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https://www.courtlistener.com/api/rest/v3/opinions/3452874/ | Affirming.
This is an appeal from a judgment dismissing plaintiff's petition after the court, at the conclusion of all the evidence, had peremptorily instructed the jury to return a verdict for defendant, hence it is necessary to briefly review the evidence.
The Greene-Silvers Coal Company was a corporation having 200 shares of stock of which J.S. Greene and J.W. Silvers owned 67 1/2 shares each, E.M. Howard, 45 shares, and T.R. Middleton and A.W. Babbage, 10 shares each. Greene was president of the corporation, Babbage was secretary, and Silvers was general manager. The record does not show who was treasurer but appellant's brief recites that Silvers was general manager and treasurer, and as this is not denied in appellee's brief, we accept it as correct. The corporate affairs of the company were loosely conducted with but slight attention paid to the keeping of its records. Greene was the dominant figure and treated the business of the corporation as if he were its sole owner, and there is nothing in the record to show the other stockholders objected to or questioned his actions; on the other hand, they appear to have acquiesced therein. Greene customarily used the personal pronoun "I" when referring to the corporation or in transacting its business. His testimony is replete with such expressions as, "I started Jess (Silvers) at $250.00 per month;" "I raised Jess' salary from the time we started up;" "I raised my salary," etc.
The corporation was engaged in the business of mining and selling coal, with Greene drawing a salary of $100 per month as president and Silvers' salary as general manager was $350 per month. In addition thereto Greene and Silvers each drew a dividend on their stock of $200 per month and the other stockholders drew a monthly dividend in proportion to the amount of stock each owned. There is nothing in the record to show when or in what manner these salaries and dividends were fixed by the corporation as none of its records were introduced in evidence. It is apparent from the record that the reason for the corporation's existence was that the incorporators sought to escape personal liability in their business venture in operating this mine.
Silvers' health failed in the winter of 1935, and in *Page 301
the middle of the following January he went to Florida where he remained about one month. Upon returning to his home in Harlan, his health did not permit him to actively conduct his business and much of his time was spent in hospitals in an effort to regain his health until he died in Baltimore in June 1936. While Silvers was in a hospital in Louisville in February 1936, Greene reduced Silvers' salary from $350 to $100 per month, and raised his own salary from $100 to $350 per month, or to express it in the language of Mrs. Silvers, Greene swapped salaries with her husband.
After the death of her husband Mrs. Silvers qualified as his administratrix and instituted this action in the Harlan Circuit Court against Greene to recover $1000 in salary which she contends Greene wrongfully took from her husband. The petition as amended avers Greene took an appropriated $250 per month for the four months of February, March, April and May, 1936, from the salary of Silvers as an officer of the Greene-Silvers Coal Company; that the $1000 was taken by Greene during the life of Silvers and under his promise to Mrs. Silvers to repay the money if his action was not satisfactory to Silvers and to her; that since the death of her husband, she, as his personal representative, made demand upon Greene to return this money and he refused. Several preliminary pleadings were filed, but it is unnecessary to discuss them, and the issue was joined by defendant filing an answer which was a traverse.
The testimony of the appellant was that Greene came to her home in February, 1936, and informed her that he was swapping salaries with her husband and if his action did not meet with her approval and that of her husband, who was then in a hospital, he would return the money. Greene's version of this conversation is that he told Mrs. Silvers he was reducing her husband's salary $250 per month and was raising his own in that amount, but he did not promise her to make this satisfactory to her or her husband. We must accept Mrs. Silvers' testimony for the purpose of determining the correctness of the ruling of the court in directing a verdict against her. Considerable evidence was taken as to what duties Silvers and Greene performed for the corporation both before and after the failure of Silvers' health. But such testimony has no bearing on the issue to be determined, which is, was Green acting individually, *Page 302
or as the president of the Greene-Silvers Coal Company in this conversation with Mrs. Silvers concerning her husband's salary?
Obviously, Greene was acting as president of the corporation in his conversation with Mrs. Silvers because as an individual he had no control over Silvers' salary or any other corporate matters. The facts in this case are similar to those in Watson v. Porter, 243 Ky. 212, 47 S.W.2d 1025, wherein Watson in conducting the affairs of the corporation usually did so by using the personal pronoun "I." Despite the fact that Watson transacted business for the corporation as though he were conducting his own private business, the record plainly showed Watson was acting for and on behalf of the corporation and not for himself individually, and this court held that the corporation and not Watson was bound by his words.
It is not necessary for us to determine whether the action of Greene as president of the corporation in reducing Silvers' salary was the duly authorized act of the corporation, or whether his alleged promise to repay the sum taken from Silvers' salary was binding on the corporation. These questions are not before us. We are only deciding that when Greene conversed with Mrs. Silvers on the subject of reducing her husband's salary and of increasing his own, he was speaking in the capacity of the president of the corporation and not in an individual capacity, and any promise he might have made her concerning her husband's salary did not bind him personally. Whether or not the corporation was bound by any promise Greene may have made Mrs. Silvers is not a matter before us.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3450025/ | Reversing.
This is a taxpayer's action to enjoin the board of education of the city of Owensboro from issuing and selling school bonds amounting to $200,000. The demurrer to the petition was sustained, and the petition was dismissed. The taxpayer appeals.
Owensboro is a city of the third class with a population in excess of 20,000. Under its charter the board of education is authorized to order an election and submit to the voters the question whether or not the board shall issue bonds to any amount it deems sufficient, subject to the limitation provided by sections 157 and 158 of the Constitution, for the purpose of providing suitable grounds and school buildings and equipment. On February 23, 1929, a bond issue of $200,000 was submitted to the voters of Owensboro. The proposition carried by a vote of 1,861 to 264. It is conceded that the proceedings were all regular, and the only attack made on the validity of the bonds is that the amount of the indebtedness, together with the existing indebtedness of the board, will exceed 2 per cent. of the taxable property in the city. With respect to this contention, the facts are these: The assessed value of all taxable property in the city is $13,395,285; 2 per cent, thereof is $267,905.70. The board is already indebted in the sum of $273,000.
The precise question here involved was before the court in the recent case of Boll v. City of Ludlow, 227 Ky. 208, 12 S.W.2d 301. Following several cases to the same effect, we held that a bond issue for school purposes was an indebtedness of the board of education where the boundaries of the school district coincided with those of the city, that the limit of indebtedness fixed by section 158 of the Constitution was 2 per cent. of the taxable property of the city, and that the Legislature itself was without authority to raise this limit. It is suggested that we recede from this position because there are other factors that the court failed to take into consideration in deciding the question.
Particular stress is placed on section 183, which provides: "The general assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state."
It is argued that this section is mandatory; that the framers of the Constitution did not intend merely *Page 721
to use idle words; that, having issued a command, they did not intend to limit the powers of the Legislature so as to render meaningless the words employed. It must not be overlooked that in adopting section 158 of the Constitution the framers thereof not only issued a positive command, but spoke in language much more explicit and certain than that employed in section 183. It cannot be said that words of such general import as those contained in section 183 are sufficient to authorize the Legislature wholly to ignore other limitations imposed by the same instrument. On the contrary, it is clear that whatever duty is imposed is subject to the limitations of the Constitution.
But it is suggested that section 157 of the Constitution fixes the tax rate for the various municipalities for "other than school purposes," that this section should be construed in connection with section 158 of the Constitution, and that the words "for other than school purposes" should be carried over into that section. The fact that these words do not appear in section 158 is most persuasive that the framers of the Constitution did not intend to make an exception of indebtedness incurred for school purposes, but did intend to fix a limit of indebtedness which the various cities, towns, counties, taxing districts, and municipalities could not exceed for any purpose.
There is the further argument that Owensboro is a progressive city, that its school facilities are wholly inadequate, and that some consideration should be given to these factors. The only instance in which the limit fixed by section 158 of the Constitution may be exceeded is "in case of emergency, the public health or safety should so require." Even if inadequate school facilities could ever constitute an emergency, a question not decided, no facts are pleaded showing that such an emergency exists. On the contrary, the case went off on demurrer. Therefore the situation is one where the limit may not be exceeded.
In deciding constitutional questions, we are often faced by hard cases, accompanied by an urgent appeal to find some way to remedy the situation, but, where the Constitution speaks in plain and unambiguous terms, it is our mandatory duty to give effect to its provisions, although the consequences are such as we would like to avoid if possible. *Page 722
As the petition disclosed facts showing that the proposed bond issue was invalid, it follows that the court erred in sustaining the demurrer to the petition.
Judgment reversed, and cause remanded for proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3450026/ | [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 500
Reversing.
Pursuant to authority granted by KRS 70.540, the County Court of Harlan County established a police *Page 501
force and appointed Metcalf as Captain, Baumgardner and Cox as members, and they qualified. The County Judge requested the Fiscal Court to fix their salaries. A majority of the court voted to set aside and appropriate $4,000 for their compensation, "subject to the securing of an opinion of the Attorney General as to the legality of said appropriation." Several days later, after receipt of the Attorney General's opinion that it was legal and mandatory that the court fix the compensation of these officers and make an appropriation therefor, a motion was made that the court comply with the provisions of KRS 70.560 (providing that a fiscal court shall fix the salaries of the members of a police force established under KRS 70.540), and that $2400 be appropriated as the annual salary of Metcalf, and $600 as the salary of each of the other two members. A majority voted against the motion.
This is an action by those patrolmen for a mandamus against the fiscal court and its several members requiring them to fix reasonable salaries for the plaintiffs and to make an appropriation for their payment. It is charged that in rejecting the motion described, the fiscal court had refused and failed to perform its statutory duty and violated the plaintiffs' legal rights. The several orders of the county court are filed with the petition, but those of the fiscal court are not. We have, therefore, only the allegations of the petition as to what the defendants did.
An amended petition charged that after the service of process upon the several defendants, they had wrongfully, and for the purpose of thwarting the plaintiffs in their lawful rights and circumventing the power of the circuit court to grant the plaintiffs the relief sought, diverted and transferred certain sums from the county's general emergency fund and an unbudgeted and unappropriated account to the road and bridge fund. The plaintiffs prayed for orders requiring restitution to the proper budget account and restraining further action that would violate plaintiffs' rights. A sufficient order to protect the plaintiffs in this particular was entered.
A demurrer to the petition was sustained upon the ground that the Act of 1942, now KRS 70.540 et seq., authorizing the establishment of county police forces *Page 502
is unconstitutional; accordingly, it was adjudged that the several orders of the Harlan County Court were void and that the fiscal court is without authority to appropriate or expend any funds for the payment of salaries claimed by the plaintiffs. The judgment went further and adjudged that the plaintiffs have no right or authority to act or purport to act as peace officers. The petition was dismissed. However, the temporary injunction preventing the diversion of funds with which the salaries might be paid was continued in effect (plaintiffs posting suitable bond) until there could be a final determination of the case by this court.
The question is raised as to the plaintiffs' right to maintain the action because their remedy was by an appeal from the orders of the fiscal court. The question is one of jurisdiction. Wolfe County v. Tolson, 283 Ky. 11,140 S.W.2d 671.
Anyone personally or officially aggrieved by an action or order of a fiscal court must appeal to the circuit court within 60 days. KRS 23.030; Civil Code of Practice, sec. 729. We have held that appeal is the only remedy where an officer is dissatisfied with the amount of salary or other compensation fixed by a fiscal court, for it has performed a statutory duty even though it may have done so improperly, e. g., abused a discretionary power. Caddell v. Fiscal Court of Whitley County,258 Ky. 114, 79 S.W.2d 407; Stewart v. Kidd, 262 K. 90,89 S.W.2d 861; Wolfe County v. Tolson, 283 Ky. 11,140 S.W.2d 671; Turner v. Bowman, 294 Ky. 507, 172 S.W.2d 209; Perkins v. Cumberland County, 294 Ky. 737, 172 S.W.2d 651. There is a material difference where the court has refused to perform a duty imposed by statute. Mandamus is the proper remedy where a right to have it performed exists, though how or what it may do in the exercise of its discretion cannot be so controlled. In this case, when the County Judge, who is a member of the fiscal court, requested that salaries be fixed, the only thing it did was to make an appropriation of a lump sum. That was favorable to the patrolmen and they could not appeal from it. Graves County v. Graves Fiscal Court, 303 Ky. 707, 199 S.W.2d 137. Afterward the court again rejected a motion to fix the amount of the officer's compensation and continued to refuse. There was a duty to do so imposed by the statute. *Page 503
We have the distinction clearly drawn in two cases from Oldham County. The county court had appointed Akins as a county patrolman and the fiscal court refused to fix his salary. We held that mandamus was the proper remedy to compel the court to fix the salary as it was its duty to do so. Peak v. Akins,237 Ky. 711, 36 S.W.2d 351. After that decision, the fiscal court fixed Akins' salary at $50. a month. He was not satisfied with the amount and brought another suit to have the members of the fiscal court held in contempt of the circuit court on the ground that they had not fixed reasonable compensation, and also sought a mandamus requiring them to fix the salary at a reasonable sum. We held the suit improper because the fiscal court had acted and exercised a discretion, hence the plaintiff's remedy in this instance was by an appeal to have the action reviewed. The distinction is recognized and enforced also in Bath County v. United Disinfectant Co., 248 Ky. 111,58 S.W.2d 239; Leslie County v. Hensley, 276 Ky. 679,125 S.W.2d 255; Mueninghoff v. Bartholomew, 269 Ky. 36,106 S.W.2d 97, in which cases the remedy of mandamus was held proper because a fiscal court had refused to act at all. We are of the opinion, therefore, that the plaintiffs pursued the right course in seeking, a mandamus.
The statute establishing and relating to a county patrol or police force has been the subject of many revisions and amendments throughout the years. The General Assembly in 1942, Ch. 115, repealed and re-enacted Ch. 95 of the Kentucky Statutes, Sec. 3786-1 et seq., Ch. 13, Acts of 1936, 4th Extra Session, and Ch. 191, Acts of 1940, and returned to a system of patrol, separate and apart from the office of sheriff. Sec. 3780, Ky. Stats., 1936 edition, which was originally Ch. 83, sec. 1, of the General Statutes. See Milliken v. Harrod,275 Ky. 597, 122 S.W.2d 148. The new Act (1942), as did the old, authorizes county courts in all the counties to "establish, appoint and maintain a county police force," the appointments to be for terms of four years, and makes it the duty of the respective fiscal courts to fix the salaries of the officers so appointed within certain maximum limits. The limits were graduated according to population. Ch. 115, Acts of 1942. The General Assembly of 1946 raised the maximum salaries. *Page 504
Chapters 18, 142, Acts of 1946. The present law is KRS 70.540 et seq. The maximum salaries in a county containing a population of 200,000 or more are $4,000 for the chief, and $3,600 for the assistant chief. KRS 70.561. The maximum salaries in counties having a population of 70,000 or more are $3,600 for the chief of police, $3,000 for an assistant chief, $2,700 for a captain, and $2,400 for patrolmen. The maximum salary in counties containing a population less than 70,000 and more than $25,000 is $1,800, and in all other counties $25 per annum for any such officer. KRS 70.560.
It is this graduation in compensation upon which the challenge of the constitutionality of the statute is based, particularly the fact that in counties having less than 25,000 population the maximum is only $25 per annum, while in counties having more than 70,000, the maximum ranges from $2,400 up. Specifically, the argument is that the Act is special and discriminatory legislation and violates Sections 59, 60, and 141 of the Constitution.
Harlan County has a population in excess of 70,000. The appellants question the right of the fiscal court to challenge the statute because Harlan County is not prejudiced if that part of the Act be deemed discriminatory because of the negligible sums provided for counties having less population. They invoke the familiar rule that constitutional questions are not dealt with abstractly so that no person whose right is not affected can raise the question of constitutional validity. Dorman. Dell, 245 Ky. 34, 52 S.W.2d 892; Stein v. Kentucky State Tax Commission, 266 Ky. 469, 99 S.W.2d 443. We think the appellees have the right to raise the question because they are public officers, charged with the responsibility and duty of conserving public funds and spending none without authority of law. If the Act should be held invalid at the instance of some of the counties within the $25 category, it would be invalid as to Harlan County, for we think the act is indivisible, believing that the legislature would not have enacted the statute without this part. KRS 446.090. If it should be held unconstitutional on the challenge of some of the counties within the $25 category, it would then be developed that the fiscal court of Harlan County had paid out money under a void statute. If the defendants in good *Page 505
faith believed the act unconstitutional they were justified in refusing to fix the salaries of the officers and appropriating funds for their support. Norman v. Kentucky Board of Managers,93 Ky. 537, 20 S.W. 901, 18 L.R.A. 556; Rhea v. Newman,153 Ky. 604, 156 S.W. 154, 44 L.R.A., N.S., 989; Dorman v. Dell, 245 Ky. 34, 52 S.W.2d 892; Cf. Felts v. Linton, 217 Ky. 305, 289 S.W. 312.
The statute does not prima facie violate 141 of the Constitution, which declares that "the jurisdiction of the County Court shall be uniform throughout the State, and shall be regulated by general law." The statute authorizes every county court in the state to establish a county patrol, make rules and regulations, and appoint members of the force. There is no exception, distinction or limitation. KRS 70.540. This fact distinguishes the statute from those held invalid in Kilbourn v. Chapman, 163 Ky. 136, 173 S.W. 322; Fox v. Petty,244 Ky. 385, 51 S.W.2d 260; Beauchamp v. Silk, 275 Ky. 91,120 S.W.2d 765; Beauchamp v. Henning, 292 Ky. 557,166 S.W.2d 427. Uniformity of jurisdiction or action of the fiscal courts is not required, and it is that body which is charged with the duty of fixing the salaries of these officers.
It is argued that the statute offends the concluding part of Sec. 59 of the Constitution, which comprehensively declares that in all cases other than those enumerated no special law shall be enacted where a general law may be applicable; also that it offends the provision of Sec. 60 which prohibits the General Assembly from indirectly enacting special or local legislation by exempting any county from the operation of a general act. Cities are classified according to population for purposes of organization and government. Sec. 156. But the framers of the Constitution did not deem it well to classify or permit the classification of counties, although obviously the same basis of density of population exists. The failure to recognize this status has proved to be an obstacle to much reasonable and salutary legislation. What is suitable for Jefferson County, with 400,000 inhabitants, principally urban, is not suitable for Robertson County, with a population of 3,500, which is wholly rural. Notwithstanding this omission from the Constitution and the apparent requirement of uniformity, this court has held, under a broad interpretation, that certain class *Page 506
legislation for counties based upon population is valid where the classification can be deemed reasonable or rational under the particular circumstances to which the law applies. James v. Barry, 138 Ky. 656, 128 S.W. 1070, is a well considered opinion on the subject and one which has been consistently followed.
The Constitution provides in Sec. 106: "The fees of county officers shall be regulated by law." The same section then recognizes a difference in fees for salaries based upon population, for it provides that in counties or cities having a population of 75,000 or more, certain officers shall be paid out of the State Treasury not to exceed 75% of the fees collected and paid into the treasury by them. Section 138 recognizes density of population of a county in the creation of circuit court districts. Compensation of county officers is ordinarily left to the respective fiscal courts and uniformity is not required, either in the statutes controlling the fiscal courts or in their own action under general law. There are a number of statutes, always recognized as valid, establishing maximum limits of salaries.
The appellees submit that this statute cannot be brought within the rule of reasonable classification because crime is present in sparsely settled counties as well as in those more populous; that the former may need a county patrol just as much as the latter although they may need a larger force to cope with a larger population. In the smaller counties the sheriff and his force have proved sufficient except on extraordinary occasions. The county patrol is to supplement that police force and aid in the suppression of crime. After all, the statute relates to local county government, and each county is a constituent part of the state itself, and in the matter of compensation of its officers the will of the legislature is supreme. The mere fact that the practical effect of the Act of 1942 is local does not bring it within the constitutional prohibition of special or class legislation. Shaw v. Fox,246 Ky. 342, 55 S.W.2d 11, in which the distinction between general, special class and local legislation is discussed at length. See also Jefferson County Fiscal Court v. Trager,302 Ky. 361, 194 S.W.2d 851. We are of opinion, therefore, that the act prima facie is to be deemed reasonable and logical. *Page 507
We come to the core of the appellee's argument. Underlying the contentions of unconstitutionality which we have discussed, is the thesis that by providing the negligible sum of $25 per annum as compensation of county patrolmen in the less populous counties, the legislature has, in substance and effect,not authorized the establishment of the patrol system in those counties. We have 93 counties within the $25 class, the populations (1940 census) ranging from 24,917 (Greenup) down to 3,419 (Robertson). It is submitted that by this provision the legislature has attempted to evade the mandates of the Constitution by sacrificing their substance and intent while recognizing the form and the letter. See Stanley v. Townsend,170 Ky. 833, 186 S.W. 941; Barker v. Stearns Coal Lumber Co.,287 Ky. 340, 152 S.W.2d 953; Meredith v. Kauffman, 293 Ky. 395,169 S.W.2d 37. The argument is in effect that the salaries have been placed so low that no one can be found to accept the office, so that the provision must be deemed so unreasonable as to nullify the whole act. It is to be borne in mind that this is not a case where a fiscal court or other municipal body to whom the Legislature has delegated the power of fixing compensation has undertaken to circumvent the will of the Legislature by fixing it so low that it practically abolishes the office. See Breathitt County v. Turner, 223 Ky. 727,4 S.W.2d 695. We are dealing with a discretionary action of the Legislature itself in creating an office outside the constitutional structure. We ought not to ascribe the bad faith implicit in appellees' argument to our coordinate branch of the government, which is supreme in this sphere.
The existence of an office is not determined by the compensation. Salary is not indispensable and the amount is not determinative. This office does not stand alone as one where the remuneration is small. The aggregate fees of the constitutional offices of constable and coroner are negligible in most counties. The compensation of mayors and councilmen in most of the cities and towns is meager and not commensurate with the offices and responsibilities. Thus, in cities of the fifth class, prior to 1946 amendment, the statute fixed the salary of the mayor at $75 a year, and the councilmen at $2 per meeting attended. KRS 87.200, 1944 edition. There is *Page 508
no provision for compensating members of the board of trustees of a sixth class town. The general registration and purgation act of 1938, Chap. 111, expressly provided that no member of the county board should receive any compensation except in counties containing a city of the first class, who should receive $1200 per annum. Pointing out the difference in the character and extent of the duties of the members in such a county, we held the classification to be reasonable; hence that the act and provision are constitutional. We held otherwise as to precinct purgation officers because election precincts throughout the state have substantially the same population. Burton v. Mayer, 274 Ky. 245, 118 S.W.2d 161.
Some men are willing to serve in public office as a contribution to government or for the honor or distinction where the monetary consideration is absent or negligible. Other men serve for power and prestige. We have at least ten boards and commissions appointed by the Governor who receive no compensation for their services, and a number of others who receive a small per diem.
Probably what was in the legislative mind in enacting this statute was that in the less populous counties the police would be needed for exceptional occasions or in emergencies to supplement the sheriff's force. There is nothing in the statute requiring a county patrolman to devote his full time to the duties of the office, and if the rules and regulations do not otherwise provide it need not interfere to any material extent with his private business or calling. Even so, if no one will take the job, it will still exist.
We are of opinion that the statute is constitutional and that the circuit court was in error in holding otherwise.
Judgment reversed.
Judge Latimer and Judge Cammack think the salary classification is arbitrary and unreasonable, and further that the act is not severable; therefore, they dissent from the majority opinion. *Page 509 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3045008/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2163
___________
Frank Applewhite-Bey, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Lewis C. Tripoli, M.D.; Dean *
Lee, M.D.; Correctional Medical * [UNPUBLISHED]
Services, Inc., *
*
Appellees. *
___________
Submitted: June 26, 2008
Filed: July 10, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Arkansas inmate Frank Applewhite-Bey appeals the district court’s1 adverse
grant of summary judgment in his 42 U.S.C. § 1983 action in which he had alleged
that defendants were deliberately indifferent to his chronic dry-skin condition. He
also appeals the denial of two of his motions. After carefully reviewing the record and
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, adopting the report and recommendations of the Honorable Raymond L.
Erickson, United States Magistrate Judge for the District of Minnesota.
Applewhite-Bey’s arguments, we find no basis for reversal of the order granting
summary judgment. See Popoalii v. Corr. Med. Svcs., 512 F.3d 488, 499 (8th Cir.
2008) (standard of review). We also conclude that the district court did not abuse its
discretion in denying the challenged motions. Accordingly, we affirm the judgment.
See 8th Cir. R. 47B. We also deny the pending motion for oral argument.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045009/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-4002
___________
Clara Reece Fuller, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Alliant Energy, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: June 23, 2008
Filed: July 10, 2008
___________
Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Clara Reece Fuller, an African-American woman, appeals the district court’s1
grant of summary judgment in favor of her former employer, Alliant Energy, on her
claims of race, sex, and disability discrimination. Because we conclude that Fuller’s
notice of appeal was untimely filed thirty-one days after the district court entered
judgment, and the thirtieth day did not fall on a Saturday, Sunday, or legal holiday,
we dismiss the appeal for lack of jurisdiction. See Fed. R. App. P. 4(a)(1)(A) (in civil
cases, NOA must be filed within 30 days after entry of judgment or order), 26(a)
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
(computation of time); Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 619-20 (8th Cir.
2008) (timely NOA is mandatory and jurisdictional); Dieser v. Cont’l Cas. Co., 440
F.3d 920, 923 (8th Cir. 2006) (court will raise jurisdictional issues sua sponte).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129673/ | 538 U.S. 1037
TREJOv.CANDELARIA, WARDEN.
No. 02-9449.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
2
C. A. 9th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1240059/ | 541 N.W.2d 692 (1996)
Doris Elaine THORSON, Plaintiff,
Estate of Doris Elaine Thorson, by and through its Personal Representative Debra Ann Meyers, Intervenor and Appellant,
v.
Allen Leroy THORSON, Defendant and Appellee.
Civ. No. 950114.
Supreme Court of North Dakota.
January 3, 1996.
*693 Daniel J. Chapman, Chapman and Chapman, Bismarck, for intervenor and appellant.
Bryan Van Grinsven, Farhart, Lian, Maxson, Louser & Zent, Minot, for defendant and appellee.
VANDE WALLE, Chief Justice.
The Estate of Doris Thorson appealed from an order dismissing Doris Thorson's action for divorce. We conclude an action for divorce abates on the death of a party and we affirm.
On March 14, 1994, after nineteen years of marriage, Doris Thorson filed for divorce from Allen Thorson. Although each had children from previous marriages, no children were born of this marriage, the second marriage for both parties. At the time of their marriage, Doris had been diagnosed with leukemia but it was in remission for several years during the marriage. Prior to filing for divorce, however, Doris's symptoms of leukemia returned, and she chose not to seek further treatment.
Under an amended interim order, Allen and Doris were restrained from disposing of or encumbering any of the real or personal property, except as might be necessary in the ordinary course of business. Doris filed a motion, dated August 5, 1994, to compel the sale of the marital home which Doris and Allen held in joint tenancy. The parties had signed a listing agreement to sell the house for $39,500. In her affidavit in support of the motion, Doris stated that the parties had received a written offer to purchase the home for the full listing amount, but that Allen had refused to cooperate in the sale. *694 Doris further explained that she suffered from leukemia and, fearing that she did not have long to live, felt "entitled to receive something from the marital estate that [she] might enjoy before [her] death...." Allen opposed the sale and stated in his affidavit that he withdrew his consent to the sale when he discovered that the price listed in the signed agreement was less than $45,000. After a hearing on the motion on August 16, 1994, the trial court denied Doris's motion.
On August 18, 1994, Doris filed a Certificate of Readiness. Allen filed a Certificate of Non-Readiness, dated August 22, 1994, stating that discovery had not been completed and that more time was needed to prepare for trial. Doris died August 24, 1994.
A motion was filed to substitute Debra Meyers, Doris Thorson's daughter and the personal representative of Doris Thorson's estate, as the Plaintiff in the divorce action to pursue the equitable distribution of the marital property. Allen opposed the motion and moved for dismissal claiming that, under section 14-05-01(1), NDCC, the marriage was dissolved by Doris's death; thus, the divorce action was moot. On October 19, 1994, the trial court issued an order denying Plaintiff's motion and granting dismissal. The trial court held "the cause of action for divorce, along with the incidental right to pursue property interests, abates with the death of a party. Where no dispositive order relating to permanent disposition of the property of a marriage has been made at the time of death, no issue survives." Arguing that Plaintiff did not have "an appropriate chance to respond" to the motion for dismissal, the personal representative moved the trial court to reconsider. The trial court reconsidered its order but issued a second order on October 25, 1994, dismissing the action. On April 18, 1995, a Notice of Appeal was filed.
Allen moved to dismiss the appeal as untimely under Rule 4(a), N.D.R.App.P., which provides:
"In a civil case the notice of appeal ... shall be filed with the clerk of the trial court within 60 days of the date of the service of notice of entry of the judgment or order appealed from...."
We have said that, ordinarily, the time for appeal begins when notice of entry is served. See, e.g., Morley v. Morley, 440 N.W.2d 493, 494 (N.D.1989). The North Dakota Rules of Civil Procedure provide that the counsel for the prevailing party is responsible for serving notice of entry. N.D.R.Civ.P. 77(d); Morley, 440 N.W.2d at 494 (citing Rule 77(d) and its explanatory note); Lizakowski v. Lizakowski, 307 N.W.2d 567, 571 (N.D.1981) [noting that the rules do not require a separate, formal document to provide notice of entry of judgment; rather, such notice is "simply written notice that judgment has been entered"]. Here, Allen's attorney did not serve notice of entry for either October order. As in Morley, regular procedures were not followed.
Nonetheless, we recognize that "irregular procedures do not extend the time for appeal indefinitely. Actual knowledge of entry of an order, when clearly evidenced by the record, commences the running of the time for appeal." Morley, 440 N.W.2d at 495 [citing Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985) ]. Allen asserts that the time for appeal began October 25, 1994, when the trial judge issued and served copies of the second order of dismissal to the parties' attorneys, as evidenced in the record by an affidavit of service by mail prepared on behalf of the Williams County District Court. Citing precedent, Allen argues that actual knowledge has been recognized under various circumstances and asserts that, in this instance, the trial court's affidavit of mailing gave the personal representative actual knowledge of entry of the order. However, in prior cases, the factual predicate for determining that an appealing party had actual knowledge of entry of the judgment or order has included some action taken by the appealing party, as clearly evidenced in the record. See Morley, 440 N.W.2d at 494-95 (appealing party's stipulation to cancel a hearing showed she had actual knowledge of custody modification order); Lang, 377 N.W.2d at 577-78 (time for appeal began when Lang filed an application for a writ of mandamus); Klaudt v. Klaudt, 156 N.W.2d 72, 76 (N.D.1968) [time for appeal began when appealing party filed notice of motion to vacate the original judgment]. An affidavit *695 of mailing may be record notice but it does not equate with actual notice under these precedents establishing an exception to the requirement of service of notice of entry of judgment by the prevailing party.
