will be found to be in entire harmony, and to express clearly a reasonable purpose and intent on the part of the Legislature. By the statute, as a whole, two methods are provided for compelling the observance of the liquor tax law by those engaged in the business of trafficking in liquors: First, in case of any violation of the law by a holder of a liquor tax certificate, who has given a bond as provided for in section 18 of the act, a civil action may be maintained against the obligors upon said bond to recover the penalty of such bond. This may be done before the institution of any criminal proceedings, before such delinquent is convicted, and entirely independent of the provisions of section 34 or 36 of said act. Or, second, the holder of a liquor tax certificate, who has violated any of the provisions of the liquor tax law, may be proceeded against criminally, and, if found guilty, such person may be punished by fine or imprisonment, or both, in the discretion of the court before whom such conviction is had; and, if a fine is imposed, the surety upon a bond such as the one in question is liable for the amount of such fine. Such construction gives force and effect to all the provisions of the statute involved in this case. If we have correctly construed the provisions of the statute, and properly interpreted the meaning of the bond in question, it follows that the complaint states a cause of action against the defendants."
The case is similar in many respects to the case we have under consideration, and effectively disposes of the suggestion made by the defendants here that no liability could exist under the bond until the principal was convicted of violating the law prohibiting the sale of cigarettes to minors.
It is our conclusion that the bond required by the statute and given in the instant case was given as a fixed penalty for the face amount thereof for the purpose of aiding the enforcement of a criminal law of the state, and was required and given to secure performance by means of a forfeit, and under the authorities above discussed we hold that a sale of cigarettes to minors, as shown by the evidence here, is a breach of the condition of the bond, and that the state may recover the full amount thereof without allegation or proof of damages.
With reference to the contention that the evidence discloses that the cigarettes were sold to Henry W. Hoel, an adult, we observe that this contention is based largely upon the fact that the minor accompanied Mr. Hoel, the assistant county attorney, as a member of the investigating party, and performed the act of purchasing the cigarettes at Mr. Hoel's request. The minor testified with reference to the actual purchase as follows:
"Q. Tell what happened after you got into the store? A. Well, after I get there, the woman was setting out in front and she followed me in, and she asked me what I wanted, and I told her I wanted a package of cigarettes and she asked me if my folks cared if I smoked, and I said no; and she asked me if I knew how to run the machine and she helped me to put the dime and nickel in it and I pulled the lever on the front of it and the cigarettes come out. I don't remember the words exactly she said in telling me."
Inasmuch as we have concluded that the cause must be remanded for further trial, we will not enter upon a detailed discussion of the effect of the evidence, further than to say that the same would be sufficient to support a verdict or finding that the sale was made to a minor, and not to some other person.
Regarding the question that the evidence fails to disclose that the party who sold the cigarettes was the agent of the Vending Machine Corporation of America, we observe from the answer that the defendant admits ownership of the machine, and that it was engaged in retailing cigarettes by means thereof. The evidence discloses that such machine was located in a place such as is customarily used by the defendant for the purpose of operation, and that it was displayed for the purpose of making sales and was in working order for such purpose, and that the lady was ostensibly in charge of the establishment wherein the machine was located, and rendered the minor assistance in the operation thereof. We are satisfied that the evidence and the reasonable inferences to be drawn therefrom are sufficient to justify a conclusion that the sale here made was made by the defendant through its usual and customary method of selling cigarettes.
It follows that the trial court erred in sustaining the demurrer to the plaintiffs evidence, and the cause is remanded, with *Page 614
directions to grant a new trial and proceed consistent with the views herein expressed.
McNEILL, C. J., and RILEY, PHELPS, and CORN, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3231906/ | Reversed and remanded on the authority of Gulfport F. Co. v.Jones, infra, 73 So. 145. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3816627/ | The defendant was indicted and tried for murder. The jury returned a verdict of manslaughter in the first degree. On appeal the judgment was reversed and a new trial granted. When the case came on for trial the second time, the defendant, through his attorneys, objected to being placed on trial for murder, on the ground that, having been convicted of manslaughter only on the first trial, such verdict was equivalent to an acquittal of the charge of murder. The court sustained the contention of the defendant over the protests of the prosecution, and he was tried for the crime of manslaughter in the first degree. The ruling of the court was *Page 558
erroneous, but the Territory cannot get a new trial on the ground that the defendant might have been convicted of a higher degree of homicide. When the former judgment was reversed, the case stood in exactly the same position that it did before the first trial was had; and, while there are authorities to the contrary, we think that the rule herein announced is the better rule, and it is supported by able authorities. (12 Cyc. 285,State v. McCord, 8 Kans. 232; State v. Miller, 35 Kans. 328; 10 P. 865; Bohannan v. State, 18 Neb. 57; People v. Keefer,
[Cal.] 3 P. 818; Ex. Parte Bradley, 48 Ind. 548; Veatchv. State, 60 Ind. 291; Waller v. State [Georgia] 30 S.E. 835;State v. Billings, [Mo.] 41 S.W. 778; State v. Anderson. [Mo.] 1 S.W. 135; State v. Simms, 71. Mo. 338; State v. Behimer, 20 O. St. 572; State v. Bradley, [Vt.] 32 A. 238.)
But, independent of the rule herein announced as a principle of law, our own statute is conclusive. Section 1, of article 14, of chapter 68, (running section 5268) of the 1893 Statutes of Oklahoma, provides:
"A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the indictment."
A defendant is given the right of an appeal so that any errors committed against him to the prejudice of his substantial rights may be corrected. Is it not possible that the court may also have committed errors in his favor? Experience has taught us in the trial of criminal cases that there *Page 559
are probably more errors in favor of a defendant than against him; but, as a rule, only those against him are presented to the appellate court. A defendant should be given a fair and impartial trial, but when he shows that such a trial has not been afforded him and he is given the chance of an entire acquittal by another trial, he must also assume the risk of conviction for the highest crime legally charged in the indictment. The effect of a new trial in circumstances such as are presented in this case is to wipe out and set aside the entire judgment; that part which is favorable to the defendant as well as that part which is against him.
The defendant on the second trial was convicted of manslaughter in the first degree, and we will now consider his assignments of error. After the jury had been empaneled and some evidence taken, one of the jurors became too sick for jury service and was excused. The court thereupon asked the attorneys to suggest their respective views of the procedure in the circumstances, and directed their attention to section 31 of article 10 of chapter 68 of the Statutes of 1893, which provides:
"If, before the conclusion of a trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn, and the trial begin anew, or the jury may be discharged, and a new jury then or afterwards empaneled."
No procedure was suggested, and the court called another juror in the place of the one excused. The record fails to show that any objections were made by the defendant's counsel, but it does appear that when the court directed the clerk to call another juror, one of the defendant's attorneys said: "Defendant excepts." After the Territory and the defendant *Page 560
had each interrogated the juror called, as to his qualifications, the following conversations and transactions took place:
"By the court: Does the Territory now desire to exercise a peremptory challenge?
"By Mr. Thacker, county attorney: No sir.
"By the court: Does the defendant at this time desire to exercise a peremptory challenge?
"By Mr. Keaton: (for defendant) If the court please, we would like to claim the right and exercise a peremptory challenge, but if we could not exercise one after this one, as each juror is called, it would not be of any avail to us.
"By the court: If you desire to exercise a peremptory challenge you may.
"By Mr. Keaton: As to any of the panel or simply the last juror called?
"By the court: I think you have a right to exercise it as to any of the jury as now constituted; you have the right to exercise it as to any one of them.
"The Territory objects; objections overruled; Territory excepts."
Thereupon the defendant challenged Mr. Owen, who was one of the original jurors sworn to try the case.
The court proceeded upon the theory that each party was entitled to nine challenges after the sick juror had been excused, and the Territory waived the first two and exercised the remaining seven. The defendant exercised the entire nine. The regular panel having first been exhausted, two special venires were served before a jury was finally secured. The defendants attorneys excepted to the issuance of each of these venires, but made no formal objection. There is, however, a statement by the defendant's counsel in the record, after the defendant had exercised his eighth peremptory challenge to the effect that the defendant objected to the calling *Page 561
of any of the jurors summoned on the second venire; and when the court requested counsel to state the grounds of his objections, he said that he had "no special grounds except that counsel claims that the court has no power to empanel the jury by the methods that are being taken." Then, just before the jury was sworn, the defendant's counsel asked to be allowed an additional challenge, for no other reason than they thought it was necessary to ask an additional challenge in order to save defendant's objections to the manner of the selecting of the jury. The defendant nowhere claims that he was not tried by a fair and impartial jury, nor that the members of the jury were not all qualified under the statute. His contention is that the jury was not properly selected. Conceding, for the sake of argument, that the jury was not empaneled, technically as the law directs, after the sick juror was excused, the defendant is in no position to urge that point. While the jury was being empaneled the court repeatedly requested the attorneys for the defendant to state the grounds of their objections, and they wholly failed to do so in a way that was calculated to direct the attention of the court to the objections relied upon at this time. They say in their brief that the court should either have called one qualified juror from the original venire to fill the panel, and begin the trial anew, or that he should have discharged all of the jurors previously empaneled and then proceeded to the selecting of an entirely new jury; and with this theory we agree. But why did not counsel make their position known to the trial court? They withheld their views then, and were the first to take advantage of the challenges to which the trial court thought them entitled. Their acts then, bind their client now. The action of the court in giving to each of the parties the privilege *Page 562
of challenging nine jurors was, in effect, the empaneling of a new jury. (People v. Stewart, 64 Calif. 60-61.)
The jurors who were first empaneled might possibly have been excused for cause, having heard a part of the evidence before the juror got sick, but such an objection would address itself to the sound discretion of the court. The defendant did not seek to do this, and the fact that part of the jury who tried him had heard a part of the evidence before, could be waived by the defendant. (Queenan v. Territory, 11 Okla. 262.)
The objection is purely technical, and without any substantial merit; and it has been held that a criminal case will not be reversed on account of technical errors, unless they are such as may have prejudiced the defendant in his substantial rights. (Hodge v. Territory, 12 Okla. 108.)
The appellant insists that the court erred in excluding evidence offered by him. We have examined the record in relation thereto, and have failed to find where any evidence was excluded which could reasonably have changed the verdict. Hence the point must be determined against the defendant.
The defendant next complains of certain instructions given by the court, which, in effect, told the jury that, where a man is unlawfully attacked by an adversary, he must act with reasonable courage, or that he should act as would a reasonably courageous man situated in a similar position. The instructions correctly stated the law. The crimes act provides that, "homicide is justifiable when committed in the lawful defense of such person, etc. * * * when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished." The law only authorizes one to *Page 563
take human life when it reasonably appears necessary to do so, and he is not justified in killing his fellow man through mere cowardice. The law presumes that a defendant has a reasonable amount of intelligence; that he is reasonably prudent, and that he has the power to act with reasonable courage; and the burden is on him who claims the contrary to at least raise a reasonable doubt of the existence of such presumed fact. The argument that the transaction must be viewed from the defendant's standpoint has no application to the rule stated in the instructions, for that may be conceded without affecting the law as given by the court. When we say that a homicide must be viewed from a defendants standpoint, this only means that the jury must take the facts as they were presented to him in his situation at the time, and from them determine whether he acted upon reasonable appearance of danger. The condition of a defendant may always become an issue in the trial of a criminal case; but, until properly raised, the courts will not assume that mental inferiority exists. (Wells v. Territory, 14 Okla., p. 436.) The giving of certain instructions on the defense of insanity are made the subject of complaint. They charge the jury, in effect, that the law does not recognize the theory of uncontrollable impulse as an excuse for crime, so long as the defendant has the mental capacity to know right from wrong and to know and understand the nature and consequences of his acts. The rule stated has been adopted by this court. (Maas v.Territory, 10 Okla. 714.) Certain instructions requested by the defendant were refused, and exceptions saved; but this was not error, as the jury was fully instructed as to all matters in issue, and, taking the instructions given altogether, they fairly stated the law of the case. *Page 564
The judgment of the lower court is hereby affirmed, at the cost of the plaintiff in error.
Gillette, J., who presided in the court below, not sitting; all the other Justices concurring. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4538792/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WUKINSON RENEE FENELUS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2304
[June 4, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No.
502017CF012131A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Anesha Worthy,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Affirmed.
CIKLIN, GERBER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2667117/ | IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHARQAWI ABDU ALI AL-HAJJ, )
)
Petitioner, )
) Civil Action No. 09 -745 (RCL)
v. )
)
BARACK OBAMA, et al., )
)
Respondents. )
__________________________________________)
ORDER
Upon consideration of Respondents’ Consent Motion for Enlargement of Time to
Respond to the Discovery Order entered September 4, 2009, it is hereby
ORDERED that the Respondents are allowed until November 4, 2009, to complete the
ordered discovery.
SO ORDERED.
Date: 10/5/2009 ____/s/_______________
ROYCE C. LAMBERTH
UNITED STATES DISTRICT JUDGE | 01-03-2023 | 04-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/998133/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LLOYD GEORGE MAXWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-93-262)
Submitted: March 11, 1999 Decided: March 18, 1999
Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lloyd George Maxwell, Appellant Pro Se. Thomas More Hollenhorst,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lloyd George Maxwell appeals the district court’s order deny-
ing relief on his motion filed under 18 U.S.C. § 3742(a) (1994).
We have reviewed the record and the district court’s opinion and
find no reversible error. Accordingly, we affirm on the reasoning
of the district court. See United States v. Maxwell, No. CR-93-262
(E.D. Va. Dec. 15, 1998). We dispense with oral argument because
the facts and legal contentions are adequately presented in the ma-
terials 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/3447909/ | Appeal denied. Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2967298/ | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MYLES LUMBER COMPANY,
Plaintiff-Appellee,
v.
CNA FINANCIAL CORPORATION;
CONTINENTAL INSURANCE COMPANY, a No. 00-1318
non-resident insurance corporation;
BOSTON OLD COLONY INSURANCE
COMPANY, a non-resident insurance
corporation,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CA-99-121-2)
Argued: October 30, 2000
Decided: December 5, 2000
Before WILKINS and KING, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Judge King and Senior Judge Magill joined.
COUNSEL
ARGUED: Amy Marie Smith, STEPTOE & JOHNSON, Clarksburg,
West Virginia, for Appellants. Jodi K. Douglas, COOPER & PRES-
2 MYLES LUMBER CO. v. CNA FINANCIAL CORP.
TON, Parsons, West Virginia, for Appellee. ON BRIEF: Daniel C.
Cooper, STEPTOE & JOHNSON, Clarksburg, West Virginia, for
Appellants. John W. Cooper, COOPER & PRESTON, Parsons, West
Virginia, for Appellee.
OPINION
WILKINS, Circuit Judge:
Myles Lumber Company (Myles Lumber) filed suit in state court
against CNA Financial Corporation, Boston Old Colony Insurance
Company, and Continental Insurance Company (collectively, "Boston
Old Colony") seeking coverage under an insurance policy. Boston
Old Colony removed the action to federal district court based on
diversity jurisdiction. See 28 U.S.C.A. § 1332 (West 1993 & Supp.
2000); 28 U.S.C.A. § 1441 (West 1994). The district court abstained
from exercising jurisdiction and remanded. Boston Old Colony
appeals. For the reasons set forth below, we vacate the order of the
district court and remand for further proceedings.
I.
At all times relevant to this appeal, Boston Old Colony insured
Myles Lumber under a commercial general liability insurance policy.
Myles Lumber was sued in West Virginia state court by a group of
individuals who contended that they were the rightful owners of prop-
erty on which Myles Lumber had cut timber ("the Hyre lawsuit" or
"the underlying action"). Boston Old Colony defended Myles Lumber
in the underlying action under a full reservation of rights, believing
that if the trees on the disputed property had not belonged to Myles
Lumber, certain policy exceptions would apply which would preclude
coverage. Myles Lumber lost the Hyre lawsuit and paid a judgment
of over $300,000, plus related fees and costs.
Myles Lumber’s request for insurance coverage was denied
because Boston Old Colony believed that certain exclusions applied.
Myles Lumber disputed this and filed a three-count complaint in West
Virginia state court. In the first count, Myles Lumber sought a decla-
MYLES LUMBER CO. v. CNA FINANCIAL CORP. 3
ration of its rights under the insurance contract as well as attorneys’
fees and consequential damages incurred as a result of suing for cov-
erage. See W. Va. Code Ann. §§ 55-13-1 to 55-13-16 (Michie 1994)
(Uniform Declaratory Judgments Act). In the second count, Myles
Lumber alleged breach of contract, and in the third count, it sought
relief under the state Unfair Trade Practices Act, see W. Va. Code
Ann. § 33-11-4(9)(a) (Michie 1996).
Boston Old Colony removed the action to federal district court
based on diversity of citizenship, see 28 U.S.C.A. §§ 1332, 1441, and
Myles Lumber moved to remand based on principles of abstention.
The district court held a hearing at which it granted the remand
motion. It noted that this court has established certain factors to be
considered in deciding whether to abstain from hearing a declaratory
judgment action, see Centennial Life Ins. Co. v. Poston, 88 F.3d 255,
257 (4th Cir. 1996), and concluded that consideration of those factors
favored abstention. In particular, the district court noted that the case
would require application of state law and emphasized its determina-
tion that the suit could be more efficiently resolved by the state court
because the state court was already familiar with the facts of the
underlying action.
Boston Old Colony appeals, arguing that the district court lacked
authority to abstain. Boston Old Colony alternatively argues that even
if the district court possessed discretion to abstain, it was an abuse of
discretion to abstain here. We agree that the district court lacked
authority to abstain from exercising jurisdiction over the claims for
breach of contract and unfair trade practices because those claims
plainly seek damages. We further conclude that even if the district
court had discretion to abstain from exercising jurisdiction over the
declaratory judgment claim, under these circumstances it would be an
abuse of discretion to remand that single claim.
II.
District courts ordinarily have a strict duty to exercise the jurisdic-
tion that is conferred on them by Congress. See Quackenbush v. All-
state Ins. Co., 517 U.S. 706, 716 (1996). However, when a suit
involves equitable or discretionary relief, a district court may either
stay the suit in favor of state court action or "decline to exercise juris-
4 MYLES LUMBER CO. v. CNA FINANCIAL CORP.
diction altogether by . . . dismissing the suit or remanding it to state
court." Id. at 721. In contrast, a district court may stay an action seek-
ing damages but generally may not subject it to "outright dismissal or
remand." Id. Thus, a threshold requirement that must be satisfied for
a case to be subject to remand is that the complaint seek either equita-
ble or otherwise discretionary relief. Whether a case satisfies the basic
requirements of abstention is a legal question subject to de novo review.1
See Garamendi v. Allstate Ins. Co., 47 F.3d 350, 354 (9th Cir. 1995),
aff’d sub nom. Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996);
see also United States v. Smith, 115 F.3d 241, 244 (4th Cir. 1997)
(stating that questions of law are reviewed de novo).
Counts Two and Three of Myles Lumber’s complaint—for breach
of contract and unfair trade practices—plainly seek damages and thus,
under Quackenbush, were not subject to remand. The question then
becomes whether, assuming that the district court possessed discre-
tion to remand the declaratory judgment claim,2 it would be proper to
remand that claim alone. We conclude that remanding would be an
abuse of discretion. See United Capitol Ins. Co. v. Kapiloff, 155 F.3d
488, 493 (4th Cir. 1998).
A court must consider four factors in deciding whether to exercise
its discretion to hear a declaratory judgment action:
1
Although remand orders generally are not subject to review on appeal,
see 28 U.S.C.A. § 1447(d) (West 1994), the Supreme Court has held that
abstention-based remand orders such as the one at issue here are appeal-
able, see Quackenbush, 517 at 711-15.
2
Myles Lumber’s declaratory judgment count arguably presents a
claim for damages as it seeks a declaration of rights under the insurance
contract. Cf. Terry v. Chauffeurs, Local 391, 863 F.2d 334, 339 (4th Cir.
1988) (concluding that when declaratory judgment action required inter-
pretation of a collective bargaining agreement and determination of
whether the agreement was breached, the suit involved legal rather than
equitable issues), aff’d, 494 U.S. 558 (1990); see also 9 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2313
(1995) ("Although the origin of the declaratory judgment procedure
largely is in equity, the remedy itself is neither legal nor equitable . . .
In that event, this entire action is for damages and the district court
would be constrained to exercise jurisdiction.
MYLES LUMBER CO. v. CNA FINANCIAL CORP. 5
(i) the strength of the state’s interest in having the issues
raised in the federal declaratory action decided in the state
courts; (ii) whether the issues raised in the federal action can
more efficiently be resolved in the court in which the state
action is pending; [ ](iii) whether permitting the federal
action to go forward would result in unnecessary "entangle-
ment" between the federal and state court systems, because
of the presence of "overlapping issues of fact or law"[; and
(iv)] whether the declaratory judgment action is being used
merely as a device for "procedural fencing" . . . .
Centennial Life Ins., 88 F.3d at 257 (quoting Nautilus Ins. Co. v. Win-
chester Homes, Inc., 15 F.3d 371, 377 (4th Cir. 1994)) (alterations in
original).
Comity concerns do not weigh heavily in favor of the exercise of
jurisdiction. Although this case will involve the application of state
law, there is nothing that would give West Virginia courts a particu-
larly strong interest in deciding it. See id. at 258 (noting that interest
of state in deciding matter of state law is lessened when state law
issue is not problematic or difficult); cf. Johnson v. Collins Entm’t
Co., 199 F.3d 710, 719-21 (4th Cir. 1999) (noting that state had
strong interest in deciding issues that involved "a most basic problem
of [state] public policy" and "the treacherous waters of state political
controversy").
In contrast, the efficiency factor weighs heavily in favor of retain-
ing jurisdiction. First, we consider it significant that there is no state
action pending. Further, as the district court must retain jurisdiction
over the damages claims, it would be more efficient for the district
court to adjudicate the entire case. See Gov’t Employees Ins. Co. v.
Dizol, 133 F.3d 1220, 1225-26 (9th Cir. 1998) (en banc) (stating that,
to avoid piecemeal litigation, a district court generally should not
remand or decline to entertain a declaratory relief claim when other
claims are joined with the claim for declaratory relief); cf. Centennial
Life Ins., 88 F.3d at 258 (stating that efficiency factor favored absten-
tion when pending state action would settle the entire matter but fed-
eral declaratory judgment action would not).
The district court determined that efficiency favored remand
because the state court was familiar with the facts of the underlying
6 MYLES LUMBER CO. v. CNA FINANCIAL CORP.
action. The court believed that one issue pertaining to the merits of
this suit would be whether Myles Lumber’s trespass was intentional,
and that resolving that issue would involve considering both state law
and the facts of the trespass. Assuming that Myles Lumber’s intent is
at issue—a proposition disputed by Boston Old Colony—efficiency
does not favor remand. Again, there is no pending state court action
that will resolve this issue, so there is no immediate efficiency gain
by transferring the issue to state court. And, because the dispute in the
underlying action merely concerned boundary lines and did not
involve the issue of whether Myles Lumber’s trespass was intentional,
this will be a new issue regardless of which court decides it.
The third factor concerns avoiding unnecessary entanglement
between the federal and state court systems. We perceive no realistic
threat of entanglement here primarily because there is no pending
state court action. Although Myles Lumber contends that there is a
danger of entanglement because the state court is already familiar
with the facts of the underlying suit, this argument is specious.
Whichever court decides the merits of this case must tread carefully
with regard to the facts already decided in the underlying action, and,
as previously noted, the intent issue was not decided in the Hyre law-
suit. Accordingly, the third factor does not favor remand. Finally, the
fourth factor concerns the potential for procedural fencing, but there
is no evidence to support Myles Lumber’s assertion that Boston Old
Colony has engaged in forum shopping.
Thus, this case only nominally raises comity concerns, entangle-
ment is not realistically an issue, there is no evidence of procedural
fencing, and efficiency considerations weigh heavily in favor of
retaining jurisdiction. We therefore conclude that, assuming that the
district court possessed discretion to remand the declaratory judgment
claim, it would be an abuse of discretion to do so under these circum-
stances.
III.
In sum, we conclude that the district court was without authority
to abstain from exercising its jurisdiction over Counts Two and Three
of the complaint because they seek damages. Further, assuming the
district court possessed discretion to abstain from deciding the declar-
MYLES LUMBER CO. v. CNA FINANCIAL CORP. 7
atory judgment count, we conclude that under the circumstances pres-
ent here the court would abuse its discretion in doing so. We therefore
vacate the remand order of the district court and remand for further
proceedings consistent with this opinion.
VACATED AND REMANDED | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2987643/ | Motion Granted; Appeal Dismissed and Memorandum Opinion filed
February 26, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00056-CV
DR. THEODORE M. HERRING, JR. AND CARMEN DAWSON, Appellants
V.
HERON LAKES ESTATES OWNERS ASSOCIATION, INC., Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2006-74019
MEMORANDUM OPINION
This is an appeal from a judgment signed December 31, 2012. On February
12, 2013, appellants filed a motion to dismiss the appeal. See Tex. R. App. P. 42.1.
The motion is granted.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices Frost, Brown, and Busby. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2793099/ | J. S03002/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KENNETH DEVORE, : No. 1985 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, June 24, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010504-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 10, 2015
Kenneth Devore challenges the judgment of sentence entered on
June 24, 2013, in the Court of Common Pleas of Philadelphia County. We
affirm.
The facts, as summarized by the trial court, are as follows:
At the [suppression] motion hearing, the
Commonwealth presented the testimony of
Philadelphia Police Officer George Gee, establishing
the following. On August 17, 2012 around 4:25 PM,
Officer Gee and his partner were patrolling the high
crime area of 2000 South Alden Street in
Philadelphia’s 12th Police District, as part of their
routine tour of duty in a marked police vehicle. At
that time, the officer came in contact with
[appellant] who was standing with a crowd of males
that the officers intended to disperse, on the
2000 block of South Cecil Street. [Appellant] looked
in the officer’s direction before walking away
eastbound on Greenway Street and adjusting his
waistband on the right side. On the stand, the
J. S03002/15
officer demonstrated this “adjusting” motion by
taking his right hand, grabbing the right front of his
waistband and making a circular motion. The officer
continued to observe [appellant] for a few more
minutes and during that time, [appellant] again
stopped, raised up his right foot, adjusted his pants
in a similar manner, and looked in the officer’s
direction for the second or third time. As the officer
proceeded in [appellant’s] direction, [appellant]
continued onto the 2000 block of Alden Street,
adjusted his waistband one more time in the manner
previously described. At that time, the officer then
told [appellant] to “come here, and [appellant] came
to [him].” Believing that [appellant] was carrying a
firearm on his person, the officer then touched and
recovered a Colt .38 revolver, with the serial number
defaced, containing six live rounds, from the area
where he had seen [appellant] adjusting himself.
Officer Gee testified credibly that he had been
assigned to this area . . . for his entire sixteen year
career. He described it as a “very high crime area”
explaining that prior to this incident, while patrolling
the same block, he had made two other gun arrests
and been the first responder on multiple shootings.
The officer testified that in his vast experience in this
area, he has had at least fifty opportunities to
observe individuals making similar movements as
those made by [appellant] in “the exact same way”
that resulted in the recovery of a firearm. His
suspicion of [appellant] was additionally heightened
from his own knowledge of carrying a firearm as a
police officer. A gun being carried in a holster, as he
does while on duty, does not require any adjustment
of the waistband. From reliable experience, he
knows that “when [most] people adjust their pants,
they grab [them] from the sides and pull up, not
[just] a specific area [as the appellant did in this
instance].”
Trial court opinion, 4/3/14 at 2-3 (citations omitted).
-2-
J. S03002/15
Appellant was arrested and charged with multiple counts of violating
the Uniform Firearms Act. On January 22, 2013, appellant litigated a motion
to suppress. The trial court denied the motion to suppress and found that,
based on Officer Gee’s experience, he had reasonable suspicion to believe
appellant had a weapon. On May 10, 2013, a bench trial was conducted and
the Commonwealth relied on the above-stated evidence. Appellant was
convicted of the following firearms offenses: possessing a firearm while
prohibited from doing so, possessing a firearm with an altered manufacturer
number, firearm not to be carried without a license, and carrying a firearm
on the public streets of Philadelphia. Thereafter, appellant was sentenced to
five to ten years of probation for carrying a firearm while prohibited,
followed by consecutive terms of two years’ probation for possessing a
firearm with an altered manufacturer number and three years’ probation for
carrying a firearm without a license. The court imposed a concurrent term
of probation for the remaining offense.
A timely notice of appeal was filed, and the following issues have been
presented for our review:
1. Did the lower court err in denying [appellant’s]
motion to suppress where the Commonwealth
failed to establish that the police had specific
and articulable facts upon which to reasonably
believe that criminal activity was afoot to
support the investigatory detention of
[appellant]?
2. Did the lower court err in denying [appellant’s]
motion to suppress where the Commonwealth
-3-
J. S03002/15
failed to show that [appellant] was armed and
dangerous and[,] thus[,] lawfully subjected to
a Terry frisk?
Appellant’s brief at 4.
The role of this court in reviewing the denial of a suppression motion is
well established:
An appellate court’s standard of review in
addressing a challenge to a trial court’s
denial of a suppression motion is limited
to determining whether the factual
findings are supported by the record and
whether the legal conclusions drawn
from those facts are correct. Since the
prosecution prevailed in the suppression
court, we may consider only the evidence
of the prosecution and so much of the
evidence for the defense as remains
uncontradicted when read in the context
of the record as a whole. Where the
record supports the factual findings of
the trial court, we are bound by those
facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Stevenson, 894 A.2d 759, 769
(Pa.Super.2006) (citation omitted). Although we are
bound by the factual and the credibility
determinations of the trial court which have support
in the record, we review any legal conclusions
de novo. Commonwealth v. George, 878 A.2d
881, 883 (Pa.Super.2005), appeal denied, 586 Pa.
735, 891 A.2d 730 (2005).
Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007).
We will address appellant’s two claims together as they essentially
both challenge the same concern: that the officer did not have reasonable
suspicion to justify a stop and frisk. There is no dispute between the parties
-4-
J. S03002/15
that the frisk at issue constituted an investigative detention in the nature of
a protective weapons search which is governed by Terry v. Ohio, 392
U.S. 1 (1968), and requires that police have reasonable suspicion either that
criminal activity was afoot or that appellant was armed and dangerous:
It is well-established that a police officer may
conduct a brief investigatory stop of an individual if
the officer observes unusual conduct which leads him
to reasonably conclude that criminal activity may be
afoot. Moreover, if the officer has a reasonable
suspicion, based on specific and articulable facts,
that the detained individual may be armed and
dangerous, the officer may then conduct a frisk of
the individual’s outer garments for weapons. Since
the sole justification for a Terry search is the
protection of the officer or others nearby, such a
protective search must be strictly limited to that
which is necessary for the discovery of weapons
which might be used to harm the officer or others
nearby. Thus, the purpose of this limited search is
not to discover evidence, but to allow the officer to
pursue his investigation without fear of violence.
Commonwealth v. Clemens, 66 A.3d 373, 381 (Pa.Super. 2013), quoting
Commonwealth v. Stevenson, 744 A.2d 1261, 1264-1265 (Pa. 2000).
Reasonable suspicion is determined by the totality of the circumstances. Id.
As such, each case is fact-specific, but a number of common circumstances
have been identified; and where a sufficient number of them coalesce,
reasonable suspicion will be found.
Here, we conclude that the investigatory detention was supported by
reasonable suspicion of criminal activity and a justifiable belief in the need to
protect officer safety. Officer Gee, a 16-year veteran in the police force,
-5-
J. S03002/15
testified that he was patrolling with his partner in the high-crime area of
2000 South Alden Street in Philadelphia’s 12th Police District in a marked
police vehicle. The officers stopped their vehicle to disperse a group of
males; Officer Gee observed appellant, who was in the crowd, continually
looking in his direction while adjusting his waistband. (Notes of testimony,
1/22/13 at 8-9.) Appellant turned and walked away; he stopped soon after
and adjusted the right side of his pants, looked back and adjusted the right
side of his pants again in the exact same motion. (Id. at 9.) Officer Gee
described, and demonstrated for the court, the manner in which appellant
adjusted his waistband, which led him to believe he was in possession of a
handgun while in a public area. The officer testified that based on his years
of experience, appellant’s motion was consistent with a concealed weapon.
(Id. at 13.)
We have previously determined that “if a suspect engaged in hand
movements that police know, based on their experience, are associated with
the secreting of a weapon, those movements will buttress the legitimacy of a
protective weapons search of the location where the hand movements
occurred.” In Interest of O.J., 958 A.2d 561 (Pa.Super. 2008) (en banc).
Moreover, “whether the defendant was located in a high crime area similarly
supports the existence of reasonable suspicion.” Commonwealth v.
Foglia, 979 A.2d 357, 361 (Pa.Super. 2009) (en banc), appeal denied,
990 A.2d 727 (Pa. 2010).
-6-
J. S03002/15
While none of these factors, by themselves, gives rise to reasonable
suspicion or is necessarily illegal in nature, when viewed in light of the
totality of the circumstances, the officer’s suspicion of appellant was
reasonable. See Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999)
(circumstances which alone would be insufficient may combine to show
reasonable suspicion).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
-7- | 01-03-2023 | 04-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3224458/ | The appellant was convicted before the recorder of the city of Huntsville for operating a slot machine. On appeal to the circuit court, demurrers were sustained to the affidavit, and the city filed as an amendment a new affidavit which charged that the defendant was guilty of violating the following ordinance:
"Any person committing an offense in the city of Huntsville or within its police jurisdiction which is declared by any law or laws of the state of Alabama heretofore or hereafter enacted to be a misdemeanor shall upon conviction in the recorder's court be punished within the limits and as provided in section 1216 of the Code of Alabama."
Demurrers to the amended affidavit were overruled, and in this there was error. Conceding, which we do not decide, that the ordinance set out in the amended affidavit is sufficient as a reference act, that is, to make misdemeanors under the state law, a violation of the city law, when committed within the jurisdiction of the city, yet the affidavit in no wise points out what particular misdemeanor or offense the defendant is charged with violating. Under the amended *Page 647
affidavit the defendant could have been tried for a violation of any offense made a misdemeanor by the state law. The offense committed must be averred "with certainty to a common intent." Miles v. City of Montgomery, 17 Ala. App. 15, 81 So. 351.