We conclude that actual knowledge of entry of the judgment or order requires action evident on the record on the part of the appealing party. We are then assured that the appealing party indeed had knowledge even though regular procedures were not followed. In this instance, the affidavit of mailing was filed by the trial court.[1] Following the trial court's affidavit, there were no entries in the record until April 6, 1995, when the Plaintiff's attorney stipulated to substitution of counsel. Twelve days later, the personal representative filed a Notice of Appeal. Thus, April 18, 1995, was the first time that the record clearly evidenced that Plaintiff had actual knowledge of entry of the order, consequently the appeal is timely.
The personal representative for Doris's estate argues that the divorce action, in essence the equitable distribution of property, was not abated by Doris's death. The appellant cites section 28-01-26.1, NDCC, which provides "[n]o action or claim for relief, except for breach of promise, alienation of affections, libel and slander, abates by the death of a party...." Because this section does not include divorce, the personal representative claims that the trial court erred when it dismissed the divorce action. Allen asserts, however, that marriage can be dissolved either by the death of one of the parties or by divorce. N.D.Cent.Code § 14-05-01. Allen contends that the pending divorce action was rendered moot by Doris's death.
The personal representative acknowledges that the greater weight of authority holds that a divorce action is abated upon the death of one of the parties. See In re Marriage of Allen, 8 Cal. App. 4th 1225, 10 Cal. Rptr. 2d 916, 918 (1992) [noting that when a party dies before dissolution of the marriage, the "action must abate and the court can make no further orders with respect to property rights, spousal support, costs or attorney fees"]; Oliver v. Oliver, 216 Iowa 57, 248 N.W. 233, 234 (1933) [stating that death ends marital status; if a divorce decree has not been entered prior to death, then one can never be entered]; Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945); Peterson v. Goldberg, 146 Misc. 2d 474, 550 N.Y.S.2d 1005, 1007 (Sup.Ct.1990) [recognizing that a divorce action abates upon the death of one of the parties prior to judgment of divorce because "the cause of action for divorce is personal, and upon death, the marriage is terminated"], aff'd, 180 A.D.2d 260, 585 N.Y.S.2d 439 (1992); Pellow v. Pellow, 714 P.2d 593, 597 (Okl.1985) [stating that the court is, in effect, deprived of jurisdiction in a divorce action when a spouse dies before the entry of a final decree]; Larson v. Larson, 89 S.D. 575, 235 N.W.2d 906 (1975); see also Annotation, Effect of Death of Party to Divorce or Annulment Suit Before Final Decree, 158 A.L.R. 1205 (1945) [stating that the "settled rule" is that a divorce action, before the entry of a final decree, abates upon the death of one of the parties].
In Larson, the court cited a statute similar to section 14-05-01, NDCC, and stated:
"[Marriage] is terminated in only two waysdeath or divorce. Death having come in advance of any judicial decree the [marriage] was thereby severed. Thereafter there was no [marriage] upon which the decree could work. The law in this state is as it is in many others: in a suit for divorce where the death of one of the parties to the suit occurs before a decree of divorce has been issued the action abates and the jurisdiction of the court to *696 proceed with the action or to make further determination of property rights, alimony, costs or attorney's fees is terminated."
Larson, 235 N.W.2d at 909 (citations omitted).
In Williams, a party died while a cause of action for divorce was pending and before a final decision had been entered. 19 N.W.2d at 631. The personal representative for the deceased party argued that the divorce action was not abated because a statute very similar to section 28-01-26.1, NDCC, did not include divorce. The court explained that the statute could not prevent a divorce action from abating when death " `destroy[s] the subject-matter which forms the basis of the action.' " Id. at 632 [quoting Sovereign Camp, W.O.W. v. Billings, 107 Neb. 218, 185 N.W. 426, 427 (1921) ].
Likewise, in North Dakota, marriage is a relationship personal to the parties of the marriage. N.D.Cent.Code § 14-03-01. Under section 14-05-01, NDCC, Doris's and Allen's marriage was dissolved by Doris's death. Upon the death, there was no longer a marriage for the trial court to dissolve with a judgment decreeing a divorce. A court will make an equitable distribution of the real and personal property when a divorce is granted. N.D.Cent.Code§ 14-05-24. In a divorce action, the equitable distribution of property is incidental to a judgment of divorce. Because the marriage was dissolved by death and not by divorce, the trial court did not err when it held that there was no longer a marriage to be dissolved and, therefore, no issue of property distribution remaining before the court.
Doris's estate next seeks equitable relief, arguing that she be permitted to prove that Allen intentionally prolonged the divorce proceedings so that, upon Doris's death, he could benefit as the sole survivor of the joint tenancy. Although courts have jurisdiction to provide a remedy where none exists at law, courts "tread carefully when entering the realm of equitable remedies." Burr v. Trinity Medical Center, 492 N.W.2d 904, 908 (N.D.1992); Matter of Estate of Hill, 492 N.W.2d 288 (N.D.1992). After our review of the record, we conclude that equitable relief is not warranted.
We affirm the trial court's order of dismissal.
SANDSTROM, J., concurs.
LEVINE, Justice, concurring.
This case offers a practical solution to the dilemma presented by the need for lawyers to know when the time for appeal begins to run, on the one hand, and, on the other hand, the need for the court to apply some closure to a case where the lawyers fail to timely serve notice of entry of judgment or order. Customarily, lawyers have relied on service of notice of entry as the trigger for the time to appeal. This case establishes that that customary reliance is not foolproof. When no entry of judgment or order is served, or when it is served after appellant's actual knowledge of entry of judgment or order, appellant's actual knowledge of entry of judgment or order will trigger the time to appeal. Proof of appellants' "actual knowledge" of entry of judgment or order "requires action evident on the record on the part of the appealing party."
I am satisfied that this resolution is reasonable and necessary and I therefore abandon my dissent in Morley v. Morley, 440 N.W.2d 493 (N.D.1989) and concur in the majority opinion. To paraphrase Justice Jackson: Things do not appear to me now as they did then. See McGrath v. Kristensen, 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173 (1950)(Jackson, J., concurring).
MESCHKE, Justice, specially concurring.
I agree with the majority's conclusion that a spouse's death dissolves a marriage and ends a pending divorce action. There are ways to sever joint tenancies without violating a restraint against disposing of marital property and to plan devise of the individual's property after death, subject to the elective share of the surviving spouse. Compare NDCC 47-10-23 and ch. 30.1-05. No purpose would be served by litigating division of marital property after the death of a spouse under the rules for division during life.
*697 Still, I would not decide that question here because I believe this appeal came too late. In my opinion, it would be preferable to dismiss this appeal as untimely.
The filed affidavits here attested to service on each attorney by mailing copies of the trial court's orders granting dismissal and denying the reconsideration. I understand the majority concludes that these filed "affidavit[s] of service by mail prepared on behalf of the Williams County District Court" do not constitute "actual knowledge of entry of the judgment or order ... evident on the record on the part of the appealing party." While the majority recognizes that an "affidavit of mailing may be record notice," the majority concludes it is not "actual notice" because it was not "served by the prevailing party upon the adverse party" in keeping with NDRCivP 77(d) for a judgment entered by the clerk. In my opinion, this ruling is too formalistic, will unsettle common practices of attorneys and judges, and will undermine the presumption of notice by mail that is explicit in our rules for orders.
A judge needs to communicate his written orders to all of the attorneys in the case when entered, and is equally bound by the rules of procedure. See N.D.Code of Judicial Conduct 3(B)(7) ("A judge shall not initiate... ex parte communications ...."); id. 2(A) ("A judge shall respect and comply with the law...."). Whatever the rule for giving notice of a judgment entered by the clerk, the rule for giving notice of an order was plainly followed here.
"Except as otherwise provided in these rules, every order required by its terms to be served, ... and similar paper shall be served upon each of the parties." NDRCivP 5(a). "Whenever under these rules service is required or permitted to be made upon a party represented by an attorney, the service must be made upon the attorney unless service upon the party is ordered by the court." NDRCivP 5(b). "Service upon the attorney... must be made by ... mailing it to the attorney ... at the attorney's ... last known address...." Id. "Service by mail is complete upon mailing." Id. "Proof of service under this rule may be made as provided in Rule 4 or by certificate of an attorney showing that the attorney has made service pursuant to subdivision (b)." NDRCivP 5(f). "An affidavit of mailing required by this rule must state that a copy of the ... order of court, or other paper to be served was deposited by the affiant, with postage prepaid, in the United States mail and directed to the party shown in the affidavit to be served at the party's last reasonably ascertainable post office address, showing the date and place of depositing...." NDRCivP 4(j). The affidavits of service by mailing in this case literally comply with the rules and prove service of notice.
Service is notice, and notice is knowledge. It is presumed that "a letter duly directed and mailed was received in the regular course of the mail," though it "may be contradicted by other evidence." NDCC 31-11-03(24). When the law prescribes mail notice as a method of giving information, the receipt of a letter containing the information is conclusive proof of knowledge. Mund v. Rambough, 432 N.W.2d 50, 54 (N.D.1988) (quoting Brown v. Otesa, 80 N.W.2d 92, 99 (N.D.1956)). Here, present counsel for Doris Thorson's personal representative does not contest that prior counsel received the orders in the mail. See State v. Tininenko, 371 N.W.2d 762 (N.D.1985). Appellant's position is evident from his Brief on Motion to Dismiss Appeal that frames the argument thus: "The issue, then, boils down to the question: `Will the North Dakota Supreme Court extend the "actual knowledge" standard to include notice from a member of the court clerk's staff?' " In my opinion, the judge's secretary's affidavit of service by mail proves effective notice under the rules as much as one by a lawyer's secretary.
Moreover, the majority's decision that the affidavit of mailing was not "actual notice," because the notice was not "served by the prevailing party upon the adverse party" under NDRCivP 77(d), ignores the Code definition of "actual notice": "Actual notice shall consist in express information of a fact." NDCC 1-01-23. Here, the record shows that both attorneys had "express information" that the orders had been entered by the trial court, and they therefore had "actual notice."
*698 Therefore, this is an "actual notice" case, unlike Morley, where there was no evidence at all that any notice was served. It is true that counsel for the prevailing party usually serves notice of a judgment entered by the clerk. NDRCivP 77(d). Where there is an order for entry of a judgment not intended to be final and appealable by itself, it is necessary for the prevailing party to have the clerk enter a judgment and for the attorney for that party to give notice of it to the attorney for the adverse party. Midwest Federal Sav. Bank v. Symington, 393 N.W.2d 753 (N.D.1986); Brown v. Will, 388 N.W.2d 869 (N.D.1986). Yet an order of dismissal that is intended to be final is appealable without the redundant act of entering and noticing a judgment of dismissal. Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 660 n. 1 (N.D.1994); Sime v. Tvenge Assocs. Architects & Planners, P.C., 488 N.W.2d 606, 608 (N.D.1992). As Morley, 440 N.W.2d at 495, explained, under NDRCivP 58, as amended in 1988, formal entry of a separate judgment by the clerk of court is no longer necessary unless judicial action directs it.
When the record shows an attorney has received notice of entry of an order by a mailed copy, I see no need to formalistically require the "prevailing attorney" (sometimes difficult to identify) to go through the redundant procedures of preparing additional formal documents to give another notice of entry. Of course, many careful practitioners will take pains to do so, but I believe the common practice for orders is to rely on what the judge has done.
In any event, form should not control function. It really should not matter where the notice comes from, as long as the record clearly shows the notice was given. See NDCC 1-01-12 ("Where a form is prescribed, deviations therefrom not affecting the substance or calculated to mislead does not vitiate the form used."). To make a formalistic distinction that it is okay for the court to give the notice if the prevailing attorney asks it to do so, as in Lizakowski v. Lizakowski, 307 N.W.2d 567 (N.D.1981), but not if the court does it on its own initiative, as here, has nothing to do with the fact that the adverse attorney received notice. Here, the record shows, through a secretary's affidavit, that copies of the orders were mailed to the attorneys, and the statutory presumption says they received them. That is all our rules require. I believe it is enough here.
In this case, I believe that notices of entry of the final orders were given by mail, are evidenced by the affidavits of service in this record, and fully comply with the rules of procedure on service of notice of entry of orders. Whenever a court sends the attorneys a copy of an order, and the service complies with NDRCivP 5 and is evidenced in the record, there has been sufficient notice. Therefore, I would dismiss this appeal as untimely.
NEUMANN, J., concurs.
NOTES
[1] We note that in Lizakowski v. Lizakowski, 307 N.W.2d 567 (N.D.1981), Mary Ann Lizakowski's appeal was deemed untimely when the clerk of the trial court mailed notification that the judgment was entered. But, in Lizakowski, Mary Ann's attorney, in addition to sending a copy of the proposed judgment and decree directly to George Lizakowski's attorney, specifically requested the clerk of district court to forward a letter giving notification of entry of the judgment to him, which we concluded fulfilled the requirements of Rule 77. Thus, we were not required to decide whether Mary Ann had actual knowledge in that case, because "written notice" was given. But, here, Doris's attorney did not cause or request the trial court to issue the "affidavit of service." Such a deviation from procedure does not comply with Rule 77. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2892723/ | NO. 07-04-0013-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 24, 2005
______________________________
CARLOS FERRER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-403301; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
ON ABATEMENT AND REMAND
Carlos Ferrer appeals his conviction for aggravated sexual assault. The clerk’s
record was filed on February 23, 2004, and the reporter’s record was filed on May 20,
2004. This matter was abated on August 19, 2004 for determination of indigency and
appointment of counsel. The case was reinstated on August 25, 2004. Appellant’s brief
was due on September 24, 2004. On October 21, 2004, this court notified appointed
counsel for appellant that neither the brief nor an extension of time to file appellant’s brief
had been filed. Counsel for appellant was also admonished that if appellant’s brief was not
filed by November 1, 2004, the appeal would be abated to the trial court. On that date,
counsel for appellant filed a motion for extension of time, which was granted, making the
brief due November 29, 2004. A second motion for extension was filed by appellant’s
counsel on December 3, 2004, and extension was granted until January 3, 2005. When
appellant’s brief was not filed by January 25, this court sent appellant a second letter
notifying him that appellant’s brief had not been filed and stating the appeal would be
abated if a brief was not filed by February 4, 2005. On January 31, counsel requested a
third extension of time, through February 27. Counsel’s earlier requests for extension were
based on delay in receiving the appellate record from previous counsel. The third request
cited counsel’s workload. The third request was granted only to the extent the brief’s due
date was extended to February 14, 2005. The Court also again admonished counsel that
if the deadline was not complied with the appeal would be abated and the cause remanded
to the trial court in accord with Texas Rule of Appellate Procedure 38.8(b)(2). That date
is well past, and appellant has neither filed a brief nor submitted a further motion for
extension.
Consequently, we abate the appeal and remand the cause to the 140th District Court
of Lubbock County (trial court) for further proceedings. Upon remand, the trial court shall
immediately cause notice of a hearing to be given and thereafter, conduct a hearing to
determine the following:
1. whether appellant desires to prosecute the appeal;
-2-
2. whether appellant has been denied the effective assistance of counsel
due to appellate counsel’s failure to timely file an appellate brief. See
Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed.
2d 821, 828 (1985) (holding that indigent defendant is entitled to the
effective assistance of counsel on the first appeal as a matter of right
and that counsel must be available to assist in preparing and
submitting an appellate brief).
Tex. R. App. P. 38.8(b)(2).
We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects. Should the trial court find that appellant desires to
pursue this appeal and has been denied effective assistance of counsel, then we further
direct the court to appoint new counsel to assist in the prosecution of the appeal. The
name, address, phone number, fax number and state bar number of the new counsel who
will represent appellant on appeal must also be included in the court’s findings of fact and
conclusions of law. Furthermore, the trial court shall also cause to be developed (1) a
supplemental clerk’s record containing the findings of fact and conclusions of law and (2)
a supplemental reporter’s record transcribing the evidence and argument presented at the
hearing. Tex. R. App. P. 38.8(b)(3). Additionally, the trial court shall cause the
supplemental clerk’s record and the supplemental reporter’s record to be filed with the clerk
of this court on or before March 25, 2005. Should additional time be needed to perform
these tasks, the trial court may request additional time before March 25, 2005.
Per Curiam
Do not publish.
-3- | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4538794/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VERONICA PALMER,
Appellant,
v.
U.S. BANK TRUST, N.A., et al.,
Appellees.
No. 4D19-1911
[June 4, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Frank David Ledee, Judge; L.T. Case No.
CACE16-019096.
Samuel D. Lopez of Samuel D. Lopez, P.A., Pembroke Pines,
for appellant.
David Rosenberg and Jarrett Cooper of Robertson, Anschutz &
Schneid, P.L., Boca Raton, for appellee U.S. Bank Trust, N.A.
PER CURIAM.
Affirmed. 1
LEVINE, C.J., DAMOORGIAN and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 We are mindful of the issuance of Administrative Order SC20-23, Amendment
2 (the requirement in Florida Rule of Civil Procedure 1.580(a) for the clerk to issue
a writ of possession “forthwith” remains suspended) and Executive Order 20-137
(extending, until 12:01 a.m. on July 1, 2020, Executive Order 20-94, which
suspends and tolls any statute providing for a mortgage foreclosure cause of
action under Florida law). We trust any motions directed to those orders shall
be filed in the lower tribunal upon issuance of our mandate. | 01-03-2023 | 06-04-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1324905/ | 179 Ga. App. 54 (1986)
345 S.E.2d 143
DANIEL
v.
THE STATE.
72087.
Court of Appeals of Georgia.
Decided May 8, 1986.
M. Gene Gouge, for appellant.
Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.
CARLEY, Judge.
Appellant was indicted for the offense of cruelty to children in *55 violation of OCGA § 16-5-70 (b). A trial before a jury resulted in a verdict of guilty. Appellant appeals from the judgment of conviction entered on the guilty verdict.
1. Appellant enumerates the general grounds. Evidence adduced at trial would authorize the jury to find as follows:
On May 23, 1984, two-year-old Michael Casto (Michael) was admitted to a hospital. There was a pattern of superficial skin lesions on his buttocks. The admitting physician also noted a large bruise on the youngster's forehead, a deep laceration on his lip, and smaller bruises all about his face and head. Another doctor who examined and treated Michael testified that it was his expert opinion that the child's injuries were consistent with child abuse.
At the hospital, appellant admitted that he had spanked Michael on the buttocks with a leather knife sheath which was bound with metal rivets, and that this had caused the bruising on the child's bottom. Appellant later made substantially the same admissions in a handwritten statement which was admitted at trial without objection. With respect to the child's facial cuts and bruises, appellant testified that they were the result of a fall. The treating physician testified, however, that the injuries to Michael's face were too well distributed to be the result of a single fall. The doctor further noted that there was an absence of other injuries, as to the elbows or knees, which might indicate a fall. The State introduced photographs which tended to show similarities between the injuries on the child's face and those on his buttocks.
Appellant urges that there is a lack of evidence that he "maliciously cause[d] . . . cruel or excessive physical or mental pain." OCGA § 16-5-70 (b). This contention is based upon appellant's assertions that he did not mean to hurt the child. Intent, however, is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. OCGA § 16-2-6. "Intention" "`does not mean an intention to violate a penal statute but an intention to commit the act prohibited thereby.' [Cit.]" Thomas v. State, 176 Ga. App. 771, 773 (337 SE2d 344) (1985). "`Intention may be manifest by the circumstances connected with the perpetration of the offense.' [Cit.]" Brown v. State, 173 Ga. App. 264, 265 (326 SE2d 2) (1985). "[T]he jury was authorized in this case in finding as no excuse the appellant's statement that [he] did not mean to do what [he] did." McGahee v. State, 170 Ga. App. 227 (316 SE2d 832) (1) (1984). Clearly there was evidence from which a rational trier of fact could find appellant guilty beyond a reasonable doubt of the crime charged. Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983); Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Lee v. State, 247 Ga. 411 (276 SE2d 590) (1981). We find no error.
*56 2. Appellant urges that he should be granted a new trial on the ground of ineffective assistance of counsel. Appellant was the only witness in his defense. The claim of ineffective assistance is based upon appellant's contention that trial counsel should have called other competent witnesses, including Michael's mother, who would have testified that the spanking was justified or who otherwise might have supported his version of the events.
The record shows that, at a pre-trial hearing, the State apprised appellant's counsel of certain impeachment evidence which would be used against Michael's mother and others if they were called as witnesses for appellant. Under these circumstances, it is clear that appellant's counsel made such tactical decisions as were properly within his province when he elected not to call Michael's mother or other possible witnesses. See generally Reid v. State, 235 Ga. 378 (219 SE2d 740) (1975). "We . . . conclude, viewing the totality of circumstances from the attorney's perspective at the time of trial, that the attorney's conduct was both effective and reasonable." Brogdon v. State, 255 Ga. 64, 68 (335 SE2d 383) (1985). Appellant was not denied effective assistance of counsel. See Brogdon v. State, supra; Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985).
3. Appellant urges that it was error for the trial court to ask certain questions of the witnesses. At trial, however, no objection was raised to the trial court's questions. State v. Griffin, 240 Ga. 470 (241 SE2d 230) (1978). Moreover, the trial court may "propound a question or a series of questions to any witness for the purpose of developing fully the truth of the case." Eubanks v. State, 240 Ga. 544, 547 (242 SE2d 41) (1978). Applying this standard, it does not appear that the trial court's questioning was improper.
Judgment affirmed. McMurray, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3048283/ | FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50539
Plaintiff - Appellee, D.C. No. 2:08-cr-00081-RHW-4
v.
MEMORANDUM *
FRED PRIMUS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert H. Whaley, Senior District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
Fred Primus, a federal prisoner, appeals his 5-year sentence for conspiracy to
distribute at least 100 grams of phencyclidine (PCP) in violation of 21 U.S.C. §§
846 and 841(a)(1). We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo “[t]he construction or interpretation of a
statute,” United States v. Cabaccang, 332 F.3d 622, 624-25 (2003) (en banc), and
we affirm.
Primus argues that the district court erred in sentencing him to 5 years under
§ 841(b)(1)(B)(iv)–the penalty provision applicable to distribution of more than
100 grams of PCP–because he did not knowingly and intentionally enter into a
conspiracy to distribute any particular type or quantity of drug.
The government need not demonstrate beyond a reasonable doubt that
Primus “knew of both the drug quantity and type that were involved in the
conspiracy” to impose the 5-year mandatory minimum dictated by §
841(b)(1)(B)(iv). See United States v. Toliver, 351 F.3d 423, 433 (9th Cir. 2003);
see also United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (holding that
a “defendant charged with importing or possessing a drug is not required to know
the type and amount of drug”). Rather, Primus’s express admission in his guilty
plea that he possessed with an intent to distribute more than 351.5 grams of PCP
established beyond a reasonable doubt that his offense involved more than 100
grams of PCP. See United States v. Minore, 292 F.3d 1109, 1120 (9th Cir. 2002).
Nothing more is required.
AFFIRMED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/7433308/ | Certiorari dismissed without opinion. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/998131/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-6046
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUAN PRATT,
Defendant - Appellant.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-95-123-3-MU, CA-97-28-3-MU)
Submitted: March 11, 1999 Decided: March 18, 1999
Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Juan Pratt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant seeks to appeal the district court’s order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 1998). We have reviewed the record and the district court’s
opinion and find no reversible error. Pratt waived the right to
collaterally attack his conviction or sentence except on specified
grounds, and he fails to show that he received ineffective assis-
tance of counsel. See Lockhart v. Fretwell, 506 U.S. 364 (1993).
Accordingly, we deny a certificate of appealability and dismiss the
appeal on the reasoning of the district court. See United States
v. Pratt, Nos. CR-95-123-3-MU; CA-97-28-3-MU (W.D.N.C. Dec. 14,
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/2793637/ | Filed 4/14/15 In re R.W. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re R.W. et al., Persons Coming Under the Juvenile C076100
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos. JD232886,
HEALTH AND HUMAN SERVICES, JD234016)
Plaintiff and Respondent,
v.
J.W. et al.,
Defendants and Appellants.
Appellants E.C. (mother) and J.W. (father) appeal from the orders of the juvenile
court denying their requests to have minors R.W. and J.W. placed with their half brother,
Omar. Mother had filed a petition for modification (Welf. & Inst. Code, § 388; unless
otherwise stated, statutory section references that follow are to the Welfare and
Institutions Code) seeking to have minor R.W. placed with Omar. The parents also
1
sought to have minor J.W. placed with Omar at a relative placement hearing, (§ 361.3)
which hearing coincided with the hearing on mother’s petition for modification. The
juvenile court denied mother’s petition for modification, assessed the relative placement
issue for J.W., and denied the request to place with Omar.
Both parents purport to appeal from both orders. We will dismiss the appeal as to
R.W. and affirm the juvenile court’s orders as to J.W.
FACTS AND PROCEEDINGS
On December 5, 2012, Sacramento County Department of Health and Human
Services (the Department) detained minor R.W. (then seven months old) due to her
parents’ drug abuse and history of domestic violence. The parents said they did not have
any relatives they wanted assessed for placement and no relatives came forward seeking
placement. R.W. was adjudged a dependent and placed with foster parents.
In April 2013, the Department reported that it was considering a family friend,
Elizabeth, for placement of R.W. However, she was not yet ready to take placement so
no further action was taken at that time.
On May 15, 2013, the paternal grandmother contacted the Department and
expressed an interest in placement. The Department did not pursue placement with the
paternal grandmother because, (1) R.W. was by then in a foster/adoptive placement, and
(2) the parents were seeking to live with the paternal grandmother so her home would not
be approved for placement.
On June 5, 2013, the foster parents who had been caring for R.W. since
January 18, 2013, filed a request for de facto parent status. They also indicated they
wanted to pursue adoption should reunification efforts fail. R.W. was very bonded to
them and appeared comfortable in their home. The juvenile court granted their request
for de facto parent status.
2
In October 2013, R.W.’s 19-year-old half sibling, Omar, contacted the Department
and requested that R.W. be placed with him. The Department made a kinship referral and
began assisting with visits between R.W. and Omar. The Department also sought
waivers for criminal convictions for domestic violence for Omar’s father, who resided
with Omar.
On November 5, 2013, J.W. was born to the parents. J.W. tested positive for
methamphetamine at birth and mother admitted to using methamphetamine in the days
prior to J.W.’s birth. Hospital employees reported that father smelled strongly of
marijuana and was stumbling and unsteady while holding J.W. Two days later, J.W. was
placed with R.W.’s foster/de facto parents.
On February 7, 2014, J.W. was adjudged a dependent and ordered into out-of-
home placement. Parents were ordered to receive reunification services as to J.W., but
their services as to R.W. were terminated.
The kinship approval for Omar’s home was still pending. The psycho-social
assessment indicated that Omar did not support reunification with the parents. It also
indicated that Omar would not be able to provide appropriate care and supervision
without the total support of his father and stepmother. His father and stepmother had
expressed a willingness to help and provide care for R.W. and J.W.
Omar’s home was approved by kinship on January 30, 2014. In an addendum for
a March 7, 2014, relative placement hearing, the Department recommended placement of
both R.W. and J.W. with Omar. Mother also filed a section 388 petition for modification
requesting R.W.’s placement be changed to placement with Omar, which was opposed by
R.W.’s counsel.
On March 11 and 12, 2014, the juvenile court heard testimony and argument
regarding mother’s section 388 petition for modification and relative placement for J.W.
The juvenile court denied mother’s petition, finding it was not in R.W.’s best interests to
3
be moved to placement with Omar. The court also denied a request that J.W. be placed
with Omar.
DISCUSSION
I
R.W.
Both parents purport to appeal from the juvenile court’s denial of mother’s petition
for modification seeking to have R.W. placed with Omar. (Sacramento County case No.
JD232886.) The Department contends neither parent has standing to raise the issue on
appeal. We need not reach the disputed standing issue, however, because the appeal is
moot as to R.W.
We take judicial notice of the record on appeal in case No. C077003. (Evid. Code,
§§ 452, 459.) We note that a reviewing court normally should give the parties to an
appeal an opportunity to comment on the propriety of judicial notice and the tenor of the
matter to be noticed on the reviewing court’s own motion, if the matter is of substantial
consequence to the appellate opinion. (Evid. Code, § 452, subd. (d) [judicial notice of
court records], § 459 [reviewing court may take judicial notice but must give parties
opportunity to comment under § 455 if the matter is of substantial consequence].) The
validity of taking judicial notice of our record on appeal in case No. C077003 appears
self-evident. However, if the parties are aggrieved by this judicial notice, we will
entertain a motion for rehearing in order to give them an opportunity to address the
matter before the decision becomes final. (Evid. Code, § 459(d).)
The record in case No. C077003 reflects that parental rights were terminated as to
minor R.W. and that, thereafter, an appeal was filed but dismissed on November 17,
2014, for failure to file an opening brief. Remittitur issued on January 23, 2015.
Accordingly, the termination of parental rights as to minor R.W. is now final.
4
“It is well settled that an appellate court will decide only actual controversies.
Consistent therewith, it has been said that an action which originally was based upon a
justiciable controversy cannot be maintained on appeal if the questions raised therein
have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988)
199 Cal.App.3d 1, 10.) When subsequent events render it impossible for this court, if it
should decide the case in favor of appellant, to grant any effectual relief whatever, the
court will not proceed to a formal judgment, but will dismiss the appeal. (Consol. etc.
Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863.)
In this appeal, parents request that we reverse the order denying mother’s
modification petition, which requested the juvenile court place R.W. in the home with
Omar. Parents, however, abandoned their appeal from the order terminating parental
rights, and that order is now final and cannot be vacated. (In re Jessica K. (2000)
79 Cal.App.4th 1313, 1315.) Once parental rights are terminated, the “exclusive care and
control of the child” is placed with the Department for adoptive placement. (§ 366.26,
subd. (j).) Accordingly, we cannot provide any meaningful relief because R.W.’s
prospective adoptive family now has statutory preference for adoption, and the juvenile
court’s role is limited to reviewing the Department’s adoptive placement decision for
abuse of discretion. (§ 366.26, subd. (k); see In re Sarah S. (1996) 43 Cal.App.4th 274,
285-286.) Parents’ claim is, therefore, moot. (In re Jessica K., supra, at p. 1315.)
II
J.W.
Parents also contend the juvenile court abused its discretion in denying Omar
placement of J.W. pursuant to section 361.3. (Sacramento County case No. JD234016.)
Estoppel
Initially, we address parents’ argument that the Department is estopped on appeal
from asserting the position that there was no juvenile court error in denying placement
5
with Omar because that position is contrary to the position it asserted in the juvenile court
at the section 361.3 hearing.
It has been held that “ ‘ “[a]lthough equitable estoppel may apply to government
actions where justice and right so require, ‘estoppel will not be applied against the
government if the result would be to nullify a strong rule of policy adopted for the benefit
of the public [citations] or to contravene directly any statutory or constitutional
limitations. [Citation.]’ [Citations.]” ’ [Citation.] The public policy here is the
protection of abused and neglected children (§ 300.2) and the children’s need for stability
and permanence [citation].” (In re Joshua G. (2005) 129 Cal.App.4th 189, 197.) The
juvenile court’s order furthers these policies and we see no reason why the policy
preventing the application of equitable estoppel to the Department under such
circumstances would not apply equally to judicial estoppel.