The record contains another amendment, which was doubtless intended to cure the defects pointed out above, although demurrers had been overruled thereto; but it does not appear that this last amendment was ever made, in fact the judgment entry shows the trial of the case on the affidavit as first amended, the illegality of which has been pointed out above.
The affidavit as amended, and upon which the defendant was tried, was null and void, charges no offense, and will not support a conviction. More than 12 months having elapsed since the commission of the alleged offense, any further attempt to proceed with the prosecution would be barred by the statute of limitations; consequently it would be a useless thing to remand the case.
The judgment of conviction, in view of the above, is reversed, and one is here rendered discharging the defendant.
Reversed and rendered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3242308/ | Complainant's right to maintain this bill in equity depends upon his establishment of a debt for which he has a statutory mechanic's and materialman's lien, or upon his right, under the contract exhibited, to have an equitable mortgage declared as prayed.
Our statute (Code, § 4758) requires a lien claimant to file in the probate office a sworn statement "containing a just and true *Page 651
account of the demand secured by the lien, after all the just credits have been given"; and our decisions have recognized the principle that an intentional misstatement of the account in excess of what is just and true, made for the purpose of increasing the amount of the lien, is a fraud in law, and will vitiate the entire lien. Lane Bodley Co. v. Jones, 79 Ala. 156,163; Jefferson, etc., Co. v. Peebles, 195 Ala. 608, 613,71 So. 413.
In Ala. Ga. Lbr. Co. v. Tisdale, 139 Ala. 250, 257,36 So. 618, there is to be found a query whether the present statute was intended to prevent the destruction of the lien, as held in Lane Bodley Co. v. Jones, supra, under the statute then in force, as to which no opinion was expressed. We are clearly of the opinion, however, that the principle announced in the older case has been in no wise affected by the provision of the present statute that "no error in the amount of the demand, * * *, shall affect the lien"; for this means merely an inadvertent or honest mistake, and not a willfully false claim.
Of course, on general principles, a willful intention to claim for an item known to have not been furnished, or for an amount known to be in excess of what is justly due, will not be presumed, and the burden is on the debtor to show the evil intent. Ala. Ga. Lbr. Co. v. Tisdale, supra, 139 Ala. 256,36 So. 618.
From a very careful examination of the testimony, which is quite voluminous, we are forced to conclude that the sworn statement of the account filed by complainant contains a number of overcharges, and we cannot escape the conviction that, as to some of these items, the overcharges were willfully made with the knowledge that they were not just and true. We refer especially to the items of bricklaying, framing and sheathing material, and carpenter's work, the labor of the plumber, Calahan, and the charge for repainting the bath room. An analysis of the testimony leading to this conclusion would unprofitably extend this opinion, and a summary statement must suffice. These overcharges, willfully made, must be held to work a vitiation of the lien. This seems to have been the view taken by the trial court; and, since the witnesses were heard by the judge viva voce, and there was ample evidence, notwithstanding its conflicting tendencies, to support the conclusion of excessive charges willfully made, we would not disturb the finding even if we were inclined to take a different view.
That conclusion is of course fatal to complainant's right to any relief in a court of equity, on the principle of unclean hands, and must result in a denial not only of his assertion of a lien, but also of his prayer for specific enforcement of the stipulation for mortgage security for any balance due. This requires the dismissal of the bill of complaint, without regard to the existence vel non of any balance due to complainant, as to which he will be remitted to his action at law, and the dismissal will be without prejudice as to such an action.
To that extent only the decree of the circuit court in equity will be modified, and as thus modified it will be affirmed.
Modified and affirmed at appellant's cost.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3812076/ | The plaintiff in error was convicted in the district court of Carter county on an information charging that he did keep a place in the town of Wirt, known as the "Red Front Cigar Store," with the felonious intention and purpose of selling intoxicating liquors, and in accordance with the verdict of the jury was sentenced to be confined in the county jail for 30 days and to pay a fine of $50.
This prosecution was under section 4 of chapter 26, Session Laws 1913. Under the authority of Proctor v. State, 15 Okla. C. 338, 176 P. 771, holding said statute unconstitutional and void, the judgment is reversed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2766463/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3217
_____________
UNITED STATES OF AMERICA,
v.
JANICE D. REY,
Appellant
_____________
On Appeal from the District Court of the Virgin Islands
Division of St. Thomas
(No. 3-11-cr-00038-001)
District Judge: Hon. Curtis V. Gomez
______________
Argued December 8, 2014
Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges.
(Opinion Filed: December 30, 2014)
____________
OPINION
____________
Omodare B. Jupiter, Esq. [ARGUED]
Office of Federal Public Defender
1115 Strand Street, Suite 201
Christiansted, VI 00820
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Gabriel J. Villegas, Esq.
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
St. Thomas, VI 00804
Attorneys for Appellant
Kim. L. Chisholm, Esq. [ARGUED]
Everard E. Potter, I, Esq.
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802
Attorneys for Appellee
CHAGARES, Circuit Judge.
Janice D. Rey was convicted by a jury of various offenses and raises two issues on
appeal. Rey argues first that the District Court erred in reopening a suppression hearing
to admit search warrants into evidence and second that there was insufficient evidence for
the jury to find her guilty of international money laundering. For the reasons that follow,
we will affirm as to both issues but will vacate the District Court’s sentencing order as to
counts 27-52 and remand for resentencing consistent with 18 U.S.C. § 1957(b)(1).
I.
We write solely for the parties and therefore recite only the facts that are necessary
to our disposition. Rey was the owner and Chief Executive Officer of Paramount Group,
LLC. Appendix (“App.”) 301. She opened a store front location called “Rey Financial”
to attract investors to Paramount Group. App. 417. She told investors, among other
things, that Paramount Group traded in currencies, commodities, and precious stones,
App. 444, that Paramount Group was associated with international energy conglomerate
2
Halliburton, App. 544, and that it counted a former president or vice-president among its
investors, App. 576. Most importantly, Rey told investors that any funds they invested
with Paramount Group were totally guaranteed: the funds would never leave the
company’s bank account, and no matter the fate of the investment, investors would get
their principal back. App. 444.
Many individuals invested hundreds of thousands of dollars with Paramount
Group. See App. 526, 556, 611-12, 631. Rey transferred their funds from Paramount
Group’s bank accounts to several other bank accounts for her own purposes. App. 675-
85. In September 2009, Rey transferred $1 million from a Paramount Group bank
account to two separate accounts in Hong Kong. App. 355-56. The money was never
invested; it was either spent or transferred back to individuals in the United States. App.
758.
When investors asked Rey about the status of their money, Rey attempted to
reassure them by telling them their funds were held up by the Federal Reserve or a
market crash. App. 456-57. She also told them that she was opening an offshore bank
where they could shelter their deposits from United States taxes. App. 560, 623.
Eventually, her investors lost faith and reported Paramount Group to the IRS. An
investigation and indictment followed.
3
Prior to trial, Rey moved to suppress all evidence obtained from a search of the
Rey Financial office.1 She argued that the Government failed to obtain a federal search
warrant from a federal magistrate and that the affidavit accompanying the Government’s
search warrant lacked particularity and was not based on probable cause. App. 58–59.
She attached the Government’s search warrant and affidavit to her motion. App. 66-100.
The Court held an initial hearing on the motion on January 25, 2013.
The Government called two witnesses at the first hearing: Agent James McCall,
director of special investigations for the Office of the Attorney General, and Agent
Stephen Wagner of the Internal Revenue Service’s Criminal Investigation Division.
Agent McCall testified that he spoke with three people who had invested with Rey but
had never received the promised returns or refunds. App. 116-17. He applied for a
search warrant from Judge Jason Carroll in the Superior Court for the Virgin Islands.
App. 117. Based on Agent McCall’s affidavit, Judge Carroll issued a search warrant for
Rey’s office. App. 119-20. Agent McCall identified both the search warrant and the
accompanying affidavit during his testimony. App. 118-19.
Rey called no witnesses, and the Government rested its case without entering the
search warrants into evidence. The District Court pointed out that neither the search
warrants nor the inventories the Government had prepared when executing the warrants
were in evidence. App. 148-49. The Government moved to reopen the hearing and enter
1
Rey also sought to suppress evidence collected from a house located at Frydenhoj #1-
25, Gold Hill Road, St. Thomas. The District Court granted her motion as to the
Frydenhoj house, so it is not in issue on appeal.
4
each of the documents into evidence. Rey objected. The Court took the matter under
advisement.
At a follow-up hearing on April 1, 2013, the Court heard additional argument on
whether the Government should be allowed to reopen its case and move the documents
into evidence. App. 199. The Government’s only explanation for its failure to offer the
warrants into evidence was that it was an “inadvertent oversight.” App. 228. The
District Court asked Rey’s counsel what prejudice would result from reopening the
suppression hearing. App. 216. Rey’s counsel identified no prejudice related to the Rey
Financial office warrant. App. 218. Thereafter, the District Court determined that the
Government’s oversight was a reasonable explanation for its failure to offer the search
warrant and that reopening the suppression hearing to accept such evidence would not
prejudice Rey. App. 229. The District Court then found the warrant for Rey’s office was
sufficiently particular and based on probable cause. App. 230. It therefore denied Rey’s
motion to suppress as to evidence found at Rey’s office. App. 4
On April 2, 2013, Rey stood trial in the District of the Virgin Islands for
conspiracy to commit wire fraud, wire fraud (eight counts), money laundering with intent
to promote wire fraud (seven counts), money laundering with intent to conceal wire fraud
(eight counts), money laundering with intent to avoid reporting requirements (twenty-six
counts), international money laundering (two counts), and tax evasion (four counts).
App. 772-85. Two days later, the jury found her guilty on all counts. The District Court
sentenced her to 125 months of imprisonment on the fraud and money laundering counts,
to be served concurrently with 60 months of imprisonment on the tax evasion counts,
5
plus three years of supervised release. App. 7-8. The District Court also imposed
restitution in the amount of $3,006,260.00 to the victims, $550,681.31 to the Virgin
Islands, and a special assessment of $5,200.00. App. 10.
Rey timely appealed.
II.2
We review a district court’s decision on a motion to reopen for abuse of discretion.
United States v. Coward, 296 F.3d 176, 180 (3d Cir. 2002) (“The question of whether the
government may augment the record at a suppression hearing . . . is analogous to the
question of whether the government may reopen its case after resting. Such decisions are
traditionally within the discretion of the district court.”). We have said that a party
moving to reopen a hearing “should provide a reasonable explanation for failure to
present [its] evidence initially.” Kithcart, 218 F.3d 213, 220 (3d Cir. 2000) (quotation
marks and citation omitted). Nonetheless, “[w]hen faced with a motion to reopen, the
district court’s primary focus should be on whether the party opposing reopening would
be prejudiced if reopening is permitted.” Id.; see also United States v. Smith, 751 F.3d
107, 114 (3d Cir. 2014) (“When determining whether to reopen a proceeding, the
paramount factor for a district court to consider is whether reopening, if permitted, would
prejudice the party opposing it.”).
“A critical factor in evaluating prejudice is the timing of the motion to reopen.”
Coward, 296 F.3d at 181. If the motion to reopen “comes at a stage in the proceedings
2
The District Court had jurisdiction under 48 U.S.C. § 1612 and 18 U.S.C. § 3231. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
6
where the opposing party will have an opportunity to respond and attempt to rebut the
evidence introduced after reopening, it is not nearly as likely to be prejudicial as when
reopening is granted after all parties have rested, or even after the case has been
submitted to the jury.” United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985).
In Blankenship, the Court of Appeals for the Sixth Circuit held that the party opposing
reopening could not demonstrate prejudice where the evidence to be offered was not a
surprise and, in any case, the party could have asked for an opportunity to meet the new
evidence. Id. Similarly, in United States v. Smith, we held that opponents of reopening
were not prejudiced when they had advance notice of the evidence to be offered and had
a chance to rebut the evidence or offer new evidence of their own. 751 F.3d at 114.
Here, we agree with the District Court that Rey suffered no prejudice from the
reopening. The Government made its motion to reopen within moments of closing its
case, and the District Court reopened the hearing before the case had gone to trial — let
alone to the jury. It does not appear that Rey’s counsel had an opportunity to rebut the
warrant once it was admitted, but neither did he ask for such an opportunity. Rey knew
about the ultimately-admitted warrant long before the suppression hearing. She attached
a copy of the same warrant to her motion to suppress. There was no surprise.
The Government’s explanation for its failure to offer the evidence in the first place
— “it was an oversight” — is less than compelling. However, given that it had marked
the warrant as an exhibit and used it during witness examination, App. 119-22, the
explanation was not so unreasonable that a District Court could not, in light of the low
7
risk of prejudice, elect to reopen the suppression hearing. In sum, the District Court did
not abuse its discretion in reopening the suppression hearing.
III.
Rey argues that her conviction for international money laundering should be
vacated because there was insufficient evidence that she had transported funds with the
intent to conceal or disguise their nature, location, source, ownership, or control.
When a defendant appeals a conviction based on the sufficiency of the evidence,
“[w]e review the record in the light most favorable to the prosecution to determine
whether any rational trier of fact could have found proof of guilt beyond a reasonable
doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013)
(quotation marks and citation omitted). “Under this particularly deferential standard, we
must be ever vigilant not to usurp the role of the jury by weighing credibility and
assigning weight to the evidence, or by substituting our judgment for that of the jury.”
Id. (quotation marks and citation omitted). “[A] reviewing court faced with a record of
historical facts that supports conflicting inferences must presume – even if it does not
affirmatively appear in the record – that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558
U.S. 120, 133 (2010) (quotation marks omitted).
8
International money laundering under 18 U.S.C. § 1956(a)(2)(B)(i) occurs when
an individual “attempt[s] to transport funds from a place in the United States to . . . a
place outside of the United States . . . knowing that the . . . funds involved in the
transportation . . . represent the proceeds of some form of unlawful activity and knowing
that such transportation . . . is designed in whole or in part . . . to conceal or disguise the
nature, the location, the source, the ownership, or the control of the proceeds of specified
unlawful activity.” Cuellar v. United States, 553 U.S. 550, 561 (2008) (quotation marks
omitted). To obtain a conviction under 18 U.S.C. § 1956(a)(2)(B)(i), the Government
was required to prove that Rey (1) attempted to transport funds from the United States to
Hong Kong, (2) knew that those funds represented the proceeds of some form of
unlawful activity, and (3) knew that such transportation was designed to conceal or
disguise the nature, location, source, ownership, or control of the funds.
Rey bases her argument on Cuellar, in which the Supreme Court, confronted with
a defendant who had attempted to smuggle money into Mexico for drug cartels, held that
the defendant’s conviction could not be sustained where “the Government failed to
introduce any evidence that the reason drug smugglers move money to Mexico is to
conceal or disguise a listed attribute of the funds.” 553 U.S. at 567. The Court
emphasized that a conviction under 18 U.S.C. § 1956(a)(2)(B)(i) “requires proof that the
purpose — not merely effect — of the transportation was to conceal or disguise a listed
attribute.” Id.
Here, the Government offered evidence that Rey transferred investors’ funds to
Hong Kong bank accounts in the name of corporations that had no announced ties to
9
Paramount Group. The jury could infer that she wanted it to be difficult for Paramount
Group investors to discover the Hong Kong corporations, and it could infer that Rey
wired the funds to these corporations for the purpose of concealing them from her
investors before they were spent or re-routed back to Rey and her co-conspirators in the
United States. Viewed in the light most favorable to the Government, there was ample
evidence to support Rey’s conviction for international money laundering.
IV.
The District Court sentenced Rey to 125 months of imprisonment on the federal
counts. But “Money Laundering With Intent to Avoid Reporting,” counts 27-52, is
subject to a maximum sentence of 120 months. 18 U.S.C. § 1957(b)(1) (“[T]he
punishment for an offense under this section is a fine under title 18, United States Code,
or imprisonment of not more than ten years or both.”). Neither Rey nor the Government
noted the discrepancy in their briefs.
Ordinarily, “an appellant’s failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.” United States v. Pelullo, 399 F.3d 197, 222
(3d Cir. 2005). “However, the waiver rule yields in ‘extraordinary circumstances.’”
United States v. Andrews, 681 F.3d 509, 532 (3d Cir. 2012) (quoting United States v.
Albertson, 645 F.3d 191, 195 (3d Cir. 2011)). “In determining whether a case presents
‘extraordinary circumstances,’ we consider three factors: (1) whether there is some
excuse for the [appellant’s] failure to raise the issue in the opening brief; (2) the extent to
which the opposing party would be prejudiced by our considering the issue; and (3)
whether failure to consider the argument would lead to a miscarriage of justice or
10
undermine confidence in the judicial system.” Andrews, 681 F.3d at 532 (quotation
marks and citation omitted). We found such extraordinary circumstances in Andrews,
where although the appellant had provided no compelling reason for his failure to raise a
sentencing issue in his opening brief, the Government would suffer no prejudice from
consideration of the issue, and the District Court had committed a plain error in
exceeding the statutory-maximum sentence. Id.
Here, as in Andrews, the Government will suffer no prejudice from our
consideration of the sentencing defect. Indeed, it does not oppose vacating and
remanding for resentencing and concedes that the 125-month sentence exceeds the
statutory maximum. Under the circumstances, Rey’s failure to raise the issue in her
opening brief is no obstacle to our considering it. The sentence must be corrected.
V.
For the foregoing reasons, we will affirm the District Court’s evidentiary ruling
and uphold the jury’s verdict. We will vacate the District Court’s sentence as to counts
27-52 and remand for resentencing on those counts.
11 | 01-03-2023 | 01-03-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892706/ | NO. 07-04-0098-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 24, 2005
______________________________
THE ULLOM FAMILY PARTNERSHIP, LTD.,
Appellant
v.
CITY OF LUBBOCK, TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;
NO. 2002-593,630; HON. PAULA LANEHART, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
This is an impairment of access case brought by the Ullom Family Partnership, Ltd.
(the Partnership) against the City of Lubbock. The former contended that it was entitled
to compensation when the latter caused the relocation of a local railroad track. Before the
relocation of the track, the Partnership allegedly enjoyed access to the east side of a 204-
acre parcel of realty that it sought to eventually develop as a residential area. At the time
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of A ppe als, sitting by as signme nt. Tex. Gov’t Code
Ann. §75.00 2(a)(1 ) (Vernon Supp. 2004 -05).
of the supposed taking, however, the acreage was undeveloped. The trial court concluded
that the Partnership was not entitled to compensation because the “relocation of the
railroad . . . did not materially or substantially impair [its] access to [its] property . . . .” Now
pending before us are nine points of error attacking that determination. Each involves the
legal and factual sufficiency of the evidence supporting it. We overrule them and affirm the
judgment.
As held by our Supreme Court, whether a property owner is entitled to compensation
due to damage caused by the exercise of a government’s power of eminent domain is a
question of law. County of Bexar v. Santikos, 144 S.W.3d 455, 459 (Tex. 2004); State v.
Heal, 917 S.W.2d 6, 9 (Tex. 1996). Furthermore, impairing access to one’s property is
compensable but only if the impairment is material and substantial, County of Bexar v.
Santikos, 144 S.W.3d at 459, and that too is a question of law. State v. Heal, 917 S.W.2d
at 9. Next, that a public project simply requires increased circuity of travel to one’s property
does not alone rise to the level of a compensable injury. County of Bexar v. Santikos, 144
S.W.3d at 459; State v. Wood Oil Distr., Inc., 751 S.W.2d 863, 865 (Tex. 1988). Simply
put, a governmental body need not compensate a land owner for diminishing access to his
land “provided suitable access remains.” State v. Heal, 917 S.W.2d at 11.
Among the various attacks levied upon the trial court’s fact findings none were made
against that stating: “[b]efore and after the taking, the 204.14 acre tract has access to a
public road from the West via Upland Avenue which abuts the 204.14 acre tract to the
West.” In other words, the Partnership does not dispute that it has complete access to its
undeveloped property via an open, paved public road abutting the west side of the land.
Instead, it decries the loss of access from the east. Yet, having complete access from the
2
west likens the situation before us to those involving inconvenience arising from increased
circuity of travel. Nothing but increased time and short distance physically impedes the
Partnership from utilizing the property as a locale for homes in the future. Consequently,
its circumstance is quite distinguishable from those wherein the trial court found access to
be substantially and materially impaired. See e.g. City of Waco v. Texland Corp., 446
S.W.2d 1, 4 (Tex. 1969) (wherein the location of piers supporting a viaduct rendered it
“‘most difficult’” for trucks to maneuver to the loading docks of warehouses and
manufacturing businesses); City of Beaumont v. Marks, 443 S.W.2d 253, 256 (Tex. 1969)
(wherein the narrowing of the street and its turning radius impeded and prevented large
trucks from approaching the warehouses in the area).
In sum, we hold, as a matter of law, that while the relocation of the railroad may
inconvenience or interfere with those traveling to the 204-acre tract in question, it did not
substantially or materially impair access to the land. Accordingly, the final order of the trial
court denying the Partnership recovery against the City is affirmed.
Brian Quinn
Justice
3 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1106964/ | 981 So.2d 1206 (2008)
MILLER
v.
STATE.
No. 2D08-946.
District Court of Appeal of Florida, Second District.
May 9, 2008.
Decision without published opinion. Mand.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3062654/ | J. S55014/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYMOND DALE McINTYRE, : No. 2042 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 12, 2014,
in the Court of Common Pleas of Clarion County
Criminal Division at No. CP-16-SA-0000025-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2015
Raymond Dale McIntyre appeals from the November 12, 2014
judgment of sentence following his conviction of driving while operating
privileges are suspended or revoked.1 We affirm.
The facts and procedural history of this case are as follows: On May 1,
2014, Southern Clarion County Police Officer Josh Krizmanich observed
appellant driving a silver PT Cruiser on State Route 68. (Notes of testimony,
11/12/14 at 9-10.) Officer Krizmanich, knowing that appellant’s driver’s
license privileges were suspended, cited appellant for driving while his
driver’s license was suspended. (Id. at 11.) Officer Krizmanich testified
* Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S.A. § 1543(a).
J. S55014/15
that, when he stopped appellant several months later, appellant stated he
was aware that his driver’s license was suspended. (Id. at 12.)
On July 31, 2014, appellant was found guilty of driving while operating
privileges were suspended or revoked by Magisterial District Judge Jeffrey C.
Miller. Appellant filed a summary appeal to the Clarion County Court of
Common Pleas on August 5, 2014. On November 12, 2014, the trial court
held a summary appeal trial where appellant was found guilty and was
sentenced to pay a fine of $200 plus costs. Appellant filed notice of appeal
to this court on December 9, 2014, and filed a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court then
filed an opinion.
Appellant raises the following issue for our review:
Does the fact that a driver acknowledges four
months after he is cited for driving after suspension
that he knows that his license is suspended establish
that he had actual notice of the suspension four
months earlier when he was cited when he had a
citation issued for driving under suspension, a
summary trial with a finding of guilt in between the
four month time span?
Appellant’s brief at viii.
Appellant argues that the Commonwealth failed to prove beyond a
reasonable doubt that appellant had notice of the suspension of his driver’s
license. Our standard of review is well settled:
In a license suspension case, our scope of review is
limited to determining whether the trial court’s
findings are supported by competent evidence,
-2-
J. S55014/15
whether any error of law was committed and
whether the decision is a manifest abuse of
discretion. When faced with a challenge to the
sufficiency of the evidence to support a conviction,
the appellate court must view the evidence adduced
at trial in the light most favorable to the verdict
winner. The Commonwealth, as verdict winner, is
entitled to all favorable inferences which may be
drawn from the evidence. If the trier of fact could
have reasonably determined from the evidence that
all the necessary elements of the crime were
established, then the evidence will be deemed
sufficient to support the verdict.
Commonwealth v. Baer, 682 A.2d 802, 804-805 (Pa.Super. 1996)
(citations omitted). The Commonwealth is required to prove beyond a
reasonable doubt that a defendant had actual notice that his or her driver’s
license has been suspended. Commonwealth v. Kane, 333 A.2d 925, 926
(Pa. 1975).
Our supreme court has enumerated several factors that may be
considered by a fact-finder in determining whether a defendant had actual
notice of a suspended driver’s license, including a statement by the
defendant acknowledging that he or she was driving during a suspension
period or evidence that the Pennsylvania Department of Transportation
(“PennDOT”) mailed notice of suspension to the defendant.
Commonwealth v. Zimmick, 653 A.2d 1217, 1221 (Pa. 1995). A previous
panel of this court has stated that actual notice may “take the form of a
collection of facts and circumstances that will satisfy the Commonwealth’s
burden of establishing a prima facie case of notice.” Commonwealth v.
-3-
J. S55014/15
Crockford, 660 A.2d 1326, 1331 (Pa.Super. 1995) (en banc), appeal
denied, 670 A.2d 140 (Pa. 1995).
In the instant case, we find that the Commonwealth has met its
burden in proving beyond a reasonable doubt that appellant did have notice
of his driver’s license suspension. First, the Commonwealth provided
appellant’s certified driving record from PennDOT at his summary appeal
trial. (Notes of testimony, 11/12/14 at 15.) The certified driving record
indicates that PennDOT mailed an official notice of a 12-month suspension to
appellant on September 3, 2012.2 The Commonwealth also presented
testimony from Officer Krizmanich who indicated that appellant
acknowledged notice of his suspension in a subsequent encounter:3
Q: So this is a conversation on a subsequent
traffic stop?
A: Uh-huh.
Q: You question him about his license being
suspended?
A: Uh-huh.
Q: Did he indicate whether or not he was aware it
was suspended?
2
The September 3, 2012 notice from PennDOT was for a 12-month
suspension that was to take effect on January 11, 2014. Appellant was
serving a suspension for an unrelated offense at the time PennDOT mailed
the notice. (Docket #24.)
3
The subsequent encounter took place in either August or September 2014
when Officer Krizmanich pulled appellant over for an unrelated vehicle
offense. (Id. at 12.)
-4-
J. S55014/15
A: Yes. He said he knew it was.
Id. at 12. Considering both the certified driving history from PennDOT and
Officer Krizmanich’s testimony in a light favorable to the Commonwealth as
verdict winner, the Commonwealth has satisfied its burden of proof that
appellant had notice that his driver’s license was suspended at the time of
the May 1, 2014 incident.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
-5- | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/8540813/ | RESOLUCIÓN
A la petición de certificación que presentaron los peticionarios, “no ha lugar”. Véase Trinidad Hernández et al. v. ELA et al., 188 DPR 828 (2013). Esa opinión dispone de los señalamientos y fundamentos expuestos por los peticionarios. Del propio estatuto se desprende con claridad que los beneficios de aguinaldo de navidad y aumentos trienales no son parte de la pensión de los retirados. Sobre el particular, el Art. 1-101 de la Ley Núm. 447 de 15 de mayo de 1951, según enmendado, 3 LPRA see. 761, dis-pone, en lo pertinente:
Por las sees. 761 a 788 de este título se crea un sistema de retiro y beneficios que se denominará Sistema de Retiro de los Empleados del Gobierno del Estado Libre Asociado de Puerto Rico el cual se considerará un fideicomiso. Los fondos del Sis-tema que por la presente se crea, se utilizarán y aplicarán, según lo dispuesto en las sees. 761 a 788 de este título, en provecho de los miembros participantes de su matrícula, sus dependientes y beneficiarios, para el pago de anualidades por retiro y por incapacidad, anualidades y beneficios por defun-ción y otros beneficios, una vez satisfechos los requisitos que más adelante se establecen, para en esta forma conseguir eco-nomía y eficiencia en el funcionamiento del Gobierno del Es-tado Libre Asociado de Puerto Rico.
*103Advertimos de su faz que el Art. 1-101, supra, no define qué constituye la pensión. Eso se hace en el Art. 2-101 de la Ley Núm. 447, según enmendado, 3 LPRA see. 766. Allí se define la pensión como “una anualidad por retiro” y se es-tablece la fórmula que determina la elegibilidad y el im-porte de esa anualidad. Lo único que se hace en el Art. 1-101, supra, es establecer que el fideicomiso de retiro se estableció para pagar la anualidad, los beneficios específi-cos que allí se mencionan “y otros beneficios” que el legis-lador adopte; no los hace parte de la anualidad.
Definida la pensión como una “anualidad por retiro”, tenemos que concluir que los otros beneficios concedidos no son parte de la pensión. Son beneficios adicionales que la Asamblea Legislativa ha concedido. En otras palabras, son lo que la ley dice que son; “otros beneficios”. Es por eso que en Trinidad Hernández et al. v. ELA et al., supra, pág. 11 esc. 2, dijimos que “los beneficios otorgados mediante las leyes especiales que la Reforma del Sistema de Retiro eli-mina no forman parte de su pensión”.
Abona a nuestra conclusión el trato desigual que el le-gislador ha dado a esos beneficios. Por ejemplo, el aumento de tres por ciento en las pensiones que se otorgó mediante legislación se sufragaría, por mandato legislativo, por el presupuesto general del Estado Libre Asociado. Art. 3 de la Ley Núm. 157-2003 (3 LPRA see. 761 n.). En cambio, el aguinaldo de Navidad a los pensionados se sufragaría por el fideicomiso del sistema de retiro. Art. 3 de la Ley Núm. 98 de 4 de junio de 1980, según enmendada, 3 LPRA see. 761 n. Así, pues, es evidente que todos los beneficios espe-ciales no se sufragan del fideicomiso del sistema de retiro.
Conforme con lo expuesto, reiteramos que la eliminación de beneficios adicionales a los retirados que introdujo la Ley Núm. 3-2013 no constituye un menoscabo que viole la Constitución. Véanse: Art. 1, Sec. 10 de la Constitución de Estados Unidos, LPRA, Tomo 1; Art. II, Sec. 7 de la Constitución de Puerto Rico, LPRA, Tomo 1.
*104Lo acordó el Tribunal y certifica la Secretaria del Tribunal Supremo Interina. El Juez Asociado Señor Estrella Martínez emitió un voto particular disidente, al cual se unen la Jueza Asociada Señora Pabón Charneco y los Jue-ces Asociados Señores Kolthoff Caraballo y Rivera García.
(Fdo.) Camelia Montilla Alvarado Secretaria del Tribunal Supremo Interina | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3230831/ | The cause was tried on the following agreed statement of facts:
"The defendant did have in his possession, on March 16, 1921, in Albany, Morgan County, Ala., for the purpose of sale, and did sell, a beverage. Such beverage looks like, tastes like, smells like, foams like, and is made as a substitute for, beer. Said beverage is a cereal beverage, and contains less than one-half of 1 per cent. alcohol. In fact, an analysis of said beverage shows the following alcoholic contents, to wit: .28 per cent alcohol by volume and .22 per cent. alcohol by weight; that said beverage is nonintoxicating, and is contained in bottles that are similar in appearance to beer bottles."
This judgment is affirmed on authority of Acts Leg. 1915, § 31, p. 31; Acts 1919, p. 6, § 2; Dees v. State, 16 Ala. App. 97,75 So. 645; Jones v. State, 17 Ala. App. 444, 85 So. 839.
The judgment is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3051966/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SVETLANA GRIGORYAN,
Petitioner, No. 05-77020
v.
Agency No.
A75-706-989
MICHAEL B. MUKASEY, Attorney
General, ORDER
Respondent.
Filed May 12, 2008
Before: Harry Pregerson, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
ORDER
The opinion filed February 5, 2008, and appearing at 515
F.3d 999 (9th Cir. 2008), is withdrawn. Pursuant to General
Order 5.3.a, a memorandum disposition is filed contempora-
neously with this order. With the withdrawal of the opinion
and the filing of the memorandum disposition, the Govern-
ment’s petitions for rehearing and rehearing en banc are
denied as moot. Further petitions for rehearing and rehearing
en banc may be filed with respect to the memorandum dispo-
sition pursuant to Federal Rule of Appellate Procedure 40.
5247
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON REUTERS/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2008 Thomson Reuters/West. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3051976/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 06-50592
Plaintiff-Appellee, 06-50593
v. D.C. Nos.
JEFFREY D. CRANDALL; MICHAEL CR-04-00309-
DOC-7
MCDONNELL,
Defendants-Appellants. CR-04-00309-
DOC-4
OPINION
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
January 10, 2008—Pasadena, California
Filed May 13, 2008
Before: Jerome Farris and Milan D. Smith, Jr.,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge Holland
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
5373
5376 UNITED STATES v. CRANDALL
COUNSEL
Jerald L. Brainin Esq, Los Angeles California; H. Dean Stew-
ard Esq., for the defendants-appellants.
Andrew Stolper Esq., Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
OPINION
HOLLAND, District Judge:
Jeffrey Dean Crandall and Michael McDonnell (collec-
tively, “Defendants”) appeal their convictions and sentences
for mail, wire, and honest services fraud, in violation of 18
U.S.C. §§ 1341, 1343, and 1346.1 Defendants challenge their
convictions based on the district court’s refusal to give their
proposed jury instruction on “intent to defraud.” They appeal
their sentences arguing that the district court erred in relying
on Application Note 2(F)(v)(III) to U.S.S.G. § 2B1.12 to cal-
culate loss. McDonnell also argues that his sentence was
unreasonable because of the disparity between his sentence
and that of a codefendant’s. Finally, McDonnell argues that
his restitution order was illegal. We have jurisdiction to
1
McDonnell was also convicted of bank fraud, in violation of 18 U.S.C.
§ 1344.
2
The district court employed and we refer to the Sentencing Guidelines
effective November 1, 2001.
UNITED STATES v. CRANDALL 5377
review the convictions under 28 U.S.C. § 1291 and the sen-
tences under 18 U.S.C. § 3742(a)(2). We affirm Defendants’
convictions but vacate and remand as to their sentences and
as to McDonnell’s restitution order.
I
The charges against Defendants arose out of a fraudulent
scheme to convert apartment buildings to condominiums in
Huntington Beach, California between 1998 and 2003. The
scheme was hatched by codefendant Philip Benson, a real
estate broker. Benson solicited people who owned or were
willing to purchase four-plex apartment buildings. The apart-
ment buildings were then fraudulently converted to stock
cooperatives through the creation of false back-dated docu-
ments.