Furthermore, setting aside the question of whether the doctrine of judicial estoppel
may be applied against the Department in a dependency hearing, where the focus is on
the protection and best interests of the child, one of the requirements for the application
of judicial estoppel is clearly not met here. Judicial estoppel applies when “(1) the same
party has taken two positions; (2) the positions were taken in judicial or quasi-judicial
administrative proceedings; (3) the party was successful in asserting the first position
(i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are
totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud,
or mistake. [Citations.]” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171,
183, italics added.) The third judicial estoppel factor of success is not satisfied here, as
the juvenile court’s order was contrary to the Department’s recommendation of
placement with Omar. (See Jogani v. Jogani (2006) 141 Cal.App.4th 158, 170-171
[“[t]he factor of success—whether the court in the earlier litigation adopted or accepted
the prior position as true—is of particular importance”].) Thus, the Department is not
estopped from asserting the position that there was no juvenile court error on appeal.
6
Finally, we point out that parents, as appellants, have the burden of establishing
juvenile court error, regardless of the Department’s position on appeal. Error is not
presumed. The judgment or order of the lower court is presumed correct and it is
incumbent on parents, as the appellants, to affirmatively establish error. (Rossiter v.
Benoit (1979) 88 Cal.App.3d 706, 712.) Thus, the doctrine of judicial estoppel, even if
applied to the Department’s position on appeal, would be of no substantive consequence.
Application of Section 361.3
“When a child is removed from his or her parents’ custody under section 361, the
juvenile court places the care, custody, control, and conduct of the child under the social
worker’s supervision. (§ 361.2, subd. (e).) The social worker may place the child in
several locations, including the approved home of a relative. (§ 361.2, subd. (e)(1)-(8).)
Relatives who request placement of a dependent child are given preferential
consideration. (§ 361.3, subd. (a).) In determining whether to place the child with the
requesting relative, the court and social worker consider the factors enumerated in section
361.3, subdivision (a). The linchpin of a section 361.3 analysis is whether placement
with a relative is in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th
295 [].)” (Alicia B. v. Superior Court of San Diego County (2004) 116 Cal.App.4th 856,
862-63, footnote omitted (Alicia B.).)
Parents argue the juvenile court misapplied section 361.3 by failing to give
placement preference with Omar, as a relative caregiver. In making this argument,
however, father appears to rely on the false premise that the juvenile court gave
placement preference to the minor sibling, R.W., and then argues that only adult siblings
have placement preference. (See § 361.3, subd. (c)(2) [“the following relatives shall be
given preferential consideration for the placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling”].) The juvenile court did not, of course, place J.W.
7
with R.W. -- it placed J.W. with R.W.’s caretakers. Thus, the juvenile court did not
misapply section 361.3 by giving placement preference to a minor sibling.
Father also repeatedly asserts that “[t]he juvenile court’s decision to overrule the
[Department’s] exercise of its placement discretion, and substitute its own discretion in
place of the social agency’s expertise, . . ., constituted an abuse of discretion.” His
assertion is meritless. It is well-established that section 361.3 requires the juvenile
court’s independent judgment. “When section 361.3 applies to a relative placement
request, the juvenile court must exercise its independent judgment rather than merely
review [the Department’s] placement decision for an abuse of discretion. The statute
itself directs both the ‘county social worker and court’ to consider the propriety of
relative placement. (§ 361.3, subd. (a).) The cases, too, discuss the relative placement
preference in the context of an independent determination by the juvenile court. ‘The
statute expresse[s] a command that relatives be assessed and considered favorably,
subject to the juvenile court’s consideration of the suitability of the relative’s home and
the best interests of the child.’ (In re Stephanie M.[, supra,] 7 Cal.4th [at p.] 320, []
italics omitted.)” (Cesar v. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033.)
The remainder of parents’ contentions regarding the juvenile court’s application of
section 361.3 are, in substance, contentions that the court abused its discretion.
Abuse of Discretion
“We review a juvenile court[’]s custody placement orders under the abuse of
discretion standard of review; the court is given wide discretion and its determination will
not be disturbed absent a manifest showing of abuse. [Citations.] ‘Broad deference must
be shown to the trial judge. The reviewing court should interfere only “ ‘if we find that
under all the evidence, viewed most favorably in support of the trial court’s action, no
judge could reasonably have made the order that he did.’ [Citations.]” [Citation.]’
[Citation.]” (Alicia B., supra, 116 Cal.App.4th at p. 863.)
8
The preferential consideration under section 361.3 “ ‘does not create an
evidentiary presumption in favor of a relative, but merely places the relative at the head
of the line when the court is determining which placement is in the child’s best interests.’
(In re Sarah S., supra, 43 Cal.App.4th at p. 286[].) In other words, when a child is taken
from his parents’ care and requires placement outside the home, section 361.3 assures an
interested relative that his or her application for placement will be considered before a
stranger’s request. ([Id. at p. 285]; see also § 361.3, subd. (c), which states: ‘For
purposes of this section . . . [¶] . . . “[p]referential consideration” means that the relative
seeking placement shall be the first placement to be considered and investigated.’)”
(Alicia B., supra, 116 Cal.App.4th at p. 863.)
The juvenile court, however, must still consider the suitability of the relative’s
home and the best interests of the minor. The factors the court is to use in making the
determination are: “(1) The best interest of the child, including special physical,
psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the
parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6
(commencing with Section 7950) of Division 12 of the Family Code regarding relative
placement. [¶] (4) Placement of siblings and half siblings in the same home, unless that
placement is found to be contrary to the safety and well-being of any of the siblings as
provided in Section 16002. [¶] (5) The good moral character of the relative and any
other adult living in the home, including whether any individual residing in the home has
a prior history of violent criminal acts or has been responsible for acts of child abuse or
neglect. [¶] (6) The nature and duration of the relationship between the child and the
relative, and the relative’s desire to care for . . . the child . . . . [¶] (7) The ability of the
relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for
the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C)
Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his
or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶]
9
(F) Facilitate visitation with the child’s other relatives. [¶] (G) Facilitate implementation
of all elements of the case plan. [¶] (H) Provide legal permanence for the child if
reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as
necessary. [¶] (8) The safety of the relative’s home . . . .” (§ 361.3, subd. (a).)
Here, the juvenile court expressly considered the factors set forth in section 361.3,
subdivision (a), and determined placement with Omar was not in J.W.’s best interests.
First, the juvenile court noted that J.W. had been living with her foster parents since birth
-- four months. Removing her from the only home she has known would likely result in
some negative impact. With regard to the second factor in section 361.3, subdivision (a),
although the parents were clear that they wanted J.W. placed with Omar, they were also
clear they wanted J.W. placed with R.W. Since R.W. would not be placed with Omar, it
was unclear to the court what the parents’ wishes would be since they were not
approached about the current contingency. The court noted that the third factor expressed
the public policy favoring placement with relatives and further noted that Omar intended
to share their family rituals and culture, as well as familial relationships with J.W.
The juvenile court placed significant emphasis on the fourth factor, finding that
J.W.’s placement in the same home as her sister, R.W. with whom she was close in age,
would provide J.W. an opportunity to enjoy the “closeness, friendship and love that
sisters can have.” This factor alone weighed heavily in favor of placing J.W. in R.W.’s
home and weighed heavily against placement with Omar. The court found the ability to
continue to form that bond with her sister was in J.W.’s interest and that her sibling bond
with R.W. would be more of a close sibling-type bond than the type of bond she would
likely develop with her adult half sibling who would be responsible for parenting her.
We should note that we reject mother’s assertion that the juvenile court could have
also placed R.W. with Omar in order to keep the siblings together. The juvenile court
had already found that placement of R.W. with Omar was not in R.W.’s best interests and
ordered R.W. was to remain with her caretakers, the de facto mother and father. Parents
10
are essentially suggesting the juvenile court should have entered orders against R.W.’s
best interests in order to effectuate placement of J.W. with Omar. This, of course, would
be contrary to the juvenile court’s duties. And, in any event, the propriety of the court’s
decision regarding placement of R.W. is not before us. (See Discussion, supra.)
In any event, the court recognized that there was no question that Omar and his
parents had good moral character. They had had four supervised visits with J.W. and
three unsupervised overnight visits. The visits were significant but J.W. was forming
deep attachments with her foster parents. And while Omar wanted to care for J.W., and
the court found he could do so with his parents’ assistance, it was unknown whether he
could provide legal permanency if reunification was unsuccessful because the
Department could not say whether he would qualify to adopt J.W.
The court also found that, with respect to the seventh factor in section 361.3,
subdivision (a), Omar did not favor reunification with the parents and, more importantly,
lived two hours away from J.W.’s parents. In addition to this physical distance from
J.W.’s parents, Omar was a full-time student and had a job, and both of his parents
worked. Thus, Omar’s ability to facilitate visitation and reunification was problematic
even though Omar’s parents apparently agreed to take J.W. to visit with her parents twice
a week.
Considering these factors, on balance, the juvenile court concluded that placement
with Omar was not in J.W.’s best interests.
Omar was assessed and considered by the court as a possible placement for J.W.
Placement with Omar, however, would have made reunification and regular visitation
difficult, which was the goal for parents at that time. It would also have required J.W.
being removed from her close-in-age sister, and the foster parents with whom she had
been living since birth. Finally, if reunification failed, it was uncertain whether Omar
could provide permanency for J.W. or whether the young minor would need to be moved
yet again. Under these circumstances, the juvenile court’s determination, considering the
11
statutory factors, that such a placement was not in J.W.’s best interests, was not an abuse
of discretion.
DISPOSITION
The appeal is dismissed as to minor R.W. (Sacramento County case No.
JD232886.) The orders of the juvenile court are affirmed as to minor J.W. (Sacramento
County case No. JD234016.)
HULL , Acting P. J.
We concur:
BUTZ , J.
HOCH , J.
12 | 01-03-2023 | 04-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2793638/ | Filed 4/14/15 In re Matthew S. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
In re MATTHEW S. et al., Persons Coming Under the C077430
Juvenile Court Law.
SHASTA COUNTY HEALTH AND HUMAN (Super. Ct. Nos.
SERVICES AGENCY, 12JVSQ2941401,
12JVSQ2941501,
Plaintiff and Respondent, 12JVSQ2941601,
13JVSQ2994601)
v.
GARY C. et al.,
Defendants and Appellants.
Gary C. and Shirley C., parents of the minors, appeal from orders of the juvenile
court terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [unless
otherwise stated, statutory references that follow are to the Welfare and Institutions
Code].) The parents argue the court erred in failing to find they had established the
1
beneficial parental relationship exception to termination of parental rights. We affirm the
juvenile court’s orders.
FACTS AND PROCEEDINGS
The three older minors, Matthew, age 4; B., age 2; and Neveah, age 1, were first
removed from parental care in August 2012 due to the parents’ methamphetamine use
and ongoing domestic violence. The court adopted a reunification plan in October 2012
and over the next several months, the parents complied with the plan and made progress
toward reunification. We note that Gary C. is the biological father of B., Neveah and a
fourth child, Dustin and the presumed father of Matthew. The terms “father” and
“parents” refer only to Gary C. because Matthew’s biological father is not a part of the
case.
The court returned the minors to the parents in August 2013 under a family
maintenance plan. At the review hearing in October 2013, the court continued the family
maintenance plan. Dustin was born shortly before the October review hearing.
In December 2013, the Shasta County Health and Human Services Agency (the
Agency) filed supplemental petitions to again remove Matthew, age 5; B., age 3; and
Nevaeh, age 2, from parental custody due to the parents’ relapse into methamphetamine
use and failure to comply with the family maintenance plan. The Agency also filed an
original petition to remove two-month-old Dustin from parental custody for the same
reasons. The court detained the minors and set visitation at one hour one time a month.
The court sustained the petitions. At the disposition hearing in March 2014 the
court terminated services as to the three older minors, bypassed services as to the
youngest and set a section 366.26 hearing.
The report for the section 366.26 hearing stated the minors were moved to an
adoptive placement in May 2014. The report described visits as inappropriate, in part,
because the parents tried to ask the minors where they were currently placed and
2
discussed the case with them. It was necessary to have security present in visits because
father had made threats to abscond with the minors. The parents became upset during
visits about contrived issues and their behavior caused anxiety for the minors. Matthew
was anxious and excited before visits and had the most reaction to visits. B. had some
negative behaviors for several days after visits. Neveah and Dustin were indifferent to
visits.
At the section 366.26 hearing in June 2014, the Agency requested a continuance to
complete notice and asked for a finding that further visits would be detrimental to the
minors. Minors’ counsel wanted an opportunity to speak to Matthew before the court
decided the visitation issue. The court was not prepared to make a detriment finding and
set a hearing to address the issue on July 9, 2014.
The Agency filed an addendum report on July 8, 2014. The report stated that a
confidential reporter said Matthew appeared to be afraid of father. The Agency again
asked the court to find visits detrimental to the minors.
At the July 9, 2014, hearing on visitation, minors’ counsel informed the court that
the minors looked at visits as an opportunity to get things rather than spend time with the
parents. Minors’ counsel reported that both Matthew and B. were sad before visits
knowing the parents had made bad choices. Both boys said they would like to see the
parents but only because the parents brought them things. Matthew was nervous about
visits because he was afraid the parents would not do the right things in visits. The court
found clear and convincing evidence that visitation would be detrimental to the physical
and emotional well-being of the minors and terminated visitation.
At the section 366.26 hearing in August 2014, both parents testified. Mother
testified her last visit with the minors was in June. The minors were excited when they
came to visits. Mother said they gave the minors toys and played with them during visits
and the minors were sad at the end because they did not want to leave. Mother testified
Matthew told her that he and his siblings wanted to come home.
3
Father testified he was very bonded to all the minors. He was currently in
recovery, had been clean since December 2013 and had completed his plan. Father
testified the minors were ecstatic to see them at visits. He stated that severing their
relationship would affect him and he believed it would also affect the minors. Father had
also grown up in foster care which led him to hate the system and he believed it would
affect the minors the same way and cause Matthew in particular a lot of mental stress.
Mother and father argued there was a significant parent-child bond and the court
should consider long-term foster care or guardianship for the minors.
The court found that while there was evidence of the parents’ bonds to the children, there
was not evidence of the minors’ bonds to the parents. The court adopted the
recommended findings and orders, terminating parental rights and selecting adoption as
the permanent plan.
DISCUSSION
The parents argue the court erred in terminating their parental rights because the
evidence established the existence of the beneficial parental relationship exception to
termination of parental rights.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child.” (In re
Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original emphasis.) There are only limited
circumstances which permit the court to find a “compelling reason for determining that
termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd.
(c)(1)(B).) The party claiming the exception has the burden of establishing the existence
of any circumstances which constitute an exception to termination of parental rights.
4
(In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82
Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(4); Evid. Code, § 500.) The
primary exceptions, i.e., benefit from continued contact with the parent and interference
with a sibling relationship, each require the party to establish a factual predicate and the
court to weigh the evidence. Substantial evidence must support the factual predicate of
the exception, but the court exercises its discretion in the weighing process. (In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
Termination of parental rights may be detrimental to the minor when: “The
parents have maintained regular visitation and contact with the child and the child would
benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) However, the
benefit to the child must promote “the well-being of the child to such a degree as to
outweigh the well-being the child would gain in a permanent home with new, adoptive
parents. In other words, the court balances the strength and quality of the natural
parent/child relationship in a tenuous placement against the security and the sense of
belonging a new family would confer. If severing the natural parent/child relationship
would deprive the child of a substantial, positive emotional attachment such that the child
would be greatly harmed, the preference for adoption is overcome and the natural
parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575;
In re C.F. (2011) 193 Cal.App.4th 549, 555.) Even frequent and loving contact is not
sufficient to establish this benefit absent a significant positive emotional attachment
between parent and child. (In re I.R. (2014) 226 Cal.App.4th 201, 213.)
It is not disputed that the parents visited the minors regularly until visitation was
terminated. It is the nature of the relationship at the time of the section 366.26 hearing
which is in dispute.
Following the December 2013 removal, the parents’ behavior in visits escalated.
The parents talked about taking the minors and asked about the location of their current
foster home. Father was threatening and visits had to have security present. Whatever
5
his relationship with father had been, Matthew now expressed fear of his father. Matthew
and B. were nervous about the parents’ behavior in visits and only wanted to visit
because the parents brought them things. Attending visits was stressful for the minors
and caused anxiety reactions in Matthew and B. when they returned to the foster home.
Neveah and Dustin were indifferent to visits and showed no connection to the parents.
Ample evidence supported the court’s conclusion that there was not a substantial positive
emotional bond between the minors and the parents. The juvenile court did not abuse its
discretion in terminating parental rights.
DISPOSITION
The orders of the juvenile court are affirmed.
HULL , J.
We concur:
NICHOLSON , Acting P. J.
RENNER , J.
6 | 01-03-2023 | 04-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2968504/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1388
DEBRA PLETZ,
Plaintiff – Appellant,
v.
LEON E. PANETTA, Director of Central Intelligence Agency,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:08-cv-00539-CMH-TCB)
Submitted: March 30, 2010 Decided: April 30, 2010
Before KING, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Debra Pletz, Appellant Pro Se. Monika L. Moore, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Debra Pletz appeals the district court’s order
granting summary judgment to the Defendant in her civil action.
We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. See Pletz v. Hayden, No. 1:08-cv-00539-CMH-TCB (E.D. Va.
filed Feb. 4, 2009; entered Feb. 5, 2009). 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 |
https://www.courtlistener.com/api/rest/v3/opinions/2800793/ | NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL
PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DUANE ASHMEADE, Appellant.
No. 1 CA-CR 14-0158
FILED 5-14-2015
Appeal from the Superior Court in Maricopa County
No. CR 1996-091873
The Honorable Louis A. Araneta, Judge (Retired)
The Honorable M. Scott McCoy, Judge
AFFIRMED AS CORRECTED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
Duane Ashmeade, Kingman
Appellant
STATE v. ASHMEADE
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Randall M. Howe joined.
N O R R I S, Judge:
¶1 Duane Ashmeade timely appeals from his convictions and
sentences for four counts of transporting marijuana for sale or transferring
marijuana weighing more than two pounds, class 2 felonies; four counts of
possession of marijuana for sale weighing four pounds or more, class 2
felonies; and one count of use of wire communication or electronic
communication in a drug related transaction, a class 4 felony. After
searching the record on appeal and finding no arguable question of law that
was not frivolous, Ashmeade’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this court to search
the record for fundamental error. This court granted counsel’s motion to
allow Ashmeade to file a supplemental brief in propria persona, and
Ashmeade did so. We reject the arguments raised by Ashmeade in his
supplemental brief and, after reviewing the entire available record, find no
fundamental error. Therefore, we affirm Ashmeade’s convictions. We also
affirm his sentences as corrected to eliminate a discrepancy between the
sentencing minute entry and the sentencing court’s oral pronouncement of
sentence.
FACTS AND PROCEDURAL BACKGROUND1
¶2 On June 21, 1996 a grand jury indicted Ashmeade as follows:
possessing and transporting or transferring marijuana on or about June 4,
1996—counts one and two; possessing and transporting or transferring
marijuana on or about June 5, 1996—counts three and four; possessing and
transporting or transferring marijuana on or about June 11, 1996—counts
five and six; possessing and transporting or transferring marijuana on or
about June 13, 1996—counts seven and eight; and unlawful use of a wire or
1We view the facts in the light most favorable to sustaining
the jury’s verdicts and resolve all reasonable inferences against Ashmeade.
See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2
STATE v. ASHMEADE
Decision of the Court
electronic communication to facilitate the above counts on or between June
4 and 13, 1996—count nine. The trial court released Ashmeade conditioned
on the posting of a $159,000 secured appearance bond.2 Through a surety,
Ashmeade posted the $159,000 bond on June 28, 1996, and with the trial
court’s permission, returned to his home in New York. Subsequently,
Ashmeade submitted a signed and notarized acknowledgement to the trial
court, and acknowledged his then September 26, 1996 “non-firm” trial date,
and confirmed he was aware he could be tried in absentia if he failed to
appear for trial.
¶3 On September 26, 1996 Ashmeade appeared for his non-firm
trial date. After submitting a second acknowledgement on October 17, 1996
acknowledging that he did not need to appear for his November 8, 1996
non-firm trial date, Ashmeade waived his presence for and did not appear
at that hearing. On December 6, 1996 Ashmeade submitted a third
acknowledgement and acknowledged a non-firm trial date of December 9,
1996 and confirmed he was aware he could be “tried in absentia, should
[he] fail to appear at [his] firm trial date.” On December 9, 1996, having
failed to waive his presence or appear, the trial court issued a bench warrant
for Ashmeade’s arrest, set a bond forfeiture hearing for February 6, 1997,
vacated the non-firm trial date, and set a firm trial date for February 3, 1997.
It also ordered that if Ashmeade failed to appear, trial would “proceed in
absentia.” The trial court sent a copy of its December 9, 1996 minute entry
to Ashmeade. At defense counsel’s request, the trial court rescheduled the
firm trial date to March 10, 1997.
¶4 Subsequently, the trial court ordered defense counsel to send
Ashmeade a registered letter, return receipt requested, and to try to
telephonically contact him to “apprise” him of his new firm trial date, and
that trial would proceed in absentia if he failed to appear. On February 14,
1997 defense counsel filed an affidavit stating he had “sent a registered,
return receipt requested letter to [Ashmeade] advising him of his trial date
and that . . . if he failed to appear he would be tried in absentia.” Defense
counsel also stated “[t]o date we have not received the return receipt back”
and “[i]n the meantime, I have attempted to telephonically reach
[Ashmeade] on a daily basis with no success.” Because the trial court was
2Theproceedings in this case occurred at different times due
to Ashmeade’s fugitive status. Thus, we refer to the court handling matters
until Ashmeade’s apprehension as the “trial court” and the court handling
matters after Ashmeade’s apprehension as the “sentencing court.”
3
STATE v. ASHMEADE
Decision of the Court
in trial on an unrelated matter, with the parties’ agreement, it rescheduled
trial for March 11, 1997.
¶5 Ashmeade failed to appear for trial on March 11, 1997. After
being advised by defense counsel that “the last contact his office had with
[Ashmeade] was on or about December 4, 1996,” the trial court found
Ashmeade’s failure to maintain contact with his attorney and failure to
appear demonstrated a knowing, intelligent, and voluntary waiver of his
right to be present for trial and ruled “trial may proceed in his absence”
(“absentia finding”). On March 26, 1997, the jury found Ashmeade guilty
as charged. Based on Ashmeade’s failure to appear, the trial court
reaffirmed the bench warrant for Ashmeade’s arrest and ordered
sentencing to be set upon his appearance in court.
¶6 On March 27, 1997, a different division of the superior court
held a bond forfeiture hearing, and, after finding “no reasonable cause” for
Ashmeade’s failure to appear, forfeited the secured appearance bond and
entered a $159,000 judgment against him, his bonding company, and its
surety. The judgment was satisfied on May 9, 1997. The bond forfeiture
court also sent a copy of its forfeiture hearing minute entry to Ashmeade.
The record does not indicate either the bond forfeiture minute entry or the
December 9, 1996 minute entry sent to Ashmeade, see supra ¶ 3, was
returned as undeliverable.
¶7 On September 24, 2013—over 16 years after his trial in
absentia—Ashmeade was taken into custody after being extradited from
Texas. On January 24, 2014, in response to Ashmeade’s motion challenging
the trial court’s absentia finding, the sentencing court held an evidentiary
hearing to determine whether Ashmeade had been voluntarily absent from
trial.
¶8 At the evidentiary hearing, Ashmeade testified he had been
in constant contact with his bail bondsman in New York and had not
learned about his trial date until after the trial was over. He admitted
signing the first two acknowledgements listing the non-firm trial dates but
denied signing the third, notarized acknowledgement. Ashmeade said he
had never been able to reach his attorney despite calling “thousands of
times,” and after he discovered he had been tried in absentia and convicted,
he stopped trying because he was “scared.” Ashmeade also denied
knowing about the bench warrant until he was apprehended in 2013.
¶9 Michael G., Ashmeade’s friend, also testified at the
evidentiary hearing. He explained he had retained Ashmeade’s attorney
4
STATE v. ASHMEADE
Decision of the Court
after Ashmeade had been arrested. Although he only met Ashmeade’s
attorney once, he testified that he went to the attorney’s office five to seven
times because Ashmeade frequently called him to find out his trial date.
Despite paying several visits to the attorney, and calling frequently,
Michael G. denied being told about Ashmeade’s trial date or bench warrant.
After Michael G. testified, and Ashmeade’s counsel made a closing
argument, the sentencing court advised the parties it had found the
testimony of Ashmeade and Michael G. not credible. It explained it would
review the hearing “exhibits” and would let the parties know after
reviewing the documents whether it would need additional evidence
before it could rule on Ashmeade’s motion. As discussed further below,
the record does not clearly reflect which exhibits the sentencing court
actually admitted into evidence. See infra ¶ 23.
¶10 On January 30, 2014 the sentencing court denied Ashmeade’s
motion, found his absence from trial voluntary, and affirmed his
convictions. See infra ¶ 12. Before the sentencing hearing, the State
submitted a sentencing memorandum and argued that although Ashmeade
had been “convicted of all eight drug offenses, these charges [were] from
only four separate offenses as there [were] two felony charges, each with a
different legal theory, for each date of offense” and thus “the counts with
the same date of offense must run concurrently to each other . . . .” See
generally Ariz. Rev. Stat. (“A.R.S.”) § 13-116 (2010).3 At the sentencing
hearing, as we discuss in more detail below, the court sentenced Ashmeade
to five years’ imprisonment on counts one through eight, and to two and a
half years on count nine, with all sentences to run concurrently. It also
ordered Ashmeade to pay $1,810.49 in extradition costs. The sentencing
court awarded Ashmeade 276 days of presentence incarceration credit
against each of the nine counts.
DISCUSSION
I. Supplemental Brief
¶11 In his supplemental brief, Ashmeade argues the trial court
violated his due process rights by conducting the trial in his absence. He
also accuses the State of contributing to the violation of his due process
3The Arizona Legislature enacted A.R.S. § 13-116 in 1978 and
enacted A.R.S. § 12-2234, see infra ¶ 20, in 1994 and has not amended either
statute. Thus, we cite to the current versions of these statutes.
5
STATE v. ASHMEADE
Decision of the Court
rights by failing to exhaust “all options” to ensure his presence at trial.
Neither argument has any merit.
¶12 It was Ashmeade’s obligation to be present at trial, and, at the
evidentiary hearing, he bore the burden of overcoming the inference his
absence was voluntary. See Ariz. R. Crim. P. 9.1; State v. Sainz, 186 Ariz.
470, 473 n.2, 924 P.2d 474, 477 n.2 (App. 1996). In finding Ashmeade’s
absence from trial voluntary, the sentencing court recited some of the
“fantastic details” Ashmeade offered during his testimony at the
evidentiary hearing:
Someone with unknown motive forged
Defendant’s signature on [his third
acknowledgement] but not [the first and second
acknowledgements] and found a notary in New
York who did not require the forger to present
identification.
Defendant’s bondsman, who he says checked
on him every week, failed to inform or remind
Defendant of his court dates and did not know
about Defendant’s bench warrant or trial date.
Defendant did not receive his attorney’s
certified mail letter in February 1997 addressed
to him in New York, even though he admittedly
received letters from counsel there at least twice
previously.
Defendant’s bondsman knew where he was at
all relevant times and did not surrender him in
Maricopa County even after learning Defendant
had been convicted, instead choosing to pay,
after not appealing, a $159,000 judgment.
¶13 Based on the record before it, the sentencing court did not
abuse its discretion in rejecting Ashmeade’s excuses for being absent from
trial and in finding his absence voluntary. See State v. Holm, 195 Ariz. 42,
43, ¶ 2, 985 P.2d 527, 528 (App. 1998), disapproved in part on other grounds,
State v. Estrada, 201 Ariz. 247, 34 P.3d 356 (2001) (appellate court will not
upset superior court’s finding of voluntary absence from trial absent abuse
of discretion). Further, because Ashmeade was obligated to appear at trial,
6
STATE v. ASHMEADE
Decision of the Court
the State was under no obligation to exhaust “all options” to ensure his trial
attendance.
¶14 Ashmeade also argues he failed to appear for trial because of
a communication breakdown with his counsel. The record before the
sentencing court, however, reflects trial counsel made several efforts to
contact him. See supra ¶ 4.
¶15 Next, Ashmeade argues the trial court violated his due
process rights because transcripts of the trial proceedings are not available.
The record before us reflects the court reporters who were present at his
trial were not able to transcribe the proceedings because—due to the
passage of time—they no longer had their trial notes. The passage of time
rests squarely on Ashmeade. Cf. State v. Masters, 108 Ariz. 189, 192, 494 P.2d
1319, 1322 (1972) (new trial warranted where transcripts were unavailable
“through no fault of the defendant”). Although, according to Ashmeade,
he learned “about 17 years ago” that the trial had gone forward and he had
been convicted, he took no action to challenge the trial, his convictions, or
the trial court’s finding that he had failed to appear at trial voluntarily.
¶16 Even though he was tried in absentia, Ashmeade has a
constitutional right to appeal, Ariz. Const. art. 2, § 24, and although that
right includes the right to a complete trial record, the absence of such a
record does not per se require a new trial. See Masters, 108 Ariz. at 192, 494
P.2d at 1322 (absent showing of reversible error or credible and unmet
allegation of reversible error, remaining record suffices to support verdict
and judgment by trial court). Thus, although incomplete, we must assume
the record supports the judgment absent a credible and unmet allegation of
reversible error. See State v. Scott, 187 Ariz. 474, 476, 930 P.2d 551, 553 (App.
1996). Ashmeade does not make a “credible and unmet allegation of
reversible error” but instead only argues that he has been deprived of his
due process rights because the trial transcript is not available.
¶17 Further, the available record on appeal reflects the trial court
conducted the trial properly and in accordance with the law and the
Arizona Rules of Criminal Procedure. The record also contains audio and
video recordings which support Ashmeade’s convictions. Thus,
Ashmeade’s due process rights were not violated by the unavailability of
trial transcripts.
¶18 Relatedly, Ashmeade argues his due process rights were
violated when the evidentiary hearing court reporter took 11 months to
produce the transcript for that hearing. Assuming without deciding that a
7
STATE v. ASHMEADE
Decision of the Court
delay in transmitting transcripts to an appellate court may violate a
defendant’s due process rights, we nevertheless reject Ashmeade’s
argument. Because we are affirming his convictions and sentences, the 11
month delay did not cause him any prejudice.
¶19 Ashmeade further argues his trial counsel was ineffective
because he submitted Ashmeade’s signed and notarized
acknowledgements to the trial court without his consent. He also argues
his counsel at the evidentiary hearing was ineffective because he did not
object to the State’s introduction of trial counsel’s affidavit as inadmissible
hearsay. These arguments are not properly before us. See State ex rel.
Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20, 153 P.3d 1040, 1044 (2007)
(“defendant may bring ineffective assistance of counsel claims only in a Rule
32 post-conviction proceeding—not before trial, at trial, or on direct
review”).
¶20 Next, Ashmeade argues his trial counsel disclosed attorney-
client privileged information to the trial court when counsel informed the
court of his efforts to contact Ashmeade. Privileged communications are
governed by A.R.S. § 12-2234 (2003), which provides that an attorney shall
not “be examined as to any communication made by the client to him, or
his advice given thereon in the course of professional employment” without
his client’s consent. Ashmeade’s counsel’s statements to the trial court did
not reveal confidential attorney-client information. The record reflects
defense counsel merely advised the court of his attempts to reach Ashmeade
and, thus, the privilege does not apply. See Granger v. Wisner, 134 Ariz. 377,
379-80, 656 P.2d 1238, 1240-41 (1982) (privilege “does not extend to facts
which are not part of the communication” such as dates and number of
contacts between attorney and client).
¶21 Ashmeade also argues the trial court violated his right to his
“attorney of choice” when it allowed an attorney, other than the one
Ashmeade had retained, to appear on his behalf. The record reflects that
on January 31, 1997, an attorney from the same law firm as the original
attorney retained by Ashmeade appeared on Ashmeade’s behalf and then
represented him through trial. Although a defendant is entitled to the
retained counsel of his choosing, that right is not absolute. See State v.
Coghill, 216 Ariz. 578, 588, 169 P.3d 942, 952 (App. 2007). Courts are given
“wide latitude in balancing the right to counsel of choice against the needs
of the criminal justice system to fairness, court efficiency, and high ethical
standards.” Id. (internal quotation marks omitted). The record before us
reflects that substitute counsel actively litigated the matter, filed
appropriate motions challenging the admission of evidence, and fully
8
STATE v. ASHMEADE
Decision of the Court
participated at trial. The record reflects no prejudice to Ashmeade caused
by the substitution of counsel.
¶22 Ashmeade also argues the sentencing court at the evidentiary
hearing violated his right to confront and cross-examine the State’s
witnesses—his retained and substitute trial counsel—when it allowed the
State to introduce defense counsel’s February 14, 1997 affidavit describing
his pretrial attempts to contact Ashmeade, see supra ¶ 4, without affording
Ashmeade the opportunity to cross-examine him. See State v. Parker, 231
Ariz. 391, 402, ¶ 38, 296 P.3d 54, 65 (2013) (Confrontation Clause “bars
admission of out of court testimonial evidence,” such as affidavits, “unless
the defendant has had an opportunity to cross-examine the declarant.”).
¶23 First, it is not clear to us whether the sentencing court
admitted the February 14, 1997 affidavit into evidence. The evidentiary
hearing minute entry reflects that the affidavit was admitted into evidence,
however, neither the exhibit list nor the actual affidavit exhibit show that it
was. Nevertheless, the colloquy between the court and defense counsel
suggests counsel had no objection to the admission of the affidavit:
Court: Any objection to [the affidavit],
[counsel]?
Counsel: No. [It’s] admissible. I mean, there’s
proper foundation. It’s just that there hasn’t—I
mean [it’s] part of the file.
¶24 Second, even if we assume the sentencing court improperly
admitted the affidavit, given the lack of any objection to its admission, we
review only for fundamental error. See State v. Henderson, 210 Ariz. 561,
567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005) (“To prevail under this
standard of review, a defendant must establish both that fundamental error
exists and that the error in his case caused him prejudice.”). The sentencing
court’s ruling does not reflect that it considered the affidavit when it found
Ashmeade’s absence voluntary. See supra ¶ 12. Therefore, Ashmeade has
not established either fundamental error or prejudice.
¶25 Ashmeade also argues the trial court should have granted the
State’s 2008 motion requesting the court dismiss the proceeding without
prejudice. We review the trial court’s denial of the State’s motion to dismiss
for an abuse of discretion. See State v. Huffman, 222 Ariz. 416, 419, ¶ 5, 215
P.3d 390, 393 (2009). The trial court denied the motion, finding “no good
cause appearing.” Given that the jury had convicted Ashmeade years
earlier, the trial court did not abuse its discretion in denying the motion.
9
STATE v. ASHMEADE
Decision of the Court
¶26 Finally, Ashmeade argues the sentencing court should have
awarded him presentence incarceration credit for the time he spent in
custody on charges filed against him in Texas. As a matter of law,
Ashmeade was not entitled to any credit for that time. See State v.
Bridgeforth, 156 Ariz. 58, 59, 750 P.2d 1, 2 (App. 1986) (“Credit may only be
awarded for time actually spent in custody pursuant to the offense.”).
II. Anders Review
¶27 We have reviewed the entire available record for reversible
error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. Ashmeade
received a fair trial. He was represented by counsel at all stages of the
proceedings, and was present during the evidentiary hearing and
sentencing, after having voluntarily absented himself from trial.
¶28 The available record reflects the evidence presented at trial
was substantial and supports the verdicts. The jury was properly
comprised of 12 members, and the trial court properly instructed the jury
on the elements of the charges, Ashmeade’s presumption of innocence, the
State’s burden of proof, and the necessity of a unanimous verdict. The
sentencing court received and considered a presentence report and gave
Ashmeade an opportunity to speak at sentencing, and he did so, and his
sentences were within the range of acceptable sentences for his offenses.
¶29 We note, however, a discrepancy between the sentencing
court’s minute entry and its oral pronouncement of sentence. Before the
sentencing hearing, the State submitted its sentencing memorandum to the
court, see supra ¶ 10, and argued Ashmeade “must be sentenced pursuant
to A.R.S. § 13-3419(A)(4)” because the first eight counts constituted four
separate offenses. At the sentencing hearing, the State reiterated its
argument that A.R.S. § 13-3419(A)(4) (1996) governed Ashmeade’s
sentencing beginning with the “third date of offense”—count five. The
sentencing court responded, “[t]hat’s my understanding as well.”4 The
4Although the sentencing court imposed sentences on counts
three, four, and nine pursuant to A.R.S. § 13-701, we note that section
3419(A)(4) was the appropriate sentencing statute for those counts. See State
v. Dominguez, 192 Ariz. 461, 464, ¶ 8, 967 P.2d 136, 139 (App. 1998) (A.R.S. §
13-3419 is “the exclusive sentencing provision for multiple drug offenses
not committed on the same occasion but consolidated for trial.”). The
“presumptive term” under A.R.S. § 13-3419(A)(4) was seven years’
imprisonment for counts three and four, and three years’ imprisonment for
10
STATE v. ASHMEADE
Decision of the Court
sentencing minute entry, however, fails to reference A.R.S. § 13-3419(A)(4).
Thus, we correct the sentencing minute entry to eliminate references to
A.R.S. §§ 13-701 and -702 for counts three through nine and replace those
references with A.R.S. § 13-3419(A)(4).
CONCLUSION
¶30 We decline to order briefing and affirm Ashmeade’s
convictions and sentences as corrected.
¶31 After the filing of this decision, defense counsel’s obligations
pertaining to Ashmeade’s representation in this appeal have ended.
Defense counsel need do no more than inform Ashmeade of the outcome of
this appeal and his future options, unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57
(1984).
¶32 Ashmeade has 30 days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. On the
court’s own motion, we also grant Ashmeade 30 days from the date of this
decision to file an in propria persona motion for reconsideration.
:ama
count nine. We will not, however, “correct sentencing errors that benefit a
defendant, in the context of his own appeal, absent a proper appeal or cross-
appeal by the state.” State v. Kinslow, 165 Ariz. 503, 507, 799 P.2d 844, 848
(1990).
11 | 01-03-2023 | 05-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3448891/ | Reversing.
The appellant, Berry Mitchell, owns "about 60 acres of coal and timber land on Crank's Creek in Harlan County" which adjoins land owned by appellee, Nelson Skidmore. On June 28, 1943, appellant served written notice on appellees that he would on July 10 of the same year "file a petition in the Harlan County Court asking the Judge of said court to appoint three commissioners to condemn a 20-foot right-of-way" through the lands of defendant "along the edge of Crank's Creek." *Page 757
The proposed condemnation, as stated in the written application therefor filed with the County Court of Harlan County, was for the purposes stated in section 381.580 of the Kentucky Revised Statutes, but chiefly to enable applicant to market coal and timber upon and under his land by reaching a public road over which such products could be marketed. The written application filed with the County Court pursuant to the given notice was styled a "petition." It set out the above facts and also alleged "that it is absolutely necessary for plaintiff to have a roadway out to the public road before lie can carry his coal to the market." It then described a strip of appellees' land 20 feet wide and 500 feet long as necessary to be condemned for the indicated purpose, and then prayed that the court "appoint three commissioners to go upon said land and fix the value of same and report whether or not it is necessary for plaintiff to have said road and for all proper and equitable relief."
The motion was made on the day specified in the notice, and there appears in the County Court record a paper styled an "answer" denying the material allegations made by plaintiff, including the necessity for the acquisition of the passway as alleged by him in his written application, the latter denial being thus made: "denies that it is absolutely necessary for the plaintiff or anyone else to have a roadway out over this strip of land to the public road to carry coal and timber or anything else to the market." However, it is stated in the record in a note by the Clerk that "there is no order with the record filing the following answer." But, applicant filed reply thereto and the parties appear to have treated the alleged answer as having been filed, although as will hereinafter appear it was wholly unnecessary in this character of proceeding and effectual for no purpose.
The section of the statute supra, and following ones, clearly outline the practice in this character of proceeding, which is, that upon the filing of the application, after notice given, "the court shall appoint commissioners, as in case of a road" after which they are "sworn to discharge their duties faithfully and impartially." They are to then go upon the land sought to be condemned and make their report as to whether the condemnation "is necessary for any of the purposes aforesaid." If necessary they so report, designating "the exact route *Page 758
for the same by metes and bounds, courses and distances" the width of the passway not to exceed 20 feet. They will then determine and assess just compensation for the taking "in the same manner as upon application to open and establish anew road." Upon the filing of the Commissioners' report the County Court Clerk issues a summons for the owner or owners of the land to appear and "show cause why the report should not be confirmed." KRS 381.590. If the owner of the land desires to resist the application he may do so by filing exceptions to the commissioners' report if their report sustains the motion of the applicant. The Harlan County Court declined to appoint commissioners, though prayed for and asked by appellant in his application therefor. Instead of doing so it proceeded to determine the necessity of the condemnation for the purposes mentioned, and appears to have arrived at the conclusion that no such necessity existed and dismissed the application. An appeal was prosecuted by appellant to the circuit court which it tried do novo. It likewise declined to appoint commissioners and proceeded to try the issue of necessity without a jury. After the evidence was introduced the circuit Judge of the court trying the case without a jury came to the same conclusion as did the county court and dismissed the appeal, from which appellant prosecutes this appeal.
It is thus seen that both courts entirely ignored the practice in such cases as outlined by the statute, and followed a procedure of its own creation in direct opposition to and in conflict therewith. Not only does it so appear as gathered from the express language of the outlined statutory procedure, but we have so declared in a number of cases without dissent. Two of them are: Exall v. Holland, 166 Ky. 315, 179 S.W. 241, and Martin v. Morgan, 188 Ky. 122, 221 S.W. 523.
Those opinions condemn the character of procedure herein followed and they, of course, direct that the procedure outlined by the statute should be followed. Those cases, and others, also declare that if the applicant makes a prima facie showing in his application to the court for the necessity for establishment of the passway it will be accepted by the court and may not be refuted by the servient land owner except by filing exceptions to the commissioners' report recommending the establishment. In other words, when such prima facie showing of necessity *Page 759
is made by the applicant the court has no right to proceed to try that issue, but should appoint commissioners who after going upon and investigating the premises make their recommendations in the form of a report to be disposed of thereafter upon exceptions filed by the litigant who is dissatisfied with it.
Litigants are entitled to have their cases tried according to the forms of law prescribed for the particular procedure. At least the courts should substantially follow such outlined procedure. This clearly was not done by either the county court or the circuit court, and the error in failing to do so is a most material one clearly authorizing a reversal of the judgment.
It is claimed, however, that the refusal to appoint commissioners and proceeding to try the case without their services as outlined in the statute, was not such a final ruling as authorizes an appeal to this court; but which overlooks the fact that the judgment appealed from went further than to refuse to appoint commissioners. It followed that ruling with a dismissal of appellant's application. We held in the case of Black Mountain Corp. v. Appleman, 236 Ky. 510,33 S.W.2d 327 — a similar procedure — that an appeal might be prosecuted to this court from the judgment of the circuit court whensoever its judgment dismissed the proceeding which, of course, was upon the ground that when the trial court dismisses an action, for whatever cause, it is a final order authorizing an appeal therefrom.
Appellant's counsel refrains from discussing the evidence heard in the circuit court and devotes himself almost exclusively to a discussion of the errors in the practice to which we have alluded, although he does make the general statement that the testimony heard by that court completely sustained his client's contention that the private passway sought by the proceeding was necessary within the contemplation of the law permitting its acquisition by condemnation. We have also held in the cases of Williams v. Render, 200 Ky. 788,255 S.W. 703 and Louisville N. R. R. Co. v. Ward, 150 Ky. 42,149 S.W. 1145, that the "necessity" for the establishment of the passway does not import absolute necessity but only apractical necessity, and when the latter type of necessity is proven the right of condemnation arises, if other requisite facts are shown. We could add additional cases in support of the above proposition but *Page 760
since, there appears to be none to the contrary, we deem it unnecessary.
Wherefore, for the reasons stated, the judgment is reversed, with directions to set it aside and for the circuit court, who conducts a de novo trial, to appoint commissioners as directed by the statute and for them to make their report in accordance therewith, and to then follow the directions of the statute to a final determination of the issues that might be raised by either of the parties litigant, by filing exceptions to the Commissioners' report, and for such other proceedings as are not inconsistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448892/ | Affirming in part, reversing in part.
On July 23, 1942, Bird Hill filed an action for divorce against his wife, Rhoda Hill, alleging abandonment for one year without any cause on his part. A warning order was sought and obtained on the basis of the following allegations in the verified petition:
"He says that he believes that she is absent from Kentucky, that she is in either the state of Ohio or Michigan but he does not now which, neither does he know where a Postoffice is kept nearest where she resides; * * *." The warning order attorney filed his report and after Hill filed his depositions a judgment was entered granting him a divorce on October 31, 1942. *Page 353
In May following, Mrs. Hill appeared and moved the court to redocket the case for the purpose of settling the property rights between herself and the appellee. Her motion was sustained and she filed an answer, counterclaim and cross petition wherein she denied Hill's abandonment allegations. She attacked the 1942 judgment on the ground of fraud in the obtention of the warning order. She set up her claim to certain property held jointly by herself and the appellee, and asserted also joint ownership in a tract of land which Hill purchased from Ellen and O.L. Arnold, in 1937. She alleged that she had advanced Hill over $900 during and by reason of their marriage. The petition further set forth that Mrs. Hill was well known in Whitley County as the daughter of E.A. Shelton; that she had two brothers, one of them being a deputy county clerk, who worked in and about the court house in Whitley City; and that all three knew her address and where she was working during the pendency of the action. The grounds set forth for the divorce in the counterclaim were based upon Hill's failure to furnish and adequately provide a home, his indifference toward her and his increased attentions to another woman, all of which made it impossible for her to live with him. Mrs. Hill's testimony on the latter charge is none too strong. However, the material parts of the charge were not denied and in themselves were sufficient to counteract the claim of the husband that Mrs. Hill left him without fault on his part.
It is insisted the judgment awarding appellee a divorce was void, because the petition did not substantially comply with sections 57 and 58 of the Civil Code of Practice in respect to the warning order. It neither charged that Mrs. Hill was a nonresident nor that she had been absent from the state for four months. The charge was made that Hill could not and therefore did not state that Mrs. Hill was a nonresident because she continued to maintain Whitley County as her home and also that he could not say she had been absent from the state for four months because he had talked with her in Whitley County less than two months before the action was filed.
The final judgment validated the former judgment giving Hill an absolute divorce; awarded Mrs. Hill a one-half interest in all the property where her name appeared as a joint owner; adjudged Hill to be the sole *Page 354
owner of the Arnold tract; and awarded Mrs. Hill $600 for "alimony and support and for money furnished the plaintiff during the existence of the marriage."
Mrs. Hill is appealing from all of the judgment, except the part which awarded her a one-half interest in the property held jointly, and Hill has cross-appealed from the part awarding Mrs. Hill alimony.
The contention that the first judgment was void is not without merit. We have already noted the defects in the allegations for a warning order, in that it was neither alleged that Mrs. Hill was a nonresident nor that she had been absent from the state four months. The clerk was not authorized to issue the order. It has been pointed out frequently that there must be a substantial compliance with sections 57 and 58 of the Civil Code of Practice in order to give the court jurisdiction. In the case at bar there was the mere allegation that Mrs. Hill was absent from the state. That was insufficient to give the court jurisdiction. Bond v. Wheeler, 197 Ky. 437,247 S.W. 708. A void judgment is a complete nullity and leaves the parties in the same position as if no judgment had been entered. Such a judgment can not be validated by subsequent proceedings instituted for that purpose, or by appeal or in any other manner. It follows, therefore, that the chancellor erred in validating the judgment granting Hill an absolute divorce.
Hill's testimony is insufficient to authorize the granting of a divorce to him on the grounds alleged in his petition. While the evidence for Mrs. Hill is not as strong as it could be, we are of the opinion it is sufficient to authorize the granting of a divorce to her and the chancellor is directed to enter a judgment accordingly.
Hill purchased the Arnold tract of land in his own name. While on his way home after the deal was consummated he wrote in the name of his wife as one of the grantees. After the judgment granting him a divorce was entered, Hill erased Mrs. Hill's name from the deed and had it recorded in his own name. It is contended that Mrs. Hill became a joint owner of the Arnold tract, in view of what has just been said. Her counsel insists the name of a grantee may be inserted any time before or after delivery of a deed, so long as it does not constitute a fraud upon the grantor; but this is true only when the person filling in the name has authority from the *Page 355
grantor or is instructed by him to do so. Hill took all the title from Arnold and the only way he could vest any part of it in his wife was to convey it to her by deed. The mere writing in of her name as one of the grantees by him was insufficient.
There is conflicting evidence as to the physical and financial condition of both parties. The appellee insists that Mrs. Hill is well educated and capable of making a comfortable living, and, in fact, had been making more than $8.00 a day in a war plant. Mrs. Hill's testimony, which is supported by that of her physician, is that she is frail and in ill health. According to her testimony, Hill is skilled in mining, bookkeeping and salesmanship, and is in good health; and therefore able to assist her with more alimony than was allowed her by the chancellor; but his testimony, which is supported by that of his physician, shows he had been unable to work for several months because of a bad heart and high blood pressure. He urges that, in view of his physical condition and his limited financial resources, no award of alimony is justifiable. Likewise, there is conflict in the evidence as to the amount of money Hill obtained from his wife and what was done with it. Under the circumstances we are unable to say we have more than a doubt as to the correctness of the chancellor's ruling on this phase of the case.
The judgment is affirmed in part and reversed in part on the appeal, and affirmed on the cross-appeal. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448900/ | Affirming.
Robert Lomax died on October 4, 1887, intestate and without any personal estate, but the owner of a lot in Frankfort on which he had executed two mortgages. He left surviving him his widow, who qualified as his administratrix. On September 2, 1888, Thomas Farmer, who was the holder of the mortgages, brought an action in equity against the administratrix and the heirs praying *Page 263
the enforcement of the mortgages and the sale of the property. The widow, Fannie Lomax, filed an answer and cross-petition setting up that she was entitled to a homestead in the property, and praying that the land be sold subject to the homestead or that she be paid $1,000 for a homestead. She also filed an answer as administratrix. The case being duly submitted, the court, on February 26, 1889, ordered a sale of the property. The sale was duly made; Fannie Lomax was the purchaser and executed bond as such. The sale was duly confirmed February 12, 1890, and the property was conveyed to Fannie Lomax, who afterwards devised it to her daughter. On August 29, 1917, Mattie Reed Brought this action against the devisee of Fannie Lomax and the other heirs at law of Robert Lomax, charging in substance that the judgment and all the proceedings in the former action were void, and asking a sale of the property and the division of the proceeds. The circuit court sustained a demurrer to her petition, and she appeals.
The first objection made to the judgment in the former action is that the name of each of the defendants was not set out in the judgment. But the judgment must be read in connection with the pleadings, and when so read it shows very clearly who are the defendants. Even if it were for this erroneous, it would not be void for uncertainty. Shackleford v. Fountain, 1 T. B. Mon. 252, 15 Am. Dec. 115; Parsons v. Spencer, 83 Ky. 305; Stevenson v. Flournoy, 89 Ky. 566, 13 S.W. 210.
It is also objected that the affidavit for the warning order in that case did not show that the nonresident defendants were absent or believed to be absent from Kentucky. But while this defect would affect the validity of the judgment as to the nonresident defendants, it would not affect its validity as to Mattie Reed, who was a party to the action and served with process. This did not render the judgment void in its entirety. Carney v. Yocum, 176 Ky. 173, 195 S.W. 482. In like manner it is not material, so far as the plaintiff is concerned, that no bond was executed to the nonresident defendants as required by section 410 of the Code. This is a matter that these defendants might complain of, but it is no ground of complaint for the plaintiff.
The judgment is not void because there was no process upon the cross-petition of Fannie Lomax setting up *Page 264
her homestead. She got nothing under the judgment. The land was indivisible. The sale was properly adjudged under the plaintiff's petition. The land only brought at the sale the amount of the mortgage debt. No exceptions were filed to the sale. The order confirming it was final and was not void. A failure to take proof sustaining the allegations of the petition did not render the judgment void. In fact, the suit was based upon the written contracts, and even if there was any error in these respects, this would only render the judgment erroneous.
Lastly, it is insisted that Fannie Lomax, being the administratrix of the estate, held the land under her purchase as trustee for the heirs. But the rule is well settled that such a purchase is not void. It is only voidable at the election of the persons interested, and in numerous cases it has been held that this election must be timely made and will not be adjudged after such a length of time as elapsed here. See Spurlock v. Spurlock, 161 Ky. 248, 170 S.W. 605, and cases cited.
Equity will not enforce a stale claim. When this suit was brought, Fannie Lomax and those claiming under her had held the land over 30 years under the deed approved by the court conveying the land to her in fee simple. The long delay is not accounted for. Nothing can call into activity a court of equity but conscience, good faith, and reasonable diligence. Reasonable diligence was clearly lacking here, and on the whole case the petition was properly dismissed. Severns v. Hill, 3 Bibb 240; Frame v. Kenny's Heirs, 2 A. K. Marsh. 145, 12 Am. Dec. 367; Harrod v. Fountleroy, 3 J. J. Marsh. 548; Hatcher v. Fields, 205 Ky. 462, 266 S.W. 18.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3448902/ | Reversing.
The appellant (hereinafter called the Fluorspar Co.) began this action against D.H. Stone in an effort to get its title quieted and to rid itself of the claim Stone was asserting to a portion of the property of the Fluorspar Co. The court found for Stone, and the Fluorspar Co. has appealed.
On May 12, 1864, two patents were issued by the commonwealth to John N. Tolley. One was for 50 acres and the other for 40 acres. Tolley remained in possession of the land, described in those patents, until his death in the year 1905. By the terms of his will this and other property was devised to four of his children, one of whom was Sarah Luvenia Lamb. These children partitioned this land, and in the partition there was conveyed to Mrs. Lamb 70 acres of land, very irregular in shape, so much so, in fact, that it was bounded by 16 different lines.
After describing this 70-acre tract, with particularity, by metes and bounds, the description goes farther and says:
"A part of this land was patented by J.N. Tolley in a 50 acre patent by the Commonwealth of Kentucky on the 12th day of May, 1864, and recorded in the Land Office of Kentucky in Book 64, page 251, the balance of said land was patented to J.N. Tolley in a 40-acre patent by the Commonwealth of Kentucky on the 12th day of May, 1864, and recorded in the Land Office of Kentucky in Book 64, page 250."
From a reading of the part of the description just quoted, it would appear that all of this 70 acres had been carved out of these two patents, but as matter of fact *Page 736
there was included in this 70 acres two small tracts, one of 10.8 acres, and the other of 2 1/4 acres, which were not embraced in either of these patents. Mrs. Lamb continued in the possession of this 70-acre tract until September 7, 1923, when she sold to the Fluorspar Co. About that time it was ascertained that these two small tracts, included in this 70-acre boundary, were not parts of either of these patents, and this record does not disclose how these two tracts came into the possession of John N. Tolley.
D.H. Stone, conceiving that these two tracts were vacant land, had them surveyed on August 4, 1925, and on the 8th of November, 1926, patents for them were issued by the commonwealth to him, and he then began to fence them, cut timber on them, and to assert ownership of them. Thereupon the Fluorspar Co. made application to the county court to have its land processioned, and on the 14th of May, 1928, the processioners reported a boundary and description of this 70 acres, which is practically identical with the boundary contained in the deed from Tolley's heirs to Mrs. Lamb and from her to the Fluorspar Co. Stone continued to assert ownership of the two tracts for which he had obtained patents, and on March 16, 1929, the Fluorspar Co. sued him to quiet its title to this 70 acres, asked for an injunction to prevent his further molestation and for $100 damages for timber cut, etc.
The principal question is: May land be patented which has not therebefore been patented by the commonwealth to any one but which is at the time in the possession of another? The answer is, "No." See Crider v. Crum, 233 Ky. 414, 25 S.W.2d 1009; War Fork Land Co. v. Llewellyn, 199 Ky. 607, 251 S.W. 663.
With this question answered adversely to Stone, all other questions raised fade out of the picture. The proof shows the Fluorspar Co. has been in possession of all of this 70 acres of land since the purchase of it; that Mrs. Lamb was in possession of it during the time she owned it and her father before her. Stone contends there had been no plea of adverse possession when this evidence was taken, and that such plea was not filed until July 14, 1930, fifteen days before the question was submitted, and Stone contends his exceptions to this evidence should have been sustained because not supported by a plea of adverse possession and that the court should not have *Page 737
allowed this amended petition to be filed on the eve of submission.
This evidence was competent under the pleadings theretofore filed. The Fluorspar Co. was not asserting ownership by adverse possession, but was asserting that because it had possession when Stone took the steps that ripened into his patents therefore his patents were void, and unfortunately for Stone that is true. Stone owned land adjoining both these tracts. He testified he had been acquainted with them for 30 years. He did not deny that the Fluorspar Co. and its predecessors in title had been in possession of them, and when he was asked if he knew of any claim by any person to either of these tracts at the time he got his patent, he said this: (Sic) "I was aware of the fact that the Rosiclaire Mining Co., had a line in the call of the deed." As he had not denied the Fluorspar Co.'s possession, this answer practically amounts to an admission that it had possession. The court erred in failing to give to the Fluorspar Co. the relief it asked.
The judgment is reversed, with directions to enter judgment as indicated. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1167787/ | 96 Cal. App. 2d 471 (1950)
216 P.2d 15
ART ELLIS et al., Respondents,
v.
SEYMORE KLAFF et al., Appellants.
Docket No. 17302.
Court of Appeals of California, Second District, Division Three.
March 15, 1950.
*472 Nordman & Berenson and Gustafson & Rosenmund for Appellants.
William A. Reppy and Neil D. Heily for Respondents.
SHINN, P.J.
This action was brought against defendant Adams, as lessee, and defendants Rose and Klaff, as assignees, for rent and for damages for the alleged breach of a covenant in a written lease. The first cause of action of the complaint alleged the violation of a covenant for construction by the lessee of "a building or buildings" on the leased premises. The second cause of action was for unpaid rent in the amount of $375. A nonsuit was entered in favor of Klaff on both counts; judgment went for plaintiffs Ellis against Adams and Rose on the cause of action for unpaid rent, and for defendants on the cause of action for breach of covenant to construct. Subsequently on motion of plaintiffs the court granted a new trial on all the issues as to all of the defendants "on the grounds that the evidence is insufficient to justify the decision of the Court and that it is against the law." Defendants Rose and Klaff have appealed from this order; defendant Adams has not appealed.
In their opening brief appellants state that they are raising *473 no question as to the propriety of the order as against defendant Adams nor as to its propriety insofar as it relates to the cause of action for unpaid rent. It is said "[t]he only matter about which complaint is made is that the order for new trial should have been limited, as permitted by Code of Civil Procedure, section 657, so as to exclude any new trial on the first cause of action against appellants."
In the summer of 1946, Adams was appointed sales agent for Kaiser-Fraser Automobiles for Ventura, California. Needing a location for conducting sales he executed the lease involved in the present action for a term of five years with an option to renew for an equal period, at a monthly rental of $125. The lease contained the following provisions:
"The lessee agrees to improve said premises by the construction of a building or buildings as soon as building conditions reasonably shall permit. It is understood that this obligation of the lessee is one of the elements of the consideration to be given by the lessee to the lessors for the execution of this lease. In connection with the construction and maintenance of any such improvements the lessee agrees to hold the lessors harmless from any liability whatsoever due to injury and/or damage to persons or property. Any building or structure constructed by the lessee shall comply strictly with the Building Code of the city of Buenaventura.
"Lessee agrees to carry adequate fire and earthquake insurance on structures erected by him on said property. Lessee also agrees to pay any increase in the City and County taxes on said property due to improvements placed or erected on said property by the lessee.
"It is understood that all buildings placed on or erected on the leased premises shall become a part of the real property and shall remain and shall inure to the benefit of the lessors at the termination of this lease."
Parol evidence was admitted, some of it over the objection of appellants, in an attempt to prove an agreement on the part of Adams to construct either a brick or concrete-block building with glass front and service garage, suitable for an automobile salesroom and repair shop, and costing approximately $12,000. Shortly after the execution of the lease in July, 1946, Adams caused an architect to prepare plans and specifications for such a building and he filed an application with the Civilian Priorities Administration for a construction permit. The permit was finally granted in January, 1947. *474 at which time building conditions were such as to permit construction to proceed. Meanwhile Adams had placed on the leased premises a construction shed approximately 8' x 10' containing a telephone, desk, and other office equipment from which he conducted his business. In December, 1946, Adams sold all of his assets, including the Kaiser-Fraser franchise, to defendant Rose and assigned the lease to him. The written assignment, which was signed by Rose, stated in part: "I, Donald L. Rose, do hereby accept the foregoing assignment and do hereby agree to be bound by the terms, conditions and obligations in said lease contained and agree to save and hold W.B. Adams harmless from any further liability or obligations under the terms of said original lease." Rose, who conducted the automobile agency as Buena Motors, Inc., or his sublessee, paid rent under the lease through September, 1947. He moved the shed off the lot, and never physically occupied the property or used it in his business. Prior to the execution of the assignment he had leased other premises in Ventura upon which he conducted the Kaiser-Fraser agency; and he testified that he paid the rent on the leased premises for the sole purpose of retaining it for possible future use as a used car lot.
Defendant Klaff became associated with Rose for the first time in either January or February, 1947, as a stockholder in Buena Motors. He became vice-president or secretary of the corporation. There was no evidence that Klaff became at any time a party to the assignment, or that he entered into an agreement with plaintiffs or Adams to assume the obligations of the lease other than testimony by Mr. Ellis that Klaff had stated to him that "somewhere in their dealings for the Kaiser-Fraser agency they assumed a lease"; that Klaff asked Ellis to give his consent to a sublease in May, 1947; and also requested that the lease be cancelled in September, 1947. The present action was brought after the refusal of defendants in November, 1947, to comply with plaintiffs' written demand that they construct a building and pay the rent due.