To legally convert an apartment building to individual con-
dominiums, the City of Huntington Beach required a condi-
tional use permit. Obtaining a conditional use permit was a
difficult and expensive process. There was an exception, how-
ever, for stock cooperatives. An apartment building held as a
stock cooperative could be converted to individual condomin-
iums without first obtaining a conditional use permit. The
false back-dated stock cooperative documents were employed
by Defendants to avoid having to obtain conditional use per-
mits from the City.
Once the fraudulent stock cooperatives were created, the
buildings were then converted into individual condominiums.
This conversion process involved the creation of additional
false documents, including lease terminations and grant
deeds. After the buildings were converted into condominiums,
codefendant Harvey DuBose, who worked for Stewart Title
Company, prepared title insurance policies so the building
owners could sell the individual condominiums to unsuspect-
ing buyers. The building owners paid Benson a “conversion
fee” for each building that was converted and also paid
5378 UNITED STATES v. CRANDALL
DuBose individually for his role in providing the title insur-
ance.
Defendants were purchasers of apartment buildings which
were fraudulently converted to individual condominiums.
Crandall bought two four-unit apartment buildings and subse-
quently sold seven of his converted “condominiums” for a
total of $1,938,400. Crandall retained the eighth “condomini-
um” as his personal residence.
McDonnell bought a total of five four-unit apartment build-
ings. McDonnell could not obtain sufficient financing to pur-
chase all of the apartment buildings, so he recruited former
colleagues to act as his straw buyers. McDonnell sold all of
his converted “condominiums” for a total of $4,261,800.
In addition to using straw buyers for his own properties,
McDonnell agreed to act as the straw buyer of an apartment
building for Pamela Julien Houchen, who, at the time, was the
mayor of Huntington Beach and a member of the City Coun-
cil. Houchen was prohibited from buying the apartment build-
ing in her name because it was located in a redevelopment
zone overseen by city council members. After allegations of
the fraud emerged, McDonnell retained an attorney to write
a demand letter to Houchen claiming that he was entitled to
the proceeds of the sales of the property in question, but
McDonnell failed to tell his attorney that he had agreed to be
a straw buyer for Houchen.
At trial, the core of Defendants’ defense was the contention
that they did not know that the conversion documents were
false when they signed them, and thus they lacked the intent
to defraud. Crandall testified that he only glanced at the con-
version documents that Benson gave him before signing them,
and McDonnell testified that he signed the conversion docu-
ments where Benson told him to sign, without reading them.
Although the parties stipulated to the use of the Ninth Circuit
Model Jury Instructions for wire and mail fraud, the parties
UNITED STATES v. CRANDALL 5379
did not agree as to the jury instruction defining the “intent to
defraud” element. The district court gave the Ninth Circuit
Model Instruction on “intent to defraud,” rather than Defen-
dants’ proposed “intent to defraud” instruction.
The jury ultimately convicted Crandall of 9 counts of mail,
wire, and honest services fraud; and McDonnell was con-
victed of 30 counts of mail, wire, bank, and honest services
fraud. At the sentencing hearing, Crandall argued that the
actual loss that resulted from his fraudulent scheme was
$63,000, the amount of loss incurred by Stewart Title Com-
pany in connection with the sale of his “condominiums.”
Crandall argued that there was no economic loss suffered by
the buyers of the fraudulently converted “condominiums”
because the units were worth more at the time of trial than
when they had been purchased from Crandall. McDonnell
argued that the actual loss that resulted from his fraudulent
scheme was $361,000, the amount of loss incurred by Stewart
Title Company in connection with the sale of his “condomini-
ums.” McDonnell argued that there was no other economic
loss because he incurred a loss of $149,109.89 from the sale
of his “condominiums.” The district court rejected Defen-
dants’ arguments and calculated the actual loss as the total
sales price of the “condominiums” each of them had sold.
This resulted in Crandall’s base offense level being increased
by 16 levels and McDonnell’s by 18. Based on a total offense
level of 22, the district court calculated the advisory Sentenc-
ing Guidelines range for Crandall to be 41 to 51 months.
Based on a total offense level of 28, the district court calcu-
lated the advisory Sentencing Guidelines range for McDon-
nell to be 78 to 97 months. After considering relevant 18
U.S.C. § 3553(a) sentencing factors, the district court imposed
sentences that were at the bottom of the guideline ranges, sen-
tencing Crandall to 41 months and McDonnell to 78 months.
The district court also ordered that McDonnell pay $361,000
in restitution.
5380 UNITED STATES v. CRANDALL
II
Defendants argue that their convictions must be reversed
because the district court erred in declining to give their pro-
posed “intent to defraud”3 jury instruction. Defendants’
requested “intent to defraud” instruction was based on Arthur
Andersen LLP v. United States, 544 U.S. 696 (2005), an
obstruction of justice case, and read:
An intent to defraud is an intent to deceive or cheat.
You can find an intent to deceive or cheat only if,
after reviewing all the evidence, you are convinced
beyond a reasonable doubt that the defendant know-
ingly and consciously engaged in criminal wrongdo-
ing.
The district court declined to give this proposed instruction
because the mail and wire fraud statutes do not require “con-
sciousness of wrongdoing” and the Court in Arthur Andersen
did not indicate that its holding was to apply to other criminal
statutes.
[1] “[A] defendant is entitled to have the judge instruct the
jury on his theory of defense, provided that it is supported by
law and has some foundation in the evidence.” United States
v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000) (quotation omit-
ted). We review de novo whether a proposed instruction is
supported by law. United States v. Garcia-Cruz, 978 F.2d
537, 540 (9th Cir. 1992).
[2] Defendants’ proposed “intent to defraud” jury instruc-
tion was not supported by law. Arthur Andersen involved an
obstruction of justice charge under 18 U.S.C.
§§ 1512(b)(2)(A) and (B) and the meaning of “knowingly . . .
3
To obtain a conviction on mail and wire fraud, the government must
prove that the defendant had a specific intent to defraud. See United States
v. Manion, 339 F.3d 1153, 1156 (9th Cir. 2003).
UNITED STATES v. CRANDALL 5381
corruptly persuade” under that statute. 544 U.S. at 698. Arthur
Andersen did not involve either the mail or wire fraud statute
and there is no indication that the Court intended its holding
as to the mens rea requirement for obstruction of justice to
extend to other federal statutes. See United States v. Gay, 967
F.2d 322, 327 (9th Cir. 1992) (declining to apply a Supreme
Court tax decision to a mail and wire fraud case). Moreover,
the “intent to defraud” instruction that was given4 adequately
covered the defense theory of lack of intent. See United States
v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) (“[I]t is not
reversible error to reject a defendant’s proposed instruction on
his theory of the case if other instructions, in their entirety,
adequately cover that defense theory.”).
III
[3] Defendants argue that their sentences must be vacated
because the district court erred in relying on Application Note
2(F)(v)(III) to U.S.S.G. § 2B1.1 to calculate the loss caused
by the fraud. “We review the district court’s interpretation of
the Sentencing Guidelines de novo.” United States v. Garcia,
497 F.3d 964, 969 (9th Cir. 2007); see also United States v.
Grissom, No. 06-10688, 2008 WL 1722813, at *4 (9th Cir.
April 15, 2008). We review the district court’s application of
the Sentencing Guidelines to the facts for abuse of discretion.
United States v. Gonzales, 506 F.3d 940, 943 (9th Cir. 2007)
(en banc). Whether the district court’s reliance on Application
Note 2(F)(v)(iii) involves an interpretation or an application
of the guidelines is irrelevant because the result is the same
under either standard.
Under U.S.S.G. § 2B1.1(b)(1), if a crime involving fraud
resulted in a loss of more than $5000, the base offense level
is increased depending on the amount of actual or intended
loss, whichever is greater. See U.S.S.G. § 2B1.1 cmt. n.2(A).
4
The Ninth Circuit Model Instruction reads: “An intent to defraud is an
intent to deceive or cheat.”
5382 UNITED STATES v. CRANDALL
“The guidelines do not present a single universal method for
loss calculation under § 2B1.1—nor could they, given the
fact-intensive and individualized nature of the inquiry.”
United States v. Zolp, 479 F.3d 715, 718 (9th Cir. 2007). For
that reason, Ҥ 2B1.1 is not to be applied mechanically in
valuing loss” and sentencing courts are instructed to “ ‘take a
realistic, economic approach to determine what losses the
defendant truly caused or intended to cause, rather than the
use of some approach which does not reflect the monetary
loss.’ ” United States v. Stoddard, 150 F.3d 1140, 1145-46
(9th Cir. 1998) (quoting United States v. Allison, 86 F.3d 940,
943 (9th Cir. 1996)).
The guidelines do provide some “special rules” to assist
sentencing courts in calculating the amount of loss in particu-
lar cases. To calculate the amount of loss, the district court
relied on the “special rule” in Application Note 2(F)(v)(III),
which provides, in pertinent part:
In a case involving a scheme in which . . . (III) goods
for which regulatory approval by a government
agency was required but not obtained, or was
obtained by fraud, loss shall include the amount paid
for the property, services or goods transferred, ren-
dered, or misrepresented, with no credit provided for
the value of those items or services.
The district court, based on the recommendation of the proba-
tion office, found that subpart (III) was applicable because in
order to convert an apartment building into individual condo-
miniums, an owner was required to obtain governmental
approval through the conditional use permit process, but
Defendants had failed to obtain the proper approval.
[4] The district court erred in relying on Application Note
2(F)(v)(III) to calculate loss. This Application Note is con-
cerned with schemes involving “goods” which are subject to
regulatory approval by the government. “Goods” are com-
UNITED STATES v. CRANDALL 5383
monly defined as “[t]angible or movable personal property
other than money[.]”5 The fraud in this case involved real
property, not personal property. Although there is one refer-
ence in the note to “property,” the focus of subpart (III) is on
“goods.” In short, the plain language of Application Note
2(F)(v)(III) indicates that this subpart applies to cases involv-
ing goods, not cases involving real property.6
Moreover, the use of Application Note 2(F)(v)(III) was not
a realistic, economic approach to calculating the loss caused
by the fraud. The converted “condominiums” that were pur-
chased from Defendants were not completely worthless at the
time of purchase, even though the buyers did not get that for
which they bargained. The buyers bargained for condomini-
ums and they got apartments which had not been legally con-
verted. Nevertheless, the apartments had significant value
because the buyers could live in their units or they could rent
their units out as apartments.7 Without Sentencing Commis-
sion direction or policy, it is improbable from a realistic, eco-
nomic perspective that the “condominiums” had no value to
the victims of the fraud, even though the units may have been
difficult or impossible to resell.
While it is clear that the district court erred in relying on
Application Note 2(F)(v)(III) to calculate loss, it is not imme-
diately apparent how the district court should have calculated
the loss suffered by the victims of the fraud. Defendants sug-
gest that Application Note 2(E)(i) or (ii) could apply here, but
5
Black’s Law Dictionary 714 (8th ed. 1999).
6
The only two published cases that make reference to Application Note
2(F)(v) both involve consumer goods, not real estate. See United States v.
Canova, 412 F.3d 331 (2d Cir. 2005) (pacemakers); United States v. Mil-
stein, 401 F.3d 53 (2d Cir. 2005) (misbranded drugs).
7
We are mindful that at least one of the McDonnell units was not habit-
able when purchased due to construction problems that arose during the
“conversion” process; but, from the record that is before the court, it
appears that most of the units sold by Defendants were habitable at the
time of purchase.
5384 UNITED STATES v. CRANDALL
neither of these fit this case. Application Note 2(E)(i) pro-
vides that “[l]oss shall be reduced by . . . the fair market value
of the property returned,” but Defendants did not “return” any
property to the victims. Application Note 2(E)(ii) provides
that
[l]oss shall be reduced . . . [i]n a case involving col-
lateral pledged or otherwise provided by the defen-
dant, [by] the amount the victim has recovered at the
time of sentencing from disposition of the collateral,
or if the collateral has not been disposed of by that
time, [by] the fair market value of the collateral at
the time of sentencing.
But, Defendants did not pledge or otherwise provide collateral
to any of the victims.
[5] In calculating loss for sentencing purposes, our focus is
on the loss inflicted upon the victims, who are, in this case,
the buyers of the fraudulently converted “condominiums.” See
United States v. Harper, 32 F.3d 1387, 1392 (9th Cir. 1994).
As noted above, “loss” can involve both actual and intended
loss, but here we are dealing only with actual loss. Defen-
dants’ fraudulent scheme was intended to enhance the market-
ability and value of the apartments which were sold.
Defendants did not intend that the buyers would suffer any
loss. Hence, the loss, if any, suffered by the buyers must be
measured in terms of “actual loss,” not intended loss.
“Actual loss” is defined as “the reasonably foreseeable
pecuniary harm that resulted from the offense.” U.S.S.G.
§ 2B1.1 cmt. n.2(A)(i). “Pecuniary harm” is “harm that is
monetary or that otherwise is readily measured in money” and
“does not include emotional distress, harm to reputation, or
other non-economic harm.” Id. cmt. n.2(A)(iii). “Reasonably
foreseeable pecuniary harm” is “pecuniary harm that the
defendant knew, or under the circumstances, reasonably
should have known, was a potential result of the offense.” Id.
UNITED STATES v. CRANDALL 5385
cmt. n.2(A)(iv). In calculating actual harm, “[t]he court need
only make a reasonable estimate of the loss.” Id. cmt. n.2(C).
The guidelines offer the following general instructions for
estimation of loss:
The estimate of loss shall be based on available
information, taking into account, as appropriate and
practicable under the circumstances, factors such as
the following:
(i) The fair market value of the property
unlawfully taken or destroyed; or, if
the fair market value is impracticable
to determine or inadequately mea-
sures the harm, the cost to the victim
of replacing that property.
(ii) The cost of repairs to damaged prop-
erty.
(iii) The approximate number of victims
multiplied by the average loss to each
victim.
(iv) More general factors, such as the
scope and duration of the offense and
revenues generated by similar opera-
tions.
Id. This Application Note suggests several different methods
that the district court might employ to estimate loss from the
real estate fraud committed by Defendants.
First, the district court could use fair market value apprais-
als of the property involved in the fraudulent sales to estimate
loss (what the victims paid less the fair market value of what
they received at the time of the sale8). However, the use of fair
8
Although U.S.S.G. § 2B1.1 is silent as to the appropriate valuation date
for a loss determination, in this case, the actual loss to the victims at the
5386 UNITED STATES v. CRANDALL
market value appraisals has some drawbacks because obtain-
ing appraisals is expensive and may cause unacceptable delay
in sentencing. Moreover, on the facts of this case, the
appraisal approach may not fairly reflect economic reality—
the actual monetary loss to the victims. Whereas an illegally
converted condominium may be unmarketable and therefore
have little or no value in the market, that “condominium” may
have significant, actual economic value to the buyer, if the
buyer purchased the unit for purposes of occupancy and not
resale.
District courts can also estimate loss by considering the
“cost of repairs to damaged property.” U.S.S.G. § 2B1.1 cmt.
n.2(C)(ii). Here, although the real property was not physically
“damaged,” the buyers faced thousands of dollars in fees in
order to bring their units into compliance. These fees would
be analogous to paying to repair damaged property. Thus, a
reasonable estimate of loss may be the cost that the victims
of the fraud would have had to pay to make their “condomini-
ums” legal, but for the fortuitous settlement between Stewart
Title Company and the City of Huntington Beach. This is a
realistic, economic estimate of loss inasmuch as it reflects
what it would have cost the victims to become whole and
reflects the value of what the victims actually lost, namely the
ability to sell the property if they chose.
As a third alternative, the district court might be of the view
that the loss from the fraud cannot be reasonably determined,
time of the fraud, as opposed to the time of trial or sentencing, best cap-
tures Defendants’ culpability. The volatile nature of the real estate market
is wholly independent of Defendants’ actions and, for sentencing pur-
poses, they should not benefit from the ultimate conversion of the units
into condominiums. See United States v. Gordon, 393 F.3d 1044, 1052 n.6
(9th Cir. 2004) (“there is little logic in increasing or decreasing a defen-
dant’s sentence as a result of unpredictable fluctuating values for misap-
propriated items in a punitive context”); United States v. Bae, 250 F.3d
774, 776 (D.C. Cir. 2001) (“the loss associated with their fraudulent pro-
curement is equal to the value of the goods at the time of the offense”).
UNITED STATES v. CRANDALL 5387
given the nature of the property involved in the fraud. Should
that be the case, the district court could rely on Application
Note 2(B) to U.S.S.G. § 2B1.1 to calculate the loss for sen-
tencing purposes. Application Note 2(B) provides that “[t]he
court shall use the gain that resulted from the offense as an
alternative measure of loss only if there is a loss but it reason-
ably cannot be determined.” Here, Defendants purchased
four-plexes and then resold them as though the individual
units were condominiums. Defendants’ “gain” might be val-
ued by comparing Defendants’ cost of purchasing the apart-
ment buildings to the gross sale prices of the buildings to the
victims.
[6] Depending on the nature of the fraudulent scheme
involved, there may be still other approaches a district court
could properly employ to determine loss for purposes of sen-
tencing in a fraud case involving real property. For example,
if the fraudulently sold property has been resold by the victim,
a comparison of the price on resale to the price paid to the
defendant may be a realistic measure of the economic loss to
that particular victim. It is also possible that tax assessor valu-
ations might be useful in some cases in estimating the loss
suffered by a victim of the fraud. But, whatever approach the
district court takes, it must take a realistic, economic approach
that reflects the monetary loss to the victims of the fraud.
Here, the district court, by relying on Application Note
2(F)(v)(III) to calculate loss, failed to take such an approach.
As a result, the district court erred in calculating the applica-
ble guidelines ranges for Defendants. Because this error was
not harmless, Defendants’ sentences are vacated,9 and we
remand for resentencing.
9
Because we vacate Defendants’ sentences on this ground, we need not
consider McDonnell’s other sentencing argument, in which Crandall
sought leave to join. McDonnell argued that his sentence was unreason-
able because it was disproportionately longer than that of codefendant
Howard Richey. Had we considered this argument, we would have
rejected it because “[d]isparity in sentences between codefendants is not
5388 UNITED STATES v. CRANDALL
IV
McDonnell argues that his restitution order of $361,000
was illegal10 because it appears to be based on the loss to
Stewart Title Company (“Stewart Title”) rather than on the
loss to the persons who purchased the fraudulently converted
“condominiums.” At sentencing, the district court made it
clear that it did not perceive Stewart Title as a victim and that
Stewart Title was not to receive any restitution. However, the
amount of restitution that the district court ordered was calcu-
lated by the probation office, and the only “victim” identified
by the probation officer in McDonnell’s presentence report
was Stewart Title.
[7] Loss for purposes of evaluating the seriousness of a
fraud under the Sentencing Guidelines and loss for purposes
of restitution are, on the facts of this case, potentially quite
different. The purpose of restitution “is to make the victims
whole” while “the Sentencing Guidelines serve a punitive
purpose[.]” Gordon, 393 F.3d at 1052 n.6. “[T]he amount of
restitution . . . is limited to the victim’s actual losses.” United
States v. Bussell, 504 F.3d 956, 964 (9th Cir. 2007) (emphasis
in the original).
[8] As a result of Stewart Title’s settlement with the City
of Huntington Beach, the “condominium” buyers may ulti-
mately have gotten the legal condominiums for which they
sufficient ground to attack a proper guidelines sentence.” United States v.
Whitecotton, 142 F.3d 1194, 1200 (9th Cir. 1998). In addition, the differ-
ences between Defendants’ sentences and that of Richey were warranted,
given that the district court found that Crandall perjured himself during the
trial and McDonnell sold many more units than Richey for approximately
twice as much money, was convicted on charges relating to his involve-
ment in the Houchen scheme and for bank fraud, and had tried to “shake
down” Houchen when the fraudulent scheme came to light.
10
Crandall withdrew his argument that his restitution order of $63,000
was illegal.
UNITED STATES v. CRANDALL 5389
bargained. The buyers may have suffered no loss for purposes
of restitution. McDonnell has not briefed nor argued the issue
of whether the district court erred in concluding that Stewart
Title was not a victim of the fraudulent scheme in which its
dishonest employee joined. We need not decide this issue
because the government concedes that the basis for the district
court’s restitution order was not adequately set forth. Accord-
ingly, we vacate McDonnell’s restitution order and remand to
the district court to reassess restitution as to McDonnell. We
leave it to the district court to reconsider whether Stewart
Title was a second-tier victim for purposes of restitution.
V
In conclusion, Defendants’ convictions are affirmed
because their proposed “intent to defraud” jury instruction
was not supported by law and because the jury instructions
that were given adequately covered their lack of intent
defense theory. Because the district court improperly relied on
Application Note 2(F)(v)(III) to calculate the loss that resulted
from the fraud, Defendants’ sentences are vacated. McDon-
nell’s restitution order is also vacated because it is unclear
whether the restitution amount is based on what was actually
lost by the victims of the fraud. This matter is remanded for
resentencing and for reassessment of the amount of McDon-
nell’s restitution.
Convictions AFFIRMED; sentences and McDonnell res-
titution order VACATED; REMANDED for resentencing. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3051981/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD LEVINE,
Plaintiff-Appellant,
v. No. 06-15480
CITY OF ALAMEDA, a California D.C. No.
CV-04-01780-CRB
Charter City; JAMES M. FLINT, both
individually and as City Manager
for the City of Alameda,
Defendants-Appellees.
EDWARD LEVINE,
Plaintiff-Appellee,
v. No. 06-15481
CITY OF ALAMEDA, a California D.C. No.
CV-04-01780-CRB
Charter City; JAMES M. FLINT, both
individually and as City Manager OPINION
for the City of Alameda,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
January 16, 2008—San Francisco, California
Filed May 13, 2008
Before: Procter Hug, Jr., Mary M. Schroeder, and
Richard R. Clifton, Circuit Judges.
5391
5392 LEVINE v. CITY OF ALAMEDA
Opinion by Judge Hug
5394 LEVINE v. CITY OF ALAMEDA
COUNSEL
Roger A. Carnagey, Oakland, California, for the plaintiff-
appellant/cross-appellee.
Linda A. Tripoli, Tiburon, California, for the defendants-
appellees/cross-appellants.
OPINION
HUG, Circuit Judge:
Edward Levine filed this action under 42 U.S.C. § 1983
against the City of Alameda (“City”) and James M. Flint, both
individually and as City Manager, alleging that the defendants
violated his due process rights under the Fourteenth Amend-
ment. On February 17, 2004, Flint told Levine, a property
manager for the City, that he was going to be laid off. Levine
wrote Flint a letter in which he requested a pretermination
hearing regarding his lay off. Levine believed that the lay off
was a pretext and that he was being terminated because Flint
disliked him.
After receiving the letter, Flint gave it to the City’s Human
Resources Director, Karen Willis, and told her to make sure
that Levine’s due process rights were respected. Willis then
LEVINE v. CITY OF ALAMEDA 5395
wrote Levine a letter stating that he was not entitled to a pre-
termination hearing under his union contract because he was
being laid off and not discharged for cause. In the letter, Wil-
lis offered to meet with Levine to discuss lay off procedures
and retirement benefits. Willis and Levine later ran into each
other in the Human Resources Department where they had a
five-minute talk and visited in general according to Willis.
After the parties filed cross motions for summary judg-
ment, the district court granted summary judgment in part (1)
for Levine, finding that his procedural due process rights were
violated and he was entitled to a full evidentiary hearing
before a neutral third-party, and (2) for defendants, finding
that Flint was not personally liable based on qualified immu-
nity and that the City was not liable as a municipality. Both
parties appealed. We affirm the district court.
I. Standard of Review
This court reviews de novo a district court’s decision on
cross motions for summary judgment. Children’s Hosp. Med.
Ctr. v. California Nurses Ass’n, 283 F.3d 1188, 1191 (9th Cir.
2002). We view the evidence in the light most favorable to the
nonmoving party and determine whether there are any genu-
ine issues of material fact and whether the district court cor-
rectly applied the substantive law. Chevron USA, Inc. v.
Cayetano, 224 F.3d 1030, 1037 (9th Cir. 2000).
II. Due Process
The district court did not err in granting summary judgment
for Levine in part and finding that the defendants violated his
Fourteenth Amendment due process rights under 42 U.S.C.
§ 1983. To establish a § 1983 claim, a plaintiff must show that
an individual acting under the color of state law deprived him
of a right, privilege, or immunity protected by the United
States Constitution or federal law. Lopez v. Dept. of Health
Servs., 939 F.2d 881, 883 (9th Cir. 1991). To establish a due
5396 LEVINE v. CITY OF ALAMEDA
process violation, a plaintiff must show that he has a protected
property interest under the Due Process Clause and that he
was deprived of the property without receiving the process
that he was constitutionally due. Clements v. Airport Author-
ity of Washoe County, 69 F.3d 321, 331 (9th Cir. 1995).
[1] In this case, the district court properly found that Levine
was a civil servant who had a property interest in continued
employment under the Due Process Clause. See id.; Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985). As
an employee with a property interest under the Due Process
Clause, Levine was entitled to have a hearing before his lay
off to allow him to present his side of the story. See Clements,
69 F.3d at 331-32; Loudermill, 470 U.S. at 542-43. Defen-
dants refused to provide a hearing. The Director of Human
Resources’ offer to meet with Levine to discuss lay off proce-
dure, and the random five-minute encounter between Levine
and the Director, failed to give Levine a meaningful opportu-
nity to respond to the lay off decision. See Clements, 69 F.3d
at 331-32. Thus, Levine’s due process rights were violated by
the failure to provide a pretermination hearing. See id.;
Loudermill, 470 U.S. at 542-45.
[2] Because Levine’s due process rights were violated, it
was not improper for the district court to order a full evidenti-
ary hearing to remedy the violation. See Brady v. Gebbie, 859
F.2d 1543, 1551 (9th Cir. 1988) (stating that the appropriate
remedy for the deprivation of due process rights is to order
the process which was due). The Supreme Court has held that
an employee with a property interest is entitled to a limited
pretermination hearing which is to be followed by a more
comprehensive post-termination hearing. Loudermill, 470
U.S. at 547. Levine was entitled to a full post-termination
hearing because there was no way to give Levine the process
that he had been due, which was an opportunity to respond
before the termination occurred. Cf. Loudermill, 470 U.S. at
547 n.12 (noting that the adequacy of pretermination and
post-termination hearings are interrelated and that the scope
LEVINE v. CITY OF ALAMEDA 5397
of one affects the scope of the other). Thus, it was reasonable
for the district court to order that a full evidentiary hearing be
held. See id. at 547.
[3] It was also not improper for the district court to order
that the hearing be held before a neutral third-party. This
court has held that for post-termination hearings an impartial
decisionmaker is required. Walker v. City of Berkeley, 951
F.2d 182, 184 (9th Cir. 1991). The district court made a find-
ing that persons working for the City would not be suffi-
ciently neutral in this case after the extensive litigation
between the City and Levine. Because this finding was not
clearly erroneous, and an impartial decisionmaker is required,
the district court did not err in ordering that a neutral third-
party preside over the hearing. See id.
III. Qualified Immunity
[4] The district court properly found that Flint was not per-
sonally liable for violating Levine’s due process rights based
on qualified immunity. Under the defense of qualified immu-
nity, a government official is immune from civil damages
unless his conduct violates a clearly established right of which
a reasonable person would have known. Long v. City and
County of Honolulu, 511 F.3d 901, 905-06 (9th Cir. 2007).
Determining whether a public official is entitled to qualified
immunity involves a two-part analysis. Saucier v. Katz, 533
U.S. 194, 199 (2001). First, we must determine whether the
official violated a constitutional right. Id. at 201. Second, we
must determine whether the right was clearly established such
that a reasonable official would known that he was engaging
in unlawful conduct. Aguilera v. Baca, 510 F.3d 1161, 1167
(9th Cir. 2007). If an official reasonably believed that his con-
duct was lawful, qualified immunity applies. Jeffers v. Gomez,
267 F.3d 895, 910 (9th Cir. 2001).
[5] In this case, although defendants violated Levine’s due
process rights by failing to provide a hearing, qualified immu-
5398 LEVINE v. CITY OF ALAMEDA
nity applies because Flint reasonably believed that his conduct
was lawful. See Kulas v. Valdez, 159 F.3d 453, 456 (9th Cir.
1998). As a supervisor, Flint can be held liable in his individ-
ual capacity only if he set “in motion a series of acts by oth-
ers, or knowingly refused to terminate [such acts], which he
knew or reasonably should have known, would cause others
to inflict the constitutional injury.” See Larez v. Los Angeles,
946 F.2d 630, 646 (9th Cir. 1991) (internal brackets omitted).
Flint forwarded Levine’s letter requesting a pretermination
hearing to Willis and expressly told her to ensure that
Levine’s due process rights were respected. Flint, therefore,
took action to protect Levine’s due process rights and there is
no evidence that Flint knew or should have known that Willis
would deprive Levine of his due process rights by improperly
denying his request. Even if Flint had expressly approved
Willis’s actions, he would still be entitled to qualified immu-
nity because Levine’s union contract stated he was not enti-
tled to a pretermination hearing if laid off and, thus, a
reasonable official in his position could have believed that his
conduct was lawful. Thus, because he instructed Willis to
respect Levine’s due process rights, and it was reasonable for
him to believe that Levine was not entitled to a pretermination
hearing, Flint is immune from suit based on qualified immu-
nity. See id.; Kulas, 159 F.3d at 456.
IV. Municipal Liability
[6] The district court also properly determined that the City
was not liable as a municipality under Monell v. Dep’t of Soc.
Servs. of New York, 436 U.S. 658 (1978). A city can be sued
for monetary damages under 42 U.S.C. § 1983 if the constitu-
tional violation was a product of a policy, practice, or custom
adopted and promulgated by the city’s officials. Id. at 690-91.
To establish liability, a plaintiff must establish that he was
deprived of a constitutional right and that the city had a pol-
icy, practice, or custom which amounted to “deliberate indif-
ference” to the constitutional right and was the “moving
LEVINE v. CITY OF ALAMEDA 5399
force” behind the constitutional violation. Van Ort v. Estate
of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).
[7] In this case, the district court properly determined that
the City is not liable under 42 U.S.C. § 1983. Levine pro-
duced no evidence that the City had a policy that amounted
to deliberate indifference to his constitutional due process
rights, and was the moving force behind a violation of those
rights. See Mabe v. San Bernardino County, Dep’t of Pub.
Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001). Levine con-
tended that Flint’s single act of terminating him represented
a policy amounting to deliberate indifference to his due pro-
cess rights. Because there was no evidence that Flint had any
policymaking authority over personnel decisions, and no evi-
dence of a policy or custom otherwise that amounted to a
deliberate indifference to his due process rights, the district
court properly granted summary judgment in part for the City
on this issue. See id.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2967306/ | PUBLISHED
FILED: November 17, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1009
(CA-98-1817-3-19)
STERLING DREW, a minor under the age of
thirteen years, by guardian ad litem Martha
Drew; MARTHA DREW; JEBEDIAH DREW,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Before WILKINSON, Chief Judge, and WIDENER, WILKINS, NIEMEYER,
LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit
Judges.
ORDER
This appeal having come on for oral argument before the en
banc Court on October 31, 2000, pursuant to Order of September 8,
2000, by which the panel opinion of June 27, 2000, 217 F.3d 193,
was vacated and en banc consideration was granted,
IT IS ORDERED, by virtue of an equally divided vote of the
active members of the Court, that the judgment appealed from be,
and it is hereby, AFFIRMED.
For the Court,
/s/ Patricia S. Connor
Clerk | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3230832/ | Appeal dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3230833/ | Appeal dismissed. *Page 616 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2766467/ | Case: 13-51021 Document: 00512887770 Page: 1 Date Filed: 01/02/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51021 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, January 2, 2015
Lyle W. Cayce
Plaintiff–Appellee Clerk
v.
ALFONSO RODRIGUEZ–RODRIGUEZ,
Defendant–Appellant
Appeal from the United States District Court
for the Western District of Texas
Before PRADO, ELROD, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
I. BACKGROUND
Defendant–Appellant Alfonso Rodriguez–Rodriguez (Rodriguez) pleaded
guilty to illegal reentry in violation of 8 U.S.C. § 1326. Rodriguez had
previously been convicted of stalking in violation of Texas Penal Code § 42.072.
In Rodriguez’s presentencing report (PSR), the probation officer recommended
a sixteen-level enhancement to Rodriguez’s offense level for a “crime of
violence” (COV) under U.S. Sentencing Guidelines Manual (U.S.S.G.)
§ 2L1.2(b)(1)(A)(ii) based on the Texas stalking conviction. The PSR calculated
Rodriguez’s total offense level at twenty-one, following a three-level downward
adjustment for acceptance of responsibility under U.S.S.G. § 3E.1.1. The
Case: 13-51021 Document: 00512887770 Page: 2 Date Filed: 01/02/2015
No. 13-51021
Guidelines suggested a range of imprisonment of fifty-seven to seventy-one
months.
At sentencing, Rodriguez objected to the sixteen-level sentencing
enhancement. Rodriguez argued that his conviction under the Texas stalking
statute was not a COV because the statute did not have as a necessary element
the use or threatened use of physical force. The proper Guidelines range, he
proposed, was fifteen to twenty-one months. The district court agreed that this
range would be correct without the sixteen-level enhancement.
After a colloquy with counsel, the district court determined that
Rodriguez’s stalking conviction, as defined by the language of the indictment,
was for a COV under United States v. Mohr, 554 F.3d 604 (5th Cir. 2009), and
United States v. Rivas, 455 F. App’x 531 (5th Cir. 2011) (per curiam). After
overruling Rodriguez’s objection to the PSR’s Guidelines calculation, the
district court found the Guidelines range “fair and reasonable.”
The court went on to say Rodriguez’s sentence “would be the same . . . .
no matter what system we use, guidelines/non-guidelines.” Providing the
rationale for this conclusion, the court stated:
You engage—and I’m not taking about convictions and I’m
not talk—taking uncharged conduct in terms of the commission of
a crime per se into account. But you’ve engaged in a lot of reckless
conduct over the course of your life that can be construed as
assaultive. You’re an aggressive person. And you were lucky that
you were not charged with the assault with a knife, wherein it was
alleged that you were chasing another person with a vehicle—I
mean with a knife. Excuse me. That was in ’03 and ’07.
Once again, there was an allegation that you assaulted
somebody, especially when you get drunk and you threaten to
shoot that person.
In ’07 you were involved in—I should take that back. You—
it’s alleged that you were involved in a hit and run with an
accident. And I did notice from the convictions there is one of those
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No. 13-51021
such convictions. In ’08 it was, again, alleged that you did the
same thing; in June 26th of ’08.
In June 29th of ’08 it was alleged that you engaged in [a]
terroristic threat, where you threatened to kill a person.
Given that you were charged and convicted of stalking and
threatening somebody, you have a very aggressive and assaultive
type of personality. And part of it is probably because of your
alcohol use. I understand that. And the reason I say that is you’ve
got—you have several DWI convictions, one which did not count,
the Nashville, Tennessee one.
There’s—in Paragraph 30 we have the accident involving
damage to a vehicle, and then in the unclear—the fineable type of
offenses only that didn’t count, you have public intoxication,
possession of alcohol, and another possible intoxication. Which
tells me that alcohol may be an issue for you. You get violent when
you drink.
. . . [T]he sentence I’m about to impose would be the same
with or without [the G]uidelines. Although the Court is finding the
[G]uidelines to be adequate.
The district court sentenced Rodriguez to sixty months in prison and
three years of supervised release.
Rodriguez timely appeals. He asks this Court to vacate his sentence and
remand his case to the district court.
II. DISCUSSION
The district court had jurisdiction under 18 U.S.C. § 3231. This Court
has jurisdiction to review the district court’s sentence under 18 U.S.C. § 3742
and 28 U.S.C. § 1291.
A. Standard of Review
Rodriguez asserts two distinct claims of procedural error. First, he
contends that his prior conviction under the Texas stalking statute is not for a
COV and therefore the district court erred in applying the sixteen-level
3
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No. 13-51021
Guidelines enhancement. Second, he argues that the court improperly based
its calculation of his non-Guidelines sentence on uncharged conduct. 1
We apply a different standard of review to each of the two claims.
Because Rodriguez timely objected to the Guidelines calculation, we review it
for harmless error. See United States v. Martinez–Flores, 720 F.3d 293, 295,
300 (5th Cir. 2013). However, because Rodriguez objects to the non-Guidelines
calculation for the first time on appeal, we review it only for plain error. See
United States v. Williams, 620 F.3d 483, 493 (5th Cir. 2010) (citing United
States v. Olano, 507 U.S. 725, 731–32 (1993)). The former objection does not
suffice to preserve the latter claim of error. Cf. United States v. Mondragon–
Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (reviewing for plain error where
the defendant’s objection “sufficed to alert the district court of his disagreement
with the substance of the sentence, but not with the manner in which it was
explained”); United States v. Hernandez–Martinez, 485 F.3d 270, 272 (5th Cir.
2007) (“Were a generalized request for a sentence within the Guidelines
sufficient, a district court would not be given an opportunity to clarify its
reasoning or correct any potential errors in its understanding of the law at
1 Rodriguez does not specifically challenge the substantive reasonableness of his
sentence. Although United States v. Gerezano–Rosales, 692 F.3d 393, 398 (5th Cir. 2012),
suggests that Rodriguez’s objection to the district court’s reliance on uncharged conduct could
arguably be construed as substantive, this Court has typically considered similar claims of
error to be procedural, see United States v. Harris, 702 F.3d 226, 231 (5th Cir. 2012), cert.
denied, 133 S. Ct. 1845 (2013); United States v. Stephens, 373 F. App’x 457, 461 (5th Cir.
2010) (per curiam) (unpublished); United States v. Newsom, 508 F.3d 731, 734 (5th Cir. 2007).
We therefore analyze the district court’s sentence for procedural error and decline to consider
any challenge to the substantive reasonableness of Rodriguez’s sentence. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993) (arguments not appearing in the body of Appellants’
briefs are deemed abandoned).
4
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No. 13-51021
sentencing, and its efforts to reach a correct judgment could be nullified on
appeal.” (citation omitted)). We address each objection in turn.
B. The Crime-of-Violence Enhancement
We review the district court’s interpretation and application of the
Sentencing Guidelines—including the characterization of a prior offense—de
novo and its findings of fact for clear error. United States v. Klein, 543 F.3d
206, 213 (5th Cir. 2008).
Whether a conviction under the Texas stalking statute is a COV is an
issue of first impression in this Court. The Guidelines define COV to include
several enumerated offenses and “any other offense under federal, state, or
local law that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” § 2L1.2 n.1(B)(iii). A defendant
uses force if he “intentionally avail[s] himself of that force.” United States v.
Vargas–Duran, 356 F.3d 598, 599 (5th Cir. 2004) (en banc). “If any set of facts
would support a conviction without proof of that component, then the
component most decidedly is not an element—implicit or explicit—of the
crime.” Id. at 605. Because stalking is not an enumerated offense, it can only
qualify as a COV as a “force offense.” See United States v. Calderon–Pena, 383
F.3d 254, 255–56 (5th Cir. 2004) (en banc).
To determine whether a crime is a force offense, we look at the elements
of the offense in the statute of conviction, not at the defendant’s conduct. Id.
at 257; see also Taylor v. United States, 495 U.S. 575, 600 (1990) (setting out
the categorical approach). However, “if the statute of conviction contains a
series of disjunctive elements, this [C]ourt may look beyond the statute to
certain records made or used in adjudicating guilt to determine which subpart
of the statute formed the basis of conviction.” United States v. Moreno–Florean,
542 F.3d 445, 449 (5th Cir. 2008). The Court may consider the “charging papers
5
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No. 13-51021
to see which of the various statutory alternatives were involved in a particular
case.” United States v. Andino–Ortega, 608 F.3d 305, 309 (5th Cir. 2010).
The Texas stalking statute under which Rodriguez was convicted
contains disjunctive elements. See Tex. Penal Code § 42.072. Rodriguez
pleaded guilty to the following charging document:
Rodriguez . . . knowingly engage[d] in conduct directed specifically
toward [the victim, DG] that [he] knew or reasonably believed [DG]
would regard as threatening bodily injury and death to [DG], to-
wit: contacting [DG] by phone and threatening [DG], and the . . .
conduct would cause a reasonable person to fear, and did cause
[DG] to fear, bodily injury and death for [DG]. And . . . [Rodriguez]
knowingly engage[d] in conduct directed specifically toward [DG]
that [he] knew or reasonably believed [DG] would regard as
threatening bodily injury and death to [DG], to-wit: coming to
[DG]’s residence and threatening [DG], and the . . . conduct would
cause a reasonable person to fear, and did cause [DG] to fear,
bodily injury and death for [DG].
When narrowed by the language of the indictment, the statute states in
relevant part:
(a) A person commits an offense if the person, on more than one
occasion and pursuant to the same scheme or course of
conduct that is directed specifically at another person,
knowingly engages in conduct . . . that:
(1) . . . the actor knows or reasonably should know the other
person will regard as threatening:
(A) bodily injury or death for the other person;
...
(2) causes the other person . . . to be placed in fear of bodily
injury or death . . . ; and
(3) would cause a reasonable person to fear:
(A) bodily injury or death for himself or herself . . .
Tex. Penal Code § 42.072.
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No. 13-51021
The Texas stalking offense for which Rodriguez was convicted is not a
force offense within the meaning of § 2L1.2. The use, attempted use, or
threatened use of physical force is not a required element of the statute under
a plain reading of the text. See Tex. Penal Code § 42.072. The statute
criminalizes behavior that another person fears is threatening bodily injury.
Id. But as this Court has consistently held, one can cause bodily injury without
the use or attempted use of physical force. See Andino–Ortega, 608 F.3d at 311
(concluding that the offense injury to a child “can be committed by intentional
act without the use of physical force by putting poison or another harmful
substance in a child’s food or drink”); United States v. Villegas–Hernandez, 468
F.3d 874, 882 (5th Cir. 2006) (holding that a Texas assault statute requiring
“that the defendant ‘intentionally, knowingly, or recklessly cause[s] bodily
injury to another’ . . . may be violated by the defendant so causing such injury
by means other than the actual, attempted, or threatened ‘use of physical force
against the person of another,’ and hence does not have such use of force as an
element” (alteration in original)); Calderon–Pena, 383 F.3d at 260 (stressing
that “[a]s a matter of simple logic,” an endangerment offense requiring that
the defendant “places a child younger than 15 years in imminent danger of . .
. bodily injury” “can—but need not—involve the application of physical force to
the child’s person” (quoting Tex. Penal Code Ann. § 22.041(c) (omission in
original)).
It follows that the threat of bodily injury can occur even in the absence
of a threat to use physical force. See, e.g., Ploeger v. State, 189 S.W.3d 799, 808–
09 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (finding sufficient evidence to
support stalking conviction requiring reasonable fear of bodily injury or death
where defendant continually watched, followed, and sent gifts to victim). In
United States v. Cruz–Rodriguez, 625 F.3d 274, 275–77 (5th Cir. 2010) (per
curiam), this Court addressed a California criminal-threat statute that, like
7
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No. 13-51021
the Texas stalking statute, prohibits a person from “willfully threaten[ing] to
commit a crime which will result in death or great bodily injury to another
person, with the specific intent that the statement . . . be taken as a threat . . .
and thereby cause[] that person reasonably to be in sustained fear for his or
her own safety,” Cal. Penal Code § 422. We held that a conviction under this
California statute was not a COV because the defendant could be found guilty
of that offense under a set of facts not involving the actual, attempted, or
threatened use of physical force against another. Cruz–Rodriguez, 625 F.3d at
276–77; see also United States v. De La Rosa–Hernandez, 264 F. App’x 446 (5th
Cir. 2008) (per curiam) (unpublished) (noting that “threatening . . . to poison
another” does not involve force as defined by this Court).
We hold that Rodriguez’s conviction under the Texas stalking statute, as
narrowed by the indictment, was not for a COV under § 2L1.2 of the Sentencing
Guidelines. Therefore, the district court erred in imposing a sixteen-level
enhancement. We turn next to whether the error was harmless.
A procedural error during sentencing (such as a Guidelines
miscalculation) is harmless if it did not affect the district court’s selection of
the sentence imposed. United States v. Delgado–Martinez, 564 F.3d 750, 753
(5th Cir. 2009). The burden is on the Government to show the miscalculation
was harmless. United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014). The
government does not discharge its burden simply by pointing to the record to
“hypothesize some other explanation that might render the sentence
reasonable.” United States v. Johnson, 648 F.3d 273, 279–80 (5th Cir. 2011).
Rather, it must show “both (1) that the district court would have imposed the
same sentence had it not made the error, and (2) that it would have done so for
8
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No. 13-51021
the same reasons it gave. . . .” United States v. Ibarra–Luna, 628 F.3d 712, 714
(5th Cir. 2010) (emphasis added). This is a “heavy burden.” Id. at 717–18.
The Government argues that “[f]ully three pages of the sentencing
transcript reflect the district court’s review of the evidence and reasoning
behind its decision to eschew the guidelines and instead impose [a] sentence
based on the [18 U.S.C.] § 3553(a) sentencing factors.” Indeed, at Rodriguez’s
sentencing, the district court considered and rejected a sentence in the range
that would have been applicable without the sixteen-level COV enhancement
(here, fifteen to twenty-one months). The district court explicitly indicated that
it “would not have found that [to be] a satisfactory sentencing range.” It
reasoned that such a sentence “would not have adequately taken into account
[Rodriguez’s] history and characteristics.” It stressed: “I will be very honest,
Mr. Rodriguez, your sentence would be the same using the sentencing factors
or the guidelines. No matter what system we use, guidelines/non-guidelines,
your sentence would be the same.”
Because here “the district court: (1) contemplated the correct Guideline
range in its analysis and (2) stated that it would have imposed the same
sentence even if that range applied,” we cannot say that the district court’s
miscalculation of Rodriguez’s Guidelines range caused him harm. United
States v. Duhon, 541 F.3d 391, 396 (5th Cir. 2008). 2 Based on the district court’s
2 See also Ramos, 739 F.3d 253–54 (finding error harmless where the district court
focused on the nature of the offense and the § 3553(a) factors); United States v. Richardson,
676 F.3d 491, 512 (5th Cir. 2012) (finding error harmless where district court “(1) considered
all of the possible guidelines ranges that could have resulted if it had erred in applying one
or more of the enhancements to [defendant’s] offense level; (2) found all of those resulting
ranges to be insufficient in this case; and (3) stated that it would have imposed the same 65-
month sentence even if one of those ranges had applied”); United States v. Bonilla, 524 F.3d
647, 656 (5th Cir. 2008) (finding error harmless where district court stated, “I believe that I
have calculated the guidelines correctly, but even if I am wrong about the guidelines, this is
the sentence that I would impose in any event”); cf. Martinez–Flores, 720 F.3d at 300–01
(finding error was not harmless where “the district court did not clearly state (and [the panel
9
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lengthy recitation of reasons for imposing the sentence it selected, we are
persuaded that the court would have sentenced Rodriguez to sixty months in
prison even if it had correctly determined that his stalking conviction was not
for a COV. The Guidelines error was therefore harmless.
C. The Uncharged Conduct
Having determined that the Guidelines error in this case was harmless,
we now consider Rodriguez’s contention that the district court based its
calculation of his non-Guidelines sentence on improper factors under
§ 3553(a). At sentencing, Rodriguez did not object to either the PSR or the
district court’s reasons for concluding that a sixty-month sentence was
appropriate without the Guidelines. Before this Court, Rodriguez argues that
“the district court relied upon unreliable uncharged conduct in sentencing him
to 60 months’ imprisonment.” 3
As noted, we review Rodriguez’s non-Guidelines sentence for plain error.
See Williams, 620 F.3d at 493–94. A defendant challenging his sentence on
plain-error review must demonstrate that “(1) the district court committed
error, (2) the error was plain or obvious, [and] (3) the error affected his
substantial rights.” Id. If all three elements are met, this Court has discretion
could not] glean from the record) that it would impose the same sentence if there had not
been a 16-level enhancement based on the prior crime of violence”).
3 Rodriguez also cites this Court’s rule that bare arrest records, i.e., “arrests, standing
alone, do not constitute reliable information for sentencing purposes.” Johnson, 648 F.3d at
276 (internal quotation marks omitted). But to call the PSR’s descriptions of Rodriguez’s
uncharged conduct “bare” is misleading. A bare record contains the “mere fact of an arrest—
i.e., the date, charge, jurisdiction and disposition—without corresponding information about
the underlying facts or circumstances regarding the defendant’s conduct that led to the
arrest.” Harris, 702 F.3d at 229. Here, in contrast, the least descriptive of the PSR’s arrest
reports reads: “On June 26, 2008, Tyler Police Department officers were dispatched to a hit
and run accident. The victim reported the defendant backed up and hit a vehicle in the
driveway and then drove away. On July 11, 2008, the victim advised he did not want to press
criminal charges. The case was cleared due to lack of prosecution.” Because the PSR
contained more than the “mere fact” of Rodriguez’s arrests, his challenge is properly
construed as going to the underlying reliability of the PSR’s factual content.
10
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No. 13-51021
to correct the error if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Olano, 507 U.S. at 731–32.
Rodriguez argues that the district court erred in taking into account the
uncharged conduct listed in his PSR. As we have previously held, “[a] district
court’s consideration, at sentencing, of prior arrests [is] plain error.” United
States v. Earnest Jones, 489 F.3d 679, 681 (5th Cir. 2007); see also United
States v. Robert Jones, 444 F.3d 430, 436 (5th Cir. 2006). That error would have
affected Rodriguez’s substantial rights if “there is a reasonable probability
that, but for the error, the court would have imposed a lesser sentence.”
Earnest Jones, 489 F.3d at 682 (citing United States v. Villegas, 404 F.3d 355,
364 (5th Cir. 2005)). 4
Here, as in Williams, 620 F.3d at 494, “the district court’s lengthy . . .
discussion of other significant, permissible factors” undermines the claim that
the error affected Rodriguez’s substantial rights. The district court
enumerated several reasons why the fifteen- to twenty-month range was
inadequate. It mentioned Rodriguez’s past convictions for stalking, enticing a
child, and driving under the influence, as well as “the history and
characteristics of the defendant, the need to promote respect for the law and to
provide just punishment for the offense, [and] the need to deter future criminal
conduct and to protect the public.”
Furthermore, on plain-error review, we have taken district courts at
their word when, as here, they disclaim reliance on improper factors. See
4 This Circuit has occasionally applied a different standard to this prong of plain-error
review, asking instead whether the district court could impose the same sentence on remand.
See Earnest Jones, 489 F.3d at 682 (citing United States v. Ravitch, 128 F.3d 865, 869 (5th
Cir. 1997)). There is some doubt as to whether Ravitch’s objective test survived United States
v. Booker, 543 U.S. 220 (2005). See United States v. Davis, 602 F.3d 643, 647 n.6 (5th Cir.
2010). Because here, as discussed above, the § 3553(a) factors would permit the district court
to impose the same sentence on remand, this element of plain-error review is satisfied under
either standard. We need not decide the continuing validity of the Ravitch test.
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United States v. Gonzalez-Achondo, 493 F. App’x 539, 540 (5th Cir. 2012) (per
curiam) (unpublished) (“Although the district court mentioned Gonzalez–
Achondo’s numerous prior arrests, the record reveals that the district court did
not base its sentence exclusively on those arrests nor did it give significant
weight to Gonzalez–Achondo’s arrest record.”). The district court in this case
explicitly stated, “I’m not . . . taking uncharged conduct in terms of the
commission of a crime per se into account.”
Because the district court both disclaimed reliance on Rodriguez’s
uncharged conduct and justified the sentence it imposed with permissible
factors, we conclude that there is no reasonable probability that, but for the
error, it would have selected a lesser sentence. The error therefore did not
affect Rodriguez’s substantial rights.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s sentence.
12 | 01-03-2023 | 01-03-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129542/ | 538 U.S. 1025
SPENCERv.UNITED STATES.
No. 02-9931.
Supreme Court of United States.
May 5, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/129554/ | 538 U.S. 1026
PENDLETONv.PENDLETON ET AL.
No. 02-9837.
Supreme Court of United States.
May 5, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Motion of petitioner to defer consideration of petition for writ of certiorari denied. Certiorari denied. Reported below: 50 Fed. Appx. 770. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3237362/ | The questions involved on this appeal are identical with the questions presented and by this court decided in the case of Charlie Hall v. State, 95 So. 9041 (April 3, 1923). Upon authority of that case the judgment appealed from in the instant case is reversed and remanded. Reversed and remanded.
1 Ante, p. 178. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1106946/ | 981 So.2d 1187 (2006)
CHELSEY E. HALLO
v.
MICHAEL JASON GILLILAND ET AL.
No. 2050375.
Supreme Court of Alabama.
March 2, 2006.
Decision of the Alabama Court of Civil Appeal without Opinion. Transferred to Sup. Ct. for lack of subject-matter jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3230641/ | While concurring in the legal propositions as written by my Brother Justice McCLELLAN and in the opinion that the doctrine of error without injury could have been well invoked by the Court of Appeals in affirming the judgment of the trial court, I do not think that the Court of Appeals should be reversed for not invoking this doctrine. The opinion is silent upon the subject and I do not think that said court should be reversed for failing to consider and discuss a question. It is what said court decides and sets forth in its opinion that we should review, and not what it fails to consider and discuss. *Page 602 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7433307/ | Certiorari dismissed without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3235657/ | Section 3325 of the Code of 1923 provides: "Any person operating a motor vehicle, who, knowing or having reason to believe that injury has been caused to a person or property by said motor vehicle, leaves the place of said injury or accident, without stopping and giving his name and residence and operator's license number to the injured party or to some officer or to some person in the vicinity thereof, shall be guilty of a misdemeanor, punishable by a fine of not more than five hundred dollars or by imprisonment in the county jail for a term not exceeding six months."
The insistence is made on this appeal that the corpus delicti is only proven by the confession of the defendant, which under the decisions cited cannot be done. However, appellant's counsel has entirely misconceived the limits of the corpus delicti. As applied to this case, the corpus delicti consists in a motor vehicle operated by some person, who, knowing or having reason to believe that injury has been caused to a person or property by said motor vehicle, and that such person so operating such motor vehicle leaves the place of injury or accident without stopping, etc. When the above facts have been proven by competent evidence the corpus delicti is made out, and the question of the identity of the person is separate and distinct, and may be shown by any competent evidence, including a confession of the party charged with the offense.
At the close of the State's evidence, the defendant moved the court to exclude all of the testimony on the grounds that there was not sufficient evidence to make out a case. When this motion is made and there is any evidence tending to connect the defendant with the commission of the crime, either direct or by inferences, the motion is properly overruled. In this instance there was sufficient evidence, both of the corpus delicti and the guilt of the defendant. The motion was properly overruled.
The defendant requested the court, in writing, to give the following charge: "I charge you gentlemen of the jury that you must find the defendant not guilty." This charge, even if it had been in proper form, was properly refused by the reason of the fact that the evidence was in conflict. Moreover, the charge pretermits a consideration of the evidence, and for that reason was properly refused. *Page 439
Charge B refused to defendant, also, pretermits a consideration of the evidence and for that reason was properly refused.
We have examined other exceptions reserved and shown by the record and in them we find no reversible error.
The judgment is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2793024/ | IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term FILED
_______________ April 10, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0875 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
SHEENA H. FOR RUSSELL H., deceased, on behalf of the minor child, L.H.,
Petitioner
v.
WEST VIRGINIA OFFICE OF THE INSURANCE COMMISSIONER; and
AMFIRE, LLC.,
Respondents
____________________________________________________________
Appeal from the Workers’ Compensation Board of Review
Claim No. 2009085340
Board of Review No. 2048239
REVERSED AND REMANDED
____________________________________________________________
Submitted: March 10, 2015
Filed: April 10, 2015
Stephen P. New, Esq. Robert J. Busse, Esq.
Amanda J. Taylor, Esq. Timothy E. Huffman, Esq.
Beckley, West Virginia Jackson Kelly PLLC
Counsel for the Petitioner Charleston, West Virginia
Counsel for the Respondent
John H. Shumate, Jr., Esq.
Attorney at Law
Mount Hope, West Virginia
Guardian Ad Litem for L.H.
JUSTICE KETCHUM delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN concurs and reserves the right to file a concurring
opinion.
JUSTICE DAVIS concurs and reserves the right to file a concurring opinion.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.
JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. “The primary rule of statutory construction is to ascertain and give
effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W.Va. 660, 76
S.E.2d 885 (1953).
2. “It is the duty of a court to construe a statute according to its true
intent, and give to it such construction as will uphold the law and further justice. It is as
well the duty of a court to disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction would lead to injustice and
absurdity.” Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E.194 (1925).
3. “Where a particular construction of a statute would result in an
absurdity, some other reasonable construction, which will not produce such absurdity,
will be made.” Syl. Pt. 2, Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).
4. “A statute should be so read and applied as to make it accord with
the spirit, purposes, and objects of the general system of law of which it is intended to
form a part[.]” Syl. Pt. 5, in part, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).
5. Where a claimant to dependent’s death benefits under the Workers’
Compensation Act delays filing a claim because the claimant was unaware, and could not
have learned through reasonable diligence, that the decedent’s cause of death was work-
related, and the delay was due to the medical examiner completing and making available
an autopsy report, the six-month time limitation on filing a claim in West Virginia Code §
23-4-15(a) [2010] is tolled until the claimant, through reasonable diligence, could have
i
learned of the autopsy report finding that the decedent’s death was, in any material
degree, contributed to by an injury or disease that arose in the course of and resulting
from the decedent’s employment.
ii
Justice Ketchum:
Petitioner, Sheena H. (“Ms. H.”), on the behalf of her six-year-old
granddaughter (“L.H.”), appeals an order of the Workers’ Compensation Board of
Review, denying dependent’s death benefits for the death of L.H.’s father, Russell H.1
The Board of Review based its denial on Ms. H. not filing her application within six
months after Mr. H’s death.
Ms. H. argues that there was no indication that the death of L.H.’s father
was work-related until eight months after his death, when the Chief Medical Examiner’s
autopsy report was completed and made available to her. She asserts that the time
limitation on applying for death benefits begins to run when she could have learned that
the death was work-related, not when the death occurred. Respondent (“the insurance
commissioner”) contends that the time limitation on applying for death benefits begins to
run on the date of the death and may never be tolled.
We reverse and remand the Board of Review’s order. We find that the
Legislature did not intend to completely bar a claim for dependent’s death benefits when,
due to the medical examiner’s delay in preparing an autopsy report, there was no
indication that an employee’s death was work-related until eight months after the death.
Furthermore, Ms. H. was a proper party to file a claim for dependent’s death benefits
1
Because L.H. is a minor, we follow our traditional practice in cases
involving sensitive facts and use only her initials. See Shelby J.S. v. George L.H., 181
W.Va. 154, 155 n.1 381 S.E.2d 269, 270 n.1 (1989). See also W.VA. R.APP. P. 40(e)(1).
1
under West Virginia Code § 23-4-15(a) [2010] on L.H.’s behalf. The Board of Review
erred in finding otherwise.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On December 7, 2010, Russell H., a twenty-four-year-old coal miner, died
in his sleep from a seizure. He left behind his mother, Ms. H., who is the petitioner, and
a now six-year-old daughter, L.H., on whose behalf Ms. H. petitions this Court. L.H.’s
mother (who never married Mr. H.) is not a party to this proceeding.
Mr. H. suffered a work-related injury on March 24, 2009, when a wrench
fell from a coal mine’s ceiling and hit him on the head. The injury left him unconscious
for one minute and resulted in a golf-ball-size knot on his head. Even though he was
transported to the local hospital, neither he, his employer, nor his treating physicians
recognized the magnitude of Mr. H’s injury. He did not stay in the hospital overnight.
Rather, his treating physicians prescribed him pain medication and told him to return to
the walk-in clinic for a follow up visit if he deemed it necessary. He did not seek
additional medical treatment for this injury or for health-related issues arising out of the
injury. Mr. H. returned to work a couple of days later, and in May 2009, his claim for
temporary total disability benefits was closed because he was off work for less than three
days.
Twenty-one months later (on December 7, 2010), Mr. H. died in his sleep.
The Office of the Chief Medical Examiner performed an autopsy on Mr. H. the following
day, December 8, 2010. However, for unknown reasons, the autopsy report was not
2
completed and made available to Mr. H’s family until August 24, 2011 (more than eight
months after his death). The autopsy report declared that Mr. H’s 2010 death was the
result of a traumatic seizure disorder that stemmed from the 2009 work-related injury. It
stated: “[Mr. H.] died as a result of a seizure while sleeping; in the setting of a traumatic
seizure disorder following a remote head injury at work[.] . . . [T]he manner of death is
best certified as accident.” (Emphasis added). The autopsy report did not establish when
Mr. H. began to suffer from the seizure disorder. His death certificate was then amended
to reflect that his cause of death was a “seizure” as a consequence of “traumatic seizure
disorder.”
There is conflicting evidence as to whether the family knew at the time of
the death that Mr. H. (who lived alone) suffered from seizures. The Chief Medical
Examiner stated in the autopsy report that Mr. H’s family “reported witnessed seizure
activity.” By contrast, Ms. H. responded to an interrogatory that the family did not know
he suffered from seizures. What is clear, however, is that there was no medical evidence
at that time which linked Mr. H’s death to his work-related injury.
Dependents of a deceased employee have six months to apply for death
benefits under the Workers’ Compensation Act.2 Ms. H. (on L.H.’s behalf) applied for
dependent’s death benefits on February 24, 2012, exactly six months after she received
2
See W.VA. CODE § 23-4-15(a). We discuss this statute in greater detail in
Section A of our Analysis.
3
the autopsy report and amended death certificate indicating that Mr. H’s cause of death
stemmed from a work-related injury.
On March 19, 2012, the employer’s claims administrator rejected the
application for benefits, finding: (1) it was filed more than six months after Mr. H’s
death; (2) Ms. H. was not the proper person to file the application on L.H.’s behalf
because she was not L.H.’s legal guardian; and (3) there was insufficient evidence to
establish that Mr. H’s work-related injury in March 2009 was a material contributing
factor to his death in December 2010. Ms. H. protested the decision, but the Workers’
Compensation Office of Judges affirmed the claims administrator on the ground that the
application was filed more than six months after Mr. H’s death. The Workers’
Compensation Board of Review affirmed the Office of Judges.
By order of this Court, the parties addressed whether Ms. H’s application
for dependent’s death benefits was timely and whether Ms. H. was a proper party to bring
a claim for dependent’s death benefits on L.H.’s behalf. This Court appointed a guardian
ad litem to represent L.H.’s interests.
II.
STANDARD OF REVIEW
When considering a question of law, we have held: “[w]here the issue on an
appeal from the circuit court is clearly a question of law or involving an interpretation of
a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Furthermore, we review de novo legal
4
conclusions of the Workers’ Compensation Board of Review. Johnson v. W.Va. Office of
Ins. Comm’r., 226 W.Va. 650, 654, 704 S.E.2d 650, 654 (2010).
III.
ANALYSIS
Dependents of a deceased employee have six months from the date of a
work-related death to apply for death benefits under the Workers’ Compensation Act.
The parties dispute two issues: (1) whether the time limitation for applying for death
benefits may be tolled until a claimant could have reasonably learned that the death was
work-related; and (2) whether Ms. H. (L.H.’s grandmother) is a proper party to apply for
dependent’s death benefits on L.H.’s behalf. We examine the parties’ arguments in turn.
A. Statutory Deadline to Apply for Dependent’s Benefits
In 1986, the Legislature adopted a six-month period in which claims may
be filed for workers’ compensation dependent’s death benefits. The pertinent statute
provides:
To entitle any employee or dependent of a deceased employee
to compensation under this chapter, other than for
occupational pneumoconiosis or other occupational disease,
the application for compensation shall be . . . [filed] within six
months from and after the injury or death, as the case may be,
and unless filed within the six months period, the right to
compensation under this chapter is forever barred, such time
limitation being hereby declared to be a condition of the right
and hence jurisdictional[.]”
W.VA. CODE § 23-4-15(a) [2010] (emphasis added).
Ms. H. argues that, despite the time limitation in West Virginia Code § 23
4-15(a) being jurisdictional, there was no way of knowing that Mr. H’s death was work
5
related until the autopsy report was completed and made available. She argues this is a
narrow circumstance in which the time limitation for filing a claim may be tolled. The
insurance commissioner responds that West Virginia Code § 23-4-15(a) does not specify
an exception to its time limitation, and therefore, it may not be tolled under any
circumstances, even when there was no indication that the decedent’s death was work-
related until eight months after the death had passed.
We have held that, “[t]he primary rule of statutory construction is to
ascertain and give effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138
W.Va. 660, 76 S.E.2d 885 (1953). “If the literal meaning of a statute is inconsistent with
the meaning or intent of the legislature, or would lead to perverse results, the words of the
statute must be interpreted to reflect the intention of the legislature.” Pryor v. Gainer,
177 W.Va. 218, 222, 351 S.E.2d 404, 408 (1986). See also Mitchell v. Broadnax, 208
W.Va. 36, 46, 537 S.E.2d 882, 892 (2000) (“Although a provision’s language may be
plain, there nevertheless may arise circumstances in which the plain language does not
speak completely on the subject to which it is addressed.”). In the same vein, we have
said:
It is the duty of a court to construe a statute according to its
true intent, and give to it such construction as will uphold the
law and further justice. It is as well the duty of a court to
disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction
would lead to injustice and absurdity.
Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E.194 (1925) (emphasis added). Likewise,
“[w]here a particular construction of a statute would result in an absurdity, some other
6
reasonable construction, which will not produce such absurdity will be made.” Syl. Pt. 2,
Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1938).
Therefore, our inquiry does not end just because West Virginia Code § 23
4-15(a) does not specify any exceptions to its time limitation that is “a condition
precedent and hence jurisdictional.”3 Rather, we read the statute so as to effectuate the
Legislature’s intent. In ascertaining the Legislature’s intent behind the time limitation in
West Virginia Code 23-4-15(a), we are guided by the spirit, purposes, and objects of the
general Workers’ Compensation Act. As we have often said: “[a] statute should be so
read and applied as to make it accord with the spirit, purposes, and objects of the general
system of law of which it is intended to form a part[.]” Syl. Pt. 5, in part, State v. Snyder,
64 W.Va. 659, 63 S.E. 385 (1908).
The legislative intent behind setting time limitations for claims under the
Workers’ Compensation Act is two-fold. On the one hand, it protects employers from
frivolous or outdated claims, while on the other hand, it is intended to afford claimants
sufficient opportunity to investigate a claim before it is filed.
As to the Legislature’s goal of protecting employers from frivolous or
outdated claims, we have stated, “[i]t is generally accepted that the purpose of time
3
Similarly, in Miller v. Romero, 186 W.Va. 523, 413 S.E.2d 178 (1991)
(overruled on other grounds by Bradshaw v. Soulsby, 210 W.Va. 682, 558 S.E.2d 681
(2001)), we tolled a time limitation that was a “an integral part of the statute itself and
creates a condition precedent to . . . the bringing of an action” on grounds of defendant’s
fraudulent concealment of facts. Although Miller dealt with the Wrongful Death Act, the
fact that the time limitation was a “condition precedent” to the cause of action in that case
makes it analogous to this case.
7
limitations in filing workers’ compensation claims is to provide notice and to enable the
employer to protect himself by prompt investigation and treatment of the injury.”
Holdren v. Workers’ Comp. Comm’r., 181 W.Va. 337, 339, 382 S.E.2d 51, 533 (1989)
(emphasis added). Pursuant to this goal, the Legislature amended the Workers’
Compensation Act in 1986 to provide that the time limitations are “jurisdictional.” These
1986 amendments were in response to a prior decision by this Court in Bailey v. SWCC,
170 W.Va. 771, 296 S.E.2d 901 (1982), which held that the time limitations for workers’
compensation claims were procedural, not jurisdictional. Syl Pt. 1, Id., 170 W.Va. 771,
296 S.E.2d 901. Under Bailey, even when the claimant missed the deadline by years, the
delay in filing would be excused for a wide array of reasons, such as “innocent mistake,
excusable neglect, unavoidable cause, fraud, misrepresentation, or any other reason
justifying relief from the running of the time period.” Syl Pt. 2, Id., 170 W.Va. 771, 296
S.E.2d 901. The 1986 amendments to the Workers’ Compensation Act effectively
overruled Bailey. See Syl. Pt. 2, Fucillo v. Workers’ Comp. Comm’r., 180 W.Va. 595,
378 S.E.2d 637 (1988).
As to the Legislature’s goal of affording claimants sufficient time to
investigate and file claims, we have stated:
[A] literal construction of the statute, which . . . would end
the jurisdiction of the commissioner . . . eight days after the
claimant asked that his case be reopened, would in many
cases result in a lack of opportunity to properly investigate
the claim. . . . Such a construction cannot reasonably be held
to have been within the intent of the Legislature.