[1] Since the lease agreement was for a term of more than one year, its essential provisions were required by the statute of frauds (Civ. Code, § 1624(4)) to be in writing. Appellants contend that the construction clause of the lease, as written, is unenforceable due to uncertainty, and that the statute forbids its deficiencies to be supplied by parol evidence. It does not appear from the record that the applicability of the statute of frauds was urged in the trial court. Although appellants' *475 general denial may have been sufficient to raise the point (Howard v. Adams, 16 Cal. 2d 253, 257 [105 P.2d 971, 130 A.L.R. 1003]), it was evidently not pursued with any show of diligence. The objections to introduction of evidence were not made on this ground, nor was the statute argued on appellants' motion for nonsuit. Appellants claim that the question was raised in connection with an unsuccessful motion to strike portions of the pleadings referring to parol understandings; and respondents admit that they presented points and authorities as to admissibility of extrinsic evidence in their trial brief. Neither of these documents, nor any transcript of oral argument pertaining thereto, was incorporated in the record, however. Conceding that the bar of the statute of frauds is being asserted for the first time upon the appeal, we nevertheless are constrained under the particular circumstances to exercise our discretion to consider the matter. (See Solorza v. Park Water Co., 86 Cal. App. 2d 653 [195 P.2d 523].) If the order granting a new trial is affirmed, the case will be restored to the same situation as any other contested case prior to trial. (Kent v. Williams, 146 Cal. 3, 7 [79 P. 527]; Miller & Lux v. Enterprise C. etc. Co., 169 Cal. 415, 419 [147 P. 567]; Gruben v. Leebrick & Fisher, 32 Cal. App.2d Supp. 762, 766 [84 P.2d 1078].) The trial court, in its discretion, may permit the pleadings to be amended (National City Finance Co. v. Lewis, 216 Cal. 254 [14 P.2d 298]; Stinnett v. Superior Court, 36 Cal. App. 275 [171 P. 1076]), and may relieve the parties from the effect of stipulations, admissions, or waivers occurring at the previous trial (Daneri v. Gazzola, 2 Cal. App. 351, 355-358 [83 P. 455]; 39 Am.Jur. §§ 217-218, pp. 208-209; 46 C.J. §§ 581-583, pp. 462-463). The issues being set at large, it cannot be assumed that the parties would rely upon the same theory or be restricted to the same evidence as before. (Morton v. Superior Court, 105 Cal. App. 143 [286 P. 1072].) Since appellants are vigorously contending before us that the statute of frauds is a conclusive defense to plaintiffs' first cause of action, it may be assumed that they would so contend upon a retrial. Also, if respondents are correct in their position, it is appropriate that the issue be determined upon this appeal in order, if possible, to reach a final determination of the controversy without the need for a retrial and possible additional appeal, with attendant expense and delay.
[2] The evidentiary consequences of the statute of frauds *476 (Civ. Code, § 1624) are in many respects similar to those of the parol evidence rule (Code Civ. Proc., § 1856). Both require exclusion of extrinsic evidence which would vary, contradict, or add to the terms of the written agreement under consideration (Craig v. Zelian, 137 Cal. 105 [69 P. 853], statute of frauds; Germain Fruit Co. v. Armsby Co., 153 Cal. 585 [96 P. 319], parol evidence rule), but both permit reception of such evidence to identify the subject matter of the contract from the written description, explain the meaning of ambiguous, abstruse, or technical expressions, and assist in interpreting the expressed intentions of the parties in the light of circumstances existing at the time of execution. (10 Cal. Jur., "Evidence," § 186, pp. 916-919; 12 Cal.Jur., "Statute of Frauds," § 65, p. 902; Gibson v. De La Salle Institute, 66 Cal. App. 2d 609 [152 P.2d 774]; Balfour v. Fresno C. & Irr. Co., 109 Cal. 221, 225 [41 P. 876]; Von Rohr v. Neely, 76 Cal. App. 2d 713 [173 P.2d 828].) It must be recognized, however, that there is a basic distinction between the two rules, which, in certain circumstances, becomes of controlling significance.
The parol evidence rule is a principle of substantive law, premised upon the hypothesis that when the parties have voluntarily expressed their agreement in written form, the writing represents a complete integration of their understanding. (Wigmore on Evidence, vol. 9, § 2425, p. 76.) It is not calculated to, nor does it in practice, exert any compulsion upon the parties to put their entire understanding in writing. (Lande v. Southern Cal. Freight Lines, 85 Cal. App. 2d 416, 420 [193 P.2d 144].) It does not, therefore, render inadmissible proof of contemporaneous oral agreements collateral to, and not inconsistent with, a written contract where the latter is either incomplete or silent on the subject, and the circumstances justify an inference that it was not intended to constitute a final inclusive statement of the transaction. (Crawford v. France, 219 Cal. 439, 443-445 [27 P.2d 645]; Weil v. California Bank, 219 Cal. 538 [27 P.2d 904]; Van Slyke v. Broadway Ins. Co., 115 Cal. 644, 647 [47 P. 689, 928].)
The statute of frauds, on the other hand, is designed to prevent fraud and perjury by requiring certain contracts to be evidenced exclusively in writing. In order to effectuate that purpose, it demands that every material term of an agreement within its provisions be reduced to written form, whether the parties desire to do so or not. To be sufficient, the required writing must be one "which states with reasonable certainty, (a) each party to the contract ... and (b) the *477 land, goods or other subject-matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made." (Restatement, Contracts, § 207. Emphasis added.) Unless the writing, considered alone, expresses the essential terms with sufficient certainty to constitute an enforceable contract, it fails to meet the demands of the statute. (Breckinridge v. Crocker, 78 Cal. 529, 535 [21 P. 179]; Sherwood v. Lowell, 34 Cal. App. 365, 375 [167 P. 554]; Wineburgh v. Gay, 27 Cal. App. 603 [150 P. 1003]; Zellner v. Wassman, 184 Cal. 80, 85-86 [193 P. 84]; Fritz v. Mills, 170 Cal. 449, 458 [150 P. 375]; Hines v. Copeland, 23 Cal. App. 36 [136 P. 728]; 37 C.J.S., § 195, p. 681. See, also, Guardianship of Carlon, 43 Cal. App. 2d 204, 209 [110 P.2d 488].) Accordingly, where the statute of frauds, rather than the parol evidence rule is invoked, it follows that recovery may not be predicated upon parol proof of material terms omitted from the written memorandum, even though the oral understanding is entirely consistent with, and in no way tends to vary or contradict, the written instrument. (Friedman v. Bergin, 22 Cal. 2d 535 [140 P.2d 1]; Seymour v. Oelrichs, 156 Cal. 782 [106 P. 88, 134 Am. St. Rep. 154]; Wristen v. Bowles, 82 Cal. 84 [22 P. 1136]; Edgar Bros. Co. v. Schmeiser Mfg. Co., 33 Cal. App. 667 [166 P. 366]; Baume v. Morse, 13 Cal. App. 456 [110 P. 350]; Fields v. Harris, (Tex.Civ.App.) 294 S.W. 612; Linebarger v. Devine, 47 Nev. 67 [214 P. 532, 217 P. 1101]; Williston on Contracts, vol. 2, pp. 1619, 1645; 49 Am.Jur., § 322, p. 636.) In the words of the Supreme Court, "The whole object of the statute would be frustrated if any substantive portion of the agreement could be established by parol evidence." (Craig v. Zelian, supra, 137 Cal. 105, 106.)
The distinction noted has apparently been overlooked upon occasion (see Blahnik v. Small Farms Improvement Co., 181 Cal. 379 [184 P. 661]; Stockburger v. Dolan, 14 Cal. 2d 313, 317 [94 P.2d 33, 128 A.L.R. 83]), but, as the Supreme Court indicates in 22 Cal. 2d 535, 539, supra, such cases are not in point where they fail to discuss the statute of frauds. Although in Rohan v. Proctor, 61 Cal. App. 447, 453 [214 P. 986], the court employed language apparently opposed to the views here expressed, it is clear upon analysis that the portions of the opinion referred to were merely dictum, and hence not authoritative. The same is true of Enlow v. Irwin, 80 Cal. App. 98 [251 P. 658] (see, also, Austin v. Bullion, 77 Cal. App. 257 *478 [246 P. 151], in which the Rohan case is cited). The distinction between the two rules has frequently proven to be a troublesome one, but is both sound in principle and supported by the great weight of authority. (In addition to authorities previously cited, see Sheldmyer v. Bias, 112 Ind. App. 522 [45 N.E.2d 347]; Patterson v. Beard, 227 Iowa 401 [288 N.W. 414, 125 A.L.R. 393]; Stanley v. A. Levy & J. Zentner Co., 60 Nev. 432 [112 P.2d 1047, 158 A.L.R. 76]; Farrell v. Simons, 180 Okla. 600 [71 P.2d 688]; Catterlin v. Bush, 39 Ore. 496 [59 P. 706, 65 P. 1064]; In re Rosenthal's Estate, 247 Wis. 555 [20 N.W.2d 643]; Hamilton v. Morrison, 5 Cir., 146 F.2d 533; Blue Valley Creamery Co. v. Consolidated Products Co., 8 Cir., 81 F.2d 182; Simmons v. Birge Co., D.C. Calif., 52 F. Supp. 629; Rosenberg v. Deitrick, D.C. Mass., 37 F. Supp. 700.)
[3] The lease expressly provided that the lessee's obligation to build was one of the elements of consideration. It was clearly an essential term of the agreement, and, as such, was required by the statute of frauds to be expressed in the writing with sufficient certainty to evidence an enforceable contract. The construction clause in the lease, as written, however, is too vague and uncertain to give rise to a contractual duty. Aside from the requirement that the "building or buildings" comply with the city building code, and the implication that it (or they) be sufficiently substantial to be a valuable asset after expiration of the term, the lease is manifestly incomplete in failing to specify whether the lessee was to construct one or more buildings and is wholly silent as to the size, type, materials, location, cost, appearance, or any other details of construction. The language of the construction clause thus shows that, at the time of the execution of the lease, the parties expected to supplement it by a future agreement with respect to the improvement of the property. Although the terms of a contract need not be stated in the minutest detail, it is requisite to enforceability that it must evidence a meeting of the minds upon the essential features of the agreement, and that the scope of the duty and limits of acceptable performance be at least sufficiently defined to provide a rational basis for the assessment of damages. (12 Am.Jur., § 64, p. 554.) Tested by these settled rules, the construction clause in the present lease upon its face is manifestly unenforceable. (Alderson v. Republican-Courier Co., 69 Mont. 271 [221 P. 544], "upstairs portion of ... building ... is to be completed" by lessee; Cincinnati Underwriters *479 Agency Co. v. Thomas J. Emery Memorial, 88 F.2d 506, lessee to build a "new building ... of fireproof construction," with portion on leased premises to cost not less than $100,000; Cannaday v. Martin, (Tex.Civ.App.) 98 S.W.2d 1009, "brick building" with a party wall; Hart v. Georgia R.R. Co., 101 Ga. 188 [28 S.E. 637], "first class hotel"; Palombi v. Volpe, 222 A.D. 119 [226 N.Y.S. 135], lessee to make an "opening through the hall"; Greater Houston Suburban Corp. v. Dupuy & Mullen, (Tex.Civ.App.) 176 S.W. 668, to pave streets with shell; Factor v. Peabody Tailoring System, 177 Wis. 238 [187 N.W. 984], promise to deliver a "tailor made suit or overcoat"; Jordan v. Buick Motor Co., 75 F.2d 447, promise to give "exclusive dealership"; Williston on Contracts, vol. 1, § 42, p. 119; 17 C.J.S., § 36, p. 364; Rest., Contracts, § 32.)
Any subsequent agreement which the parties may have reached with respect to the obligation to construct, was also required to be reduced to writing. (Civ. Code, § 1698; Boyd v. Big Three Ranch Co., 22 Cal. App. 108 [133 P. 623]; anno. 118 A.L.R. 1511, 80 A.L.R. 539.) The record does not disclose the existence of any such subsequent memorandum, nor is it contended that one was ever executed.
Under these principles the extrinsic evidence relied upon by plaintiffs to cure the deficiencies of the construction clause was inadmissible, since its purpose and effect were to add material terms to the lease as written, and thereby prove by parol that a contract existed which could be proven solely by a writing as required by the statute of frauds.
[4] Plaintiffs seek to justify receipt of the parol evidence upon the ground that it was merely explanatory of an ambiguity in the writing. Cases are cited in which the receipt of parol evidence was approved for this purpose. It is unnecessary to analyze these cases, since they do not discuss the admission of extrinsic evidence with relation to the statute of frauds and are otherwise inapplicable. The provision in the lease for construction of "a building or buildings," clearly indicates that the number of structures required, whether one or more, was to be left to future arrangement. There is, of course, ambiguity and uncertainty in the writing in this respect but it arises from the absence of any expressed agreement as to the very essence of the obligation to improve the property. The parol evidence was introduced to prove not only that a single building was to be erected, which was not expressed in the writing, but also, as we have pointed out, *480 that the lessee was obligated to construct either a brick or concrete block building of a certain type which would cost approximately $12,000. This was an attempt, not to resolve an ambiguity, but to supply essentials of a complete agreement which were lacking in the writing. It is clear that the receipt of parol evidence for the purpose of adding substantial terms to an otherwise unenforceable writing would be contrary to the requirements of the statute of frauds and destructive of its purpose. The case is governed by Friedman v. Bergin, supra, 22 Cal. 2d 535, wherein it was held that under the statute of frauds parol evidence could not supply the unwritten details of an arrangement between the parties as to the method of operation of certain race-track concessions, where the written contract merely named the concessions for which plaintiff had contracted.
The order should be reversed insofar as it grants plaintiffs a new trial as to Rose and Klaff on the first cause of action.
[5] As to the second cause of action the situation is the following: Plaintiffs had judgment against Rose and Adams for the full amount of rent demanded in the complaint, and judgment of nonsuit was rendered in favor of Klaff. Neither Adams, Rose nor Klaff made a motion for a new trial and Adams, as we say, has not appealed. As between plaintiffs and Rose the order granting a new trial as to the second cause of action is void. New trial procedure is jurisdictional. (Del Barrio v. Sherman, 16 Cal. App. 2d 407, 412-413 [60 P.2d 559]; Cooper v. Superior Court, 12 Cal. App. 2d 336 [55 P.2d 299].) Only a party aggrieved by the judgment may make a motion for new trial under section 657, Code of Civil Procedure, and plaintiffs were not aggrieved by the judgment which awarded them all they sought to recover from Rose by way of rent. Since plaintiffs' motion was unauthorized and Rose did not move for a new trial, the court had no power to order one. The judgment on the second cause of action must therefore stand as between plaintiffs and Rose.
As between plaintiffs and Klaff, plaintiffs were aggrieved by the judgment of nonsuit in favor of Klaff, and their motion for a new trial was proper. Oddly enough, Klaff does not seek a reversal of the order granting a new trial as to the second cause of action, and plaintiffs argue that the order should be affirmed in, this particular. Under these circumstances this portion of the order will not be disturbed. The affirmance, however, is not to be regarded as a holding that *481 the evidence in the record would be sufficient to support a judgment against Klaff for rent.
The order is final as to Adams, and since he is not before the court, no opinion is expressed as to any question of his liability upon either the first or second cause of action.
The order granting a new trial as to the first cause of action is reversed as to defendants Rose and Klaff; it is also reversed insofar as it purports to grant a new trial as between plaintiffs and Rose on the second cause of action; and it is affirmed as between plaintiffs and Klaff as to the second cause of action. Appellants are awarded costs on appeal.
Wood, J., and Vallee, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/496822/ | 832 F.2d 986
60 A.F.T.R.2d (RIA) 87-5772, 87-2 USTC P 9601
Dan E. McLAUGHLIN, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE SERVICE, Respondent-Appellee.
No. 87-1497.
United States Court of Appeals,Seventh Circuit.
Submitted Oct. 1, 1987.Decided Oct. 16, 1987.Amended Oct. 30, 1987.
Dan E. McLaughlin, pro se.
Michael L. Paup, Chief, Appellate Section, Tax Div., Dept. of Justice, Washington, D.C., Roger M. Olsen, Ann B. Durney, John J. Doyle, Asst. Atty. Gen., for respondent-appellee.
Before CUMMINGS, CUDAHY and FLAUM, Circuit Judges.
PER CURIAM.
1
Tax protesters, those who persist in pressing losing arguments in an attempt to challenge the legitimacy of the federal income tax, are thorns in the side of the federal judiciary. Cf. Coleman v. Commissioner, 791 F.2d 68 (7th Cir.1986). In this case, Dan McLaughlin, a tax protester proceeding pro se, appeals from a decision of the United States Tax Court which (i) dismissed his petition for failure to state a claim, (ii) awarded statutory damages to the respondent Commissioner, and (iii) sustained the Commissioner's determination of deficiencies and statutory additions to tax. For the reasons set forth below, we substantially affirm the Tax Court (modifying only its award of damages) and, in response to the government's request, impose sanctions of our own.
2
The course of this litigation is well-known to the parties. Moreover, in view of the complete lack of merit of the instant appeal, there is no sense in undertaking to restate the facts underlying McLaughlin's groundless contentions. This case has already consumed more than its fair share of judicial resources.
3
The Tax Court's decision sustained the Commissioner's determination that for the years 1980, 1981 and 1982 McLaughlin received wage and interest income in the respective amounts of $36,403, $30,621, and $24,510. For those same years, McLaughlin filed no federal income tax returns, reported no income tax as due and had no taxes withheld from his wages. McLaughlin has not and presently does not dispute the Commissioner's computation of deficiency or statutory penalties; rather, he argues that he is, for a number of reasons, exempt from the payment of income tax. Because McLaughlin's petition for review of the Commissioner's assessments alleged no factual errors, as required by Tax Court Rule 34(b)(4) and (5),1 the Tax Court granted the Commissioner's motion to dismiss, sustained the deficiencies and additions to tax and awarded the Commissioner the maximum damages permitted under 26 U.S.C. Sec. 6673, to wit: $5,000.
4
On appeal, McLaughlin posits three arguments: (1) that his liability for federal income tax is contractual in nature and he has rescinded that contract; (2) that his religious scruples prevent him from "entering into contracts with the inhabitants of the land;" and (3) that he receives no benefits from the state and therefore owes nothing to the state. Each of these arguments has been previously addressed by the courts and soundly rejected; by raising them again in the Tax Court and on appeal to this court McLaughlin has understandably provoked judicial ire.
5
The notion that the federal income tax is contractual or otherwise consensual in nature is not only utterly without foundation but, despite McLaughlin's protestations to the contrary, has been repeatedly rejected by the courts. See, e.g., Newman v. Schiff, 778 F.2d 460, 467 (8th Cir.1985); United States v. Drefke, 707 F.2d 978, 981 (8th Cir.), cert. denied, sub nom., Jameson v. United States, 464 U.S. 942, 104 S. Ct. 359, 78 L. Ed. 2d 321 (1983). Furthermore, case law in this circuit is well-settled that individuals must pay federal income tax on their wages regardless of whether they avail themselves of governmental benefits or privileges. See Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir.1986); Lovell v. United States, 755 F.2d 517, 519 (7th Cir.1984). And finally, McLaughlin's contention that his religion excuses him from having to pay income tax is forestalled by the Supreme Court's decision in United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982), where the Court held that "because the broad public interest in maintaining a sound tax system is of such high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax." Id. at 260, 102 S.Ct. at 1057. See also First v. Commissioner, 547 F.2d 45 (7th Cir.1976) (per curiam).
6
We turn next to consideration of the Tax Court's award of statutory damages of $5,000 against McLaughlin. Title 26 of the United States Code provides at Sec. 6673 for an award of damages, up to a maximum of $5,000, to the United States "[w]henever it appears to the Tax Court that proceedings before it have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceedings is frivolous or groundless...." While heartily concurring in the Tax Court's decision to award damages to the government under Sec. 6673, we are uneasy upon review of the record in this case about levying the maximum possible penalty against McLaughlin who appeared pro se and who does not appear to be an habitual abuser of judicial process for these purposes.
7
In Coleman v. C.I.R., 791 F.2d 68 (7th Cir.1986), this Circuit rejected the proposition that a showing of subjective bad faith was a prerequisite to the imposition of sanctions pursuant to Sec. 6673. Addressing the issue of what sort of factors the Tax Court may take into account in determining how severe a sanction to impose and recognizing that no single formula can be fashioned to calculate the appropriate penalty in cases such as this, we determine that meaningful appellate review of Sec. 6673 damage awards requires an articulation by the Tax Court of those particular factors, both objective and, in appropriate cases, subjective, upon which it has relied in fixing the sum assessed. While in the instant case, the record tends to support the Tax Court's determination that McLaughlin's suit was groundless and likely to result in defeat, this Court is unable, because of the absence of more specific findings, to conclude definitively that McLaughlin's conduct was so egregious as to warrant the imposition of the maximum sanction. The Tax Court's award of Sec. 6673 damages is therefore reduced from the $5,000 maximum allowable to $3,500.
8
Finally, the United States has asked us, pursuant to 28 U.S.C. Sec. 1912 and Fed.R.App.P. 38, to impose sanctions of our own against McLaughlin for filing this appeal. The government's invitation is accepted. Where an appeal is both frivolous and an appropriate one for the imposition of sanctions, and this appeal surely satisfies both criteria, an appellate court may impose sanctions. See Reid v. United States, 715 F.2d 1148, 1154-55 (7th Cir.1985). In lieu of costs and attorneys' fees and in accordance with the government's suggestion, McLaughlin is ordered to remit an additional $1,500 payable to the United States Treasury. See Coleman v. C.I.R., 791 F.2d 68, 73 (7th Cir.1986). While the Tax Court's adverse decision was no doubt unpleasant news to McLaughlin, the court's admonition that the claims pressed there were utterly frivolous and without any conceivable merit should have discouraged McLaughlin from rehashing those same stale arguments in this forum.
9
AFFIRMED AS MODIFIED WITH SANCTIONS.
1
Rule 34 of the Rules of the United States Tax Court states in relevant part:
(a) General. (1) Deficiency or liability actions. The petition with respect to a notice of deficiency or a notice of liability shall be substantially in accordance with ... and shall comply with the requirements of these Rules relating to pleadings ... Failure of the petition to satisfy applicable requirements may be ground for dismissal of the case ...
(b) Content of petition in deficiency or liability actions. The petition in a deficiency or liability action shall contain:
* * *
(4) Clear and concise assignments of each and every error which the petitioner alleges to have been committed by the Commissioner in the determination of the deficiency or liability ... Any issue not raised in the assignment of errors shall be deemed to be conceded ...
(5) Clear and concise lettered statements of the facts, on which petitioner bases the assignments of error. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3048285/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1144
___________
Pamela F. Reynolds, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
RehabCare Group East, Inc., *
*
Appellee. *
___________
Submitted: November 17, 2009
Filed: January 14, 2010
___________
Before RILEY, SMITH, and GRUENDER, Circuit Judges.
___________
RILEY, Circuit Judge.
Pamela Reynolds (Reynolds), a physical therapist and a Captain in the United
States Army Reserve, appeals from the district court’s1 adverse grant of summary
judgment on Reynolds’s claims against RehabCare Group East, Inc. (RehabCare).
Reynolds claims RehabCare (1) discriminated against her based on her military status;
and (2) failed to rehire her upon her return from active military duty, in violation of
the Uniform Services Employment and Reemployment Rights Act of 1994
1
The Honorable Robert W. Pratt, Chief Judge, United States District Court for
the Southern District of Iowa.
(USERRA), 38 U.S.C. §§ 4301-4335, as amended. We affirm the district court’s
judgment.
I. BACKGROUND
Reynolds became an employee of Progressive Rehabilitation Associates
(Progressive) in May 2004, working at Green Hills Retirement Community (Green
Hills). Progressive had a contract with Green Hills to provide physical therapy
services to Green Hills’s residents in Ames, Iowa. In November 2005, the Army
notified Reynolds she was being called to active duty. Reynolds sought, and was
granted, a military leave of absence from Progressive. Reynolds was stationed at Fort
Hood, Texas, from March 2006 through July 2007. In May 2007, Progressive notified
Green Hills of its intent to terminate their contract. In July 2007, Green Hills entered
into a contract with Deerfield Retirement Community, which in turn entered into a
subcontract with RehabCare to provide rehabilitation services at Green Hills.
RehabCare did not employ any Progressive employees from Green Hills.
Upon Reynolds’s return from active duty, Progressive offered to reemploy
Reynolds at Progressive’s office in Iowa City, Iowa, but Reynolds declined the offer.
Reynolds, who was aware Progressive was ending its contract with Green Hills, sent
a letter to Progressive and Rod Copple, the executive director of Green Hills,
requesting reemployment at Green Hills pursuant to USERRA, and claiming
RehabCare was a successor-in-interest to Progressive under USERRA. RehabCare
sent Reynolds an Application for Employment. Reynolds crossed out the word
“Employment” and wrote in “Re-employment/USERRA.” A RehabCare
representative informed Reynolds that, while RehabCare would like to employ
Reynolds at the Green Hills facility, RehabCare did not believe USERRA was
applicable to RehabCare for Reynolds. RehabCare was prepared to make an
employment offer, but Reynolds declined to hear any offers. She later stated, “If they
were not going to honor the USERRA law and reinstate me into my job that I had
prior to leaving, I didn’t want to hear the offer.”
-2-
Reynolds brought an action against RehabCare asserting: (1) RehabCare
discriminated against Reynolds based on her military status, in violation of 38 U.S.C.
§ 4311, and (2) RehabCare was a successor-in-interest to Progressive and refused to
reemploy Reynolds “in the position of like seniority, status and pay [that Reynolds]
was receiving while . . . employed by Progressive,” in violation of 38 U.S.C. §§ 4312
and 4313.
The district court granted summary judgment to RehabCare on both counts of
the complaint. See Reynolds v. RehabCare Group E., Inc., 590 F. Supp. 2d 1107,
1126 (S.D. Iowa 2008). In a well-reasoned order, the district court noted,
[T]he fighting issue in this case is whether [Reynolds] has a right to
reemployment by RehabCare, given that she was employed by
Progressive at the time of her deployment to active military service.
More specifically, the question is whether RehabCare is a “successor in
interest” to Progressive, such that it was obligated to “reemploy”
[Reynolds] under USERRA.
Id. at 1112 (internal marks and quotation omitted). After analyzing the applicable
factors, the district court found no reasonable jury could conclude RehabCare was a
successor-in-interest to Progressive because Reynolds could not “demonstrate a
continuity of business operations, a continuity of employees, or a similarity in
supervisors and managers.” Id. at 1121 (citing 20 C.F.R. § 1002.35). Reynolds
previously had been employed by Progressive, not Green Hills or RehabCare, and was
stationed at Green Hills. See id. at 1122. Progressive and RehabCare are two distinct,
unrelated companies with no contractual or business relationship between them. See
id. Therefore, the district court found RehabCare was not liable under USERRA for
failing to reemploy Reynolds in her former position. See id.
-3-
With respect to Reynolds’s discrimination claim, the district court found no
evidence RehabCare displayed any discriminatory animus toward Reynolds; rather,
RehabCare made significant efforts to employ Reynolds on mutually satisfactory
terms. See id. at 1125. The district court granted summary judgment to RehabCare
on both of Reynolds’s claims. See id. at 1126.
II. DISCUSSION
Reynolds challenges the district court’s adverse grant of summary judgment and
maintains she presented sufficient evidence and genuine issues of material fact to
proceed to trial with her failure to reemploy and discrimination claims. We review de
novo a district court’s grant of summary judgment. See Myers v. Lutsen Mtns. Corp.,
587 F.3d 891, 892 (8th Cir. 2009) (citation omitted). “Summary judgment is
appropriate when the record, viewed in the light most favorable to the non-moving
party, demonstrates that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Id. at 893 (citations omitted).
The material facts in Reynolds’s case are not in dispute. Reviewing the issues
raised in Reynolds’s appeal de novo, we conclude the district court properly granted
summary judgment to RehabCare on both of Reynolds’s claims. We find no error in
the district court’s disposition of these claims. We therefore affirm the district court’s
judgment for the reasons stated in the district court’s thorough analysis. See 8th Cir.
R. 47B; see also Leib v. Ga.-Pac. Corp., 925 F.2d 240, 246-47 (8th Cir. 1991);
Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1237-38 (11th Cir. 2005).
We specifically address two additional points raised by Reynolds on appeal
regarding the district court’s analysis of her claims. Reynolds first suggests the
district court “improperly used factual determinations and legal conclusions made by
the court in a previous ruling denying [Reynolds’s] motion for a temporary injunction
given the different burdens of proof of the opposing motions and compounded the
error by drawing all favorable inferences in favor of [RehabCare].” See Reynolds v.
-4-
RehabCare Group E., Inc., 531 F. Supp. 2d 1050 (S.D. Iowa 2008) (declining to issue
a preliminary injunction). This argument lacks merit. Our review of the district
court’s order satisfies us that the district court applied the correct summary judgment
standard of review and assigned the burdens of proof accurately. The district court
did not improperly use facts or law from a previous ruling.
We similarly reject Reynolds’s contention that the district court incorrectly
“held as a matter of law that service contracts are not covered by [USERRA].” The
district court made no such finding. The district court determined, correctly, that
RehabCare was not a successor-in-interest to Progressive. See Reynolds, 590
F. Supp. 2d at 1122.
III. CONCLUSION
We affirm the judgment of the district court.
______________________________
-5- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3104223/ | NO. 07-10-0495-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
--------------------------------------------------------------------------------
OCTOBER 25, 2011
--------------------------------------------------------------------------------
HEATHER M. STEPHENS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-429,099; HONORABLE CECIL G. PURYEAR, PRESIDING
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Memorandum Opinion
--------------------------------------------------------------------------------
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Heather M. Stephens appeals her conviction for possessing methamphetamine in an amount of between four and 200 grams. She contends that the evidence is insufficient to establish the amount of methamphetamine that she possessed fell within that range. We affirm the judgment.
Background
On February 9, 2010, law enforcement officers detained Bobby Stephens in his vehicle on the suspicion that he was in possession of a stolen auto hood. After he was arrested, methamphetamine was found in the vehicle. Stephens then informed the officers that he had more methamphetamine in a tool box in a garage where he lived and gave them consent to conduct a search at that location. When officers arrived, they observed appellant (Stephens' wife) in the yard along with two other men. She not only admitted to removing the methamphetamine from a tool box in the garage prior to the arrival of the officers but also gave them a baggy containing the drug and various paraphernalia. Other quantities of methamphetamine were found elsewhere in the garage.
Sufficiency of the Evidence
We review the sufficiency of the evidence under the standard discussed in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Again, appellant suggests that the State failed to prove that the amount of methamphetamine she possesed fell between four and 200 grams. We overrule the issue.