Consideration of the merits of every claim, with reasonable
time for investigation, must have been what was intended.
8
Wilkins v. State Comp. Comm’r, 120 W.Va. 424, 429, 198 S.E. 869, 871 (1938)
(emphasis added).
The position that the time limitation in West Virginia Code § 23-4-15(a)
can never, under any circumstances, be tolled is contrary to both of these goals. It would
be harmful to employers because it encourages a decedent’s family to file a rushed
application for death benefits before they have any medical evidence indicating that the
death was work-related. Despite the insurance commissioner’s suggestion that Ms. H.
should have filed her application for death benefits before she received the autopsy
report, such a claim would have been purely speculative without it. This finding would
necessarily entail that any dependent of a person who has died should file for death
benefits with the glimmering hope that some evidence might later present itself showing
that the death was work-related. Such a result flies in the face of the Legislature’s intent
of protecting employers from frivolous claims.
A finding in this case that the time limitation in West Virginia Code § 23-4
15(a) can never, under any circumstances, be tolled is also patently unfair to the claimant.
Such a finding would saddle the claimant with the impossible task of linking an injury to
a death that occurred twenty-one months later. The absurdity of such a result is
heightened by the fact that even the decedent’s treating physicians and his employer did
not recognize the injury as life-threatening, and the autopsy report was not completed and
made available to the claimant until eight months after the death. This result directly
contradicts the Legislature’s intent of affording a claimant reasonable time to investigate
his/her claim.
9
Furthermore, the insurance commissioner’s argument that West Virginia
Code § 23-4-15(a)’s time limitation can never be tolled is inconsistent with other
provisions in the Workers’ Compensation Act. For example, West Virginia Code § 23-4
16(a)(3) bars awards under the Workers’ Compensation Act from being made more than
two years after the employee’s death, a provision which would be obsolete if the six-
month time limitation in West Virginia Code § 23-4-15(a) could not, under any
circumstances, be tolled. This position would be inconsistent with our prior holding that
“[i]t is always presumed that the legislature will not enact a meaningless or useless
statute.” Syl. Pt. 4, State ex rel. Hardesty v. Aracoma, 147 W.Va. 645, 129 S.E.2d 921
(1963).
The insurance commissioner’s proposed interpretation of the time
limitation in West Virginia Code § 23-4-15(a) causes potential harm to employers and
claimants alike, and it is inconsistent with other provisions of the Workers’
Compensation Act. Therefore, adopting the insurance commissioner’s position would
bring about an absurd and unjust result that was surely unintended by the Legislature. As
we said in Syllabus Point 2 of Click, 98 W.Va. 419, 127 S.E. 194, when a construction of
a statute (even one that is apparently warranted by the literal sense of the statute’s words)
would lead to injustice or absurdity, this Court has a duty to disregard that construction.
Pursuant to this duty, we interpret West Virginia Code § 23-4-15(a) to reflect the
Legislature’s true intent, uphold the law, and further justice. Id. Thus, in drafting West
Virginia Code § 23-4-15(a), we find that the Legislature did not intend that a claimant be
completely barred from receiving dependent’s death benefits where: due to the medical
10
examiner’s delay in completing the autopsy, there was no knowledge or understanding
that the decedent’s death was work-related until eight months after the death, and the
claimant promptly filed his/her claim within six months of learning that the death was
work-related.
Therefore, we hold that where a claimant to dependent’s death benefits
under the Workers’ Compensation Act delays filing a claim because the claimant was
unaware, and could not have learned through reasonable diligence, that the decedent’s
cause of death was work-related, and the delay was due to the medical examiner
completing and making available an autopsy report, the six-month time limitation on
filing a claim in West Virginia Code § 23-4-15(a) [2010] is tolled until the claimant,
through reasonable diligence, could have learned of the autopsy report finding that that
the decedent’s cause of death was, in any material degree, contributed to by an injury or
disease that arose in the course of and resulting from the decedent’s employment.
However, we limit our holding to death benefits under the Workers’ Compensation Act
where the delay was on the part of the medical examiner, not the claimant.4 This holding
does not apply to claimants who delay having an autopsy performed.
4
We recognize that the language of the Workers’ Compensation Act
evidences an intent to limit a claimant’s ability to file for benefits, protest, object, or
appeal, subject to strict time limitations. Such language is necessary to bar frivolous or
outdated claims. Therefore, we tread lightly in our holding to render a narrow ruling that
does not have the same unintended, expansive consequences as Bailey, 170 W.Va. 771,
296 S.E.2d 901. It is for this reason that we limit our holding to death benefits.
11
However, we caution that the six-month time limitation in West Virginia
Code § 23-4-15(a) is jurisdictional and a condition of the right to compensation under the
Workers’ Compensation Act. Therefore, the claimant’s failure to timely file a claim
within six months of when he/she could have learned that the employee’s death arose in
the course of and resulting from employment will not be excused.
There was no medical evidence at the time Mr. H. died linking the death to
his employment. The autopsy was the first known medical evidence indicating that his
cause of death was work-related, but it was not completed and made available to the
family until August 24, 2011 (eight months after the death). Therefore, the time
limitation in West Virginia Code § 23-4-15(a) did not begin to run until August 24, 2011,
if Ms. H. could not have reasonably learned that Mr. H’s cause of death was work-related
before that time. However, the Board of Review failed to determine whether Ms. H.
could have reasonably learned that Mr. H’s death was work-related before then.
Therefore, Board of Review erred in finding that Ms. H’s application was time-barred, as
a matter of law, because she did not file her application within six months of Mr. H’s
death.
B. Proper Party to File for Dependent’s Death Benefits on Minor’s Behalf
The claims administrator also rejected the application for dependent’s death
benefits on the ground that Ms. H., L.H.’s grandmother, was not a proper party to file an
application on L.H’s behalf. West Virginia Code § 23-4-15(a) provides that when an
employee or dependent of an employee “is mentally or physically incapable of filing the
application, it may be filed by his or her attorney or by a member of his or her family.”
12
(Emphasis added). See also W.VA. CODE § 2-2-10(m) [1998] (persons under the age of
eighteen years are “under disability”). By law, L.H., a six-year-old child, is both
mentally and physically incompetent to file an application for dependent’s death benefits.
Because Ms. H. is L.H’s grandmother, she is a member of L.H.’s “family,” and she is a
proper party to file an application on L.H’s behalf. Accordingly, we find it was error to
have rejected Ms. H’s filed application on the ground that she was not L.H.’s legal
guardian.5
IV.
CONCLUSION
For the reasons set forth herein, the Board of Review erred in finding that,
as a matter of law, Ms. H. was untimely in applying for dependent’s death benefits on
L.H.’s behalf. Furthermore, Ms. H. was a proper party to file for dependent’s death
benefits on L.H.’s behalf. Accordingly, we reverse and remand the Board of Review’s
order.6
Reversed and Remanded.
5
While Ms. H is a proper party to file the death benefits claim, ultimate
payment and/or settlement of such claim might rest with the child’s guardian.
6
This appeal does not encompass whether there is sufficient, credible
evidence linking Mr. H’s death to the work-related injury or whether Mr. H’s family
should have reasonably known at the time of his death that the cause of death was work-
related. On remand, the parties will have the opportunity to develop these issues.
13 | 01-03-2023 | 04-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2793030/ | No. 14-0429, Warren v. Garland
FILED
April 10, 2015
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Workman, Chief Justice, concurring:
I concur with the result reached by the majority regarding the amount and
duration of spousal support to Ms. Warren. Without a doubt, the circuit court misapplied
our holding in Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012), when it reversed
the order of the family court. In Mayle, this Court did not create a rigid prohibition
against any prospective increases of spousal support. Rather, Mayle required only that
there be sufficient evidence in support of such a change. In this case, the family court
articulated fact-based reasons to justify the increase in spousal support that were tailored
to the needs and circumstances of the parties: in three years, Mr. Garland would
substantially reduce the marital credit card indebtedness and abolish his attorney fee
obligations. This finding was in no way speculative. In fact, had we affirmed the circuit
court’s order, Ms. Warren would be unjustly penalized for taking less in spousal support
temporarily so that Mr. Garland could pay off this marital debt.
I write separately to spotlight the fallacy of any suggestion that Ms. Warren
should just wait three years to file a motion for modification of spousal support pursuant
to West Virginia Code § 48-6-201(b) (2014), when the financial situation of the parties is
further disparate. In Zirkle v. Zirkle, 172 W.Va. 211, 304 S.E.2d 664 (1983), we
recognized that to justify a modification of a spousal support award already established,
1
the party seeking modification must show that there has been a substantial change in the
circumstances of the parties. See also Louk v. Louk, 184 W.Va. 164, 166, 399 SE.2d 875,
877 (1990) (finding no substantial change in parties’ circumstances to justify husband’s
petition for modification of original spousal support award after wife found gainful
employment considering husband’s obligation was not an inordinate sum, given his
income). We have placed the burden of showing a substantial change of circumstances on
the party petitioning for modification of the spousal support award. Syl. Pt. 3, Goff v.
Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987).
Typically, changes in circumstances within the contemplation of the parties
at the time of the final hearing cannot provide a basis for modifying a spousal support
award. See Syl. Pt. 4, Goff, 177 W.Va. 742, 356 S.E.2d 496 (“In order to satisfy the
requirement of a substantial change in circumstances necessary to grant a modification in
support obligations, the change must be one which would not reasonably have been
expected at the time of the divorce decree.”). See generally, Calvert v. Calvert, 336
S.E.2d 884, 889 (S.C. Ct. App. 1985) (refusing to adjust spousal support where alleged
substantial change was known and contemplated by parties at time of decree).
In the instant case, the family court’s spousal support award to Ms. Warren
was based on Mr. Garland’s increased ability to pay a higher amount in three years when
his attorney fee obligation was paid in full and his marital credit card payment was
reduced or paid off. Because these financial circumstances were known, and easily
quantifiable, at the time of the final hearing, I do not believe that any subsequent petition
2
for modification would be successful. For that reason, the family court acted judiciously
when it addressed these foreseeable changes and provided for the future increase in the
amount of the spousal support to Ms. Warren.
For the foregoing reasons, I respectfully concur.
3 | 01-03-2023 | 04-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3454012/ | Affirming.
On August 10, 1927, the board of council of the city of Irvine enacted an ordinance creating and establishing a telephone franchise in the city of Irvine, and providing for its sale at public bidding. The city clerk was directed to advertise the time and place of receiving bids, and to report the bids to the mayor and board of council at its next regular meeting, "when the said mayor and board of council shall consider the acceptance or rejection of bids, reserving the right to reject any and all bids." The ordinance provided that the bidder to whom the franchise should be awarded should pay the amount of his bid in cash, or by duly certified check to the treasurer of the city within five days after the franchise was awarded. The sale was advertised as required by the ordinance, and took place on August 24, 1927. Willit Groover bid for the franchise the sum of $1,000, the cost of advertising, and a free telephone for the city through the life of the franchise. On the evening of the same day, the city clerk reported to the mayor and general council, who were then in session, that the sale of said franchise had been had according to the required notice, and that Groover was the highest and best bidder, and that the franchise had been awarded to him. At the same meeting Groover tendered a certified check for $1,018 and requested the mayor and board of council to ratify the sale by resolution and ordinance. On August 26, 1927, Groover tendered to W.T. Williams, the city treasurer, his check for $1,018, but the mayor and general council refused to ratify the sale of the franchise.
Relying on the foregoing facts, and alleging his willingness to pay the city treasurer the amount of his bid, and to begin the installation of the telephone system, Groover brought this action against the city of Irvine, its mayor and the members of the board of council for a mandatory injunction compelling them to accept his bid *Page 368
and grant the franchise. Subsequently Groover filed an amended petition containing the following averments: The Irvine Home Telephone Company operates a telephone system in the city of Irvine under a telephone franchise which will not expire for approximately eight years. The mayor of the city is the principal stockholder of that company. The mayor had introduced and passed the new telephone franchise, which was offered for sale. He urged its passage in order that the Irvine Home telephone Company might purchase the franchise and thereby benefit the company and himself. The mayor procured his brother to bid on the new franchise, and the latter was the only bidder for the franchise except plaintiff. The mayor's brother was outbid by plaintiff, and the mayor then used his influence and secured the passage of an ordinance or resolution, which undertook to repeal the ordinance creating the franchise, and to set aside the sale. Such action on the part of the mayor was contrary to public policy, and detrimental to the city and its citizens, and to the plaintiff, and was causing the plaintiff great and irreparable damage. The demurrer to the petition as amended was sustained, and the mandatory injunction was denied. Groover appeals.
Section 164 of the Constitution is as follows:
"No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway."
It will be observed that the foregoing section, after making it the duty of the municipality before granting a franchise or privilege for a term of years to receive public bids therefor after due advertisement, adds the following:
"And award the same to the highest and best bidder; but it shall have the right to reject any or all bids." *Page 369
In Keith v. Johnson et al., 109 Ky. 421, 59 S.W. 487, 22 Ky. Law Rep. 947, we held that, where the municipality awards a franchise, it must award it to the highest and best bidder, but that case did not deal with the right of the municipality to reject all bids. Here there is presented for the first time the question whether the discretion vested in the board of council of the municipality is subject to the control of the courts in the circumstances presented. In granting franchises for the public benefit, a city council acts in a legislative capacity. In the exercise of this power a discretion is vested, which cannot be taken away by the courts. Inasmuch, however, as the members of the city council act as trustees for the public to the end that the latter may obtain such conveniences as telephones, electric lights, and the like, they may not, after the sale of a franchise, arbitrarily or corruptly reject all bids and thereby escape the obligation to award the franchise to the highest and best bidder. However, when the exercise of the power and discretion to reject bids is attacked in the courts, the presumption will be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the members of the council with whom the lawmakers have seen fit to lodge the power. Little Rock Railway Electric Company v. Dowell, 101 Ark. 223,142 S.W. 165, Ann. Cas. 1913D, 1086. Hence it is incumbent on one who calls in question the discretion of the council to allege and prove facts showing that the council acted arbitrarily or corruptly, and was therefore guilty of a clear and palpable abuse of discretion.
Here the sole facts relied on by the successful bidder are that the board of council rejected all bids, and that the mayor, who was interested in another telephone company having a franchise in the city, used his influence and secured the passage of an ordinance or resolution undertaking to repeal the ordinance granting the franchise, and to set aside the sale. It is not charged that the mayor used any improper or corrupt influence over the members of the council, or even that their action was induced solely by such influence as he attempted to use. Therefore the case is one where, notwithstanding the allegations of the pleadings, the members of the council may have acted with reason and in the utmost good faith. *Page 370
That being true, the facts pleaded are not sufficient to show a clear and palpable abuse of discretion on the part of the members of the city council. It follows that the plaintiff did not show himself entitled to a mandatory injunction requiring the council to accept his bid, and that the chancellor did not err in sustaining the demurrer to the petition as amended.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2900053/ | Fourth Court of Appeals
San Antonio, Texas
September 8, 2015
No. 04-15-00058-CR
Cynthia Torres LEAL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 81st Judicial District Court, Frio County, Texas
Trial Court No. 12-08-00087-CRF
Honorable Donna S. Rayes, Judge Presiding
ORDER
Appellant’s Motion for extension of time to file their brief is granted. The appellant’s
brief is due on September 30, 2015.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of September, 2015.
___________________________________
Keith E. Hottle | 01-03-2023 | 09-09-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1074861/ | IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 12, 1999
WILLIAM H. HORTON v. TENNESSEE DEPT. OF CORRECTION, ET AL.
Appeal from the Chancery Court for Davidson County
No. 98-612-II Carol L. McCoy, Chancellor
No. M1999-02798-COA-R3-CV - Filed September 26, 2002
PATRICIA J. COTTRELL, J., concurring
I concur in the holding in this case, but write separately to point out that Mr. Horton failed
to state a claim for relief because allegations the Department’s failure to follow procedural policies
in a disciplinary proceeding are not sufficient to invoke the due process clause unless the resulting
sanctions impose an atypical and significant hardship beyond the ordinary incidents of incarceration,
and do not state a claim for relief under state law. Willis v. Tenn. Dep’t of Corr., No. 2000-01397-
COA-R3-CV; 2002 Tenn. App. LEXIS 389 (March 13, 2001). However, I agree with the majority
that failure to comply with the requirement of approval by the commissioner’s designee before
imposition of sanctions is reviewable by common law writ of certiorari because such approval is a
prerequisite for exercise of authority. Relief under the common law writ of certiorari is available
if the lower tribunal has acted without authority or beyond its jurisdiction.
____________________________________
PATRICIA J. COTTRELL | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3063030/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 30, 2010
No. 08-15638
JOHN LEY
________________________
CLERK
D. C. Docket No. A097-949-578
TANIA MARIA MESSIAS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 30, 2010)
Before CARNES and ANDERSON, Circuit Judges, and O’CONNOR,* Associate
Justice Retired.
PER CURIAM:
*
Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States
Supreme Court, sitting by designation.
After oral argument and careful consideration of the briefs and relevant parts
of the record, we conclude that we do have jurisdiction of this petition for review,
and that petitioner’s petition for review of the order of the Board of Immigration
Appeals is without merit and due to be denied.
The deadline for filing the petition for review was September 17, 2008.
Contrary to the Government’s argument, ample evidence supports the petitioner’s
position that she mailed the petition to the district court in Fort Lauderdale, Florida,
on September 15, 2008, and that it was received by the district court on September
16, 2008. The case law clearly establishes that receipt by the court within the
specified time period is sufficient, even if the document is not marked as filed until
after the time period. See Houston v. Lack, 487 U.S. 266, 273, 108 S. Ct. 2379,
2383 (1988) (explaining the general rule that a notice of appeal is considered
timely filed if received by the clerk within the appeals period); Bragg v. Bill Heard
Chevrolet, Inc., 374 F.3d 1060, 1064 n.4 (11th Cir. 2004); Hatchell v. Heckler, 708
F.2d 578, 579 (11th Cir. 1983). Having established that the petition for review is
deemed to have been timely filed with the district court, the transfer of the petition
for review to this Court pursuant to 28 U.S.C. §1631 means that this action “shall
proceed as if it had been filed in or noticed for the court to which it is transferred
on the date upon which it was actually filed in or noticed for the court from which
2
it is transferred.” 28 U.S.C. §1631. Accordingly, we have jurisdiction of this
petition for review.
Turning to the merits, we conclude that we need not address several of
petitioner’s arguments on appeal because one ground upon which the Board of
Immigration Appeals relied is dispositive. The Board of Immigration Appeals
concluded that the mistreatment of petitioner was not “on account of” a protected
ground; rather, “her mistreatment arose solely because of a private family issue.”1
In other words, petitioner failed to prove the requisite nexus to a protected ground.
See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351 (11th Cir. 2009).2
Moreover, any future harm to petitioner would be because of private vengeance
and not on account of a protected ground.
For the foregoing reasons, Messias’s petition for review is DENIED.
1
We recognize that past persecution can be “on account of” a protected ground if it
was at least in part motivated by petitioner’s membership in a particular social group. Sanchez
Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007). However, the Board of
Immigration Appeals found that the persecution arose solely because of a private family issue.
We cannot conclude that the record compels a contrary finding. See Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).
2
Because there is no nexus to a protected ground, we need not address whether or
not victims of child abuse could ever constitute a “particular social group,” whether that issue
should have been governed in this case by the law of the case doctrine, and whether the alleged
past persecution here was attributable to the Brazilian government.
3 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063031/ | [DO NOT PUBLISH]
`
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15765 ELEVENTH CIRCUIT
MARCH 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-00223-CV-KD
ORLANDO BETHEL,
GLYNIS BETHEL,
Plaintiffs-Appellants,
versus
BALDWIN COUNTY BOARD OF EDUCATION,
a.k.a. Baldwin County Public Schools,
Defendant-Appellee,
BOB RILEY,
et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 30, 2010)
Before BIRCH, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Orlando Bethel (“Orlando”) and Glynis Bethel (“Glynis”) appeal the district
court’s dismissal of their 42 U.S.C. § 1983 civil rights complaint. They argue: (1)
that the district court erred in striking their amended complaint and by closing
discovery; (2) that the district court lacked jurisdiction to compel Glynis Bethel’s
appearance at a hearing; and (3) that the district court violated their Seventh
Amendment rights by dismissing their case. We AFFIRM.
I. BACKGROUND
On 8 April 2006, Orlando and Glynis Bethel filed a pro se 42 U.S.C. § 1983
civil rights complaint against the Baldwin County Board of Education (“the
Board”), numerous employees and members of the Board and the Baldwin County
school district, a Baldwin County judge, the Town of Loxley, Alabama, and
several Loxley police officers, a judge, and prosecutor (collectively “defendants”).
Doc. 1. The Bethels alleged that they were denied access to County school
facilities after hours, that the school system denied Glynis the opportunity to work
as a substitute teacher because of her religion, and that she and Orlando were
denied their constitutional right to preach outside of Loxley Elementary School.
Id. at 2-7.
2
The court granted the Bethels’ request to give them until 20 January 2007 to
complete their amended complaint and serve the defendants. Doc. 10 at 2. On 16
January 2007, the Bethels filed an amended complaint that comprised six different
complaints totaling 436 pages. See Docs. 14 to 14-9. The first related to the
Bethels’ original complaint. The second was brought against the Town of Loxley,
numerous police officers, a prosecutor, two judges, and a bail bonds man, and was
related to criminal charges levied against the Bethels after they were preaching in a
public park. See Doc. 14-3 at 2. The third related to the Bethels’ street preaching
activities in Robertsdale, Alabama, and in the Town of Loxley. See Doc. 14-5 at 2-
3. The fourth involved incidents that occurred in the city of Selma, Alabama. See
Doc. 14-7 at 2. The fifth involved incidents occurring in the city of Mobile,
Alabama. See Doc. 14-8 at 2-3. The sixth complaint involved the city of Daphne,
Alabama. See id. at 3-4.
The district court struck the Bethels’ amended complaint because five of the
six complaints included in it were not related to the Bethels’ original complaint.
Doc. 16 at 3. Though the first complaint appeared to be related to the Bethels’
original complaint, the court struck it because it was filed along with the other
complaints as a single document. Id. at 3 n.6. The court gave the Bethels “leave to
refile an amended complaint to the extent any new allegations are related to [their]
3
original complaint.” Id. In response, the Bethels argued that their amended
complaint complied with the federal rules, given that all of the defendants were
related because all had violated the Bethels’ constitutional rights. Doc. 20 at 1.
The Bethels also stated that, because the district court acted with bias, tampered
with evidence, committed fraud, and was wicked, they asked God to judge the
court with a plague and to vindicate the Bethels. Id.
After the defendants filed motions to dismiss and the Bethels responded that
they “oppose[d] any dismissals based on the Constitution alone as opposing
‘arguments,’” the district court, on 22 August 2007, dismissed all claims except for
that against the Board alleging that the school board unconstitutionally denied
Glynis access to the Baldwin County public school facilities for “Be a Model for
the Gospel,” which was a “private Christian after school hours club.” Doc. 52 at
16, 19-20; 49-2. From this point forward, Glynis was the only plaintiff remaining
in the case. See Doc. 52 at 16.
On 21 August 2008, the magistrate judge ordered a status conference to be
held on 29 August 2008. Doc. 53. On 1 September 2008, the magistrate judge
ordered that, because no action had been taken in the Bethels’ case in over one year
and because Glynis, at the status conference, only requested the production of a
document that she already had in her custody, discovery was complete and the next
4
event was the filing of a motion for summary judgment by the Board. On 3
September 2008, the Bethels filed a notice of intent to prepare service of discovery,
stating that they were going to commence discovery within seven days. Doc. 57.
The Board objected to further discovery, arguing that discovery had been closed by
the magistrate judge’s 1 September 2008 order. Doc. 58.
In an order to show cause, the district court noted that the Clerk of Court,
Chuck Diard, had reported that, on 3 September 2008, Glynis “was verbally
abusive to employees of the clerk’s office because they would not provide her with
free copies of court documents.” Doc. 59 at 1. The court stated that, on 4
September 2008, Glynis “repeatedly telephoned the Clerk’s Office and engaged in
abusive, harassing and threatening communications against various members of the
court staff, including Mr. Diard.” Id. The court asserted that it would not tolerate
this type of behavior from any litigant and ordered Glynis to appear on 29
September 2008 to show why it should not prohibit her “from physically accessing,
or telephonically contacting, the Clerk’s Office.” Id. at 1-2. The court “strongly
cautioned [Glynis] that the failure to abide by [its] order may result in sanctions
against plaintiff, including, dismissal of this action.” Id. at 2 (emphasis in
original).
After the Board moved for summary judgment, the Bethels filed document
5
requests, interrogatories, and requests for admissions. See Docs. 60-63. In an
order on 23 September 2008, the district court gave summary judgment notice and
informed the Bethels that they had until 6 October 2008 to respond to the Board’s
motion for summary judgment. Doc. 75 at 1-2. The Bethels moved to strike the
Board’s motion for summary judgment and moved to strike the district court’s
order, arguing that both the Board’s motion for summary judgment and the court’s
23 September order violated their Seventh Amendment right to a jury trial. Doc.
76 at 1-2; Doc. 77 at 1-4; Doc. 81 at 1-3.
A hearing was held on 29 September 2008, but Glynis failed to appear as
ordered by the district court. See Doc. 86 at 1. The district court then dismissed
Glynis’s case with prejudice because “there [was] a clear record of [her]
intentional, willful, and contumacious failure to obey an order of this court and no
lesser sanction [would] suffice to preserve the authority of this court.” Id. at 2.
The court found that Glynis had acted willfully and contumaciously when, before
the hearing, she called the court thrice and left voice messages, stating that:
(1) “she would not attend the hearing because it was illegal and unlawful and
because the court had no jurisdiction over her”; (2) “she received the order but
would not attend the ‘Kangaroo Court’ or any corrupt activities at this court”; and
(3) “the only way she would attend would be if she were ‘physically’ brought to
6
court in handcuffs by the U.S. Marshal.” Id. at 3-4. Glynis “made it clear that she
was not going to attend the hearing, even though she was ordered to do so and was
warned that failure to appear may result in dismissal of her lawsuit.” Id. at 4. The
court accordingly found that no lesser sanction would adequately address her
refusal to follow court orders. Id.
Orlando moved to vacate the district court’s dismissal, asserting that he was
not scheduled to appear before the district court. Doc. 92 at 1-2. Glynis moved to
vacate the district court’s dismissal, contending that: (1) the court dismissed her
case based on allegations; (2) she refused to attend a “Kangaroo Court” hearing
that had nothing to do with the merits of her case; and (3) the Board did not submit
a motion to dismiss as required by Rule 41(b). Doc. 93 at 1-4. The district court
considered both motions as motions to reconsider its order dismissing Glynis’s
case and it denied both motions. See Docket Sheet, entry 94.
Orlando and Glynis Bethel, pro se, appeal the district court’s dismissal of
their 42 U.S.C. § 1983 complaint. They appeal the district court’s decision to
strike their amended complaint and close discovery. They argue that the district
court lacked jurisdiction to dismiss Glynis’s case with prejudice after she refused
to attend a hearing. They also argue that the dismissal violated their Seventh
Amendment rights.
7
II. DISCUSSION
The Bethels argue that the district court violated Fed. R. Civ. P. 12(f) by
striking their amended complaint. We review the district court’s decision to strike
the Bethels’ amended complaint for abuse of discretion. See Fla. Evergreen
Foliage v. E.I. DuPont De Nemours and Co., 470 F.3d 1036, 1040 (11th Cir. 2006)
(per curiam). Under this standard, we do not disturb the district court’s decision as
long as it is within a range of reasonable choices and is not influenced by any
mistake of law. Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337
(11th Cir. 2005). Because the Bethels are proceeding pro se, we construe their
filings liberally. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).
Pursuant to Rule 12(f), a district court may strike from a pleading “any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
The district court may limit discovery if it determines that “the party seeking
discovery has had ample opportunity to obtain the information by discovery in the
action.” Fed. R. Civ. P. 26(b)(2)(C)(ii).
The amended complaint was a 436-page compilation of six complaints, five
of which were unrelated to their original complaint. The district court gave the
Bethels “leave to refile the amended complaint to the extent any new allegations
are related to [their] original complaint.” See Doc. 16 at 3 n.6. Rather than refile
8
without the five unrelated claims, the Bethels argued that the amended complaint
complied with federal rules and accused the district court of wickedness, bias,
tampering with evidence, and fraud. Doc. 20 at 1. The court did not abuse its
discretion in dismissing the amended complaint, which included these immaterial
and impertinent complaints even after the court granted leave to refile.
The Bethels argue that the district court denied them discovery by closing
discovery. We also review the district court’s discovery decisions for abuse of
discretion. Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999).
Before the district court closed discovery, the Bethels had ample opportunity to
obtain discovery. In fact, more than a year elapsed after the court dismissed the
majority of the Bethels’ claims and before it closed discovery. Further, the
Bethels’ discovery requests became moot once the district court dismissed Glynis’s
case with prejudice for failure to comply with a court order.
The Bethels contend that the court lacked jurisdiction to hold a hearing
about Glynis’s interactions with the clerk’s office. See Appellants’ Brief at 20-27.
Thus, the Bethels have abandoned any challenge to the district court’s reasons for
dismissing Glynis’s case. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008) (per curiam), cert. denied, __ U.S. ___, 129 S. Ct. 74 (2008). Even if, under
a liberal construction of the Bethels’ appellate brief, they challenge the district
9
court’s findings, as shown below, the district court did not abuse its discretion by
dismissing Glynis’s case with prejudice. The remaining issue is whether the
district court had jurisdiction over its order to show cause and its order dismissing
Glynis’s case with prejudice. See Appellants’ Brief at 20-27.
The district court’s subject matter jurisdiction is a question of law that we
review de novo. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247
(11th Cir. 2005). “We review the district court’s decision to dismiss a case for
failure to comply with the rules of the court for an abuse of discretion.” Zocaras v.
Castro, 465 F.3d 479, 483 (11th Cir. 2006). Pursuant to Rule 41(b), a defendant
may move for dismissal if a plaintiff fails to comply with a court order. Fed. R.
Civ. P. 41(b). “Although the rule is phrased in terms of dismissal on the motion of
the defendant, it is clear that the power is inherent in the court and may be
exercised sua sponte whenever necessary to achieve the orderly and expeditious
disposition of cases.” Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541,
544 (5th Cir. 1978) (citation and quotation marks omitted). “In addition to its
power under Rule 41(b), a court also has the inherent ability to dismiss a claim in
light of its authority to enforce its orders and provide for the efficient disposition of
litigation.” Zocaras, 465 F.3d at 483. Moreover, a district court has “inherent
power to manage its docket.” Betty K Agencies, Ltd., 432 F.3d at 1337.
10
The Bethels assert that the district court lacked jurisdiction to order Glynis
to show cause and to dismiss her case with prejudice, but concede that the court
had jurisdiction over their § 1983 complaint. See id. at vii. The Bethels’
contention that the district court lacked the jurisdiction to order Glynis to appear at
a hearing is without merit because the district court has the inherent “authority to
enforce its orders and provide for the efficient disposition of litigation.” See
Zocaras, 465 F.3d at 483; Lopez, 570 F.2d at 544. By ordering Glynis to appear
and explain why it should not bar her from contacting the clerk’s office, the district
court was properly exercising it authority over its one of the cases on its docket.
See Betty K Agencies, Ltd., 432 F.3d at 1337.
Finally, the Bethels argue that the district court violated their Seventh
Amendment rights by dismissing their case. The Seventh Amendment provides
that “[i]n Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved . . . .” U.S Const. amend. VII.
Under our precedent, a district court can dismiss a case where a plaintiff willfully
refuses to comply with a court order. See Lopez, 570 F.2d at 544; Fed. R. Civ. P.
41(b). Moreover, a district court is authorized to dismiss a plaintiff’s case for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). A plaintiff’s right to a trial by jury is not violated when a court dismisses
11
a case based on a matter of law before trial. See Garvie v. City of Fort Walton
Beach, Fla., 366 F.3d 1186, 1190 (11th Cir. 2004) (summary judgment context).
It is unclear whether the Bethels are contending that the district court
violated their Seventh Amendment rights by dismissing Glynis’s case with
prejudice for failure to comply with a court order or by granting the defendants’
motions to dismiss with respect to their other claims. See Appellants’ Brief at 29-
31. Regardless, research has not revealed a case in which either the U.S. Supreme
Court or we have held that a dismissal violated the Seventh Amendment.
In their brief, the Bethels’ assertion that the district court dismissed the case
in violation of the 7th Amendment does not contain any arguments, citations to the
record, or citations to authority – merely a list of statements. See Appellants’ Brief
at 29-31. Given that the statements are not arguments and do not contain any
citations to the record or to authority, they are insufficient, in themselves, to raise
an issue on appeal. Therefore, any other issue that the Bethels attempt to raise in
this appeal has been abandoned. See Timson, 518 F.3d at 874 (holding that a pro
se appellant abandons an issue by failing to raise it on appeal).
Because a district court is authorized to dismiss a plaintiff’s case where a
plaintiff wilfully refuses to comply with a court order or where a plaintiff fails to
state a claim upon which relief can be granted, the district court’s dismissal of the
12
Bethels’ case did not violate their Seventh Amendment rights.
III. CONCLUSION
Accordingly, upon review of the record and consideration of the parties’
briefs, we affirm the district court’s dismissal of the Bethels’ § 1983 case.
AFFIRMED.
13 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063032/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 30, 2010
No. 09-14267
JOHN LEY
Non-Argument Calendar
CLERK
________________________
Agency No. A095-709-929
JIA LAN SHI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 30, 2010)
Before DUBINA, Chief Judge, HULL and FAY, Circuit Judges.