Admittedly, the manner in which the State attempted to prove this aspect of its burden could have been better. Sometimes it seems that trial litigators forget to try their case not only for those present in the courtroom but also for those who may have to review the dispute on appeal. Nonetheless, we find evidence of appellant's husband telling the officers that his tool box contained approximately twenty grams of methamphetamine. In turn, evidence of appellant informing the officers that she removed the drugs from the tool box also appears of record. And, other evidence indicated that only "residue" of the drug remained in the box. The foregoing is some evidence upon which a rational factfinder could deduce, beyond reasonable doubt, that appellant exercised possession, custody, and control of a quantum of methamphetamine approximating twenty grams, which sum falls between four and 200 grams.
Accordingly, we find the evidence sufficient to sustain the conviction and affirm the judgment.
Brian Quinn
Chief Justice
Do not publish. | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129700/ | 538 U.S. 1039
CUBIEv.WALLS, WARDEN.
No. 02-9559.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
2
C. A. 7th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2893503/ | NO. 07-06-0278-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 5, 2006
______________________________
DONNY EISENBACH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE COUNTY COURT AT LAW OF SMITH COUNTY;
NO. 001-80914-06; HON. JERRY CALHOON, PRESIDING
_______________________________
ORDER OF DISMISSAL
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant, Donny Eisenbach, appeals from an order revoking his community
supervision. The record does not contain a certification of his right to appeal as required
by Texas Rule of Appellate Procedure 25.2(d). Through a letter dated August 3, 2006, this
court notified the trial court, the district clerk, the district attorney and appellant of this
omission and the need for the certification. The certification is included in the clerk’s
record and states that this case is a plea bargain case, and the defendant has no right of
appeal. Consequently, we dismiss the appeal.
Accordingly, the appeal is dismissed.
Per Curiam
Do not publish.
2 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2908091/ | Arnold v. Tyus
IN THE
TENTH COURT OF APPEALS
No. 10-94-349-CV
     JIM ARNOLD D/B/A ARNOLD AIR,
                                                                                              Appellant
     v.
     JAMES TYUS,
                                                                                              Appellee
From the 77th District Court
Freestone County, Texas
Trial Court # 92-361-A
                                                                                                   Â
O P I N I O N
                                                                                                   Â
      James Tyus took his airplane to Jim Arnold to have the engine overhauled and for its annual
inspection. While Arnold had the plane, its wing was damaged in a wind storm. They agreed that
Arnold would repair the wind damage at no charge with parts provided by Tyus. Arnold did so
and then completed the work originally agreed on. Tyus retrieved the plane but never paid
Arnold. Arnold sued for the balance due, $2,787, and attorney's fees.
      Tyus filed a counterclaim alleging (1) Arnold was negligent in allowing the plane to be
damaged; (2) the original agreement provided for a maximum cost of $5,000; (3) he had paid
$7,656 and was entitled to a refund of $2,656; (4) he was further damaged because Arnold was
holding the plane's "engine data plate" and the plane could not be certified as being "airworthy"
without the plate; and (5) he was damaged when Arnold's attorney violated the Fair Debt
Collection Practices Act (FDCPA). He also sought attorney's fees.
      When the case was tried, the jury found:
      â¢Â    Tyus did not comply with his agreement with Arnold;
      â¢Â    $2,787 would compensate Arnold for the repairs;
      â¢Â    Arnold's reasonable and necessary attorney's fees were $0;
      â¢Â    The wind damage to the plane was not caused by an act of God;
      â¢Â    Arnold's negligence was a proximate cause of the damage;
      â¢Â    The difference in the market values of the plane "immediately before and after the
necessary repairs were made" was "$5,000 more (approx)."
      â¢Â    Arnold's debt collector did not give pertinent notices to Tyus;
      â¢Â    Arnold's debt collector did not bring the suit in the judicial district in which Tyus
resided;
      â¢Â    $287 would compensate Tyus for his damages; and
      â¢Â    Tyus' reasonable and necessary attorney's fees were $0.
The court entered a judgment awarding Tyus $2,500 and ordering Arnold to deliver the engine
data plate to Tyus' attorney.
      Arnold's motion to reform the judgment was denied. On appeal, he asserts that the court
erred in (1) entering judgment on the finding that Tyus was damaged "$5,000 more (approx.)";
(2) submitting questions about Arnold's debt collector's actions; and (3) failing to disregard the
jury's answers to the same questions because they are not supported by the evidence.
DAMAGE FINDING
      Arnold points to jurors' affidavits filed with his motion to reform the judgment, which he says
reveal the intent of the jury when it answered the damage question. The affidavits state that the
jury was considering "all of the repairs" and that the jurors would have answered "zero" had they
"fully understood the question." The affidavits conclude: "It was certainly not our intent to find
that the aircraft was worth $5000.00 LESS after the necessary repairs." Based on these affidavits
and the nature of the jury's answer, Arnold asks us to reform the judgment to disregard the
damage finding and award him $2,787 for the overhaul repairs or grant a new trial.
      The question submitted, i.e., the difference in the market values of the plane before and after
the repairs, is immaterial to any damages Tyus may have suffered as a result of Arnold's
negligence in connection with the wind storm. The correct inquiry would have asked the jury to
determine the difference in the market values of the plane immediately before and after the wind
storm. The affidavits of the jurors show that they were misled by the incorrect inquiry, thus
leading to an ambiguous verdict. As we have previously stated: "The verdict . . . should be the
end and not the continuation of the controversy." See Wanda Petroleum Co. v. Reeves, 385
S.W.2d 688, 692 (Tex. Civ. App.âWaco 1964, writ ref'd n.r.e.) (quoting Northern Texas
Traction Co. v. Armour & Co., 116 Tex. 176, 179, 288 S.W.2d 145, 146 (1926) and holding that
an ambiguous verdict provided no basis for judgment). Following our decision in Wanda, we will
reverse the judgment and remand the cause for a new trial. See id.
DEBT COLLECTION
The term "debt collector" means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.
15 U.S.C. § 1692a(6) (West Supp. 1995). Whether an attorney is a "debt collector" is a fact
issue. Id; Scott v. Jones, 964 F.2d 314, 316 (4th Cir. 1992) (upholding a finding that an attorney
was a "debt collector" when 70-80% of his practice was collection of debts). Arnold asserts that
the record contains no evidence that the attorney who communicated with Tyus was either (a)
engaged in a business whose principal purpose was the collection of debts or (b) a person who
regularly collects or attempts to collect debts. The attorney testified that he was a prosecutor who
engaged in a "very limited private practice."
      The questions submitted to the jury did not inquire whether the attorney was a "debt
collector"âthey assumed that he was. In light of Arnold's objection to the submission of the
series of questions and of the limited evidence about the attorney's activities in debt collection, we
believe that on retrial the court should, if the evidence warrants it, submit a question about the
attorney's status as a "debt collector" as a threshold question.
CONCLUSION
      Having found error in the judgment, we remand the cause for a new trial.
Â
                                                                                 BILL VANCE
                                                                                 Justice
Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Reversed and remanded
Opinion delivered and filed August 31, 1995
Do not publish
>
TOM
GRAY
Chief Justice
Before Chief Justice Gray,
Justice
Vance, and
     Justice Reyna
Opinion
delivered and filed September 29, 2004
Affirmed
Do
not publish
[CR25] | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3000017/ | UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 29, 2006
Decided November 30, 2006
Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4500
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Indiana, Evansville
v. Division.
RAYMOND M. WALKER III, No. 04 CR 36
Defendant-Appellant.
Richard L. Young, Judge.
ORDER
An indictment charged Raymond Walker (and a codefendant, John Jordan) in
count 1 with conspiracy to possess cocaine with intent to distribute. The conspiracy
ran, according to the indictment, from an unknown date “but at least as early as
September, 2004" until December 6, 2004. The overt act portion of the indictment
went on to allege that from “approximately June, 2004, up to December 2004,
Walker distributed . . . cocaine . . . in the Evansville, Indiana, area.” The
indictment also included three substantive counts of cocaine distribution (counts 4,
5, and 6), all allegedly committed on December 6, 2004. One of the counts (number
6) was dismissed. A jury found Walker guilty on counts 1, 4, and 5. Because
Walker had at least three prior felony convictions (three were listed in an
information filed before trial) relating to cocaine, he received a mandatory life term
No. 05-4500 2
on count 1. Concurrent terms of 360 months were imposed on counts 4 and 5.
Walker appeals his convictions and the sentence he received.
Walker’s indictment grew out of an investigation into drug dealing during the
summer and fall of 2004 by police officers in the southwest Indiana area. As part of
that effort, during the summer of 2004, undercover Indiana state police trooper
Robert Hornbrook contacted several individuals in Dale, Indiana, in order to set up
controlled cocaine purchases. Hornbrook subsequently purchased cocaine several
times from both Doug Lyons and John Jordan. On September 7, 2004, Hornbrook
telephoned Jordan and arranged to purchase 7 grams of crack cocaine. The two met
in Dale and traveled to Evansville to get the cocaine from Jordan’s source, Rose
McCray. McCray arrived at the meeting place with Walker. Hornbrook, through
Jordan, purchased the cocaine from McCray. Several other direct cocaine
transactions with McCray followed. After the completion of a December 6, 2004,
transaction with McCray, she was arrested. She quickly accepted an invitation to
cooperate.
McCray, a 20-year-old single mother, explained to officers after her arrest
that she was selling cocaine for Walker. McCray, now acting as an informant,
telephoned Walker to set up a cocaine delivery. Once the meeting was arranged,
McCray and the law enforcement officers (including Hornbrook) traveled to
Walker’s home. Before McCray met with Walker, she and her car were searched.
McCray was also fitted with a hidden transmitter so the officers could listen in as
the transaction went down. McCray was given $275 in marked money to pay for
the cocaine. Before giving her the money, Hornbrook photocopied the bills and
noted their serial numbers.
Hidden transmitter and marked bills in place, McCray met with Walker at
his residence and gave him the $275. She received 7 grams of crack cocaine. After
the transaction was complete, officers met with McCray and took the 7 grams of
cocaine from her. Subsequently, other officers arrested Walker as he attempted to
drive away from his residence. He was carrying $2,540 in cash in his pocket.
Trooper Hornbrook examined the money and determined that some of it ($250) had
the same serial numbers as the currency given to McCray. Hornbrook returned the
money to the Indiana state police so it could be used in other investigations.
Walker’s activities also linked him to another undercover Indiana drug
investigation. Beginning in January of 2004, a separate set of federal and local law
enforcement officers investigated a group of people suspected of distributing large
amounts of cocaine in the Evansville area. Emmanuel Cabell was caught in that
investigation’s net. Law enforcement officers conducted court-approved electronic
No. 05-4500 3
surveillance of Cabell’s cell phone from April to June of 2004, recording Cabell's
calls with various associates about drug distribution activities.
A day after Walker’s arrest, while searching his residence, police found a dry
cleaning receipt that referred to Walker and contained an Evansville area cell
phone number. Phone records indicated that calls from this number were placed to
Cabell’s cell phone. Several of the calls were recorded during the separate April to
June 2004 wiretap investigation. And Walker and Cabell were found, on nine
intercepted calls between May 6, 2004, and June 1, 2004, to be discussing cocaine
distribution activities.
Walker’s first claim on appeal is that the district court erred when it denied
his motion to dismiss count 1 of the indictment. He argues that the language of
count 1--particularly the “at least as early as September, 2004” reference--failed to
adequately apprise him of the essential elements of the charge and thus he was
denied a fair opportunity to prepare a defense. On a related point, he says the
inclusion of the wiretap evidence--from the Cabell investigation-- amounted to a
constructive amendment of the indictment. Both arguments are borderline
frivolous.
Of course, an indictment must adequately apprise a defendant of the charge
against him so he can prepare his defense. Walker’s indictment (on this point he
only challenges count 1) clearly did just that. It identified “the Southern District of
Indiana, Evansville Division, and elsewhere” as the location of the conspiracy. It
identified Walker and Jordan as participants in the conspiracy with “diverse other
persons, known and unknown to the Grand Jury.” The charge recited the purpose
of the conspiracy and provided the relevant statutory citations. Accordingly, count
1 adequately informed Walker of the elements of the conspiracy charge against him.
Walker’s main point, in essence, is that the indictment was constructively
amended by the evidence submitted at trial. Under a constructive amendment
theory, an indictment may not identify one crime and the prosecution prove a
different crime at trial. Walker’s constructive amendment claim relates to the
timing allegations in count 1.
Unless a particular date is an element of the offense, it is generally sufficient
to prove that an offense was committed on any day before the indictment and
within the statute of limitations. United States v. Spaeni, 60 F.3d 313, 315 (7th
Cir. 1995); United States v. Leibowitz, 857 F.2d 373, 378 (7th Cir. 1988). In a drug
conspiracy case, of particular importance here, the precise time frame of the
conspiracy need not be noted with precision. A certain amount of leeway-- usually
utilizing terms like “on or about” is permissible.
No. 05-4500 4
Overwhelming evidence of Walker’s participation as a mid-level cocaine
distributor in the conspiracy was presented to the jury. Testimony from McCray
established that in the spring of 2004 Walker recruited her into the conspiracy and
became her source for the drug, which she distributed to others until her arrest in
December 2004. Recordings of wiretap telephone conversations between Walker
and Cabell during May and June 2004 were admitted in which Walker discussed
procuring cocaine for distribution and various other matters pertaining to the drug
trafficking business.
But Walker contends that the admission of the 2004 wiretap evidence
amounted to a constructive amendment of the indictment. He points to the fact
that the wiretap evidence was never presented to the grand jury. This, of course, is
of no consequence, as the burden of proof at trial frequently requires the
presentation of more evidence than was presented to a grand jury. The fact that
testimony at trial was not presented to the grand jury does not make an otherwise
valid indictment constitutionally infirm. United States v. Johnstone, 856 F.2d 539,
540 (3d Cir. 1988).
Moreover, the telephone evidence did not substitute one criminal offense for
another. Nor did it establish an offense different from or in addition to that charged
by the grand jury. Rather, the telephone conversations between Walker and Cabell
established Walker’s active participation in a cocaine distribution business.
Walker points to the timing of the telephone conversations, arguing that
their presentation constructively amended the dates of the conspiracy. The
recorded conversations, as we noted, occurred between May 6, 2004, and June 1,
2004. Count 1 of the indictment alleges that the conspiracy began “on a date
unknown to the Grand Jury, but at least as early as September, 2004,” and
continued “to and through December 6, 2004.” Also as we have noted, the “Overt
Acts” portion of the indictment provides that “From approximately June, 2004, up
to December 2004, WALKER distributed quantities of cocaine base to Individual 1
in the Evansville, Indiana, area.” Inexplicably, Walker ignores the time frame set
out in the “Overt Acts.” That’s not wise. When read in its entirety, the charged
conspiracy fully contemplates criminal activity by members of the conspiracy during
the time frame of the recorded telephone conversations with Cabell. That’s what
“at least as early as September, 2004" means. The telephone evidence fits
comfortably within the time frame of the indicted conspiracy. It did not constitute a
constructive amendment of the charge.
Moreover, a minor difference involving starting dates for a conspiracy has no
bearing on the sufficiency of the indictment. Charging that an act occurred on one
date and proving that it occurred at a different time is a “classic variance” between
No. 05-4500 5
indictment and trial evidence, which does not change the nature of the crime
alleged. United States v. Krilich, 159 F.3d 1020, 1027 (7th Cir. 1998). Walker’s
attempt to split split hairs over the precise day his involvement in the conspiracy
got underway does not carry the day.
Finally, the telephone conversation evidence was independently admissible
as “other acts” under Federal Rule of Evidence 404(b). As such, the jury could have
heard it even if it occurred before the charged conspiracy actually started.
Next, Walker argues that the district court erred when it allowed, over his
objection, officer Hornbrook to testify that Walker was carrying $250 of the $275 in
marked money from the December 6 transaction with Ms. McCray when he was
arrested. Somehow, Walker claims, Hornbrook’s testimony that the seized bills had
the same serial numbers as the bills given to McCray violated the “best evidence”
rule. Nonsense. Why would the government be required to present the actual bills
before the jury could consider Hornbrook’s testimony? Walker offers no satisfactory
answer. The best evidence rule is concerned with the content of a writing. That
was not the case here. If the government wanted to prove that McCray gave
something to Walker, and that “something” was “The Brothers Karamazov”
autographed by Fyodor Mikhailovich Dostoyevsky, could the officer who gave it to
McCray not say it was later found with Walker after he and McCray were together?
Of course he could. And the book itself would not have to be offered as evidence.
Finally, as the district court properly noted, Walker was free to challenge
Hornbrook about the quality of his recollection on cross-examination--how he was
able to recall the numbers, how carefully he compared them to the earlier list he
made, and so on. It was not an abuse of discretion for the district court to find that
Hornbrook’s testimony about the serial numbers on the bills was admissible.
Walker’s other challenges to his conviction are easily resolved. His taped
telephone conversations with Cabell were admissible on any one of a number of
bases--“adoptive statements” under Rule 801(d)(2)(B); “other acts” under 404(b);
and admissions under 801(d)(2)(A). The district judge did not abuse his discretion
in admitting this evidence. In addition, the district judge gave a cautionary
instruction regarding the telephone evidence:
You are instructed that the recorded conversations which
allegedly occurred between defendant and Emanuel
Cabell from May 6, 2004 to June 1, 2004 are not to be
considered by you as evidence of the truth of Mr. Cabell’s
statements. Rather, Mr. Cabell’s statements are only to
be considered by you as providing context of the
No. 05-4500 6
defendant’s statements or admissions. The statements or
admissions made by the defendant may be considered as
evidence of his verbal acts or as evidence of his state of
mind.
Nor did the district judge commit prejudicial error in declining to explicitly
tell the jury, as Walker requested, that he was “not charged with being in a
conspiracy with Emmanuel Cabell.” While giving this instruction would have been
proper, not giving it was not error. The jury was told what the indictment said and
Cabell was not mentioned. And Walker was free to argue, and did in fact argue,
that he was not charged with being in a conspiracy with Cabell.
Finally, Walker’s argument that the district court, but not the jury,
considered his prior convictions is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 244 (1998). See also United States v. Cannon, 429 F.3d 1158,
1160-61 (7th Cir. 2005); United States v. Tek Ngo, 406 F.3d 839, 843-44 (7th Cir.
2005).
For these reasons, we AFFIRM the judgment of the district court. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4268036/ | State of Vermont
Superior Court—Environmental Division
======================================================================
ENTRY REGARDING MOTION
======================================================================
In re 49 Tanglewood Final Plan Approval Docket No. 76-6-12 Vtec
(Appeal of the Town of Essex Planning Commission decision)
Title: Motion to Dismiss Certain of Appellants’ Questions on Appeal (Filing No. 2)
Filed: July 12, 2012
Filed By: Applicant/Appellee Birchwood Land Co., Inc.
Response filed on 7/30/12 by Appellants
X Granted (in part) X Denied (in part) ___ Other
On May 10, 2012, the Town of Essex Planning Commission (the Commission) approved
a Final Plan submitted by Birchwood Land Company, Inc. (Applicant) to subdivide a 60 acre
property located at 49 Tanglewood Drive in the Town of Essex, Vermont. Appellants, a group
of ten or more voters or real property owners within the Town of Essex, appealed the
Commission’s decision to this Court. Appellants’ original Statement of Questions, filed on June
29, 2012, posed 55 Questions1 for determination. On July 12, 2012, Applicant moved to dismiss
Questions 10, 17, 22, 34, 41, and 44–-54 as numbered in Appellants’ original Statement of
Questions. Applicant’s motion to dismiss falls under V.R.C.P. 12(b)(6) as it seeks dismissal of
each of the 16 Questions for their failure to state issues upon which the Court can grant
Appellants relief. In ruling on a Rule 12(b)(6) motion, we must assume the factual allegations in
the plaintiff’s pleading are true and can only grant dismissal if “it appears beyond doubt that
there exist no facts or circumstances that would entitle the plaintiff to relief.” Colby v.
Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1 (citing Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶
12, 181 Vt. 309). In the context of this appeal, we view the Notice of Appeal and Statement of
Questions as the “pleadings” and Appellants as the “plaintiff.” See In re Conlon CU Permit,
No. 2-1-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.).
Following a July 9, 2012 pretrial conference held by Judge Thomas G. Walsh, on July 30,
2012, Appellants filed an objection to Applicant’s motion to dismiss Questions and a revised
Statement of Questions in which Appellants reduced the number of Questions to 19. In their
objection to Applicant’s motion, Appellants stipulated to dismiss Questions 22, 34, 41, and 44—
54 as numbered in Appellants’ original Statement of Questions. These Questions do not
reappear in Appellants’ revised Statement of Questions. Accordingly, Applicant’s motion to
dismiss Questions 22, 34, 41, and 44 – 54 is GRANTED.
The Court has not received an amended motion to dismiss Questions within the revised
Statement of Questions. We therefore apply the remainder of Applicant’s motion to Appellants’
revised Statement of Questions, insofar as the Questions at issue are the same or substantially
similar. Applicant seeks the dismissal of the Questions originally numbered 10 and 17, which
1 The original numbering totaled 54, but Appellants applied the number 15 to two separate Questions.
49 Tanglewood Final Plan Approval, No. 76-6-12 Vtec (EO on Mot. to Dismiss Questions) (09-18-12) Pg. 2 of 2
are now Questions 8 and 16, respectively, in the revised Statement of Questions. Applicant
argues that these Questions relate “directly to actions taken (or not taken) by the Town of Essex
Planning Commission” and are therefore “irrelevant” in a de novo hearing of the case by this
Court. (Appellee’s Mot. to Dismiss Certain of Appellants’ Questions on Appeal 2, filed July 12,
2012).
As Applicant states, this appeal is de novo. See 10 V.S.A. § 8504(h). In a de novo appeal,
this Court will hear the case “as though no action whatever has been held prior thereto.” See
Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re Poole, 136 Vt. 242, 245 (1978)).
Question 8 of the Revised Statement of Questions asks, “If 4.1(D) is waived, how will
Birchwood Land Company, or the Court, otherwise, substantially secure the objectives of
4.1(D)?” This question refers to Regulation 2.1(C) of the Town of Essex Subdivision
Regulations, which states that “[i]n granting waivers, the Planning Commission shall require
such conditions as will, in its judgment, secure substantially the objectives of the requirements
so waived.” Although awkwardly phrased, Question 8 does not relate to the actions or inaction
of the Commission. Instead, Question 8 asks whether waiving Regulation 4.1(D) will fulfill the
requirements of Regulation 2.1(C). This is a cognizable issue that this court can address and
remedy if appropriate. Accordingly, Applicant’s motion to dismiss Question 8 of the Revised
Statement of Questions is DENIED.
Question 16 of the Revised Statement of Questions asks, “Does the Essex Planning
Commission require other applicants to comply with 4.1(D) which requires a second access for
projects or neighborhoods with more than fifty dwellings and, if so, what is the Birchwood
Land Company’s rationale for this neighborhood being treated differently?” The Court
interprets this question as asking whether, under Town of Essex Subdivision Regulation 4.1(D),
approval of the proposed subdivision by the Commission requires the creation of a second
access to Tanglewood Drive. Under the Court’s interpretation, Question 16 raises a cognizable
question of law that does not relate to the Commission’s actions or inaction in its decision to
approve Applicant’s Final Plan. Accordingly, Applicant’s motion to dismiss Question 18 of the
Revised Statement of Questions is DENIED.
Applicant’s motion is therefore GRANTED in part and DENIED in part.
_________________________________________ September 18, 2012
Thomas G. Walsh, Judge Date
=========================================================================
Date copies sent: ___________ Clerk's Initials ______
Copies sent to:
Appellants Sharon I. Zukowski; Philip A. and Lorraine Matcovich; Elizabeth C. Dunn; William J. Silverstrim;
Suzanne N. Levine; Arup Bhattacharyya; Susan T. and Jon Pringle; Daniel Brugger; Arthur Lee Cohen; Bruce,
Mary E., and Erik E. Post; Joan and Robert D. Bates; Gail and Ed Stowe; and Judith Krizan
Attorney William F. Ellis for Interested Person Town of Essex
Attorney W. Owen Jenkins for Applicant Birchwood Land Co., Inc. | 01-03-2023 | 04-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2748709/ | Filed 11/6/14 Sanderson v. Nerium International CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOHN SANDERSON et al.,
Plaintiffs and Respondents, G048975
v. (Super. Ct. No. 30-2012-00621436)
NERIUM INTERNATIONAL, LLC, et al., OPINION
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County,
Franz E. Miller, Judge. Affirmed. Motion to dismiss appeal. Denied. Motion for
judicial notice. Granted in part and denied in part.
Margolis & Tisman, Blank Rome, Mike Margolis and Timothy J. Martin
for Defendants and Appellants.
Dorsey & Whitney, Kent J. Schmidt, Karen A. Morao and
Lynnda A. McGlinn for Plaintiffs and Respondents.
* * *
INTRODUCTION
John Sanderson and George Taylor sued Nerium International, LLC
(Nerium), and its chief executive officer, Jeff Olson, for defamation and other related
claims. Nerium and Olson filed a special motion to strike pursuant to Code of Civil
Procedure section 425.16 (the anti-SLAPP statute).1 (All further statutory references are
to the Code of Civil Procedure, unless otherwise noted.) The trial court denied the
special motion to strike; we affirm.
Nerium and Olson failed to make the required showing on the first prong of
the test for a special motion to strike: whether Sanderson and Taylor’s claims against
them arise from protected activity. The trial court correctly concluded that while
domestic violence is an issue of public concern, a statement that someone had perpetrated
domestic violence was not necessarily a matter of public interest, and therefore not
covered by the anti-SLAPP statute.
STATEMENT OF FACTS AND PROCEDURAL HISTORY2
Nerium sells a skin care product known as NeriumAD face cream. Olson is
Nerium’s chief executive officer.
Sanderson is the chief executive officer of a different company that also
sells skin care products. Sanderson and Taylor maintain an Internet blog called
1
“SLAPP is an acronym for ‘strategic lawsuit against public
participation.’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 732, fn. 1.)
2
We grant in part and deny in part Nerium and Olson’s motion for judicial
notice. We grant the motion as to exhibit Nos. 1 through 6, which are records of a court
of this state, and are matters of which judicial notice may properly be taken by this court.
(Evid. Code, §§ 452, subd. (d), 459.) We deny the motion as to exhibit No. 7, which is a
single page of the top results of a Google search for the term “domestic violence.” While
an ordinary person’s understanding of what the term “domestic violence” means is an
issue in this proceeding, exhibit No. 7 is not relevant to that issue. That the term
“domestic violence” might be searched on the Internet is irrelevant to any issue before us.
(Evid. Code, §§ 452, subd. (h), 459.)
2
“BareFacedTruth,” which provides information regarding skin conditions, skin care
ingredients, and product reviews. Sanderson and Taylor wrote articles on their blog
criticizing NeriumAD and questioning its safety.
Olson responded by publicly stating he was hiring a private investigator to
dig up dirt on the bloggers behind BareFacedTruth. Olson created a promotional video
defending and promoting NeriumAD, in which he claimed its critics were really
competitors trying to sell an inferior product, and who had had multiple domestic
violence issues.
Douglas Burdick, a consultant for Nerium, separately posted similar
statements on his Facebook wall, and promised additional information on “[h]ow many
times has [the blogger attacking NeriumAD] been charged with domestic violence” and
“[w]hy he personally uses multiple social security numbers.”
Nerium and Olson acknowledge the statements regarding domestic violence
and multiple Social Security numbers were based on a report by a private investigator.
As of the time the opposition to the special motion to strike was filed, the report had not
been provided to Sanderson and Taylor.
Sanderson and Taylor sued Nerium, Olson, and Burdick for libel per se,
slander per se, defamation, intentional and negligent infliction of emotional distress, and
invasion of privacy.3 Nerium filed a special motion to strike the first amended complaint,
pursuant to section 425.16, in which Olson later joined. Following briefing and a
3
Burdick filed a motion to quash service of summons for lack of personal
jurisdiction. The trial court denied Burdick’s motion, and this court summarily denied
his writ petition. The California Supreme Court granted review, and transferred the
matter back to this court “with directions to vacate its order denying mandate and to issue
an order to show cause why the relief sought in the petition should not be granted in light
of Walden v. Fiore (2014) 571 U.S. ___ [134 S. Ct. 1115, 188 L. Ed. 2d 12].” (Burdick v.
Superior Court (Mar. 12, 2014, S215455) 2014 Cal. Lexis 1624.)
3
hearing, the trial court denied the special motion to strike. Nerium and Olson filed a
timely notice of appeal.
MOTION TO DISMISS THE APPEAL
Sanderson and Taylor filed a motion to dismiss Nerium and Olson’s appeal
pursuant to section 425.17, subdivision (e), which provides: “If any trial court denies a
special motion to strike on the grounds that the action or cause of action is exempt
pursuant to this section, the appeal provisions in subdivision (i) of Section 425.16 and
paragraph (13) of subdivision (a) of Section 904.1 do not apply to that action or cause of
action.” Section 425.17, subdivision (c) exempts commercial speech from
section 425.16: “Section 425.16 does not apply to any cause of action brought against a
person primarily engaged in the business of selling or leasing goods or services,
including, but not limited to, insurance, securities, or financial instruments, arising from
any statement or conduct by that person if both of the following conditions exist: [¶]
(1) The statement or conduct consists of representations of fact about that person’s or a
business competitor’s business operations, goods, or services, that is made for the
purpose of obtaining approval for, promoting, or securing sales or leases of, or
commercial transactions in, the person’s goods or services, or the statement or conduct
was made in the course of delivering the person’s goods or services. [¶] (2) The intended
audience is an actual or potential buyer or customer, or a person likely to repeat the
statement to, or otherwise influence, an actual or potential buyer or customer, or the
statement or conduct arose out of or within the context of a regulatory approval process,
proceeding, or investigation, except where the statement or conduct was made by a
telephone corporation in the course of a proceeding before the California Public Utilities
Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that
the conduct or statement concerns an important public issue.” (§ 425.17, subd. (c).)
4
In opposition to the special motion to strike, Sanderson and Taylor argued,
inter alia, the anti-SLAPP statute did not apply because Nerium and Olson’s
complained-of statements were commercial speech. The trial court’s tentative ruling
before the hearing stated its intention to deny the special motion to strike, but did not
mention section 425.17. Nor was section 425.17 mentioned in the trial court’s minute
order denying the special motion to strike, which reads, in relevant part, as follows:
“[R]e ‘public interest’ prong, efficacy/dangers of defendants’ skin treatments and
plaintiffs’ critiques of them may be of ‘broad and amorphous’ public interest, but there
must be [a] nexus between the speech and the topic so the speech contributes to the
public topic [citations], and slurs re domestic violence and multiple Social Security
numbers do not have that nexus; . . . even if Moving Party defendants satisfied 1st prong,
plaintiffs have demonstrated sufficient probability of prevailing [citation] since even if
defendants referred to Sanderson’s sexual encounter with a patient, that is not domestic
violence. [¶] Moving party to give notice.”
Although the minute order does not specify the trial court denied the special
motion to strike based on section 425.17, Sanderson and Taylor argue we should infer
such a basis for the court’s ruling from the transcript of the hearing on the motion. At the
hearing, after the trial court denied the motion to strike, the following colloquy occurred
between Sanderson and Taylor’s trial counsel and the court:
“Mr. Schmidt: I just had one question, Your Honor.
“The Court: Are you sure?
“Mr. Schmidt: I know, and with trepidation when I prevail on the motion.
But the court did not rule on the 425.17 question of the commercial speech exemption,
and the reason this is of great significance to us is we filed this case December 31st, so
here we are in—nearing September with essentially nothing happening in the case other
than this motion and some motions to quash and so forth that are now back on calendar or
need to be put back on calendar. But we’ve essentially been stymied in moving this case
5
forward. [¶] 425.17 has the commercial speech exemption. We were only able to devote
two pages to it in our briefing and defendants devoted two paragraphs to it in their reply
brief. We think it is a very compelling argument, and the reason it is significant is
because it will, if the court agrees with us, there is not an automatic appeal to the Court of
Appeal as opposed to if the court decides this purely on 425.16. [¶] So we would like—
and I’m not sure if the court’s intent is to write a statement of decision or it’s just going
to go with the posted tentative, but we would like to be heard on 425.17, because it really
all does boil down to one of the four elements of the Simpson Strong Tie decision and we
think we satisfied that element. And I am glad to address that, or of the court wants to
just look at that before it issues its decision and decide whether it’s going to decide it
only on 425.16 or also on 425.17.
“The Court: I will just say this, I have denied the motion on the tentative,
for my denial to be based on any and all available grounds.
“Mr. Schmidt: Okay. Are you going to be issuing a statement of
decision—
“The Court: No.
“Mr. Schmidt: —or just what’s posted?
“The Court: When the minute order comes out it will recite the tentative,
but beyond that I intend to do nothing on this case unless I am obligated to do otherwise
under law, which I do not believe I am.” (Italics added.)
In the motion to dismiss the appeal, Sanderson and Taylor claim, based on
their appellate counsel’s declaration, the italicized language was incorrectly transcribed,
and the trial court actually said: “I will just say this, I have denied the motion and
intended for my denial to be based on any and all available grounds.” (Underscoring
omitted.) However, Nerium and Olson’s appellate counsel submitted a declaration in
opposition to the motion to dismiss, in which he averred the reporter’s transcript correctly
reflects what the trial court said at the hearing. The conflicting declarations present a
6
problem, as we cannot determine which factual statement regarding the trial court’s
comments is correct. We could deny the motion for the simple reason Sanderson and
Taylor have not established the factual basis for the relief requested.
Even assuming the trial court’s comments at the hearing were incorrectly
transcribed, we do not agree the trial court necessarily found the commercial speech
exemption to section 425.16 applied. As it said it would, the trial court denied the special
motion to strike based on the language of the tentative ruling, and nothing more. The
court quite correctly could have determined the commercial speech exemption was not an
available ground for denying the motion. Indeed, Sanderson and Taylor had filed a
motion in the trial court to conduct limited discovery to respond to the special motion to
strike. The trial court denied the discovery motion, ruling, in part, as follows: “The
commercial speech exemption does not apply; the statements at issue do not consist of
representations of fact about defendants’ or plaintiffs’ business operations, goods, or
services.” Given the specific ruling on the discovery motion that the commercial speech
exemption did not apply in this case, and the tentative ruling and the minute order,
neither of which mentioned the commercial speech exemption, we reject Sanderson and
Taylor’s claim that the trial court’s ruling must be read as having found the commercial
speech exemption applied. Sanderson and Taylor’s motion to dismiss the appeal is
therefore denied.
DISCUSSION
I.
STANDARD OF REVIEW
We review an order granting or denying a special motion to strike de novo.
(Flatley v. Mauro (2006) 39 Cal. 4th 299, 325.) “We consider ‘the pleadings, and
supporting and opposing affidavits . . . upon which the liability or defense is based.’
[Citation.] However, we neither ‘weigh credibility [nor] compare the weight of the
7
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal. 4th 260, 269, fn. 3.)
“Section 425.16, subdivision (b)(1) requires the court to engage in a
two-step process. First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected activity. The
moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff
complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech
under the United States or California Constitution in connection with a public issue,’ as
defined in the statute. [Citation.] If the court finds such a showing has been made, it
then determines whether the plaintiff has demonstrated a probability of prevailing on the
claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67.)
II.
NERIUM AND OLSON’S STATEMENTS DID NOT CONCERN A MATTER OF PUBLIC INTEREST.
A cause of action is subject to a special motion to strike if it arises from
“any written or oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest.” (§ 425.16, subd. (e)(3).)
Sanderson and Taylor’s causes of action all arise from written and oral statements
available via the Internet. The only element of the test in dispute is whether the
complained-of statements were made in connection with an issue of public interest.
The issue of domestic violence is one of public interest. (Sipple v.
Foundation for Nat. Progress (1999) 71 Cal. App. 4th 226, 238.) Contrary to Nerium and
Olson’s argument, however, this does not mean any statement in any context accusing
someone of committing domestic violence is protected by the anti-SLAPP statute.
Indeed, California cases uniformly hold to the contrary.
8
“We have said that section 425.16 ‘does not provide a definition for “an
issue of public interest,” and it is doubtful an all-encompassing definition could be
provided. However, the statute requires that there be some attributes of the issue which
make it one of public, rather than merely private, interest. A few guiding principles may
be derived from decisional authorities. First, “public interest” does not equate with mere
curiosity. [Citations.] Second, a matter of public interest should be something of
concern to a substantial number of people. [Citation.] Thus, a matter of concern to the
speaker and a relatively small, specific audience is not a matter of public interest.
[Citation.] Third, there should be some degree of closeness between the challenged
statements and the asserted public interest [citation]; the assertion of a broad and
amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s
conduct should be the public interest rather than a mere effort “to gather ammunition for
another round of [private] controversy . . . .” [Citation.] Finally, “those charged with
defamation cannot, by their own conduct, create their own defense by making the
claimant a public figure.” [Citation.] A person cannot turn otherwise private information
into a matter of public interest simply by communicating it to a large number of people.
[Citations.]’ [Citation.]” (Terry v. Davis Community Church (2005) 131 Cal. App. 4th
1534, 1546-1547.)
In this case, there was little, if any, connection between the challenged
statements and the claimed public interest in preventing or punishing those who have
committed acts of domestic violence. Additionally, the focus of Olson’s and Burdick’s
statements was not to advance the public discourse on domestic violence, or to protect the
public from alleged perpetrators of domestic violence, but merely to advance Nerium and
Olson’s private dispute with Sanderson and Taylor. That these statements are not entitled
to special protection under section 425.16 is evidenced by a review of other California
cases addressing similar issues.
9
In Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122, 1127-1128, the
defendant and the plaintiff were both token collectors; the defendant accused the plaintiff
of stealing the defendant’s tokens, with the purpose of ousting the plaintiff from the
token-collecting community. In response to the plaintiff’s complaint for defamation, the
defendant filed a special motion to strike, which was denied. (Id. at p. 1129.) The
appellate court concluded the defendant’s statements were not covered by section 425.16,
subdivision (e)(3) or (4), although they involved potential criminal conduct. “Defendant
did not report his suspicions to law enforcement, and there is no evidence that he
intended to pursue civil charges against plaintiff. Rather, it is alleged that defendant
began a private campaign, so to speak, to discredit plaintiff in the eyes of a relatively
small group of fellow collectors. Since the record does not support a conclusion that
plaintiff is a public figure or that he has thrust himself into any public issue, defendant’s
accusations against plaintiff related to what in effect was a private matter. Under the
circumstances, the fact that defendant accused plaintiff of criminal conduct did not make
the accusations a matter of public interest. [¶] Simply stated, causes of action arising out
of false allegations of criminal conduct, made under circumstances like those alleged in
this case, are not subject to the anti-SLAPP statute. Otherwise, wrongful accusations of
criminal conduct, which are among the most clear and egregious types of defamatory
statements, automatically would be accorded the most stringent protections provided by
law, without regard to the circumstances in which they were made—a result that would
be inconsistent with the purpose of the anti-SLAPP statute and would unduly undermine
the protection accorded by paragraph 1 of Civil Code section 46, which includes as
slander any false and unprivileged communication charging a person with a crime, and
the California rule that false accusations of crime are libel per se [citations].” (Weinberg
v. Feisel, supra, at pp. 1135-1136.)
In Rivero v. American Federation of State, County and Municipal
Employees, AFL-CIO (2003) 105 Cal. App. 4th 913, 924-925, the court held not all
10
allegations of unlawful workplace activity at publicly financed institutions are matters of
public interest. And, in Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146
Cal. App. 4th 841, 848-849, two doctors had entered into a business relationship
establishing a medical corporation, and the medical corporation had entered into a
relationship with a health management organization (HMO). When the doctors’
relationship soured, the attorneys for one doctor wrote to the HMO advising it the other
doctor—the plaintiff—had lost his medical license, prompting the plaintiff to sue. The
appellate court held that although the provision of health care is a matter of great public
interest, the attorneys’ statement to the HMO was a private matter between the principals
of the medical corporation and the HMO, not a matter of public interest.
Cross v. Cooper (2011) 197 Cal. App. 4th 357, on which Nerium and Olson
rely, is distinguishable. The plaintiff homeowner sued the defendant tenants for telling a
potential home buyer’s agent that a registered sex offender lived nearby. (Id. at
pp. 365-366.) The appellate court held the trial court should have granted the defendants’
special motion to strike because “preventing child sexual abuse and protecting children
from sexual predators are issues of widespread public interest” (id. at p. 375), and
disclosure of information regarding a sex offender in the neighborhood “was closely and
directly related to specific issues of great interest to the general public” (id. at p. 378).
Here, Nerium and Olson’s statements were not closely and directly related to the
prevention of or punishment for domestic violence.
Nerium and Olson suggest the trial court erred by focusing on the
subjective purpose behind their making of the statements in question, rather than the
objective content of those statements. In other words, they argue that in considering a
special motion to strike, the court must look only at the actual words stated, not at the
context in which they were made. Another panel of this court rejected the same argument
in Nagel v. Twin Laboratories, Inc. (2003) 109 Cal. App. 4th 39, 42-43, in which a dietary
supplement manufacturer was sued for unfair competition and violation of the Consumer
11
Legal Remedies Act for allegedly making inaccurate statements regarding its products’
ingredients on the product labels and on its Web site. This court affirmed the trial court’s
denial of a special motion to strike, in part, because the list of a product’s ingredients on a
label or a Web site was commercial speech; although the speech was related to issues of
public interest—public health and weight management—the product ingredient lists were
not intended to be a part of the public health dialogue, but rather were intended solely to
sell the defendant’s supplements. “Twin Labs argues its list of ingredients should be
protected under section 425.16 because it is speech ‘in connection with a public issue.’
[Citation.] This argument fails for two reasons. First, the language ‘in connection with a
public issue’ modifies earlier language in the statute referring to the acts in furtherance of
the constitutional right of free speech. The phrase cannot be read in isolation. Thus,
Twin Labs’ reliance on an argument that its list of product ingredients is immunized
because it pertains to a public health issue—weight management—fails. [¶] Second,
while matters of health and weight management are undeniably of interest to the public, it
does not necessarily follow that all lists of ingredients on labels of food products or on
the manufacturers’ Web sites are fully protected from legal challenges by virtue of
section 425.16. ‘Advertisers should not be permitted to immunize false or misleading
product information from government regulation simply by including references to public
issues.’ [Citation.] Here, the list of Ripped Fuel’s ingredients on the bottle labels and on
Twin Labs’ Web site was not participation in the public dialogue on weight management
issues; the labeling on its face was designed to further Twin Labs’ private interest of
increasing sales for its products. [Citation.] Twin Labs’ commercial speech was not
made ‘in connection with a public issue’ as that phrase is used in section 425.16.” (Id. at
pp. 47-48; see Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1136 [circumstances
under which allegedly defamatory statements are made determines whether the
protections of the anti-SLAPP statute apply].)
12
Nerium and Olson’s citations to cases holding the plaintiff’s subjective
intent in filing the lawsuit is not properly considered in a special motion to strike do not
change our decision. (See Equilon Enterprises v. Consumer Cause, Inc., supra, 29
Cal.4th at p. 65; JSJ Limited Partnership v. Mehrban (2012) 205 Cal. App. 4th 1512,
1521.) Those cases do not address whether the context in which the defendant’s
statements are made can help determine whether those statements are protected by the
anti-SLAPP statute.
With respect to the allegedly defamatory statements regarding multiple
Social Security numbers, Nerium and Olson’s special motion to strike was unsupported
by any evidence.4 Nerium and Olson submitted a request to the trial court to take judicial
notice of two online news stories addressing the number of people possessing more than
one Social Security number. The trial court denied the request for judicial notice.5
Nerium and Olson argue on appeal that the trial court erred by refusing to take judicial
notice of those documents. We disagree. Evidence Code section 452, subdivision (h),
allows a trial court to take judicial notice of “[f]acts and propositions that are not
reasonably subject to dispute and are capable of immediate and accurate determination by
resort to sources of reasonably indisputable accuracy.” Whether the possession of
multiple Social Security numbers is an issue of public concern is subject to dispute and is
4
Nerium and Olson also argue the special motion to strike should have
been granted because defamation based on Social Security numbers was pled in a single
cause of action with defamation based on domestic violence allegations. Because we
have concluded the special motion to strike was properly denied based on the domestic
violence allegations, we need not address this argument.
5
Nerium and Olson also asked the trial court to take judicial notice of a
government report regarding noncitizens with multiple Social Security numbers, and two
pages from the United States Social Security Administration Web site, regarding requests
for new Social Security numbers and explaining why one report might show a person has
multiple Social Security numbers. On appeal, Nerium and Olson do not argue that the
trial court abused its discretion by denying the request for judicial notice, or request that
this court take judicial notice of those documents.
13
not easily verified, certainly not by reference to the documents submitted by Nerium and
Olson. The trial court did not abuse its discretion in denying the request for judicial
notice of these documents.
Nerium and Olson suggest on appeal that the fact the information was
published on the Internet is a fact not reasonably subject to dispute, and which can be
easily verified. While this might be true, the availability of the information is irrelevant
to any issue before the trial court or this court.
The trial court correctly determined the causes of action did not arise from
protected activity, and the special motion to strike was therefore properly granted. We
need not consider whether Sanderson and Taylor met their burden to prove a probability
of success on the merits.
DISPOSITION
The order is affirmed. Respondents to recover costs on appeal.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
14 | 01-03-2023 | 11-06-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3231127/ | Appellant was tried and convicted in the Circuit Court of Montgomery County for murder in the first degree, and his punishment fixed at death. The offense was committed in Kilby prison, the State penitentiary, while appellant was serving a sentence to life imprisonment therein for a prior murder. His appeal is governed by the automatic appeal statute. — Title 15, section 382(1) et seq. Pocket Part Code.
Section 319, Title 14, Code, provides:
"Any convict sentenced to imprisonment for life, who commits murder in the first degree, while such sentence remains in force against him, shall, on conviction, suffer death."
The evidence was without dispute that prior to the commission of the offense charged in the indictment, appellant was convicted of murder in the first degree and his punishment fixed at death, and later commuted to life imprisonment by the Governor of Alabama, and that appellant was serving said life sentence when he killed one Jesse Porter, a fellow convict.
The State's evidence tended to show that appellant and deceased occupied the same cell at Kilby prison, and that for some time prior to the date of the homicide a perverted relationship had existed between them and which the deceased, on the night preceding his death, had threatened to discontinue; that appellant and deceased went to their work in the cotton mill on the morning of the homicide; that shortly thereafter appellant went to the part of the mill where deceased was at work, a distance of some sixty feet, caught deceased by the shoulder, turned him around and stabbed him in the neck with a knife or dirk, from which stab wound he died. *Page 507
Appellant testified in his own behalf. He denied the existence of any improper relationship between him and deceased, and denied that he had told the investigating officers that such did exist. He testified, in substance, that the night before Porter was killed, Porter tried to borrow money from him to "get some zizzie-will, that is, some dope"; that he refused to let him have the money; that Porter went out of the cell and returned in about five minutes with a knife or dirk; that Porter told him that when he went to sleep he was going to kill him; that he (appellant) sat up all night; that the next morning on the way to the cotton mill he took the knife from Porter; that after they got inside the mill, Porter called him to where he (Porter) was working, and attempted to strike him with a piece of machinery; that he (appellant) had the knife in his hand and that he grabbed Porter's wrists to prevent him from striking him (appellant), and that in the ensuing struggle Porter was accidently stabbed in the neck.
Clear enough the case was one for the jury, and the affirmative charge was properly refused.
Certain statements alleged to have been made by appellant shortly after the homicide and relative to how it occurred, were introduced in evidence, over the objection of appellant. Whether these statements contained confessions or were merely inculpatory statements or admissions are immaterial here. Their voluntary character was shown prior to their introduction. See, Reid v. State, 168 Ala. 118, 53 So. 254; Herring v. State,242 Ala. 85, 5 So. 2d 104, 105; Tillison v. State, 248 Ala. 199,27 So. 2d 43.
Under section 319, Title 14, Code of 1940, one convicted of murder in the first degree and sentenced to be electrocuted, which sentence was commuted by the Governor to life imprisonment, is a "convict sentenced to imprisonment for life," since the commutation simply substitutes a lesser for a greater punishment, and the judgment had the same legal effect after commutation as if the jury had fixed his punishment at life imprisonment instead of death. Johnson v. State, 183 Ala. 79,63 So. 163.
The evidence relative to the existence of a perverted relationship between appellant and deceased, and the effort of deceased to discontinue it, or statements to the effect that he intended to do so, was relevant and material on the question of motive. Burns v. State, 246 Ala. 135, 19 So. 2d 450.
During the argument of the solicitor for the State, attorney for appellant made objection to a statement "to the effect" that "this system of the Governor of the State having exclusive and sole power to commute anybody who is under the death penalty, is rotten: to commute a sentence."
As we understand the record, the reference in the argument to a commutation of sentence is to the commutation of the death penalty given appellant in the former charge against him, and not to a prospective death sentence in the instant case. As we have said, evidence of a former commutation is admissible. Johnson v. State, supra. As a consequence, the argument was not improper. The argument here is clearly distinguishable from that which worked a reversal in the case of Boyle v. State,229 Ala. 212, 154 So. 575, and other similar cases.
We have carefully examined the record under the requirements of section 382(1), Title 15, Code, and are fully persuaded that no reversible error intervened.
Affirmed.
All the Justices concur, except GARDNER, C. J., not sitting. *Page 508 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3063586/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12300 APRIL 10, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 95-06031-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY TOPAZ TURNER,
a.k.a. Tracy Thomas,
a.k.a. Tony Brow,
a.k.a. Tony H. Brown,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 10, 2009)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Tracy Turner, proceeding pro se, appeals the district court’s denial of his
motion for modification of sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on
Amendments 706 and 711 to the Sentencing Guidelines, and the denial of his
motion for reconsideration. Turner acknowledges that he was sentenced as a career
offender but argues that he is nevertheless eligible for a reduction because U.S.S.G.
§ 2D1.1 should serve at the starting point for the reduction. He also appears to
argue that the court should have granted a sentence below any amended range. For
the reasons set forth below, we affirm.
I.
A jury convicted Turner of one count of conspiracy to possess with intent to
distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and two
counts of possession with intent to distribute crack cocaine, in violation of
§ 841(a)(1). A probation officer determined that Turner qualified as a career
offender and set his base offense level at 37 and criminal history category at VI,
pursuant to U.S.S.G. § 4B1.1. Turner’s guideline imprisonment range was 360
months to life. The district court imposed concurrent terms of 360 months’
imprisonment. On March 4, 2008, Turner submitted the instant pro se § 3582(c)(2)
motion, asserting that Amendment 706 to the Guidelines altered his base offense
level. The government responded that Turner was not eligible for a reduction
2
because he was sentenced pursuant to § 4B1.1, rather than § 2D1.1. The district
court denied the motion. Turner submitted a motion for reconsideration, which the
district court also denied.
II.
We review de novo “the district court’s legal conclusions regarding the
scope of its authority under the [Guidelines].” United States v. Moore, 541 F.3d
1323 (11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965
(2009), and cert. denied, (U.S. Mar. 9, 2009) (No. 08-8554). Pursuant to
§ 3582(c)(2), a district court may reduce an already-incarcerated defendant’s
sentence if the sentence was determined using a guideline imprisonment range that
retroactive amendments to the Guidelines have reduced, and if such a reduction
would be consistent with the policy statements issued by the Sentencing
Commission, which are contained in U.S.S.G. § 1B1.10. 18 U.S.C. § 3582(c).
The commentary to § 1B1.10 instructs that a defendant is not eligible for a
§ 3582(c)(2) reduction “if the amendment [in question] does not have the effect of
lowering the defendant’s applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory minimum term
of imprisonment.)” U.S.S.G. § 1B1.10, comment. (n.1(A)). Recently, in Moore,
541 F.3d at 1328, we applied this commentary and held that Amendment 706 does
3
not alter the guideline imprisonment range of a defendant convicted of crack
cocaine offenses if that defendant was sentenced as a career offender, pursuant to
§ 4B1.1. We reasoned that, in that case, the defendant’s “base offense level[]
under § 2D1.1 played no role in the calculation of [his guideline imprisonment
range],” such that Amendment 706’s effect on the defendant’s base offense level
under § 2D1.1 would not affect the guideline imprisonment range pursuant to
which he was sentenced. Id. at 1327.
III.
The district court did not err in denying Turner’s § 3582(c)(2) motion. See
Moore, 541 F.3d at 1326. Because Turner was sentenced according to the
guideline imprisonment range calculated using § 4B1.1, rather than § 2D1.1,
Amendment 706 did not affect his guideline imprisonment range. See Moore, 541
F.3d at 1327-28; U.S.S.G. § 1B1.10, comment. (n.1(A)). Because Turner,
therefore, was not eligible for a reduction, whether or not the district court should
have considered United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005) at re-sentencing is irrelevant. See also United States v.
Melvin, No. 08-13497 (11th Cir. Feb. 3, 2009) (holding that Booker is inapplicable
at re-sentencing under § 3582(c)(2)), pet. for cert. filed, (U.S. Feb. 10, 2009) (No.
08-8664). Accordingly, we affirm.
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2888860/ | NO. 07-03-0172-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JUNE 9, 2003
______________________________
JIMMY BARELA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 45,848-D; HON. DON EMERSON, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
Appellant Jimmy Barela, by and through his attorney, has filed a motion to dismiss
this appeal because he no longer desires to prosecute it. The cause was previously
abated; we now reinstate it. Without passing on the merits of the case, we grant the
motion to dismiss pursuant to Texas Rule of Appellate Procedure 42.1(a)(2) and dismiss
the appeal. Having dismissed the appeal at appellant’s request, no motion for rehearing
will be entertained, and our mandate will issue forthwith.
Brian Quinn
Do not publish. Justice
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063587/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13904 ELEVENTH CIRCUIT
APRIL 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-00005-CR-OC-10-GRJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TODD JERONE EUTSEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 10, 2009)
Before TJOFLAT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Rosemary Cakmis, appointed counsel for Todd Jerone Eutsey, has filed a
motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Our independent
review of the entire record reveals that counsel’s assessment of the relative merit of
the appeal is correct. Because independent examination of the entire record reveals
no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and the
district court’s order reducing Eutsey’s sentence is AFFIRMED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3227057/ | In arguing this case to the jury, counsel for appellee said: "Gentlemen, these rich little children have no complaint against Limestone County; by taking this land the county has made them richer." This argument was highly improper, and, notwithstanding the trial court sustained appellants' objection to same, and instructed the jury not to consider said argument, it is of that character which is so poisonous and improper as to be almost immune from eradication. Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Standridge v. Martin,203 Ala. 486, 84 So. 226; American Ry. Express Co. v. Reid,216 Ala. 479, 113 So. 507; Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, 393, and cases there cited.
The trial court erred in not granting the motion for a new trial on account of this improper argument.
Charges 1 and 2, given at the request of the appellee, were in effect approved upon the former appeal of this case. Pryor v. Limestone County, 222 Ala. 621, 134 So. 17.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3227063/ | Appeal dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3045024/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3098
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Damien Terrell Ray, *
*
Appellant. *
__________
Submitted: February 11, 2008
Filed: July 8, 2008
___________
Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
___________
RILEY, Circuit Judge.
Damien Terrell Ray (Ray) appeals from a final judgment entered by the district
1
court revoking his supervised release. For the reasons stated below, we affirm the
judgment of the district court.
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
I. BACKGROUND
In 2005, after Ray pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), the district court sentenced Ray to 18 months
imprisonment and further supervised release. After serving his prison sentence, Ray
was released from prison in March 2007, and began to serve his term of supervised
release. However, in July 2007, Ray’s probation officer petitioned the district court
to revoke Ray’s supervised release, claiming Ray was arrested and charged in state
court with, among other things, robbery in the first degree.
At Ray’s revocation hearing, Officer Sean Lipina (Officer Lipina) stated that,
in July 2007, he received a call concerning a robbery which took place at a gas station.
Ray objected to Officer Lipina relating any statements by the victim as hearsay and
as a violation of Ray’s Sixth Amendment right to confrontation. The district court
overruled the objections and granted Ray a continuing objection. Officer Lipina
testified the victim told him a black male offered to sell drugs, then pointed a gun at
the victim and asked him for money. Officer Lipina recalled the victim said he gave
the suspect $120 and the suspect drove away in a white Expedition. The victim
described both the Expedition’s license plate number and the suspect, identifying a
tattoo on the suspect’s left forearm. Based on the description of the car and subject,
officers later stopped a vehicle matching the description and arrested Ray. Ray
spontaneously admitted being at the gas station earlier, but declared, “I don’t know
what happened.” Officer Lipina reported the victim later positively identified Ray in
a police lineup, also identifying the tattoo on Ray’s left forearm.
Following the revocation hearing, the district court found Ray violated the
conditions of his supervised release and sentenced Ray to 18 months imprisonment
and 12 months of supervised release. Ray appeals and argues the district court erred
in admitting Officer Lipina’s hearsay testimony in violation of his Sixth Amendment
right to confrontation.
-2-
II. DISCUSSION
We review questions arising under the constitution de novo, and we review the
admission of evidence at a revocation hearing for an abuse of discretion. United
States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004) (citations omitted).
Ray contends the district court erred in admitting Officer Lipina’s “hearsay”2
testimony because, under Crawford v. Washington, 541 U.S. 36 (2004), the testimony
violates Ray’s constitutional rights under the Confrontation Clause. Ray’s argument
lacks merit. As we have previously indicated, “the Supreme Court cautioned that a
parole revocation hearing should not, for this purpose, be equated with a criminal
trial.” Martin, 382 F.3d at 844 (citing Morrissey v. Brewer, 408 U.S. 471, 489
(1972)). The Sixth Amendment only applies to “criminal prosecutions,” and a
revocation of supervised release is not part of a criminal prosecution. Id. “Revocation
deprives an individual, not of the absolute liberty to which every citizen is entitled,
but only of the conditional liberty properly dependent on observance of special parole
restrictions,” thus, the full protection provided to criminal defendants under the Sixth
Amendment right to confrontation does not apply to revocation cases. Morrissey, 408
U.S. at 480. For this reason, Crawford is not implicated in a supervised release
revocation hearing. Martin, 382 F.3d at 844 n.4; see also United States v. Hall, 419
F.3d 980, 985-86 (9th Cir. 2005); United States v. Aspinall, 389 F.3d 332, 342 (2d
Cir. 2004).
Although Ray does not have a Sixth Amendment right to examine adverse
witnesses, Ray has a limited due process right to “question any adverse witness unless
the court determines that the interest of justice does not require the witness to appear.”
Fed. R. Crim. P. 32.1(b)(2)(C); see also Morrissey, 408 U.S. at 489 (declaring, at a
minimum, due process includes “the right to confront and cross-examine adverse
2
We do not decide whether all or any of the challenged statements are actually
hearsay under the Rules of Evidence.
-3-
witnesses (unless the hearing officer specifically finds good cause for not allowing
confrontation)”); Martin, 382 F.3d at 844. The application of this “narrow” due
process protection, however, “should be flexible enough to consider evidence . . . that
would not be admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489;
see Martin, 382 F.3d at 844. Thus, Ray’s argument that the district court erred simply
by admitting “hearsay” testimony at a revocation hearing is meritless, and the district
court’s admission of such testimony constituted no abuse of discretion.
Ray does not raise a due process challenge or any other appeal issue. We do
not perceive any miscarriage of justice, and we exercise our plain error discretion by
not addressing any other issues. See Johnson v. United States, 520 U.S. 461, 466-67
(1997) (explaining plain error review); United States v. Olano, 507 U.S. 725, 731-32,
735-36 (1993) (same); United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005)
(en banc) (same); see also Greenlaw v. United States, 554 U.S. __, __ S. Ct. __ , __,
2008 WL 2484861 at *5-6 (June 23, 2008) (following the principle of party
presentation).
III. CONCLUSION
For the reasons stated, we affirm.
______________________________
-4- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892744/ | NO. 07-04-0442-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 16, 2005
______________________________
IN THE INTEREST OF K.M., A CHILD
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 67,189-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
On February 2, 2005, the appellant, Scott Reggio, filed a Motion to Dismiss Appeal.
No decision of this Court having been delivered to date, we grant the motion. Accordingly,
the appeal is dismissed. No motion for rehearing will be entertained and our mandate will
issue forthwith. Tex. R. App. P. 42.1.
James T. Campbell
Justice | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129717/ | 538 U.S. 1040
MARTELLOv.OHIO.
No. 02-9595.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE SUPREME COURT OF OHIO.
2
Sup. Ct. Ohio. Certiorari denied. Reported below: 97 Ohio St. 3d 398, 780 N. E. 2d 250. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4268208/ | State of Vermont
Superior Court_Environmental Division
In re Toor & Toor Living Trust NOV Docket No. 18-1-10 Vtec
(Appeal from Town of Grand Isle Development
Review Board determination)
Title: l\/lotion for Attorney’s F`ees (Filing No. 3)
l\/lotion to Strike (Filing No. 4)
Filed: November 30, 2010 (F`iling No. 3)
December 28, 2010 (Filing No. 4)
Filed By: John H. Klesch, Attorney for Appellee Tovvn of Grand lsle
Response in Opposition to Filing No. 3 filed on 12/ 15/ 10 by Thomas F`. Heilman,
Attorney for Appellants John and l\/largaret Toor
Reply for Filing No. 3 filed on 12/20/ 10 by John I-l. Klesch, Attorney for Appellee Tovvn
; Granted X Denied _ Other
Before the Court is a motion filed by the Tovvn of Grand lsle (“Tovvn”) seeking an
order directing partial reimbursement of the attorney’s fees incurred by the Tovvn in
association With an appeal of a Notice of Violation issued by the ToWn against Appellants
John and Margaret ’l`oor, co-trustees of the Toor Living Trust (“Appellants”). T he ToWn
has also filed a motion to strike a memorandum filed by Appellants that supplements
their original response memorandum to the ToWn’s motion for attorney’s fees. By this
second pending motion, the Tovvn asks that the Court disregard Appellants’
supplemental memorandum. For the reasons stated belovv, We DENY both of the Tovvn’s
pending motions.