PER CURIAM:
Petitioner Jia Lan Shi (“Shi”), a native and citizen of the People’s Republic
of China, petitions for review of the final order of the Board of Immigration
Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”) denial of her
claim for asylum under the Immigration and Nationality Act, 8 U.S.C. § 1101 et
seq.1 Shi argues that she established a well-founded fear of future persecution
based on her practice of Falun Gong and that the BIA’s and IJ’s finding to the
contrary is not supported by substantial evidence in the record.
We review the BIA’s decision as the final judgment, unless the BIA has
expressly adopted the IJ’s decision, in which case, we review the IJ’s decision as
well. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). We review factual
determinations, including credibility determinations, under the substantial
evidence test, and will affirm the decision if it is supported by reasonable,
substantial, and probative evidence on the record as a whole. Kueviakoe v. U.S.
Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). Once an adverse credibility
finding is made, the burden is on the applicant to show that the credibility decision
was not supported by “specific, cogent reasons” or was not based on substantial
evidence. See Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)
(internal quotation marks omitted). Under this test, we view all evidence in the
1
The IJ and BIA also denied Shi’s request for withholding of removal and relief under the
United Nations Convention Against Torture. Shi petitions for review of only the denial of her
application for asylum.
2
light most favorable to the agency’s decision and will reverse the BIA’s findings
“only when the record compels” it. Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). Thus, even if the evidence could support multiple
conclusions, we will affirm the agency’s decision unless there is no reasonable
basis for the decision. Id. at 1029.
Shi has not challenged the IJ’s and BIA’s adverse credibility determination
in her petition. Even a liberal construction of Shi’s brief compels the conclusion
that Shi has waived her challenge to the adverse credibility findings made by the IJ
and BIA. See N.L.R.B. v. McClain of Ga., 138 F.3d 1418, 1422 (11th Cir. 1998)
(“Issues raised in a perfunctory manner, without supporting arguments and citation
to authorities are generally deemed waived.”). Alternatively, assuming Shi has not
waived her challenge, she falls well short of her burden to demonstrate that the
credibility decision was not supported by the record. See Forgue, 401 F.3d at
1287 (holding that the burden is on the applicant to demonstrate the IJ’s adverse
credibility determination is not supported by substantial evidence). Because the
BIA’s and IJ’s adverse credibility findings have not been challenged, we conclude
that the BIA’s conclusion that Shi has not established a well-founded fear of future
persecution based on her practice of Falun Gong is supported by the record. See
id. (“[A]n adverse credibility determination alone may be sufficient to support the
3
denial of an asylum application.”). Therefore, we deny the petition.
PETITION DENIED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129594/ | 538 U.S. 1031
METROPOLITAN TRANSPORTATION AUTHORITYv.GREENE.
No. 02-1173.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
2
C. A. 2d Cir. Certiorari denied. Reported below: 280 F. 3d 224. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4538793/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIE J. JACKSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-637
[June 4, 2020]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Thomas Michael
Lynch, V., Judge; L.T. Case No. 82-950CF10A.
Willie J. Jackson, Raiford, pro se.
No appearance required for appellee.
PER CURIAM.
Affirmed.
GROSS, DAMOORGIAN and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3218106/ | Dismissed; Opinion Filed June 28, 2016.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00650-CR
No. 05-16-00651-CR
No. 05-16-00652-CR
No. 05-16-00653-CR
AARON MUNOZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F12-24624-U, F13-25152-U, F14-54112-U & F15-51997-U
MEMORANDUM OPINION
Before Justices Myers, Stoddart, and Whitehill
Opinion by Justice Stoddart
The Court has before it a motion to dismiss these appeals filed by Patty A. Tress. In the
motion, Tress states she appealed her court appointed attorney’s fees in these cases to the
Administrative Judge for Region One. When the Administrative Judge denied her appeal, a
Dallas County clerk “forwarded the motion and order for the appeal of attorney’s fees [to this
Court] erroneously and without knowledge or consent” of Tress.
We grant Tress’s motion and dismiss these appeals.
Do Not Publish /Craig Stoddart/
TEX. R. APP. P. 47 CRAIG STODDART
160650F.U05 JUSTICE
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AARON MUNOZ, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-16-00650-CR V. Trial Court Cause No. F12-24624-U.
Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee Justices Myers and Whitehill participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 28th day of June, 2016.
–2–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AARON MUNOZ, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-16-00651-CR V. Trial Court Cause No. F13-25152-U.
Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee Justices Myers and Whitehill participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 28th day of June, 2016.
–3–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AARON MUNOZ, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-16-00652-CR V. Trial Court Cause No. F14-54112-U.
Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee Justices Myers and Whitehill participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 28th day of June, 2016.
–4–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AARON MUNOZ, Appellant On Appeal from the 291st Judicial District
Court, Dallas County, Texas
No. 05-16-00653-CR V. Trial Court Cause No. F15-51997-U.
Opinion delivered by Justice Stoddart,
THE STATE OF TEXAS, Appellee Justices Myers and Whitehill participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 28th day of June, 2016.
–5– | 01-03-2023 | 06-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/129600/ | 538 U.S. 1031
TA CHEN STAINLESS STEEL PIPE, LTD.v.UNITED STATES.
No. 02-1141.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT.
2
C. A. Fed. Cir. Certiorari denied. Reported below: 298 F. 3d 1330. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3451516/ | Affirming.
On April 7, 1928, Annye M. Steinbeck was an applicant for the position of teacher in subdistrict 12 (Donaldson), of Carlisle county, Kentucky, for the school year 1928, and her application bore the indorsement and approval of Ed Edwards, subdistrict trustee. The county board of education, however, declined to elect Mrs. Steinbeck, and elected Miss Gladys Lovelace, whose application did not bear the indorsement of the subdistrict trustee. On May 14, 1928, Mrs. Steinbeck and the trustee, Edwards, by their suit in equity, against Miss Lovelace, the county board of education, and the superintendent of schools of Carlisle county, sought to enjoin Miss Lovelace from carrying out the contract, and teaching the school, and sought a mandatory injunction, requiring the county board of education and the county superintendent of schools to convene and rescind the order appointing Miss Lovelace, and to appoint Mrs. Steinbeck as teacher for that school. Issue was joined, proof heard, and the court granted to Mrs. Steinbeck the relief she sought, from which judgment Miss Lovelace, the board of education, and the superintendent have appealed.
The appellants, for the reversal of that judgment, urge that Mrs. Steinbeck, at the time of her application, did not have a certificate to teach in Carlisle county, and that she did not have the necessary qualifications prescribed by the board. Mrs. Steinbeck then had a certificate which would expire on June 30, 1928, which was before the time that this school to be taught by Mrs. Steinbeck would begin, and they say that therefore she was not a qualified teacher within the meaning of the law; but that question was decided adversely to the applicants' contention in the case of Crowe v. Yates, 219 Ky. 49,292 S.W. 483. Parties, in contracting, must have in contemplation the provisions of the law relative thereto; hence, when a teacher is employed, who has not a certificate, or whose certificate will expire before the beginning of the term for which she is employed, such employment is conditioned upon her taking an examination and obtaining a certificate. If Mrs. Steinbeck did this, she is entitled to this employment; otherwise, she is not. This record shows Mrs. Steinbeck entered the examination held on May 24, 1928; this judgment was rendered on June 16, 1928; and it is probable that the result of that examination was not then known; at least, this *Page 671
record does not show it. Her old certificate had not then expired. If she failed in that examination, that is a matter that is not before us. In this opinion we are dealing with the situation as this record shows it was on June 16, 1928.
Their next contention is that the board had, by an order duly and regularly entered upon its records, fixed the scholastic qualifications of teachers who should teach in Carlisle county, Kentucky, and that, by those requirements, all teachers had to have at least 16 units of standard high school credits to enable them to do so. The proof upon that subject is conflicting; it being contended by Mrs. Steinbeck that she had 17 1/2 credits, while the appellants insist she only had 10 5/6 credits. It appears to us that the weight of the evidence sustains the contention of Mrs. Steinbeck. The lower court by its judgment sustained her contention, and, under our rule, the judgment of the chancellor upon conflicting questions of fact, when we are in doubt as to the facts, will not be disturbed. The subdistrict trustee having theretofore recommended Mrs. Steinbeck, and she possessing the necessary qualifications, it was the duty of the county board of education to elect her. See Scott v. Blackburn, 222 Ky. 514, 1 S.W.2d 977.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3062656/ | J. S55008/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WILBERT JOHNSON, : No. 1642 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, August 25, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0015449-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 14, 2015
Wilbert Johnson appeals from the judgment of sentence of August 25,
2014, following his conviction of first-degree murder.1 We affirm.
The trial court provided the following facts of this case:
The evidence presented at trial established
that in the late evening hours of September 21,
2013, [appellant] was at the Ragtime Bar in
Homestead, where he was waiting to meet the
mother of his child, Jalynn Ferrell, to discuss a
possible reconciliation in their relationship.
[Appellant] knew that Ferrell was seeing someone
else, but told her, earlier that day, that if he could
not have her, no one would. Also at the Ragtime Bar
that evening were Ferrell’s new boyfriend,
Edward Joseph and his three (3) friends,
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2502(a).
J. S55008/15
Blaine Smoot, “Sheen”[2] and Qaeed Braxton.
[Appellant] became aware that Joseph was Ferrell’s
new boyfriend, and at one point during the evening,
had Joseph call Ferrell and put him on the phone,
since Ferrell was not answering [appellant’s] calls.
At some point thereafter, [appellant] and Braxton
had a verbal altercation. Though the altercation did
not involve shouting or fighting, the bar’s owner
nevertheless broke up the discussion between the
two men. Braxton and his friends then left the bar,
on their way to Ferrell’s house to watch a boxing
match on television. Surveillance video from the bar
shows [appellant] following them at a fast pace. By
the time Braxton and his friends reached the end of
the block, [appellant] had caught up to them and
retrieved a gun from the car he was driving. The
car, a grey Volkswagen, belonged to [appellant’s]
current girlfriend, Karen Clark. Joseph saw
[appellant] retrieve the gun and began to run. He
heard Braxton say “Aw, come on man” and then a
shot was fired. By the time Joseph returned to the
scene, [appellant] was gone and Braxton
[(hereinafter “victim”)] was laying (sic) face-down
on the sidewalk. He was transported by paramedics
but was later pronounced dead. The cause of death
was a single gunshot wound to the back, which
perforated his lung.
Trial court opinion, 1/13/15 at 2-3. The Commonwealth charged appellant
with criminal homicide, terroristic threats, and a violation of the Uniform
Firearms Act.3 The Commonwealth withdrew the Uniform Firearms Act
charge, and the trial court granted appellant’s motion for judgment of
acquittal on one of the terroristic threats charges. (Notes of testimony,
8/19/14 at 248.) At the conclusion of a jury trial, the jury found appellant
2
After a review of the record, “Sheen’s” identity is unclear.
3
18 Pa.C.S.A. §§ 2501, 2706(a)(1), and 6105(a)(1), respectively.
-2-
J. S55008/15
guilty of first-degree murder and acquitted him of the other terroristic
threats charge. On August 25, 2014, appellant was sentenced to life
imprisonment without the possibility of parole. (Notes of testimony,
sentencing hearing, 8/25/14 at 14.) The trial court denied appellant’s post-
sentence motions on September 9, 2014. Appellant then filed a notice of
appeal and the trial court filed an opinion on January 13, 2015.
Appellant raises the following issues for our review:
1. Did the trial court err in denying [appellant’s]
request to admit certain evidence at trial,
specifically, the prior criminal convictions of
the [decedent] for the purpose of showing the
decedent’s propensity for violence and acting
as the aggressor?
2. Was the evidence sufficient to demonstrate
that [appellant] was acting in self-defense?
3. Was the verdict against the weight of the
evidence?
Appellant’s brief at 3.
The first issue appellant raises for our review is whether the trial court
erred in refusing to admit certain evidence regarding the victim’s criminal
history as part of appellant’s self-defense claim. When claiming self-
defense, a defendant is permitted to introduce evidence of the victim’s
criminal history to either prove that the defendant was in reasonable fear of
the victim because the defendant had knowledge of the victim’s violent
tendencies, or to prove that the victim was acting in conformance with those
violent tendencies and was the aggressor in the altercation in question.
-3-
J. S55008/15
Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa. 1979), quoting
Commonwealth v. Amos, 284 A.2d 748, 750 (Pa. 1971). The Beck court
also stated that a defendant was not required to have prior knowledge of
the victim’s criminal conviction in order to introduce the conviction into
evidence. Beck, 402 A.2d at 1373.
This court further clarified our supreme court’s holdings in Beck and
Amos by stating that,
[P]rior convictions involving aggression by a victim
of a homicide may be introduced into evidence by an
accused where self-defense is asserted to . . . prove
the allegedly violent propensities of the victim to
show that the victim was in fact the aggressor. . . .
[T]he defendant need not have knowledge of a
victim’s criminal conviction in order to introduce the
prior conviction to show the aggressive propensities
of the victim.
Commonwealth v. McClain, 587 A.2d 798, 802 (Pa.Super. 1991)
(emphasis in the original) (citations omitted).
In the instant case, appellant claims that the trial court erred when it
did not admit evidence of the victim’s prior convictions into evidence on the
grounds that appellant had no prior knowledge of the victim’s criminal record
or previous convictions. Appellant is correct in that the trial court erred
when it denied his motion to introduce evidence of the victim’s prior
convictions. However, at no point throughout the record or in his brief does
-4-
J. S55008/15
appellant disclose the crime of which the victim was allegedly convicted.4
The only reference in the record to the victim’s criminal history came in the
form of an oral motion at the close of the Commonwealth’s case-in-chief:
[Defense counsel]: Just to put on the record one
last thing.
The Court: Sure.
[Defense counsel]: The request to admit certain
prior convictions of the victim, Mr. Braxton, in this
case, as the aggressor in this matter. It’s my
understanding that the Court is going to make a
ruling as to that.
The Court: Yes, I will. Since the Defendant so far as
I know did not know of any prior record, I will not
allow that to be admitted.
Notes of testimony, 8/19/14 at 252.
This discussion is the extent of any record of prior conviction evidence
and is insufficient for our review. As a result of appellant’s failure to disclose
the nature of the victim’s conviction, appellant has failed to show that he
was prejudiced by the trial court’s error. Therefore, we find that the trial
court’s denial of evidence of the victim’s prior convictions amounted to
harmless error. The harmless error standard is as follows:
[The Pennsylvania Supreme Court] has stated
that an error may be harmless where the properly
admitted evidence of guilt is so overwhelming and
4
We do note that in its opinion, the trial court refers to the victim’s prior
convictions for simple assault and terroristic threats; however, the trial court
also notes, as we do here, that appellant failed to articulate these
convictions at any point throughout the trial transcript or his concise
statement of errors. (Trial court opinion, 1/13/15 at 8.)
-5-
J. S55008/15
the prejudicial effect of the error is so insignificant by
comparison that it is clear beyond a reasonable
doubt that the error could not have contributed to
the verdict. Under this approach, a reviewing court
first determines whether the untainted evidence,
considered independently of the tainted evidence,
overwhelmingly establishes the defendant’s guilt. If
“honest, fair minded jurors might very well have
brought in not-guilty verdicts,” an error cannot be
harmless on the basis of overwhelming evidence.
Once the court determines that the evidence of guilt
is overwhelming, it then decides if the error was so
insignificant by comparison that it could not have
contributed to the verdict. We have cautioned that:
A conclusion that the properly
admitted evidence is ‘so overwhelming’
and the prejudicial effect of the . . . error
is ‘so insignificant’ by comparison, that it
is clear beyond a reasonable doubt that
the error is harmless, is not to be arrived
at lightly.
Accordingly, we have been reluctant to find an
error harmless on the basis of overwhelming
evidence.
In applying the harmless error analysis in a
particular case, it is imperative that the burden of
establishing that the error is harmless beyond a
reasonable doubt rests with the Commonwealth.
Commonwealth v. Drummond, 775 A.2d 849, 853 (Pa.Super. 2001),
quoting Commonwealth v. Rasheed, 640 A.2d 896, 898 (Pa. 1994).
As this court articulated in Drummond, we do not undertake the
finding of harmless error lightly; however, the evidence that appellant acted
as the aggressor in this case is overwhelming. After the victim and his
friends left the Ragtime Bar, appellant ran after them, went to his car, took
-6-
J. S55008/15
out a gun, and fatally shot the victim in the back as he was running away.5
Considering these facts cast in a light favorable to the Commonwealth, the
victim did not act as the aggressor, and the failure of the trial court to admit
any of the victim’s previous convictions was so insignificant that it did not
cause appellant any prejudice.
Therefore, we find that the trial court committed harmless error when
it denied defense counsel’s motion to admit evidence of the victim’s prior
convictions and did not err when it denied appellant a new trial.
We now address appellant’s sufficiency of the evidence claim.
In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of
the evidence, this Court may not substitute its
judgment for that of the fact finder; if the record
contains support for the convictions, they may not
be disturbed.
5
Smoot testified that upon realization that appellant had a gun, all four
members of their group started running away; this testimony was
corroborated by forensic evidence which indicated that the victim was shot in
the back. (Notes of testimony, 8/18/14 at 45, 112.)
-7-
J. S55008/15
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted).
Moreover, in applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally, the
finder of fact while passing upon the credibility of
witnesses and the weight of the evidence produced,
is free to believe all, part, or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted).
The credibility and weight of the evidence are both matters that are in
the sole purview of the jury. Specifically, when considering whether or not
the evidence was sufficient to prove each element of each charge beyond a
reasonable doubt, we cannot assume the task of weighing evidence and
making independent conclusions of fact. Commonwealth v. Lewis, 911
A.2d 558, 563 (Pa.Super. 2006) (citations omitted). “Any doubts regarding
[an appellant’s] guilt may be resolved by the fact-finder unless the evidence
is so weak and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances.” Id.
When a defendant claims self-defense, the burden is on the
Commonwealth to disprove the defendant’s claim beyond a reasonable
doubt. Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012)
(citations omitted). For this reason, we shall review the sufficiency of the
evidence not only for the first-degree murder conviction, but also to
-8-
J. S55008/15
determine whether the Commonwealth met its burden in disproving
appellant’s self-defense claim.
We shall first review the first-degree murder conviction. After
reviewing the evidence presented cast in the light most favorable to the
Commonwealth, as verdict winner, we find that the evidence is sufficient to
warrant the jury’s conviction for first-degree murder. First-degree murder is
defined as a criminal homicide that is “committed by an intentional killing.”
18 Pa.C.S.A. § 2502(a). The statute defines “intentional killing” as “killing
by means of poison, or by lying in wait, or by any other kind of willful,
deliberate and premeditated killing.” 18 Pa.C.S.A. § 2502(d).
In order for an individual to be convicted of first-degree murder, the
Commonwealth must prove the following beyond a reasonable doubt:
(1) that a human being was unlawfully killed; (2) that the defendant
perpetrated the killing; and (3) that the defendant did so with “malice and a
specific intent to kill.” Commonwealth v. Johnson, 107 A.3d 52, 66 (Pa.
2014).
In the instant case, the Commonwealth has met its burden of proving
all three elements of first-degree murder beyond a reasonable doubt. First,
the Commonwealth proved that the victim was killed unlawfully through the
testimony of Kenneth Clark, a forensic pathologist in Allegheny County.
Dr. Clark conducted an autopsy on the victim, and determined his death to
be caused by a homicide. (Notes of testimony, 8/18/14 at 108, 113.)
-9-
J. S55008/15
Second, for the reasons discussed supra, the Commonwealth proved
beyond a reasonable doubt that appellant perpetrated the killing. Finally,
the Commonwealth also proved beyond a reasonable doubt that appellant
not only perpetrated the killing, but did so with the specific intent to kill.
Despite the fact that appellant claims self-defense, the forensic evidence
indicates that he shot the victim in the back. (Id. at 112.) Eyewitness
testimony also indicated that when Smoot noticed that appellant was getting
a gun out of his car, Smoot, Joseph, “Sheen,” and the victim all attempted
to run away. (Id. at 45.) While not necessary to obtain a first-degree
murder conviction,6 the Commonwealth also established motive with
testimony of the argument in the bar between appellant and the victim and
the fact that Joseph was dating appellant’s ex-girlfriend.
Taking this evidence in the light most favorable to the Commonwealth,
as verdict-winner, we find that the Commonwealth has satisfied its burden of
proving first-degree murder beyond a reasonable doubt, and that the jury’s
guilty verdict is fully supported by the evidence, and accordingly cannot be
disturbed.
We now turn to appellant’s self-defense claim. In order for a
defendant to successfully claim self-defense, he or she must meet the
following three elements: (1) the defendant reasonably believed that he
6
See Commonwealth v. Zimmerman, 504 A.2d 1329, 1335 n. 4
(Pa.Super. 1986) (stating that the Commonwealth need not prove motive in
order to obtain a conviction for first-degree murder).
- 10 -
J. S55008/15
was in imminent danger of death or serious bodily injury and that the use of
deadly force was necessary to prevent such harm; (2) the defendant did not
provoke the incident which resulted in the victim’s death; and (3) the
defendant did not violate any duty to retreat. Commonwealth v. Mouzon,
53 A.3d 738, 740 (Pa. 2012) (citations omitted). As previously noted, the
Commonwealth has the burden of disproving self-defense beyond a
reasonable doubt, and may do so by disproving any one of the three
self-defense elements the defendant must meet. Id. at 740-741.
Here, we only need to address the second factor as discussed in
Mouzon: whether appellant was at fault in provoking the incident that
resulted in the victim’s death. We find that the Commonwealth has proven
beyond a reasonable doubt that appellant was the aggressor in this case,
and therefore his self-defense claim must fail. Appellant claimed that the
victim was the initial aggressor after appellant left the Ragtime Bar. (Notes
of testimony, 8/19/14 at 229.) The Commonwealth, however, was able to
disprove this beyond a reasonable doubt. In addition to Smoot’s testimony
that appellant chased the victim and his friends down the street from the
bar, appellant admitted to the police that he did not see anyone (the victim,
Joseph, Smoot, or “Sheen”) have any firearms or other types of weapons in
their possession. (Id.)
- 11 -
J. S55008/15
For these reasons, we find that the Commonwealth has met its burden
of disproving appellant’s self-defense claim beyond a reasonable doubt, and
that the evidence fully supports the jury’s guilty verdict.
Finally, appellant asks us to consider whether the weight of the
evidence supports his conviction for first-degree murder. Our standard of
review for considering the weight of the evidence is as follows:
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim
is a review of the exercise of discretion,
not of the underlying question of whether
the verdict is against the weight of the
evidence. Because the trial judge has
had the opportunity to hear and see the
evidence presented, an appellate court
will give the gravest consideration to the
findings and reasons advanced by the
trial judge when reviewing the trial
court’s determination that the verdict is
against the weight of the evidence. One
of the least assailable reasons for
granting or denying a new trial is the
lower court’s conviction that the verdict
was or was not against the weight of the
evidence and that a new trial should be
granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or denying a
motion for a new trial based on a challenge to the
weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have
explained:
- 12 -
J. S55008/15
The term “discretion” imports the
exercise of judgment, wisdom and skill
so as to reach a dispassionate conclusion
within the framework of the law, and is
not exercised for the purpose of giving
effect to the will of the judge. Discretion
must be exercised on the foundation of
reason, as opposed to prejudice,
personal motivations, caprice or arbitrary
actions. Discretion is abused where the
course pursued represents not merely an
error in judgment, but where the
judgment is manifestly unreasonable or
where the law is not applied or where the
record shows that the action is a result of
partiality, prejudice, bias, or ill will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted).
Appellant’s weight of the evidence argument is grounded in two
separate theories: that the jury gave too much weight to Smoot’s
eyewitness testimony of the encounter between appellant and the victim
outside the Ragtime Bar and that the jury did not give enough weight to
Dr. Clark’s testimony that the victim had ingested cocaine and alcohol near
the time of his encounter with appellant. (Appellant’s brief at 14.) In
declining to find that the conviction was against the weight of the evidence,
the trial court found the verdict reached was not so contrary to the evidence
as to shock one’s conscience or render the verdict inappropriate. (Trial court
opinion, 1/13/15 at 7.) We find no abuse of discretion in such a conclusion
and therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
- 13 -
J. S55008/15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
- 14 - | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2970883/ | RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 In re Brown Nos. 01-1015/2500
ELECTRONIC CITATION: 2003 FED App. 0315P (6th Cir.)
File Name: 03a0315p.06
EASTLAND PARTNERS -
LIMITED PARTNERS , -
UNITED STATES COURT OF APPEALS Plaintiff-Appellant, -
-
FOR THE SIXTH CIRCUIT -
_________________ v. -
-
VILLAGE GREEN -
No. 01-1015 X -
- MANAGEMENT COMPANY ,
In re: ANTHONY STEVEN
- Defendant-Appellee, -
BROWN , -
- Nos. 01-1015/2500 -
Debtor. -
> ANTHONY STEVEN BROWN , et -
_____________________
, al., -
- Defendants. -
EASTLAND PARTNERS - -
LIMITED PARTNERS , et al., - N
Plaintiffs-Appellees, - Appeal from the United States District Court
-
- for the Eastern District of Michigan at Detroit.
v. No. 97-70866—Bernard A. Friedman, District Judge.
-
-
VILLAGE GREEN - Argued: October 18, 2002
MANAGEMENT COMPANY , -
Decided and Filed: September 3, 2003
Defendant-Appellant, -
-
- Before: BOGGS, SUHRHEINRICH, and CLAY, Circuit
ANTHONY STEVEN BROWN , et - Judges.
al., -
Defendants. - _________________
- COUNSEL
No. 01-2500 -
In re: ANTHONY STEVEN - ARGUED: Stephen F. Wasinger, WASINGER, KICKHAM
- & HANLEY, Royal Oak, Michigan, Felice V. Iafrate,
BROWN , - PUZZOULI & HRIBAR, Clinton Township, Michigan, for
Debtor. - Defendants. David R. Parker, CHARFOOS &
_____________________ - CHRISTENSEN, Detroit, Michigan, Mayer Morganroth,
- MORGANROTH & MORGANROTH, Southfield, Michigan,
1
Nos. 01-1015/2500 In re Brown 3 4 In re Brown Nos. 01-1015/2500
for Plaintiffs. ON BRIEF: Stephen F. Wasinger, Judith petition for Chapter 7 bankruptcy, and Eastland’s complaint
Sawicki, WASINGER, KICKHAM & HANLEY, Royal Oak, was refiled as an adversary proceeding. Specifially, Eastland
Michigan, Felice V. Iafrate, PUZZOULI & HRIBAR, Clinton brought the adversary proceeding against Brown, Brown’s
Township, Michigan, for Defendants. David R. Parker, two companies, Anthony S. Brown Development Company
CHARFOOS & CHRISTENSEN, Detroit, Michigan, Mayer and ASB Asset Management Company (“ASB”), and Village
Morganroth, Jeffrey B. Morganroth, Jason R. Hirsch, Green for breach of contract through negligence, fraud,
MORGANROTH & MORGANROTH, Southfield, Michigan, misrepresentation, defalcation and breach of fiduciary duty,
for Plaintiffs. essentially arguing that Brown and his two companies
converted funds that were to be used to pay property taxes
_________________ and other reserves on behalf of Eastland, thereby causing
Eastland’s apartment complex to be lost in foreclosure to the
OPINION mortgage holder. Village Green moved to dismiss the
_________________ complaint on the ground that Eastland did not have standing
to commence the lawsuit since Eastland’s sole managing
CLAY, Circuit Judge. In Case No. 01-1015, Defendant, general partner, JAM Associates (“JAM”)—a co-partnership
Village Green Management Company (“Village Green”), comprised of partners Brown and Lutz— had not authorized
appeals from an order entered by the district court on the lawsuit. The district court issued an order on October 10,
November 17, 2000, denying Village Green’s motion for 1997, denying Village Green’s motion to dismiss.
judgment notwithstanding the verdict or for new trial,
following a jury verdict in favor of Plaintiffs, Eastland Village Green moved for summary judgment of the tort
Partners Limited Partners, et al. (collectively “Eastland”), and claims that Eastland had filed against it. By order entered on
against Village Green, on Eastland’s breach of contract claim December 7, 1998, the district court dismissed Eastland’s tort
filed against Village Green. In Case No. 01-2500, Eastland claims against Village Green. Eastland then filed a motion
appeals from the district court’s order entered on October 3, for clarification, asking whether the district court intended to
2001, denying Eastland’s motion for rehearing of an order dismiss its claims for breach of fiduciary duty and
declaring Anthony Steven Brown sole managing partner of defalcation. The district court issued an order on January 20,
Eastland. The two cases have been consolidated on appeal, 1999, granting the motion. In its order, the district court
and for the reasons set forth below, we AFFIRM the district stated that all of Eastland’s tort claims, including those for
court’s order in Case No. 01-1015; and REVERSE the breach of fiduciary duty and defalcation, filed against Village
district court’s order in Case No. 01-2500. Green were dismissed, and thereby allowed the matter to
proceed against Village Green solely on a breach of contract
BACKGROUND claim, but against Brown and his companies on the various
Procedural History tort claims as well.
Eastland originally filed suit against Village Green and A jury trial was held in January of 2000, but ended in a
Brown seeking to recover damages allegedly sustained as a mistrial when, after deliberating for five days, the jury could
result of Village Green disbursing monies from Eastland’s not render a verdict. A second jury trial was held in July of
reserve bank accounts to Brown without consent of Brown’s 2000, after which the jury found in favor of Brown and his
co-general partner, Eric Lutz. Thereafter, Brown filed a companies on all claims, but against Village Green on
Nos. 01-1015/2500 In re Brown 5 6 In re Brown Nos. 01-1015/2500
Eastland’s breach of contract claim and thereby awarded Eastland filed a motion for rehearing of the April 19, 2001
Eastland $250,000 in damages. The district court entered order on the ground that the district court had erroneously
judgment against Village Green on August 22, 2000 in ordered the dissolution of Eastland because neither Brown nor
accordance with the jury verdict. Village Green then filed a Village Green had requested such relief, and because in
motion for judgment notwithstanding the verdict or for new ordering Eastland’s dissolution the district court erroneously
trial. The district court issued an order on November 17, relied upon a Michigan statute that authorizes a court-ordered
2000, denying the motion, and it is from the district court’s dissolution of a partnership. The district court issued an order
order denying Village Green’s motion that Village Green on October 3, 2001, denying Eastland’s motion, and it is from
now appeals in Case No. 01-1015. this order that Eastland now appeals in Case No. 01-2500.
Following the jury verdict, Brown filed a motion for Facts
attorneys’ fees and costs. The district court issued an order
on November 17, 2000, granting the motion for costs, but Eastland is a Michigan limited partnership created in 1984.
ordered the parties to brief the issue of whether Brown could As noted, Eastland’s sole general partner is JAM, a Michigan
recover attorneys’ fees under Eastland’s Limited Partnership co-partnership whose two co-partners are Brown and Lutz.
Agreement (“the Partnership Agreement”). Eastland asserted Eastland’s sole limited partner is Eastland Properties.
in its brief to the district court that under the Partnership Eastland Properties’ limited partners are a number of
Agreement, only JAM could seek indemnity for attorneys’ individuals and entities some of whom were individual
fees. Brown asserted in his brief that Eastland’s attorneys plaintiffs in this case.
lacked authority to represent Eastland, citing his August 3,
2000 letter notifying the attorneys that they had not been Eastland was the owner of an apartment complex known as
properly authorized by Eastland to act and their right to act Eastland Village Apartments (the “Property”). Eastland
had been terminated. Brown also asserted that, pursuant to an Properties, the sole limited partner of Eastland, entered into
agreement with Lutz, he had been the sole managing partner a “Management Agreement” (“the Agreement”) with Village
of JAM, and because JAM acted through him, he was entitled Green on May 9, 1990 to manage the Property. The
to indemnity for attorneys’ fees. The district court issued an Agreement listed Eastland Properties Limited Partnership as
order on January 19, 2001, denying Brown’s motion for the “owner” and Village Green Management Company as the
attorneys’ fees. “agent,” and provided a “List of Provisions” for which
Village Green was responsible such as “Disbursements from
Village Green had also filed a motion requesting that the Operating (and/or) Reserve Account(s)”and “Financial and
district court declare Brown the sole managing partner of Other Reporting.” (J.A. at 1415.) Also on May 9, 1990, ASB
Eastland. On April 18, 2001, the district court orally granted entered into a management subcontract agreement with
the motion, and further ordered that the dissolution of Village Green.
Eastland be supervised and conducted by Brown, although
neither Brown nor Village Green had requested that Eastland The Property did not perform as projected and Eastland
be dissolved. The district court memorialized its ruling on began experiencing cash flow difficulties in the early 1990’s.
April 19, 2001. In March of 1991, Eastland filed Chapter 11 bankruptcy.
Eastland did not emerge from bankruptcy until November of
1992.
Nos. 01-1015/2500 In re Brown 7 8 In re Brown Nos. 01-1015/2500
After emerging from bankruptcy, Brown, through ASB, Partnership Agreement and the bankruptcy reorganization
assumed principal responsibility for the on-site daily plan under which Eastland was operating. Lutz then
management of the Property. Village Green’s role changed contacted Brown, and Brown admitted that he did not hold
primarily to accounting, reporting, and assisting ASB as the money in a replacement reserve account and claimed that
directed by either Brown or ASB, in such matters as he used the money instead to pay Eastland’s expenses,
establishing various reserve bank accounts for Eastland. The including a debt that Eastland allegedly owed to him. Brown
owner of these accounts was listed as Eastland Properties specifically admitted to taking all of the real estate tax escrow
Limited Partnership. Village Green issued a monthly “Cash fund which totaled more than $700,000.
Requirement” report to Eastland, in which was listed the cash
available in the accounts, the fixed expenses which needed to Because Eastland failed to pay its real estate taxes,
be funded, and an itemization of accounts payable. Each Prudential Insurance filed a complaint seeking to foreclose its
month Village Green received and followed specific mortgage on the Property, and in June of 1994, Prudential
instructions from Eastland as to which creditors should be purchased the Property at a foreclosure sale for
paid based on the available cash. Village Green also issued $21,098,866.37. Dean Nelson, a real estate appraiser,
a monthly report to Eastland called a “Monthly Operations testified on behalf of Eastland that the Property had a value of
Review” which included several subparts including a $23.5 million in 1992. Nelson projected that the Property
“variance report.” The variance report listed each of the would have a value of approximately $30 million in 2002,
accounts, addressed the reason for any variance between and did not reduce this amount to present value. However,
actual and budgeted amounts, and provided the amount of the Rodney Crawford, an accountant, testified on behalf of
variance. Lutz reviewed the monthly reports prepared by Village Green that a proper analysis of Nelson’s future
Village Green and approved the budget. damage estimate, reduced to present value and properly
accounting for all costs, would have resulted in negative
Beginning in January of 1993, Brown requested that equity.
Village Green disburse money from the accounts it held for
Eastland to him. The requests were made in writing primarily At trial, the court appointed expert James McTevia to report
by Robert Stillings, an officer of ASB. A significant number on damages. McTevia testified that he had not determined
of these requests stated that the money was for a “replacement whether there had been any wrongdoing by Brown and he
reserve” account. Village Green honored these requests and assumed that none of the money disbursed by Village Green
disclosed the disbursements in the Monthly Operations at Brown’s request had been used for partnership expenses.
Review report. At the second jury trial, Terry Schwartz, the McTevia also assumed that Eastland would have had
CEO of Village Green, testified that although Village Green sufficient resources, through capital infusions, to keep the
understood that it was disbursing money to Brown, Village Property. Based on these assumptions, McTevia testified that
Green continued to record the disbursements as deposits to a Eastland would have lost approximately $500,000 had the
replacement reserve account. money not been diverted but instead used for partnership
expenses.
In March of 1994, after reviewing the Monthly Operations
Review report, Lutz learned that Brown was withdrawing
money from Eastland’s accounts. Lutz notified Village Green
by letter that such disbursements were prohibited by the
Nos. 01-1015/2500 In re Brown 9 10 In re Brown Nos. 01-1015/2500
DISCUSSION State Univ., 565 N.W.2d 401, 409 (Mich. Ct. App. 1997)
(citation omitted).
I. Village Green’s Motion for Judgment Notwithstanding
the Verdict/New Trial (Case No. 01-1015) In reviewing a district court’s decision to deny a motion for
a new trial in a diversity action, however, this Court applies
A. Standard of Review federal procedural law. See Webster v. Edward D. Jones &
Co., L.P., 197 F.3d 815, 818 (6th Cir. 1999) (citing Tobin v.
Village Green claims that insufficient evidence was Astra Pharm. Prod., 993 F.2d 528, 541 (6th Cir. 1993)). That
presented upon which a reasonable jury could have found in is to say, a district court’s denial of a motion for a new trial is
favor of Eastland on Village Green’s breach of contract claim. reviewed for an abuse of discretion. Id. “The district court
In a diversity action such as this, a state law standard of must compare the offered evidence and set aside the verdict
review is applied when a Rule 50(b) motion is based on a only if it is against the clear weight of the evidence as a
challenge to the sufficiency of the evidence necessary to whole.” Id.
support the jury’s verdict. See Morales v. Am. Honda Motor
Co. Inc., 151 F.3d 500, 506 (6th Cir. 1998). The Michigan B. Standing Issue
Supreme Court has explained the applicable standard as
follows: As a preliminary matter, Village Green argues that because
this lawsuit was not properly authorized by JAM, Eastland
In reviewing a trial court’s failure to grant a defendant’s lacked standing to assert its breach of contract claim. Village
motion for a directed verdict or judgment Green argues that only JAM, as Eastland’s sole managing
notwithstanding the verdict, we examine the testimony general partner, had the authority to bring this lawsuit on
and all legitimate inferences that may be drawn in the behalf of Eastland, and because Brown, as co-partner of JAM,
light most favorable to the plaintiff. If reasonable jurors did not consent to the lawsuit, the suit could not go forward.
could honestly have reached different conclusions, the Eastland argues that it had standing to assert its breach of
motion should have been denied. If reasonable jurors contract claim since it has suffered an injury traceable to the
could disagree, neither the trial court nor this Court has conduct of Village Green, and because it had the capacity to
the authority to substitute its judgment for that of the sue Village Green inasmuch as Michigan law allows limited
jury. partners to sue on their own behalf as well as on behalf of the
partnership. We agree with Eastland.
Matras v. Amoco Oil Co., 385 N.W.2d 586, 588 (Mich. 1986)
(footnotes omitted). Said differently, a directed verdict or In Firestone v. Galbreath, 976 F.2d 279, 283 (6th Cir.
judgment notwithstanding the verdict is appropriate under 1992), we held that a plaintiff has standing if the complaint
Michigan law only when there is no factual dispute upon alleges an injury in fact traceable to the conduct of the
which reasonable minds could differ.1 Meagher v. Wayne defendant. We further held that, under Federal Rule of Civil
Procedure 17(b), a plaintiff has the capacity to sue if the law
of the state in which the district court is held allows the
1
The Michigan courts use the terms “directed verdict” and “judgment
notwithstanding the verdict” rather than the term “judgment as a matter
of law” as used in federal court. We shall employ the term “judgment as
a matter of law” as used in Rule 50 throughout this opinion.
Nos. 01-1015/2500 In re Brown 11 12 In re Brown Nos. 01-1015/2500
plaintiff to litigate in federal court.2 Id. The plaintiffs in partnership if the general partners refuse. Thus, Eastland’s
Firestone, who were beneficiaries of an inter vivos trust limited partners had the capacity to sue on their own behalf
created by their grandmother, brought state tort and federal and on behalf of Eastland without the consent of both general
racketeering claims against the trustee and the executor of partners, Brown and Lutz, and Village Green’s contention
their grandmother’s estate on behalf of themselves that Eastland had no standing is without merit. See id.; see
individually, the family trust, and the estate. The district court also Firestone, 976 F.2d at 283.
dismissed the claims on the ground that the plaintiffs lacked
standing to pursue those claims. Id. On appeal, this Court C. Sufficiency of the Evidence as to Eastland’s Breach
found that the plaintiffs had standing to sue because the of Contract Claim
complaint alleged an injury in fact traceable the conduct of
the trustee and the executor. Id. Village Green argues that it did not have a contract with
Eastland, but instead entered into a subcontract with ASB,
In this case, Eastland’s first amended complaint alleges an which had a contract with Eastland. Village Green argues in
injury in fact traceable to Village Green. Specifically, the the alternative that even if it did contract with Eastland, there
complaint alleges that Eastland suffered damages in the was no evidence of a breach inasmuch as Village Green acted
amount of $778,000 as result of Village Green’s actions at the direction of its principal when it disbursed money to
associated with diverting monies to Brown. See Firestone, Brown, its monthly reports accurately disclosed that taxes
976 F.2d at 283. Thus, having concluded that Eastland were not paid on the Property after November 1993 but that
alleged an injury in fact traceable to Village Green, the next money had been disbursed to the owner, and that the
inquiry becomes whether under Michigan law, Eastland had management subcontract agreement expressly provided that
the capacity to sue Village Green. Id. Village Green could not be held liable for the acts or
omissions of the owner.
In Adell v. Sommers, Schwartz, Silver & Schwartz, P.C.,
428 N.W.2d 26, 29 (Mich. Ct. App. 1988), the Michigan Eastland argues that the record indicates that Village Green
Court of Appeals recognized that pursuant to Mich. Comp. entered into the Agreement with Eastland on May 9, 1990,
Laws § 449.2001, limited partners have the capacity to sue on and that the subcontract with ABS did nothing to negate
their own behalf and to bring a derivative action on the behalf Village Green’s obligations to Eastland under the Agreement.
of the partnership for wrongs committed against the Eastland goes on to argue that there was overwhelming
evidence of Village Green’s breach of the Agreement by way
of Village Green’s disbursing money to Brown upon the
2 requests of a third person and submitting monthly reports that
Federal Rule of C ivil Pro cedure 17(b) provides in relevant part:
unambiguously misrepresented the amount of money held in
The capacity of an individual, other than one acting in a the accounts, which was in contravention of the terms of the
representative capa city, to sue o r be sued shall be determined by Agreement. Furthermore, Eastland maintains that Village
the law of the individual’s do micile. T he capacity of a
corporation to sue or be sued shall be determined by the law
Green took these actions at its own peril because there is no
under which it is organized. In all other cases capacity to sue or provision in the Agreement exempting Village Green from
be sued shall be determined by the law of the state in which the liability. We agree with Eastland.
district co urt is held . . . .
Fed. R. Civ. P. 17(b).
Nos. 01-1015/2500 In re Brown 13 14 In re Brown Nos. 01-1015/2500
To state a breach of contract claim under Michigan law, a existence of the Agreement or that it is a valid contract under
plaintiff must first establish the elements of a valid contract. Michigan law. Rather, Village Green contends that the
See Pawlak v. Redox Corp., 453 N.W.2d 304, 307 (Mich. Ct. Agreement was between Eastland and ASB, and that Village
App. 1990). The elements of a valid contract in Michigan are Green had a subcontract with ASB. The record does not
1) parties competent to contract, 2) a proper subject matter, support Village Green’s contention.
3) a legal consideration, 4) mutuality of agreement, and
5) mutuality of obligation. Thomas v. Leja, 468 N.W.2d 58, As indicated above, the Agreement clearly states the parties
60 (Mich. Ct. App. 1990). Once a valid contract has been that entered into the Agreement—Eastland and Village Green.
established, a plaintiff seeking to recover on a breach of Although in the Signatures section of the Agreement,
contract theory must then prove by a preponderance of the Brown’s name appears with the name “Anthony S.
evidence the terms of the contract, that the defendant Development Co., Inc.” thereunder, the Signatures section of
breached the terms of the contract, and that the breached the Agreement also designates “Eastland Properties Limited
caused the plaintiff’s injury. See Platsis v. E.F. Hutton & Partnership” as the “Owner” and Village Green as the
Co., Inc., 642 F. Supp. 1277, 1309 (W.D. Mich. 1986). “Agent” for which Terry B. Schwartz signed as Chief
Executive Officer. (J.A. at 1429.) Thus, the record supports
The record indicates that the “Agreement [was] made this a finding that reasonable minds could have found that a
9th day of May 1990 by and between Eastland Properties contract between Eastland and Village Green existed. See
Limited Partnership (the “Owner”) and Village Green Pawlak, 453 N.W.2d at 307. As a result, the terms of the
Management Company (the “Agent”)[,]” wherein Village Agreement and whether sufficient evidence was presented for
Green agreed to provide management services to Eastland in a reasonable jury to have found that Village Green breached
exchange for Eastland making payments to Village Green for the terms thereby causing Eastland to suffer an injury are the
the services. (J.A. at 1416.) Specifically, the Agreement next relevant inquiries. See Platsis, 642 F. Supp. at 1309;
provides: Matras, 385 N.W.2d at 588.
1.1 APPOINTMENT AND ACCEPTANCE As to the terms of the Agreement, among other things,
Owner [Eastland] hereby appoints Agent [Village Village Green was required to collect all accounts receivable
Green] as sole and exclusive Agent of Owner in connection with the management and operation of the
[Eastland] to lease and manage the property described Property, deposit and maintain such funds in reserve bank
in paragraph 1.2 upon the terms and conditions accounts, pay all expenses and costs necessary for the proper
provided herein. Agent [Village Green] accepts the management and operation of the Property, and provide
appointment and agrees to furnish the services of its Eastland with accurate and complete monthly reports of costs,
organization for the leasing and management of the receipts and disbursements. Eastland brought forth evidence
Premises; and Owner [Eastland] agrees to pay all that Village Green breached these obligations by way of
expenses in connection with those services. testimony and documentation that Village Green disbursed
money to Brown upon the requests of a third person
(J.A. at 1416.) Thus, this bargained for exchange of unauthorized to make such requests and provided monthly
mutuality between Eastland and Village Green satisfies reports to Eastland that did not accurately reflect the amount
Michigan’s requirements for a valid contract. See Pawlak, of money held in the accounts. Eastland also brought forth
453 N.W.2d at 307. Village Green does not deny the evidence that it suffered an injury as a result of Village
Nos. 01-1015/2500 In re Brown 15 16 In re Brown Nos. 01-1015/2500
Green’s breach of its obligations under the Agreement by way dealing has knowledge of the fact that he has no such
of the foreclosure and sale that took place following authority.
Eastland’s failure to pay its property taxes.
Mich. Comp. Laws Ann. § 449.9(1) (emphasis added).
Village Green argues that because Brown’s knowledge, as Section 12 of the Act provides:
general partner, is imputed to Eastland, Eastland had
knowledge of the disbursements made to Brown and therefore Notice to any partner of any matter relating to the
cannot be allowed to complain that Village Green acted partnership affairs, and the knowledge of the partner
improperly, i.e., evidence of Village Green’s actions upon acting in the particular matter, acquired while a partner
which Eastland relies in support of its breach of contract or then present to his mind, and the knowledge of any
claim could not be considered in determining whether a other partner who reasonably could and should have
breach occurred because Eastland was aware of Village communicated it to the acting partner, operates as notice
Green’s actions in this regard. to or knowledge of the partnership, except in the case of
fraud on the partnership committed by or with the
Eastland argues that because Brown acted outside the consent of that partner.
ordinary course of business when he withdrew money from
Eastland’s accounts for his personal use, Brown’s knowledge Mich. Comp. Laws Ann. § 449.12 (emphasis added). And
cannot be imputed to Eastland. In support of its contention, Section 13 of the Act provides:
Eastland points out that Brown’s actions were contrary to the
Partnership Agreement and the Bankruptcy Plan of Where, by any wrongful act or omission of any partner
Reorganization, and relies upon Michigan’s Uniform acting in the ordinary course of the business of the
Partnership Act (the “Act”), Mich. Comp. Laws Ann. § 449.1 partnership, or with the authority of the co-partners, loss
et seq. or injury is caused to any person, not being a partner in
the partnership, or any penalty is incurred, the
Specifically, Eastland relies upon sections §§ 449.9(1), partnership is liable therefor to the same extent as the
449.12, and 449.13 of the Act in support of its claim that the partner so acting or omitting to act.
acts of an individual partner outside the ordinary course of
business of the partnership or acts of fraud cannot impute Mich. Comp. Laws Ann. § 449.13 (emphasis added).
knowledge to or liability on the partnership. Section 9 of the
Act provides in relevant part: In order to determine whether Brown acted outside the
ordinary course of business when he withdrew money from
Every partner is an agent of the partnership for the Eastland’s accounts for his personal use, we must examine the
purposes of its business, and the act of every partner, Partnership Agreement and the Bankruptcy Plan. Section
including the execution in the partnership name of any 3.02 of the Partnership Agreement provides in relevant part:
instrument, for apparently carrying on in the usual way
the business of the partnership, unless the partner so The Operating Cash Flow of the Partnership, for each
acting has in fact no authority to act for the partnership fiscal year of the Partnership, to the extent (and only to
in the particular matter, and the person with whom he is the extent) that the General Partner determines, in its sole
and absolute discretion, that the Operating Cash Flow of
Nos. 01-1015/2500 In re Brown 17 18 In re Brown Nos. 01-1015/2500
the Partnership for such fiscal year is not required for cap. Finally, these is no evidence on the record, such as a
Partnership purposes and is available for distribution to loan agreement, to indicate that Brown had loaned Eastland
the Partners, shall be distributed to the Partners. All more than $700,000 and was entitled to repayment despite the
Operating Cash Flow that is distributed to the Partners lack of excess cash flow. Thus, Brown had neither actual nor
shall be distributed to, and allocated between, the implied authority to withdrew money from Eastland’s
Partners, 1% to the General Partner and 99% to the accounts for his personal use.3
Limited Partner.
Moreover, Eastland cannot be held to have affirmed
(J.A. at 1546.) Section 4.05 of the Partnership Agreement Brown’s unauthorized actions since there is no evidence on
provides: the record to indicate that Eastland received any direct benefit
from such actions. See City Nat’l Bank of Detroit v. Westland
The General Partner (and Affiliates of the General Towers Apartments, 393 N.W.2d 554, 556-57 (Mich. Ct. App.
Partner) shall have the right to contract and otherwise 1986) (holding that a partnership was not liable for a
deal with the Partnership and the Real Estate Partnership promissory note signed by a partner because the partnership
with respect to the sale or lease of real and/or personal received no direct benefit from the partner’s unauthorized
property, the rendition of services, the lending of money act).
and for other purposes, and to receive compensation,
fees, commissions, interest and other forms of We therefore are not persuaded by Village Green’s
consideration in connection therewith as the General arguments and conclude that Eastland presented sufficient
Partner may determine, without being subject to claims evidence for a reasonable jury to have found that a contract
for self dealing. existed between Eastland and Village Green, and that Village
Green breached the terms of the contract to the detriment of
(J.A. at 1552.) Eastland. See Platsis, 642 F. Supp. at 1309. Thus, the district
court did not err in denying Village Green’s motion for
In addition, the Bankruptcy Plan provides in relevant part judgment as a matter of law. See Matras, 385 N.W.2d at 588.
that Eastland “shall utilize all Excess Cash Flow, if any, as And, because the evidence on the record as a whole does not
and when it becomes available to pre-pay the outstanding outweigh the evidence proffered by Eastland in support of its
balance owing to the holders of allowed claims within Class breach of contract claim, we also conclude that the district
7 until such claims have been paid in full.” (J.A. at 2033.) court did not abuse its discretion in denying Village Green’s
motion for a new trial. See Webster, 197 F.3d at 818.
Because Eastland had no excess cash flow available for
disbursement to partners in 1994, Brown was not entitled to
any disbursements and he acted outside the ordinary course of 3
In its reply brief, Village Green argues fo r the first time that it did
business when he withdrew money from Eastland’s accounts not have a duty to use reasonable diligence to determine whether Brown
for his personal use without the consent of his co-general was acting within the scope of his authority as a general partner when he
partner, Lutz. Furthermore, had excess cash flow been requested the disbursal of money from E astland ’s acco unts. W e will not
available for disbursement to partners, Brown was at most consider this argum ent because it was raised for the first time in Village
Green’s reply brief. See Wright v. Holbrook, 794 F.2d 1152, 1156-157
entitled to 1% of the excess, and by withdrawing more than (6th Cir. 198 6) (ho lding that argum ents raised for the first time in a reply
$700,000 from Eastland’s accounts, Brown exceeded the 1% brief will not be considered on appeal).
Nos. 01-1015/2500 In re Brown 19 20 In re Brown Nos. 01-1015/2500
D. Inconsistent Verdict Claim Eastland argues that ample evidence supported the jury’s
award of damages since Eastland presented evidence that had
As an alternative claim regarding the jury’s verdict in favor Village Green properly placed the funds in a replacement
of Eastland on its breach of contract claim, Village Green reserve account, as Village Green represented it had done, the
argues that the jury’s verdict in favor of Brown exonerated taxes would have been paid in full before the date of
Village Green. Said differently, Village Green argues that foreclosure; that had Village Green provided accurate and
because the jury found that Brown was not liable, its verdict complete monthly reports of the Property’s financial state,
finding that Village Green breached the terms of the Eastland would have been able to take corrective action to
Agreement by following Brown’s instructions was prevent foreclosure; and that the money disbursed to Brown
inconsistent. by Village Green was the precise money which would have
been used to pay taxes on the Property. Eastland notes that
We are not persuaded by Village Green’s argument in this McTevia, Nelson, and Lutz all testified that the loss of the
regard because, as Eastland points out, at most the jury was Property was a direct result of Village Green’s breaches of
allowed to decide that Brown had not committed intentional contract.
and malicious fraud by clear and convincing evidence. The
jury was not permitted to decide whether Brown’s actions To recover for damages under a breach of contract claim,
amounted to other torts, including innocent misrepresentation, a plaintiff must prove that the damages arose naturally from
breach of contract, or negligent misrepresentation because the breach or were in contemplation of the parties at the time
Brown’s pending bankruptcy precluded such a determination. the contract was made. Held Constr. Co., Inc. v. Mich. Nat’l
Thus, the jury’s verdicts in favor of Brown but against Bank of Detroit, 335 N.W.2d 8, 10 (Mich. Ct. App. 1983).
Village Green were consistent since Village Green was shown Lost profits resulting from a breach of contract may be
to have breached the management agreement by its own considered by a jury in determining damages. Lorenz Supply
actions. See, e.g., Morales, 151 F.3d at 509 (noting that when Co. v. Am. Standard, Inc., 300 N.W.2d 335, 340 (Mich. Ct.
reviewing an inconsistent verdict claim, this Court must “look App. 1980). However, lost profits must be proven with a
for a reasonable way” to view the case). We therefore reasonable degree of certainty and cannot be based solely on
conclude that the district court did not abuse its discretion in conjecture and speculation. Id. A jury’s award of lost profits
denying Village Green’s motion for a new trial on this basis must be reduced to present value. Coger v. Mackinaw Prods.
as well. See id. at 511. Co., 210 N.W. 2d 124, 130-31 (Mich. Ct. App. 1973), rev’d
on other grounds, Horen v. Coleco Indus., Inc., 426 N.W. 2d
E. Sufficiency of the Evidence as to the Jury’s Award 794 (1988).
of Damages
The record indicates that Eastland presented sufficient
Village Green argues that the jury’s award of damages was evidence to support the jury’s award of damages. McTevia,
not supported by the evidence since Eastland did not prove Nelson, and Lutz all testified that the loss of the Property
that Village Green caused it any damages with a reasonable arose naturally from Village Green’s breaches of contract,
degree of certainty and failed to reduce the alleged damages Nelson testified as to Eastland’s lost profits in the Property,
to present value as of the date of breach. Village Green also based on normal real estate market conditions, and the district
argues that the jury’s award of damages constituted an court instructed the jury to reduce damages for lost profits to
improper compromise verdict. present value. Furthermore, there is no evidence of juror
Nos. 01-1015/2500 In re Brown 21 22 In re Brown Nos. 01-1015/2500
misconduct to support Village Green’s argument that the A. Standard of Review
jury’s award of damages constituted an improper compromise
verdict.4 We review a district court’s denial of a motion for
rehearing for an abuse of discretion. Curry v. Scott, 249 F.3d
F. Summary 493, 503 (6th Cir. 2001). An abuse of discretion occurs when
the district court relies on clearly erroneous findings of fact,
Sufficient evidence was presented for a reasonable jury to improperly applies the law, or uses an erroneous legal
conclude that Village Green breached the terms of its standard. Southward v. S. Cent. Ready Mix Supply Corp., 7
Agreement with Eastland and that Eastland suffered damages F.3d 487, 492 (6th Cir. 1993).
in the amount awarded by the jury, and the verdict was not
inconsistent or against the great weight of the evidence. B. Analysis
II. Village Green’s Motion Requesting that Brown be We agree with Eastland that the district court abused its
Declared Sole Managing Partner of Eastland (Case discretion in denying Eastland’s motion to reconsider its order
No. 01-2500) declaring Brown sole managing partner of Eastland for the
purpose of supervising and implementing the dissolution of
Eastland argues that the district court abused its discretion Eastland. It is clear that in seeking to declare Brown sole
in denying its motion for rehearing regarding the court’s order managing partner of Eastland, Village Green actually was
granting Village Green’s motion to declare Brown Eastland’s seeking the dissolution of JAM and a declaration that Brown
sole managing partner. Eastland contends that Village Green have management control over JAM, because this would
did not have standing to bring such a motion, that even if allow for the dissolution of Eastland without Lutz’s consent
Village Green did have standing, the district court went inasmuch as Brown and Lutz were co-partners in JAM.
beyond the relief sought by Village Green when the court However, the district court had no authority to do so because
ordered the dissolution of Eastland under Brown’s control and neither Brown nor Lutz filed a motion requesting a court-
supervision, and that it is inequitable to declare Brown to be ordered dissolution of JAM.
Eastland’s sole managing partner inasmuch as Brown has
assigned all of the rights in the management of Eastland to Village Green acknowledged that the JAM partnership
Village Green, and Village Green will therefore simply agreement was controlled by the Act, and the Act provides the
negotiate the judgment debt that it owes to Eastland. circumstances under which a court may order the dissolution
of a co-partnership while specifically stating that only a
“partner” may apply for dissolution of the partnership. See
Mich. Comp. Laws Ann. § 449.32. Thus, only Brown or Lutz
could move to have their partnership in JAM dissolved,
4 thereby making Village Green’s efforts to do so by way of its
In its statement of issues presented, Village Green also raises the
issue of whether the district court erred in permitting a witness to offer motion to declare Brown sole managing partner of Eastland
opinion testimony about ultimate legal issues. W e will not co nsider this without a basis in Michigan law. Indeed, the district court
issue because Village Green failed to raise any argum ent in sup port of it. relied on Mich. Comp. Laws Ann.§ 449.32 in ordering the
See Bickel v. Korean Air Lines Co. Ltd., 96 F.3d 151, 153 (6th Cir. 1990)
(holding that issues m ust be raised in statement of issues presented and
dissolution of Eastland; however, it is clear that the court had
argued in the legal brief to be considered on appeal).
Nos. 01-1015/2500 In re Brown 23
no authority to do so, particularly where Eastland is a limited
partnership.
In addition, although § 449.1802 of the Act provides
authority for the court to order dissolution of a limited
partnership such as Eastland, the district court had no basis to
order the dissolution of Eastland under § 449.1802 in this
case because no partner of Eastland sought dissolution, and
neither Brown personally nor Village Green had the authority
to do so. Thus, although § 449.1802 provides a legal basis
upon which the district court could have ordered the
dissolution of Eastland, the court would have been without
authority to do so under these facts.
C. Summary
The district court abused its discretion in denying
Eastland’s motion to reconsider the order declaring that
Brown had sole managing authority over Eastland where the
court had no authority to grant Village Green’s motion.
CONCLUSION
For the forgoing reasons, we AFFIRM the district court’s
order in Case No. 01-1015; and REVERSE the district
court’s order in Case No. 01-2500, and REMAND with
instructions that the district court either appoint a neutral
third-party on behalf of Eastland to deal with Village Green,
or establish an escrow subject to further order as the district
court proceeds to determine the rights and remedies of any
party who has an interest in Eastland’s assets. | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129668/ | 538 U.S. 1036
MILLERv.UNITED STATES.
No. 02-8505.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C. A. 11th Cir. Certiorari denied. Reported below: 31 Fed. Appx. 929. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/129919/ | 538 U.S. 1054
COTTENv.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, ET AL., ante, p. 964.
No. 02-8890.
Supreme Court of United States.
May 19, 2003.
1
Petition for rehearing denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/129645/ | 538 U.S. 1035
D. A.v.UTAH; andE. A.v.UTAH.
No. 02-1399.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE SUPREME COURT OF UTAH.
2
Sup. Ct. Utah. Certiorari denied. Reported below: 63 P. 3d 100 (second judgment) and 607 (first judgment). | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2789668/ | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Mar 27 2015, 9:46 am
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeremy K. Nix Gregory F. Zoeller
Matheny Hahn Denman & Nix, LLP Attorney General of Indina
Huntington, Indiana
Graham T. Youngs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Eugene Dager, March 27, 2015
Appellant-Defendant, Court of Appeals Cause No.
90A05-1410-CR-464
v. Appeal from the Wells Circuit
Court.
State of Indiana, The Honorable Kenton W. Kiracofe,
Judge.
Appellee-Plaintiff
Cause No. 90C01-1304-FA-3
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 1 of 7
STATEMENT OF THE CASE
[1] Appellant-Defendant, William Eugene Dager (Dager), appeals his sentence
following his conviction for child molesting, a Class C felony, Ind. Code § 35-
42-4-3(b) (2013).
[2] We affirm.
ISSUE
[3] Dager raises one issue on appeal, which we restate as follows: Whether his
maximum sentence of eight years was appropriate in light of the nature of the
offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] In February of 2013, Dager was on probation following a conviction for Class B
felony child molesting and was required, by the terms of his probation, to
attend counseling sessions and submit to polygraph testing. On February 24,
2013, Dager took a polygraph test and admitted that, one morning during the
previous week, his six-year-old daughter, A.D., had come into his bedroom,
jumped onto his bed, and landed on his erection. Because she almost began
crying of pain, Dager calmed her by explaining that she had landed on his
hand. Following the session, the counsellor reported Dager’s statements to the
Wells County Department of Child Services.
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 2 of 7
[5] The next day, A.D. was interviewed by detectives with the Wells County police
department. During the interview, A.D. told the detectives that she and Dager
would often play a game of tag in the laundry room or his bedroom. During
the game, A.D. would say “fuck me harder, dad” or “fuck me pussy” because
“he really likes it.” (Transcript pp. 38, 48). Dager would reply, “fuck me
harder, A.D.” and “fuck me pussy, A.D.” (Tr. p. 48). Dager told A.D. to keep
those words a secret. During the game, Dager would touch A.D.’s vagina,
which she referred to as her “no-no spot.” (Tr. 45). “He would rub his hand all
around” on her vagina both underneath and above her clothing, for a “medium
time.” (Tr. p. 49). A.D. “can’t stand it.” (Tr. p. 52). When A.D. and Dager
played tag in the bedroom, Dager asked A.D. to lay on top of him and would
“rub” his penis on her vagina with his clothes on. (Tr. p. 50). When detectives
asked A.D. how many times Dager had done this, A.D. held up ten fingers.
[6] On February 24, 2013, the morning of the polygraph statement, A.D.’s mother
(Mother) had walked into the bedroom and observed Dager on top of A.D.,
rubbing his penis on her vagina, and heard A.D. tell Dager “fuck me harder.”
(Tr. p. 53). Mother was angry and told A.D. that she and Dager were “in so big
trouble.” (Tr. p. 56). However, before A.D.’s interview with the detectives,
Mother told A.D. to keep the incident a secret. It made A.D. feel “[r]eally,
really, really sad.” (Tr. p. 55).
[7] On April 18, 2013, A.D. met with Joyce Moss (Nurse Moss), a forensic nurse
examiner. A.D. told Nurse Moss that Dager touched her “on [her] skin” and
“on the inside” of her “no-no spot.” (Tr. p. 68). In her report, Nurse Dager
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 3 of 7
“noted that the child clearly disclosed multiple events of digital female sex
organ penetration by bio-dad.” (Tr. p. 70).
[8] On April 29, 2013, the State filed an Information, charging Dager with child
molesting, a Class A felony, and child molesting, a Class C felony. A jury trial
was conducted on September 10 and 11, 2013, at the close of which the jury
was deadlocked and the trial court declared a mistrial. On July 9, 2014, the
State and Dager entered into an agreement whereby Dager waived his right to a
jury trial in exchange for the State dismissing the Class A felony child molesting
charge.
[9] On August 11, 2014, a bench trial ensued on the remaining Class C felony child
molesting. During the bench trial, Mother testified that she and Dager had
engaged in sexual intercourse, near A.D.’s bedroom, and that she had uttered
“fuck me harder daddy.” (Tr. p. 78). Mother affirmed A.D.’s statement that
Mother had walked into the room when Dager was on top of A.D., but could
not recall whether Dager “had an erection.” (Tr. p. 78). Dager also testified
that “one morning around mid-February,” A.D. entered his bedroom and
“jumped” on him to wake him up. (Tr. p. 80). “[S]he landed on [his] groin
area, where [he] had a morning erection.” (Tr. p. 80). Because she “had a
bewildered look on her face” and he did not want to “alarm her,” he explained
to her that she had landed on his hand. (Tr. p. 80). Because A.D. had
previously been a victim of sexual molestation by a neighbor, Dager wanted the
“information [to] be known as soon as [he] figured it was relevant” and he
sought “an educated opinion on how to handle it.” (Tr. p. 81). At the close of
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 4 of 7
the bench trial, the trial court found Dager guilty of child molesting, as a Class
C felony. On September 3, 2014, during sentencing hearing, the trial court
sentenced Dager to an executed sentence of eight years.
[10] Dager now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[11] Dager contends that his sentence is inappropriate in light of the nature of the
offense and his character. Although a trial court may have acted within its
lawful discretion in imposing a sentence, Indiana Appellate Rule 7(B) provides
that an appellate court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” The defendant has the burden of persuading us that his sentence is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether
this court regards a sentence as appropriate at the end of the day turns on its
sense of the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other facts that come to light in a given case.
Suprenant v. State, 925 N.E.2d 1280, 1284 (Ind. Ct. App. 2010), trans. denied.
[12] Dager was found guilty of child molesting as a Class C felony. The advisory
term for a Class C felony is four years with the minimum and maximum terms
being two and eight years, respectively. I.C. § 35-50-5-6 (2013). Here, the trial
court imposed the maximum sentence.
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 5 of 7
[13] With respect to the nature of Dager’s offenses, we note at the outset that
“[c]rimes against children are particularly contemptible.” Walker v. State, 747
N.E.2d 536, 538 (Ind. 2001). Dager’s crime is even more despicable in light of
his knowledge that A.D., even though only six years old, had already been a
victim of molestation and his own statement during the sentencing hearing that
“[t]he fact that my daughter was molested by someone else, who is charged and
incarcerated, . . . destroys me because I failed to protect” her. (Tr. p. 100).
Despite this acknowledgment, Dager molested A.D. numerous times in the
safety of her own home and under the guise of playing an innocent child’s game
of tag. Dager groomed her to say things he “really like[d]” and told her to keep
those a secret. (Tr. pp. 38, 48).
[14] Turning to his character, we note that Dager was on probation for a 2007 Class
B felony child molesting when he asked for “an educated opinion” on the
instant crime. (Tr. p. 81). In 2001, he was convicted of theft and placed on
probation, which he also subsequently violated. While we agree with Dager
that there is an absence of physical injuries and threat of force, we cannot
ignore the pattern of grooming a young child to submit to unwanted touches to
satisfy the perpetrator’s own sexual pleasures. He violated the love and trust a
daughter bestows on her father to more easily commit these crimes. We
strongly disagree with Dager’s suggestion to equate his agreement to a bench
trial with a plea agreement because it let the victim and her family avoid a
second jury trial. In fact, not only was the family obligated to live through a
jury trial, the family also had to live through the ordeal and stress of a second
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 6 of 7
trial. The mere distinction that the second proceeding was a bench trial does
not soften its impact and make it less arduous. Throughout these proceedings,
Dager did not reflect remorse and acceptance of responsibility, but rather
attempted to place the blame on A.D., claiming that she still needed help to
overcome her first molestation, all the while professing his own innocence. Not
only did Dager destroy the childhood of his daughter but he also damaged—
maybe irreparably—her relationship with her Mother, who refused to believe
her own child. In light of the evidence before us, we conclude that Dager’s
eight-year sentence is appropriate in light of the nature of the offense and his
character.
CONCLUSION
[15] Based on the foregoing, we conclude that Dager’s sentence was appropriate
pursuant to Appellate Rule 7(B).
[16] Affirmed.
[17] Vaidik, C. J. and Baker, J. concur
Court of Appeals of Indiana | Memorandum Decision | 90A05-1410-CR-464 | March 27, 2015 Page 7 of 7 | 01-03-2023 | 03-27-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2907745/ | Webber v. State
IN THE
TENTH COURT OF APPEALS
No. 10-91-028-CR
        ALEX LAKE WEBBER,
                                                                              Appellant
        v.
        THE STATE OF TEXAS,
                                                                              Appellee
From the 82nd District Court
Robertson County, Texas
Trial Court # 13,547-B
                                                                                                               Â
                                                                    Â
O P I N I O N
                                                                                                    Â
          Appellant was convicted in municipal court of disorderly conduct stemming from a fight
that occurred July 8, 1990, and assessed a $150 fine. See Tex. Penal Code Ann. § 42.01
(Vernon Supp. 1992). He "worked out" the fine with a city work crew. Subsequently, he was
indicted for aggravated assaultâi.e., "intentionally or knowingly cause[ing] serious bodily injury
to James Arthur Owens by stabbing him with a knife"âbased on the July 8 incident. See id. at
§ 22.02(a)(1). He complains by a writ of habeas corpus that his previous conviction for disorderly
conduct is a bar to his subsequent prosecution for aggravated assault. See U.S. Const. amend.
V. We will affirm.
          The State contends that double jeopardy does not attach because the municipal court
judgement was void. However, if the defendant has suffered the full punishment imposed on him
by the first court for the same crime or a lesser-included offense of the one he is now being
prosecuted for, he may not be punished again regardless of the validity of the first judgement.
Corbett v. State, 63 Tex. Crim. 478, 140 S.W. 342, 343 (1911). Because Appellant "worked off"
the full $150 fine imposed by the municipal court, a subsequent prosecution for the same offense
would be barred by double jeopardy even if the judgment were void.
          The fifth amendment guarantees that "[n]o person shall be subject for the same offense to
be twice put in jeopardy of life or liberty." See U.S. Const. amend. V. A defendant has the
burden of producing evidence to support his allegation of former jeopardy. Shaffer v. State, 477
S.W.2d 873, 875 (Tex. Crim. App. 1971). If he shows by a preponderance of the evidence that
an indictment charges him with an offense for which he was formerly placed in jeopardy, the
burden then shifts to the state to establish that there were two separate offenses. Grady v. Corbin,
-- U.S. --, 110 S. Ct. 2084, 2094, 109 L. Ed. 2d 548 (1990); Tex. Code Crim. Proc. Ann. art.
27.05 (Vernon 1989).
          To determine whether a subsequent prosecution is barred by double jeopardy, we must first
decide whether each offense requires proof of an additional fact that the other does not. See
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). If the two
offenses have identical statutory requirements or one is simply a lesser-included offense of the
first, then the second prosecution is barred. Grady, 110 S.Ct. at 2090. If, however, the second
prosecution survives the Blockburger test, we must decide if "the government . . . will prove
conduct that constitutes an offense for which the defendant has already been prosecuted." See id.
at 2093. Thus, "the critical inquiry is what conduct the state will prove, not the evidence the state
will use to prove that conduct." Id. If the same conduct will be used to prove both offenses, the
Double Jeopardy Clause bars the second prosecution. Id. In Grady, the Court held that a
subsequent prosecution for driving while intoxicated was barred by double jeopardy because the
state admitted that it would prove the entirety of the conduct for which the defendant had been
convicted in the first prosecution to establish an essential element of the second prosecution. Id.
at 2094.
          The Court of Criminal Appeals has interpreted Grady as requiring a three-part inquiry: (1)
whether the underlying conduct constitutes an offense; (2) whether the defendant has been
prosecuted for this offense; and (3) whether this criminal conduct will be used to establish an
essential element of the subsequent offense. Ex parte Ramos, 806 S.W.2d 845, 847 (Tex. Crim.
App. 1991). Only if all three of these inquiries are answered affirmatively is the latter prosecution
barred. Id. However, nothing precludes the prosecution of multiple criminal offenses arising
from the same transaction. See, e.g., State v. Houth, 810 S.W.2d 852, 855 (Tex. App.âHouston
[1st Dist.] 1991, pet. granted) (holding that a prosecution for failing to drive in a single, marked
lane did not bar a subsequent prosecution for driving while intoxicated which arose from the same
set of facts); State v. Garcia, 810 S.W.2d 240, 241 (Tex. App.âEl Paso 1991, no pet.) (holding
that a conviction for running a red light did not bar a subsequent prosecution for driving while
intoxicated; although driving was an element of both offenses, driving in and of itself was not
"conduct that constitutes an offense for which the defendant has already been prosecuted");
Kvetinskas v. State, 809 S.W.2d 914, 915 (Tex. App.âHouston [14th Dist.] 1991, no pet.)
(holding that a prior prosecution for speeding does not bar a subsequent prosecution for driving
while intoxicated). In all of these cases, each of the first offenses could be committed without
committing the second, and each of the second offenses could be committed without the first.
          Appellant was charged with disorderly conduct and then aggravated assault. Thus, he had
to prove by a preponderance of the evidence that (1) the two offenses have identical statutory
requirements; (2) one offense is a lesser-included offense of the other; or (3) the State will prove
conduct that constitutes an offense for which he had already been prosecuted. See Grady, 110
S. Ct. 2090-93.
          Disorderly conduct means a person intentionally or knowingly fights with another in a
public place. Tex. Penal Code Ann. § 42.01(a)(6) (Vernon Supp. 1992). Aggravated assault
requires that the actor intentionally, knowingly, or recklessly cause serious bodily injury to
another. Id. at §§ 22.01(a)(1), 22.02(a)(1) (Vernon 1989 and Vernon Supp. 1992). The two
offenses do not have identical statutory requirements. Furthermore, disorderly conduct is not a
lesser-included offense of aggravated assault because each offense "requires proof of additional
facts which the other does not." See Blockburger, 52 S.Ct. at 182.
          Therefore, we must consider what conduct the State will use to prove the underlying
offenses. See Grady, 110 S.Ct. at 2093. The State does not necessarily have to prove Appellant
fought in a public place to establish the aggravated assault. Unlike Grady, the State never
admitted it would use the fighting to prove aggravated assault. Id. at 2094. Thus, Appellant never
discharged his burden by a preponderance of the evidence.
          We overrule point one and affirm the judgment.
Â
                                                                                 BOB L. THOMAS
                                                                                 Chief Justice
Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed January 15, 1992
Do not publish
....
Martinez: I, I ainÂt gonna let Âya sit there (unclear) IÂm
sayinÂ, do you wanna talk about this? I just need to know before I, I ask Âya
anymore questions. ÂCause IÂve got a lotta questions I need to ask you. Is
that alright wit you?
mcafee, reginald: but what IÂm tryin to get you to
underÂstand, (sighs) if itÂs somethin to do wit that I, hey I, I donÂt shit
about that. only thing....
martinez:Â I, I....
mcaffee, reginald:Â ...I know is what I see in the
paper.
Martinez: what IÂm askin you, in reference to your rights,
itÂs real simple. are you willin to talk to us? IÂm not sayin you willinÂ
to confess. are you willin to talk to us about this?
mcafee, reginald:Â about what?
martinez:Â about what iÂm gonna ask you about, about the cirÂcumstances
that we have surroundin this warrant. (pause)
mcafee, reginald:Â what is it about?
martinez:Â itÂs aggravated robbery at western union.
mcafee, reginald: i donÂt know nothin Âbout that.
martinez: okay you, youÂre missin my point. itÂs real
simple.
mcafee, reginald: if i said (unclear) to what, no
Âcause i donÂt know what to say.
martinez: okay, but you, you donÂt wanna answer quesÂtions?
mcafee, reginald: pertainin to?
martinez: pertainin to circumstances.
mcafee, reginald:Â man....
martinez: now listen, letÂs not play this game. man, you
been down before, i do....
mcafee, reginald:Â i donÂt know...
martinez:Â ....(unclear....talking at the same time)....
mcafee, reginald: .....(unclear...) tellinÂ, and iÂm
tellin you.
martinez:Â okay.
mcafee, reginald:Â (chair squeaking) that if itÂs got
someÂthin to do with what the fuck he did, i donÂt know nothin about what the
fuck he did man..
martinez: and youÂre missin the point iÂm makin here. IÂm
not askin you to tell me that do or donÂt know. i just have questions that i
need clarified. if youÂre willin to ansÂwer the questions, thatÂs your
business, i need to know if itÂs yes or no.
mcafee, reginald: okay.
martinez:Â that, is that a yes?
mcafee, reginald:Â
yeah.Â
[sic] (StateÂs Ex. D3, at 5-6 (ellipses in
orig.).)
     At the hearing on the motion to suppress,
the interrogating officers testified that they had not understood McAfee to
have been asserting his privilege against self-incrimination, but to have been
denying involvement in the robbery. McAfee did not testify. The trial court
found:
     In reviewing the videotape, I do think
that there was some misunderstanding, some differing view of what questions
were being asked and what questions were being answered. Viewed in the context
of the entire conversation that went on back and forth, I do not believe that
at that point in time Mr. McAfee had closed the door on any interrogation
. . . .
     Viewing the evidence in the light most
favorable to the trial courtÂs ruling, we hold that the trial court did not
abuse its discretion in overruling McAfeeÂs motion to suppress McAfeeÂs
statement. We overrule McAfeeÂs second issue.Â
     Video Tape. In McAfeeÂs third
issue, he contends that the trial court erred in overruling McAfeeÂs motion to
suppress a video recording of McAfee eating part of a tissue that had McAfeeÂs
blood on it. McAfee argues that he ate the tissue to avoid its being used as a
specimen of his DNA, and that his act constituted an invocation of his
privilege against warrantless searches.
     ÂThe right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . . U.S. Const. amend. IV; see Tex.
Const. art. I, § 9. The taking of a blood specimen constitutes a
search and seizure for Fourth Amendment purposes. Schmerber v. California, 384
U.S. 757, 766-72 (1966); accord State v. Hardy, 963 S.W.2d 516, 523
(Tex. Crim. App. 1997); Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim.
App. [Panel Op.] 1982). ÂThe invocation of constitutional rights such as
. . . freedom from unreasonable searches may not be relied upon as
evidence of guilt. To permit the use of such evidence for purposes of incrimination
would erode the protections guaranteed by both state and federal
constitutions.ÂÂ Reeves v. State, 969 S.W.2d 471, 493 (Tex. App.ÂWaco
1998, pet. refÂd) (quoting Powell v. State, 660 S.W.2d 842, 845 (Tex.
App.ÂEl Paso 1983, no pet.)); see Hardie v. State, 807 S.W.2d 319, 322
(Tex. Crim. App. 1991). Appellate courts, however, find a violation on the
prohibition against evidence of the assertion of a privilege only when the
defendant expressly asserts the privilege or the defendantÂs actions lead to
the inescapable conclusion that the defendant thereby asserted a privilege. See
Raffaelli v. State, 881 S.W.2d 714, 717 (Tex. App.ÂTexarkana 1994, pet.
refÂd); Dumas v. State, 812 S.W.2d 611, 614 (Tex. App.ÂDallas 1991, pet.
refÂd); Torres v. State, No. 14-97-01211-CR, 1999 Tex. App. LEXIS 8973,
at *7 (Tex. App.ÂHouston [14th Dist.] Dec. 2, 1999, pet. refÂd) (not designated
for publication). Viewing the evidence in the light most favorable to the
trial courtÂs finding, we hold that the trial court did not abuse its discretion
in overruling McAfeeÂs motion to suppress the video tape. We overrule McAfeeÂs
third issue.Â
     Charge. In McAfeeÂs fourth
issue, he contends that the trial court erred in overruling McAfeeÂs objection
to the trial courtÂs charge. The court instructed the jury Âthat an officer
need not stop his questioning unless the defendantÂs invocation of rights is
unambiguous.ÂÂ McAfee argues that the instruction constituted a comment on the
weight of the evidence.Â
     Â[I]n each felony case
. . . , the judge shall . . . deliver to the jury
. . . a written charge distinctly setting forth the law applicable to
the case[,] not expressing any opinion as to the weight of the evidence,
. . . summing up the testimony, [or] discussing the facts
. . . . Tex. Code Crim.
Proc. Ann. art. 36.14 (Vernon Supp. 2005); see also id. art.
38.05 (Vernon 1979) (judge shall not Âat any stage of the proceeding previous
to the return of the verdict[] make any remark calculated to convey to the jury
his opinion of the caseÂ). ÂThe primary reason for the rule is that an
instruction Âby the trial judge to the jury on the weight of the evidence
reduces the StateÂs burden of proving guilt beyond a reasonable doubt to the
juryÂs satisfaction.ÂÂÂ Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim.
App. 2003), cert. denied, 541 U.S. 938 (2004). ÂA charge that assumes
the truth of a controverted issue is a comment on the weight of the evidence
and is erroneous.ÂÂ Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App.
1986). Â[A] courtÂs jury instruction could violate article 36.14 by
Âobliquely or indirectly convey[ing] some opinion on the weight of the evidence
by singling out that evidence and inviting the jury to pay particular attention
to it. On this near end of the Âimproper-judicial comment spectrum is an
instruction that is simply unnecessary and fails to clarify the law for the
jury. Brown at 801. ÂAn instruction that focuses on a particular
factor that may render a statement involuntary is an impermissible comment on
the weight of the evidence. Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000). ÂEven a seemingly neutral instruction about a particular type of
evidence constitutes an impermissible comment on the weight of the evidence in
violation of Article 36.14 because such an instruction singles out a particular
piece of evidence for special attention. Id. ÂTo constitute
reversible error, the trial courtÂs comment to the jury must be such that it is
reasonably calculated to benefit the State or to prejudice the rights of the
defendant.ÂÂ Becknell v. State, 720 S.W.2d 526, 531 (Tex. Crim. App.
[Panel Op.] 1986); accord Blue v. State, 41 S.W.3d 129, 134 (Tex. Crim.
App. 2000); Moore v. State, 505 S.W.2d 842, 844 (Tex. Crim. App. 1974).Â
     ÂIf the error in the charge was the
subject of a timely objection in the trial court, then reversal is required if
the error is Âcalculated to injure the rights of defendant, which means no
more than that there must be some harm to the accused from the error.ÂÂ Almanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on rehÂg)
[(quoting Tex. Code Crim. Proc. Ann. art.
36.19 (Vernon 1981))]; accord Brown, 122 S.W.3d at 803.
     McAfee timely objected to the charge. We
assume without deciding that the trial court erred.Â
     In
assessing the likelihood that the juryÂs decision was adversely affected by the
error, the appellate court should consider everything in the record, including
any testimony or physical evidence admitted for the juryÂs consideration, the
nature of the evidence supporting the verdict, the character of the alleged
error and how it might be considered in connection with other evidence in the
case. The reviewing court might also consider the jury instruction given by
the trial judge, the StateÂs theory and any defensive theories, closing
arguments and even voir dire, if material to appellantÂs claim.
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).Â
Â[W]hen conducting a harm analysis of charge error, Âthe reviewing court may
consider the following four factors:Â 1)Â the charge itself;Â 2)Â the
state of the evidence including contested issues and the weight of the
probative evidence;Â 3)Â arguments of counsel;Â and, 4)Â any other
relevant information revealed by the record of the trial as a whole.ÂÂ Hutch
v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); accord Almanza, 686
S.W.2d at 171.
     The charge as a whole is unexceptional.Â
It includes an instruction on the voluntariness of McAfeeÂs statement. The
statement was of little importance at trial. In it, McAfee did not admit to
participation in the offense. The State referred to the statement once, in
opening statement, and only with reference to McAfeeÂs alibi. Accordingly, any
charge error was harmless. We overrule McAfeeÂs fourth issue.Â
     Having overruled McAfeeÂs
issues, we affirm.
TOM GRAY
Chief
Justice
Before Chief Justice Gray,
     Justice Vance, and
     Justice
Reyna
Affirmed
Opinion
delivered and filed April 26, 2006
Do
not publish
[CRPM]
[1]Â The
State introduced a copy of the Bryan Police Department offense report, which
contained a transcription of officers interview of McAfee. Both McAfee and
the State quote and cite the transcription as authoritative, and neither
questions its accuracy. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1028922/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6004
MARSHALL RAY MILLER,
Petitioner – Appellant,
v.
UNITED STATES ATTORNEY GENERAL; BUREAU OF PRISONS; MCKITHER
BODISON,
Respondents – Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, District Judge.
(3:08-cv-02806-TLW)
Submitted: May 21, 2009 Decided: May 28, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Marshall Ray Miller, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marshall Ray Miller, a federal prisoner, appeals the
district court’s order accepting the recommendation of the
magistrate judge and denying relief on his 28 U.S.C. § 2241
(2006) petition. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Miller v. United States Attorney
General, No. 3:08-cv-02806-TLW (D.S.C. Dec. 15, 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/3232772/ | This case is a companion to the case of Guy Hardis v. State, Ala.App., 189 So. 216,1 the appellants in each of the same having been tried, below, for the same offense, jointly. Upon the authority of what has been written by Judge Samford in the Guy Hardis case, supra, the judgment of conviction, here, is reversed, and the cause remanded.
Reversed and remanded.
1 Ante, p. 524. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448165/ | Affirming in part and reversing in part.
This is an appeal by May M. Hunt, as the administratrix of the estate of Harry Flimin, from a judgment in favor of Violet Michael Flimin against his estate for the sum of $2,600 and interest from date of suit on January 13, 1933, and costs.
The facts as shown by the record are that Violet Michael and Harry Flimin were in 1929 married in Paducah, Ky., shortly after which they moved to Muncie, Ind., where Harry Flimin opened up a car-wrecking business under the style of "Bear Cat Auto Parts Co." It further appears that he was assisted in entering and operating this new business by his wife, who loaned him for such purpose the sum of $2,000 in April, 1930, $400 in May, and $200 in June, which amounts he put into this business undertaking. Later, in the November following, while his wife was visiting her mother in Paducah, Flimin sold out his business and left Muncie, thereafter living in various cities, from where he wrote *Page 774
his wife that he had abandoned her. Suit was filed by her on such ground for a divorce, which was decreed her in April, 1932.
On June 12, 1932, following, Harry Flimin met with an accidental death, when the appellant, May N. Hunt, was duly appointed and qualified as administratrix of his estate. Thereupon, on July 12, 1932, the appellee filed with the appellant, as administratrix, her duly proven and verified claim for the three amounts of money she had loaned the decedent, totalling $2,600 as stated above, with interest thereon from date, with demand made upon her for its payment, which was by the administratrix refused.
It having developed that the decedent had died leaving insurance to the extent of several thousand dollars, and that by one of the policies, which was issued him by the New York Life Insurance Company, he had named the appellee, his then wife, as beneficiary therein, she instituted suit in the McCracken circuit court upon the policy against the New York Life Insurance Company, seeking to recover its amount of $1,928, and named as codefendant therein the appellant as administratrix of the insured decedent's estate. An adverse judgment being rendered in this action, she appealed therefrom to this court, where the judgment was affirmed in October, 1933, in the reported case of Flimin v. Flimin's Adm'x, 250 Ky. 827, 64 S.W.2d 165.
During the pendency of this appeal, the appellee on January 13, 1933, instituted a second action in the McCracken circuit court against the estate of her former husband, seeking recovery of the loan made him, wherein, by her petition, she alleged the facts hereinabove set out of Flimin's death in June, 1932, the qualification of the appellant as administratrix of his estate, and the filing of her duly verified and proven claim with her for the three amounts loaned the decedent with interest, with demand of payment, which was refused, though the same was alleged to be long past due and remained wholly unpaid, for which amount loaned of $2,600, with interest from date of loans and costs, judgment was asked. No verification of the petition was made nor was any demurrer filed to it, testing its legal sufficiency, upon the alleged ground that it was defective because of lack of verification as well as for its omission of certain alleged material allegations. Defendant, without moving for verification of the petition or demurring thereto, *Page 775
filed answer joining issue on the allegations of the petition, and further pleaded abatement of the suit by reason of the then pendency in this court of her appeal from the judgment in her former action.
The plea in abatement was sustained until the determination of the appeal in October, 1933, when appellant filed a second amended answer, pleading that plaintiff's suit was barred by the decree rendered in her divorce suit, which she contended or averred was a settlement of all property rights between them as husband and wife, embracing the loan sued for, which it was alleged grew out of their marriage relationship. Demurrer was sustained to this amended answer.
Plaintiff, to establish her claim, introduced the testimony of three witnesses, by which she sought to establish that the decedent had in April, 1930, borrowed from her the sum of $2,000, and that she had also loaned him the further sums of $400 and $200 in the following months of May and June, which she had obtained from her sister, Mrs. Silverstein; that the decedent had spoken to these witnesses about needing and wishing to borrow more money, required by his business, and that he had told them, at such time, of having received the loans in question from his wife.
No proof whatever was introduced by the defendant, administratrix, either tending to support her denial that the loans were made as alleged or that, if made, they remained unpaid at the time of decedent's death, two years thereafter in June, 1932.
Upon submission and trial upon the merits of this cause, upon the pleadings, this proof, and the instructions of the court, by which the jury was directed that, if they should "believe from the evidence in this case that the deceased, Harry Flimin, at the time of his death was indebted to the plaintiff, Violet Flimin," they should find for the plaintiff not exceeding the sum of $2,600, the amount claimed in the petition, but, unless they should so believe from the evidence, "the law is for the defendant and you should so find," the jury returned a verdict finding for the plaintiff in the sum sued for of $2,600. The plaintiff thereupon moved the court to allow interest on the several amounts constituting the loan from their respective dates upon which made until paid, which motion was overruled and judgment entered upon the verdict for the full amount of $2,600, with interest *Page 776
thereon, not from date, but from January 13, 1933, the date on which suit was filed.
Complaining of this judgment, the defendant filed motion and grounds for a new trial and later for a judgment notwithstanding the verdict, both of which were overruled.
Criticizing the propriety of such rulings, the defendant has prosecuted this appeal. Also the plaintiff, here appellee, has moved for a cross-appeal, upon the ground cited in her motion therefor, that the court erred in refusing to allow interest on plaintiff's claim from the date of July 12, 1932, upon which date it was filed, with demand for payment, with the administratrix, and in allowing her interest thereon only from the date, some six months later, of filing her suit, to wit, in January, 1933.
The appellant, in support of her appeal for reversal of the judgment, contends that the same in so awarding recovery to the plaintiff (the appellee) was erroneous, for the reasons: (1) That the petition was not verified; (2) that its allegations were insufficient; and (3) that the proof supporting her claim was insufficient because of its failure to show that the money loaned the decedent by appellee was never repaid her.
We find ourselves unable to agree with these contentions. Appellant by brief of counsel states and contends that she did not demur to the petition upon the grounds of its insufficiency, both for want of verification and material allegations, because of her belief that a demurrer thereto would be met by appellee by amending such defects in her petition, and that therefore she elected not to demur thereto, but to deny all of its material allegations by joining issue thereon, deferring the raising of her objections thereto until appellee should go to the jury on her proof, when such questions would be raised by appellant upon a request for peremptory instructions, which course she followed by requesting at the conclusion of the evidence a peremptory instruction upon the alleged ground that the petition was wholly defective in failing to allege necessary facts to constitute a cause of action and because it was not verified.
It is sufficient answer to this contention, which we do not regard as meritorious, that we have repeatedly, upon like insistence, held adversely to such contention *Page 777
as here advanced by appellant in reliance upon the provisions of sections 3870, 3872, and 3874 of the Statutes.
In the case of Bootes v. Gwinner's Adm'r, 251 Ky. 322, 64 S.W.2d 904, 906, in passing upon a like question, the court quoted with approval from the opinion given in the case of Hall et al. v. Murphy's Adm'r, 214 Ky. 691, 283 S.W. 1066, wherein it was said:
"While the demand provided in those sections may be waived, this court in a long line of decisions has held that the provision as to verification is mandatory, and judgment cannot be entered before this is done."
In the Bootes Case it was held that "this does not mean that a pleading is demurrable for want of such verification," and continuing:
"In Harding v. Bullard [172 Ky. 416, 189 S.W. 242, 245], supra, the court, referring to Lyon's Ex'x v. Logan County Bank's Assignee, 78 S.W. 454, 25 Ky. Law Rep. 1668; Usher's Ex'rs v. Flood, 17 S.W. 132, 12 Ky. Law Rep. 721; Tipton's Adm'r v. Richardson, 54 S.W. 738, 21 Ky. Law Rep. 1195, said:
" 'It was held that the personal representative had waived both demand and verification of the claim, but all these were cases in which the personal representative had made defense on the merits in the court below without objection to such want of demand and verification. * * * A personal representative, after negligently failing to avail himself of the protection designed by the statute in requiring demand of payment and verification of the claim, and suffering defeat in a trial on the merits in the court below, should, on appeal, in all fairness, be estopped by such negligence from making complaint of the want of such demand and proof.'
"It is obvious from what has been said that it was appellee's duty to proceed by motion to have appellant verify her claim as required by the statute, instead of by demurrer. In Thomas' Ex'r v. Thomas, 15 B. Mon. [54 Ky.] 144, it is said:
" 'It was too late, after the plaintiff had gone through his testimony, to raise his objection for the first time, that the plaintiff had not complied with this preliminary duty.'
"See, also, Stix, etc., v. Eversole's Adm'r, *Page 778 106 Ky. 516, 50 S.W. 832, 21 Ky. Law Rep. 3, in which it is held that a personal representative may waive the demand required by section 3872 of the Kentucky Statutes, and [even] the filing by him of a general demurrer to the petition against him for a claim against his decedent is a waiver of such demand."
It is further in this connection to be noted that plaintiff in her petition alleged that she had, previous to the filing of her petition, to wit, on July 12, 1932, properly proven her claim sued on against the estate, by her own affidavit and the affidavit of another who was not interested in said claim, and duly filed her claim, so proved and verified as by the said statute required, with the adminstratrix of the estate, with a demand for payment thereof, which had been refused. and which she continued to refuse to pay or any part thereof, although the same was long past due and wholly unpaid. This allegation of plaintiff's petition as to proof and demand of claim made before suit thereon was not denied by defendant's answer. The provisions of section 3874 of the Statutes only provide that "no demand against a decedent's estate shall be paid by his personal representative, * * * which is not verified by affidavit as required," but not that the affidavit mentioned should be incorporated in the petition nor that such required proof of claim cannot be otherwise made than by affidavit or verification of petition. To such effect was it held in Tanner v. Ayer, 209 Ky. 247, 272 S.W. 720, that depositions, taken in the action upon the claim, might satisfy the statutory requirement of an affidavit as an effective verification of the claim. To like effect see, also, Bailey's Adm'r v. Hampton Grocery Co., 189 Ky. 261, 224 S.W. 1067, where it was held to be a substantial compliance with the requirements of section 3870 of the Statutes as to verification and proof of claims that depositions of witnesses showed them to be just and unpaid, although there was no affidavit to such effect, and further holding that, while a personal representative might defeat an action by rule to show cause why it should not be dismissed for want of verification, yet, if he pleads to the action without objection and leaves the controversy to be determined on its merits, his failure to deny any material averments of the adversary's pleading would admit the truth of them.
Next turning our attention to appellant's objections *Page 779
2 and 3, which may be considered together, appellant contends that, in a suit against decedent's estate, the same allegations must be contained in the petition that are contained in the proof of claim required to be filed with the personal representative, and, should the petition fail to contain such allegations, it is, because of such failure, so defective as not to warrant a judgment. The cases last cited were suits against decedents' estates, where, in construing the requirements of the sections of the Statutes cited supra, it was expressly held to the contrary. Nor do we conclude that the court erred in overruling defendant's motion for a judgment non obstante under the pleadings, upon the alleged ground that the judgment was granted in violation of the provisions of sections 3872 and 3874 of the Statutes prohibiting the bringing of an action for recovery on a claim against the decedent's estate until demand of payment and verification by affidavit had been made of the claim, as here it was by the petition alleged and undenied by defendant, that such demand of payment and due verification of the claim had been made and filed with the administratrix before her filing of the suit.
Appellant next insists that the proof made by plaintiff in support of her claim was insufficient to support the judgment or to warrant the instruction given by the court, for the reason that the plaintiff failed to show, or introduce any proof tending to show, that, after the making of the loan, as claimed, to the decedent in 1930, it had not been repaid by decedent at some time during the period intervening between the making of the loan and decedent's death in June, 1932. No plea of payment was made by the defendant, save argumentatively, by denying that the loan remained unpaid, which was ineffective to raise a presumption or to shift the burden of proving no payment; nor was such or any such presumption raised by reason of her failure to make proof that the debt was not paid, particularly here, where the plaintiff was, under the provisions of section 606 of the Civil Code of Practice, prevented from testifying as to anything about it.
We are of the opinion that the court's instruction as given was justified and fairly covered this evidence, in directing that, if the jury believed from the evidence that the estate of Harry Flimin "was at the time of his death indebted to the plaintiff," they would find for her not to exceed the amount claimed in the petition. This *Page 780
instruction very fairly submitted the issue joined between the parties, under the pleadings and proof, as to whether or not the plaintiff had in fact made the loan as claimed of $2,600 to the decedent, and also, if made, whether or not the same or any part thereof had been repaid her, which is to say, whether or not (as instructed) the decedent died "indebted" to her. The jury having found from the evidence that the loan had in fact been made to the decedent, it was warranted in its further finding therefrom, under this instruction, in the absence of any evidence whatever to the contrary tendered to show decedent's repayment of the loan or any part of it, that Flimin died leaving his estate indebted to Violet Michael Flimin in the said amount sued for.
We are therefore, for the reasons stated, of the opinion that the judgment of the trial court should be and it is, to the extent it allows appellee recovery of her loan, affirmed. However, we further conclude that, the criticism of the judgment, presented by appellee's motion for a cross-appeal, wherein she insists that the court erred in allowing interest on her loan only from the date of the filing of her suit, instead of adjudging it from the date of the filing of her claim with the appellant, is a just one. By section 3884 of the Statutes it is provided that no interest accruing after the death of a decedent shall be allowed or paid on any claim against decedent's estate unless the claim be verified and authenticated as required by law and demanded of the executor within one year after his appointment. Construing this statute, we have held that interest should not be allowed where creditor fails to prove his claim and demand its payment within the time allowed. Guill's Adm'rs v. Corinth Deposit Bank, 68 S.W. 870, 24 Ky. Law Rep. 482; Walker v. Bennett, 209 Ky. 675,273 S.W. 548. Certainly a like fair interpretation of the intendment of this statute must be that, where the fact is the opposite of that stated in the statute where payment of interest is enjoined, the converse of such rule must also follow and be true, that, if such verification and demand of payment of the claim are made within the stated time upon the executor, interest in such case should be paid upon it. Appellee complains of the judgment, however, only in respect of its allowing her interest upon her dept from date of suing thereon in January, 1933, rather than from the earlier date of filing of *Page 781
her claim with the administratrix, which it was admitted was on July 12, 1932. It is true that appellee, by her motion made upon the return of the jury's verdict, asked that she be allowed by the judgment thereon interest upon the three loans made Flimin in the total sum of $2,600 from their respective dates upon which made in April, May, and June, 1930, yet such prior request for allowance of interest may be treated as abandoned, as she has not renewed it in her cross-appeal, but therein seeks only for an allowance of interest as stated upon her claim from the date upon which filed with the administratrix rather than from January 13, 1933, when suit was filed as allowed her by the terms of the judgment, in such particular criticized.
We are therefore of the opinion that the appellee is entitled to relief of additional interest on the money loaned to the extent stated and sought upon her motion for a cross-appeal, and for such reason the judgment in otherwise ruling by denying interest on the claim as asked is, we conclude, in such respect and to such extent erroneous, and to such extent and part only it is reversed. Therefore the judgment in awarding a recovery is affirmed upon the appeal, and for its denial of interest as asked is reversed upon the cross-appeal. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3045007/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2444
___________
Frederick W. Keiser, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
Christopher Johnson; Jasmine H. *
Dzhanszyan; Law Firm of Criminal * [UNPUBLISHED]
Defense Associates; Drew H. Wrigley, *
United States Attorney, *
*
Appellees. *
___________
Submitted: June 23, 2008
Filed: July 10, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Frederick W. Keiser, Jr., appeals the district court’s1 dismissal of his complaint
against his former criminal defense attorneys and the United States Attorney for the
District of North Dakota, in which Keiser sought damages for violations of the
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, state
1
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
law fraud, and “attorney discipline,” and requested a writ of mandamus to compel the
United States Attorney to bring a criminal prosecution. After carefully reviewing the
record and Keiser’s arguments on appeal, we find no basis for reversal. See Benton
v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (standard of review).
Accordingly, we affirm the judgment. We also grant the motion to strike the
documents in Keiser’s addendum and appendix that were not contained in the record
below, and we deny Keiser’s request to supplement the record. See Dakota Indus.,
Inc. v. Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (appellate court
generally cannot consider evidence not contained in record below).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2968535/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1576
RUDOLPH MCCOLLUM, SR.,
Plaintiff – Appellant,
v.
TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Local 527,
Defendant – Appellee,
and
GENCO INFRASTRUCTURE SOLUTIONS, INC.,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:10-cv-00210-JRS)
Submitted: August 25, 2011 Decided: August 29, 2011
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rudolph McCollum, Sr., Appellant Pro Se. Richard S. Edelman,
O’DONNELL, SCHWARTZ & ANDERSON, PC, Washington, D.C., James J.
Vergara, Jr., VERGARA & ASSOCIATES, Hopewell, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rudolph McCollum, Sr., appeals the district court’s
order dismissing as untimely his employment discrimination
action. On appeal, we confine our review to the issues raised
in the Appellant’s brief. See 4th Cir. R. 34(b). Because
McCollum’s informal brief does not challenge the basis for the
district court’s disposition, McCollum has forfeited appellate
review of the court’s order. Accordingly, we affirm the
district court’s judgment. 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 | 09-22-2015 |
Subsets and Splits