We turn first to the motion to strike as its resolution affects vvhat information this
Court vvill consider vvhen determining vvhether to grant the Tovvn’s motion for attorney’s
fees. The substantive questions Appellants have raised in their appeal are addressed in a
separate Decision that accompanies this Entry Order.
Under V.R.C.P. 78, any party opposed to a motion is granted the ability to file a
memorandum in opposition Within 15 days after receiving service of that motion. See
also V.R.E.C.P. 5(a)(2) (incorporating the Vermont Rules of Civil Procedure into our
procedural rules for appeals of appropriate municipal panel decisions). Rule 78 also
expressly permits any party to file a reply to an opposition memorandum vvithin 10 days
after receiving service of such memorandum. While there is no reference in V.R.C.P. 78
to documents supplementing the opposition or reply memoranda, it is Within the
discretion of the Court to determine vvhether to consider such supplemental filings; the
Court is not prohibited from considering them.
Here, the 'l`ovvn filed its motion for attorney’s fees on November 30, 2010.
Appellants subsequently filed a memorandum in opposition on December 15, 2010, and
In re Toor & Toor Livinc/ Trust NOV, No. 18-1-1 O Vtec (EO on Multiple Motions) (1-31-1 l) Page 2 of3
the Town responded with a reply memorandum on December 20, 2010. Appellants
followed up with a supplemental memorandum on December 27, 2010.
We see no harm to the T own or any of the interested parties in this appeal in
considering Appellant’s supplemental memorandum, particularly since the '1` own has not
put forth any evidence of undue prejudice, and consideration of the supplemental
memorandum does not delay the Court’s ability to respond to the Town’s motion for
attorney’s fees. Therefore, we DENY the Town’s motion to strike Appellant’s
supplemental memorandum.
Turning to consideration of the Town’s motion for attorney’s fees, we first note that
Vermont prescribes to the American rule in relation to the reimbursement of attorney’s
fees. That is, each party is responsible for its own attorney’s fees unless there is a
statute or agreement between the parties authorizing an award of reimbursement of
attorney’s fees. See, e.g., Grice v. Vt. Elec. Power Co., 2008 VT 64, 11 29, 184 Vt. 132.
Courts can deviate from the American rule “but ‘only in exceptional cases and for
dominating reasons of justice.’” See l\/lonahan v. Gl\/IAC Mortgage Corp., 2005 VT 110,
11 76, 179 Vt. 167 (quoting Sprague v. ’l`iconic Nat’l Bank, 307 U.S. 161, 167 (1939)).
Here, the Town seeks receipt of attorney’s fees as reimbursement for the time the
Town’s attorney spent drafting a joint statement of undisputed material facts. The Town
alleges that Appellants neither made a bona fide good-faith attempt to reach agreement
on a joint statement nor notified the Town when they determined they could not
participate in such an effort. (See Mot. for Att’y’s Fees, filed Nov. 30, 2010). The Town
argues that this behavior violates the Court’s pretrial Scheduling Order of July 27, 2010
and that, consequently, the Court has authority under V.R.C.P. 16.2 to require
Appellants to reimburse the Town for its attorney’s fees as a type of sanction.
Rule 16.2 grants the Court authority to impose specific sanctions if a party fails to
obey a scheduling order. V.R.C.P. 16.2 (“When a party fails to obey a scheduling order,
the court may impose the sanctions provided in Rule 37(b)(2)(B) or (C) . . . .”); See
V.R.C.P. 37(b)(2)(B), (C). Unlike in Rule 16 of the Federal Rules of Civil Procedure, there
~ is no reference to attorney’s fees in Vermont’s Rule 16.2. Compare V.R.C.P. 16.2 with
Fed R. Civ. P. 16(fl. Additionally, V.R.C.P. 16.2’s restrictive incorporation of only some of
the sanctions discussed in V.R.C.P. 37(b)(2) implies that the ability to require payment of
attorney’s fees that is discussed in V.R.C.P. 37(b)(2) was considered and rejected in the
formulation of procedural rules on non-compliance with scheduling orders. See V.R.C.P.
37(b)(2)(B), (C)-
We do not read Rule 16.2 to provide a statutory grant of authority to impose
attorney’s fees solely for non-compliance with a schedule order, but even if we were to
accept the 'l`own’s argument on this point, there is no non-compliance here. The Court’s
Scheduling Order of duly 27, 2010 was not disobeyed. The Scheduling Order did not
oblige the parties to agree to a joint statement of undisputed material facts and did not
dictate how the parties were to interact; instead, it simply required the parties to
endeavor to file a joint statement. The Order expressly stated that if the parties could
not agree, they could file separate statements of undisputed facts. For these two
reasons_while we find it regrettable that Appellants’ and their attorney’s actions did not
evidence a more cooperative spirit-we conclude that the Scheduling Order was not
violated and that therefore none of the possible sanctions allowed under Rule 16.2,
regardless of whether they include attorney’s fees, apply here.
In re Toor & Toor Lil)inq Trust NOV, No. 18-1-1 O Vtec (EO on Multzple Motions) (1-31-1 l) Page 3 of3
This Court does have inherent authority to impose attorney’s fees; however, such
authority is greatly restricted and only available in truly exceptional circumstances See
ln re Gadhue, 149 Vt. 322, 327-30 (1987) (awarding attorney’s fees to cover plaintiff’s
second lawsuit which she had to file in order to obtain the relief to which her first lawsuit '
entitled her); Vt. Women’s Health Ctr. v. Operation Rescue, 159 Vt. 141, 1437 150-51
(1992) (upholding a trial court’s grant of attorney’s fees in a contempt action against
parties who evaded service of a temporarily restraining order that restricted their conduct
while protesting outside a women’s health clinic and who knowingly violated the order).
Absent exceptional circumstances, the American Rule applies, thereby disallowing an
award of attorney’s fees. See Galkin v. Town of Chester, 168 Vt. 82, 91 (1998).
The alleged behavior of Appellants of which the Town complainsifailing to
communicate with the Town_while regrettable and not sanctioned by this Court, does
not rise to the level of exceptional circumstances warranting the award of attorney’s fees.
Consequently, we also DENY the Town’s motion for attorney’s fees. | 01-03-2023 | 04-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/2968544/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6666
WILLIAM E. ALTON,
Plaintiff - Appellant,
v.
CORRECTIONAL MEDICAL SERVICES; WEXFORD & ASSOCIATES
CONTRACTORS; ISAIS TESSAMA, MD; MICKELS, MD; BARBARA NEWLON;
BEVERLY SPARKS, P.A.; VICTOR JACKSON; J. P. MORGAN, Warden;
MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL
SERVICES; KATHLEEN GREEN, ECI Warden; DAVID MATHIS, MD;
NURSING STAFF; MCDONALD, P.A.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:10-cv-02365-WMN)
Submitted: August 18, 2011 Decided: August 23, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William E. Alton, Appellant Pro Se. Philip Melton Andrews,
Katrina J. Dennis, KRAMON & GRAHAM, PA, Baltimore, Maryland;
Erin O’Brien Millar, Valerie L. Tetro, WHITEFORD, TAYLOR &
PRESTON, LLP, Baltimore, Maryland; Stephanie Judith Lane Weber,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
William E. Alton, III, appeals the district court’s
order denying relief on his 42 U.S.C. § 1983 (2006) complaint.
We have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. Alton v. Corr. Med. Servs., No. 1:10-cv-02365-WMN (D.
Md. Apr. 18, 2011). 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
3 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2968562/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1063
CAPITAL FUNDING AND CONSULTING, LLC,
Plaintiff - Appellee,
v.
PATRICK BECKER; SHERRIE BECKER,
Defendants - Appellants.
Appeal from the United States Bankruptcy Court for the Eastern
District of Virginia, at Richmond. Kevin R. Huennekens,
Bankruptcy Judge. (09-36086-KRH; 10-03004-KRH)
Submitted: September 19, 2011 Decided: September 28, 2011
Before WILKINSON, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Courtney Moates Paulk, Nathaniel L. Story, HIRSCHLER FLEISCHER,
PC, Richmond, Virginia, for Appellants. Loc Pfeiffer, Kimberly
Pierro, KUTAK ROCK, LLP, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick and Sherrie Becker appeal from the bankruptcy
court’s order determining that the attachment of the Beckers’
judgment lien against Capital Funding and Consulting, LLC’s
interests in various parcels of real property occurred within
ninety days of the Debtor’s filing of the petition for relief in
bankruptcy and therefore is avoidable by the debtor-in-
possession as a preferential transfer under 11 U.S.C. § 547(b)
(2006). Our review of the record and the briefs filed by the
parties discloses no reversible error. Accordingly, we affirm
for the reasons stated by the bankruptcy court. Capital Funding
& Consulting, LLC v. Becker, No. 09-36086-KRH (Bankr. E.D. Va.
Oct. 19, 2010). 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 |
https://www.courtlistener.com/api/rest/v3/opinions/8540814/ | Voto particular disidente emitido por el
Juez Asociado Se-ñor Estrella Martínez,
al cual se unen la Jueza Asociada Señora Pabón Charneco y los Jueces Asociados Señores Kolthoff Caraballo y Rivera García.
Desde los inicios de la vigencia de la Constitución, que todos los Jueces y Juezas de este Tribunal juramos defender, los pensionados han confiado en el entendimiento cer-tero de que “[c]on el advenimiento de las democracias po-pulares y la desaparición de los regímenes monárquicos, el fundamento jurídico de la pensión no lo constituye un acto de recompensa del soberano, sino una obligación moral del estado”. (Énfasis suplido). Rivera v. Rodríguez, 93 DPR 21, 24 (1966).
Uno de los principios claves en una verdadera democra-cia es la existencia de mecanismos para que sus ciudada-nos tengan acceso al reclamo de sus derechos, indepen-dientemente de que constituyan una mayoría o minoría cuantitativa. Lamentablemente, cinco compañeros y com-pañeras de este Tribunal nuevamente han optado por no ejercer su rol en la protección de los derechos constitucio-nales de ciudadanos afectados por la Ley Núm. 3-2013. Tristemente, ahora en nuestra democracia las pensiones por retiro del servicio público han sido degradadas a una mera gracia del Estado. Peor aún, ha quedado en el olvido el reconocimiento reiterado de que la pensión de un jubi-lado no está sujeta a cambios o menoscabos.
*105Por considerar que las pensiones trastocadas poseen una protección absoluta, a la luz de la cláusula en contra del menoscabo de las obligaciones contractuales, y que la Ley Núm. 3-2013 menoscaba los derechos adquiridos de los pensionados, respetuosamente disiento.
I
El 24 de junio de 2013, un grupo de ex empleados públi-cos acogidos al retiro presentaron ante esta Curia un re-curso de certificación, en el cual solicitaron que se declare inconstitucional la Ley Núm. 3-2013 por esta incidir adver-samente sobre sus derechos adquiridos al disfrute de un aguinaldo de Navidad, un bono de verano y un aumento periódico de sus pensiones, según estos beneficios le fueron reconocidos en la Ley Núm. 447 de 15 de mayo de 1951 (3 LPRA see. 761 et seq.), al igual que en otras leyes especiales.
En sus recursos, los peticionarios invocan la See. 7 del Art. II de la Constitución de Puerto Rico, LPRA Tomo 1, la cual impide que el Estado promulgue leyes que menosca-ben relaciones contractuales, incluyendo las que su natu-raleza es pública. A su vez, descansan en el Art. 3 del Có-digo Civil de Puerto Rico, 31 LPRA see. 3, para argüir que los beneficios que le fueron reconocidos, por virtud de dife-rentes leyes especiales, son derechos adquiridos que no pueden ser afectados retroactivamente.
Teniendo presente que los peticionarios que acuden ante nos son empleados retirados, quienes ya eran acreedores de los beneficios de retiro que la Ley Núm. 3-2013 pretende privarles, pasemos a repasar el marco jurídico aplicable.
II
Este Tribunal ha establecido con meridiana claridad que los empleados públicos que ya se han acogido al retiro *106poseen un derecho adquirido de carácter absoluto sobre los beneficios de jubilación que le han sido reconocidos. A esos efectos, hemos pautado que la pensión de estos individuos no “está sujeta a cambios o menoscabos”, ya que tales be-neficios son un “derecho adquirido de naturaleza contractual”.(1) Bayrón Toro v. Serra, 119 DPR 605, 618 (1987). Véanse, también: Rodríguez v. Retiro, 159 DPR 467, 474 y 477 (2003); Calderón v. Adm. Sistemas de Retiro, 129 DPR 1020, 1032 (1992).
Es por ello que todo perjuicio legislativamente infundido a los beneficios de retiro de un pensionado es improcedente, de cara a la protección constitucional instaurada por la See. 7 del Art. II de la Constitución de Puerto Rico, supra, la cual impide el menoscabo de relaciones contractuales, incluyendo los contratos de retiro pactados entre el Estado y el empleado pensionado. Art. II, Sec. 7 de la Constitución de Puerto Rico, supra. Véase, también, Bayrón Toro v. Serra, supra, pág. 607.
En aras de aplicar la prohibición constitucional esbo-zada urge plantearnos, como punto de partida, cuáles son *107los componentes de la pensión de retiro sobre la que un pensionado ostenta un derecho adquirido de carácter contractual. A esos efectos, es imperativo examinar el Art. 1-101 de la Ley Núm. 447 (3 LPRA see. 761), el cual des-glosa tales elementos. Veamos.
Desde la primera línea del Art. 1-101 de la Ley Núm. 447, supra, el legislador expresamente reconoció que los beneficios concedidos por ley son parte integral del importe que recibirán los retirados. Específicamente, estableció lo siguiente: “se crea un sistema de retiro y beneficios que se denominará ‘Sistema de Retiro de los Empleados del Go-bierno del Estado Libre Asociado de Puerto Rico’ el cual se considerará un fideicomiso”. (Énfasis suplido).
El Art. 1-101 de la Ley Núm. 447, supra, dispone que el sistema de retiro de Puerto Rico existe para el “provecho de los miembros participantes de su matrícula, sus depen-dientes y beneficiarios, para el pago de anualidades por retiro y por incapacidad, anualidades y beneficios por de-función y otros beneficios [...]”.(2) (Énfasis suplido). De tal manera, podemos concluir que la pensión garantizada a los empleados retirados, incluye los componentes siguientes: (1) el pago de una anualidad por retiro; (2) el pago de una anualidad por incapacidad, de ser aplicable; (3) el pago de una anualidad, al igual que otros beneficios, por motivo de la muerte; y (4) cualquier otro beneficio cuyo pago deba sufragarse del fideicomiso para el sistema de retiro, aunque sea conferido por virtud de una ley especial.
A la luz de lo anterior, el Estado está obligado a respetar el pago de las partidas mencionadas, en función de la cláu-sula constitucional en contra del menoscabo de las obliga-ciones contractuales, sin importar que alguna de ellas- sea conferida por virtud de una ley especial. Lo anterior res-ponde a nuestros pronunciamientos jurisprudenciales, en los cuales hemos establecido que la referida garan-*108tía protege los “términos o condiciones esenciales del contrato que principalmente dieron motivo a la celebración de éste de modo que [no] se frustren las expectativas de las partes”. (Énfasis suplido). Domínguez Castro et al. v. ELA I, 178 DPR 1, 83 (2010). En iguales términos, así lo requiere el Art. 3 del Código Civil de Puerto Rico, el cual dispone que cuando una ley tenga efecto retroactivo, esta no podrá “perjudicar los derechos adquiridos al amparo de una legislación anterior”. 31 LPRA sec. 3; Hernández, Romero v. Pol. de P.R., 177 DPR 121, 146-148 (2009).
Una vez queda establecido que se ha menoscabado al-gún componente de la pensión de un retirado, según lo he-mos detallado, huelga hablar de la intensidad del menoscabo. Ello, en función de lo que hemos reiterado a lo largo de esta opinión: que el Estado no está legitimado a afectar, de forma alguna, el derecho adquirido de un em-pleado jubilado sobre sus beneficios de retiro, por virtud de la cláusula constitucional bajo examen, nuestros pronun-ciamientos jurisprudenciales y el Art. 3 del Código Civil, supra.
Habiendo repasado estos principios constitucionales, pasemos a reseñar cómo la Ley Núm. 3-2013 priva a los empleados públicos ya retirados de ciertos derechos adquiridos.
III
Consciente de la realidad jurídica explicada, de que la pensión de un retirado es intocable, la See. 29 de la Ley Núm. 3-2013 contiene la denominada “Preservación de Beneficios”. Según este acápite, la Ley Núm. 3-2013 ex-pone que los “beneficios bajo esta Ley de los participantes del Sistema que se pensionaron en o antes del 30 de junio de 2013, no serán modificados, incluyendo los beneficios que reciben o recibirían sus beneficiarios en caso de muerte”. (Énfasis suplido). Sin embargo, una lectura de la *109referida Ley Núm. 3-2013 demuestra lo contrario. Abundemos.
Antes de la aprobación de la Ley Núm. 3-2013, los pen-sionados recibían beneficios adicionales que, entre otros, incluían un aumento trienal, un aguinaldo de navidad as-cendente a $600 y un bono de verano de $100. La aproba-ción de la Ley Núm. 3-2013 despojó de un plumazo a los pensionados del aumento trienal, del bono de verano y re-dujo el bono de navidad de $600 a solo $200.
Los empleados públicos que se acogieron al retiro por virtud de la Ley Núm. 447, supra, y la Ley Núm. 1 de 16 de febrero de 1990 (3 LPRA sec. 766b et seq.) gozaban, desde el 1 de enero de 1992, del derecho a que sus anualidades por años de servicio, edad o incapacidad, fuesen aumentadas en un 3% cada tres años. Art. 2-104 de la Ley Núm. 447 (3 LPRA sec. 766e). El Estado catalogó este derecho como una “obligación moral de ayudar a mejorar la condi-ción de vida de lo (a)s pensionado (a)s, personas que dieron lo mejor de su vida en el servicio del Pueblo de Puerto Rico”. Exposición de Motivos de la Ley Núm. 35-2007. Ade-más, el referido aumento existía con el fin de palear la disminución relativa del valor de las anualidades de los pensionados, por causa del aumento en el costo de vida impuesto por el transcurso del tiempo. Íd.
Desde 1992, la Asamblea Legislativa proveyó diferentes legislaciones conducentes a ese fin, siendo el último aumento trienal aquel conferido el 24 de abril de 2007, por virtud de la Ley Núm. 35-2007 (3 LPRA secs. 766 y 766d). Véanse: Ley Núm. 157-2003 (3 LPRA sec. 761 n.); Ley Núm. 10-1992 (3 LPRA sec. 761 et seq.). Véase, también, Puerto Rico Government Employee’s Retirement System, Actuarial Valuation Report, 30 de junio de 2011, pág. 57.
El Art. 2-113 de la Ley Núm. 447 reconoce que el beneficio del aumento trienal es parte inherente al fideicomiso de retiro. 3 LPRA sec. 775. Según lo disponía el Art. 2-104 de la Ley Núm. 447, el pago del aumento trienal *110quedó sujeto a que el actuario del sistema de retiro emi-tiera una recomendación favorable a esos efectos y que se identificaran los fondos para su pago por vía de legislación. 3 LPRA sec. 766e. De tal manera, solo ante la falta de recomendación del actuario es que se reconoce la posibili-dad de privar temporeramente a los pensionados de este beneficio. Ello, sin necesidad de que se derogue en su tota-lidad tal derecho adquirido, el cual forma parte del fideico-miso y, a su vez, constituye un componente de la pensión. Ahora bien, una vez el actuario reconoce como un pasivo el pago del aumento trienal, y en ausencia de legislación para proveer el pago de esa obligación, el Sistema de Retiro de-berá sufragar este beneficio con cargo al fideicomiso. Ello, porque el derecho al referido aumento está engranado en la Ley Núm. 447 como un beneficio a sufragarse y una obligación del fondo de retiro. íd.
A esos efectos, el último informe del actuario del sis-tema del fondo de retiro emitido el 30 de junio de 2011, asumió que los beneficios conferidos por virtud del au-mento trienal serían otorgados a los pensionados. Véase Actuarial Valuation Report, supra, págs. 37 y 84. A pesar de que el informe del actuario provee para el pago de estos beneficios, la Sec. 6 de la Ley Núm. 3-2013 eliminó por completo el Art. 2-104, desechando, a su vez, el derecho de todo pensionado al pago del aumento trienal. Véase la Sec. 6 de la Ley Núm. 3-2013.
Como si fuera poco, el pensionado tampoco gozará del beneficio de un aguinaldo de Navidad con el cual ha con-tado desde la vigencia de la Ley Núm. 98 de 4 de junio de 1980. El dinero para sufragar el aguinaldo de Navidad pro-venía de los fondos del fideicomiso del Sistema de Retiro en el caso de los pensionados o beneficiarios acogidos a la Ley Núm. 447, según enmendada. 3 LPRA see. 761 n. Este be-neficio, que formaba parte de la pensión del retirado, res-pondió a un aumento programático para asegurarle un *111“agradable porvenir una vez abandona [ban] el servicio pú-blico y se acog[ían] a un merecido retiro”. Exposición de Motivos de la Ley Núm. 144-2005. El último incremento fijó el aguinaldo de navidad en $600. 3 LPRA see. 761 n. A pesar de que la Ley Núm. 3-2013 enunció que no se modi-ficarían los beneficios de los pensionados, ello no fue así, ya que ésta redujo el aguinaldo de Navidad en $400. Por lo tanto, con la aprobación de la referida legislación, el jubi-lado tan solo contará con $200 como pago de su aguinaldo de navidad.
Para empeorar el cuadro de modificaciones drásticas del pacto suscrito con los pensionados del Sistema de Retiro, estos tampoco disfrutarán del bono de verano, con el cual contaban desde hace más de una década. Con el fin de incrementar los “beneficios existentes” a los pensionados, la Ley Núm. 37-2001 (3 LPRA sec. 757g) les reconoció un derecho a recibir un bono de verano de $100 —exento de contribuciones— que será pagado antes de 15 de julio de cada año. La See. 33 de la Ley Núm. 3-2013 enmendó el Art. 1 de la Ley Núm. 37-2001, a los fines de excluir de este beneficio a los pensionados cobijados por la Ley Núm. 447, según enmendada, a los acreedores de pensiones de los sis-temas sobreseídos por esta ley, o a los administrados por la Administración de los Sistemas de Retiro que hoy acuden ante esta Curia.(3)
En consecuencia, el retirado no contará con un aumento trienal, un Bono de Verano y se le reduce su aguinaldo de navidad a la ínfima cantidad de $200. A la luz de estas consideraciones, pasemos a disponer de la controversia pendiente ante nuestra consideración.
*112IV
En el caso de autos, los retirados que, al 30 de junio de 2013, ya gozaban de los beneficios provistos por el sistema de retiro público, acuden ante esta Curia para solicitar que se declare la inconstitucionalidad de la Ley Núm. 3-2013, por ésta violentar la cláusula constitucional en contra del menoscabo de las relaciones contractuales. Al igual que los peticionarios desamparados por este Tribunal en Trinidad Hernández et al. v. ELA et al., 188 DPR 828 (2013), los pensionados del caso de epígrafe cuentan con el aval indis-cutible de la Justicia y del Derecho. Ahora bien, los pensio-nados poseen una protección mayor reforzada por los pro-nunciamientos de este Tribunal, según lo expusimos a la saciedad en nuestra exposición del Derecho.
Un pensionado posee un derecho absoluto, intocable e incontestable a que su pensión no sea trastocada de forma alguna por los actos legislativos del soberano. Nuestra ju-risprudencia ha establecido palmariamente que los benefi-cios de pensión, conferidos por el fideicomiso del fondo del retiro, son derechos adquiridos en su naturaleza, los cuales no pueden ser menoscabados por el Estado, una vez un empleado se acoge a la jubilación.
Cónsono con lo anterior, y debido a que la pensión de un retirado está compuesta por su anualidad de retiro y por los otros beneficios que le sean reconocidos por ley,(4) cuyo pago provenga del fideicomiso del sistema de retiro, un em-pleado posee un derecho adquirido a todos los beneficios que le sean reconocidos por leyes especiales, especialmente *113cuando estos sean sufragados por el fideicomiso del sis-tema de retiro.
En el caso de autos, la Ley Núm. 3-2013 ha eliminado por completo el aumento trienal de los ex empleados públi-cos que ya se acogieron al retiro. Ello, a pesar de que tales beneficios deberían ser sufragados por los fondos del sis-tema de retiro, en ausencia de una fuente de financiamiento y que, como resultado, constituyen una parte esencial de su pensión.
Tal proceder es inaceptable de cara a la protección cons-titucional en contra del menoscabo de las relaciones con-tractuales, la cual prohíbe que se menoscabe la pensión de un retirado, de forma alguna. A su vez, esta legislación contraviene el Art. 3 de nuestro Código Civil, supra, el cual impide que una legislación con efectos retroactivos prive a nuestros ciudadanos de sus derechos adquiridos.
Sin importar que la Constitución y nuestro ordena-miento legal vedan notoriamente el atropello configurado en la Ley Núm. 3-2013, una mayoría de esta Curia ha ig-norado los pronunciamientos contundentes que en el pa-sado hemos promulgado, optando en su lugar por rechazar las pautas de nuestra Constitución. Al así obrar, cinco Jue-ces de este Foro vuelven a maniatar los reclamos de miles de pensionados quienes, asistidos diáfanamente por la ver-dad inconmovible del Derecho y la Justicia, han acudido ante nos a reclamar lo que por Ley les corresponde.
Al igual que en Trinidad Hernández et al. v. ELA et al., supra, nuevamente este Tribunal niega a los peticionarios sus derechos constitucionales a los beneficios de retiro que les correspondían, claudicando así a su función adjudica-tiva y validando injustamente una Ley que contraviene, a todas luces, las protecciones fundamentales de nuestra Ley Suprema.
Una mayoría de este Tribunal interpreta erróneamente que la pensión se reduce meramente a una anualidad por retiro. Con ello, ignoran que la Ley Núm. 447 creó y reco-*114noció desde sus inicios un sistema de retiro y beneficios. No meramente un sistema de retiro. Una vez reconocidos esos derechos desde la creación del sistema, no podemos avalar la acción de la mayoría que persigue reducir la Ley Núm. 447 a un mero “pago de una anualidad de retiro”, cuando el legislador creó un “sistema de retiro y beneficios”. Sencilla-mente procedía revocar al Tribunal de Primera Instancia, en lugar de declarar “no ha lugar” la petición de los pensionados.
Como resultado, hoy este Tribunal participa activa-mente en la privación de los beneficios que le fueron garan-tizados por el Estado a nuestros pensionados. Los jueces que hoy avalan la validez de la ilícita Ley Núm. 3-2013, olvidan que los tribunales representan el último garante de las protecciones inherentes a una democracia constitu-cional. Si renunciamos tan fácilmente a nuestra responsa-bilidad como guardianes finales de las exigencias de la Constitución, ¿cómo habrá de prosperar la justicia? La res-puesta a esta interrogante, compañeros, ha quedado entur-biada y ensombrecida por la resolución que hoy aprueba una mayoría de este Tribunal. Por ello, disiento.
V
Por entender que la decisión de una mayoría de este Tribunal viola los derechos de nuestros pensionados al amparo de la See. 7 del Art. II de nuestra Constitución, supra, hubiese expedido el recurso de epígrafe, revocado al Tribunal de Primera Instancia y declarado inconstitucional aquellas provisiones de la Ley Núm. 3-2013 que lesionan los derechos adquiridos de nuestros retirados.
En la parte II de la opinión disidente que emití en el caso Trinidad Hernández et al. v. ELA et al., 188 DPR 828, 898 (2013), discuto extensamente los elementos requeridos para todo análisis al amparo de la cláusula constitucional contra el menoscabo de las relaciones contractuales. Véase la opinión disidente del Juez Asociado Señor Estrella Martínez, págs. 899-912. En aquella ocasión, citando a Bayrón Toro v. Serra, 119 DPR 605 (1987), expuse que en nuestra jurisdicción, distinto a otras, el sistema de retiro público es considerado un contrato público sujeto a la Sec. 7 del Art. II de la Constitución de Puerto Rico. Íd., págs. 907-908. De tal manera, queda satisfecho el primer criterio requerido por el Tribunal Supremo federal en General Motors Corp. v. Romein, 503 US 181, 186 (1992), al momento de analizar una alegada violación de la cláusula constitucional en contra del menoscabo de relaciones contractuales, el cual exige determinar, como cuestión de umbral, si existe una relación contractual.
Los restantes criterios del Tribunal Supremo federal, según fueron esbozados en General Motors Corp. v. Romein, supra, a saber: que una legislación menoscabe la relación contractual, y que el menoscabo indicado sea sustantivo en su naturaleza también están presentes en el caso de autos. En primer lugar, y según lo establece-remos más adelante, la Ley Núm. 3-2013 menoscaba la relación contractual pactada entre los empleados públicos y el Estado al afectar el sistema de retiro público. En segundo plano, de establecerse que el plan de pensión de los empleados retirados ha sido menoscabado, tal menoscabo, sin importar su grado de intensidad, ya es consi-derado como sustancial en su naturaleza y prohibido por la cláusula constitucional bajo examen.
Amerita resaltar que la Sec. 1 de la Ley Núm. 3-2013 no enmendó el referido articulado.
Hoy la Ley Núm. 3-2013 únicamente reconoce el bono de Verano a los pen-sionados bajo la Ley de Retiro de la Judicatura, Ley Núm. 12 de 19 de octubre de 1954, según enmendada, 4 LPRA see. 233 et seq., según enmendada.
Como bien establecimos anteriormente, la pensión de un retirado está compuesta por los beneficios reconocidos en el Art. 1-101 de la Ley Núm. 447. Contrario a lo propuesto en la resolución mayoritaria, el Art. 2-101 de la Ley Núm. 447, supra, se circunscribe a establecer cómo habrá de computarse la anualidad de retiro. De tal manera, una mayoría de este Tribunal limita erradamente el alcance del sistema de retiro y beneficios creados por esta ley a una mera anualidad de retiro. Tal ejercicio interpretativo viola el principio básico de hermenéutica que exige que las diferentes secciones de una ley no se interpreten aisladamente, sino íntegramente, las unas con las otras. Warner Lambert Co. v. Tribunal Superior, 101 DPR 378, 386 (1973). | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1042566/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6510
STANLEY D. LINDER,
Plaintiff - Appellant,
v.
MR. MATTHEW J. FRIEDMAN, Assistant Attorney General; MR.
ALLEN WILSON, Attorney General,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Richard Mark Gergel, District Judge.
(1:12-cv-03051-RMG)
Submitted: September 26, 2013 Decided: September 30, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stanley D. Linder, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanley D. Linder appeals the district court’s order
accepting the recommendation of the magistrate judge and
dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C.
§ 1915(e)(2)(B) (2006). We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Linder v. Friedman, No. 1:12-cv-03051-
RMG (D.S.C. Mar. 6, 2013). We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
2 | 01-03-2023 | 10-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3046939/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1050
___________
Gerry C. DuBose, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Jennifer L. Carey; John D. Kelly; Hanft, *
Fride, O’Brien, Harries, Swelbar & * [UNPUBLISHED]
Burns, P.A., *
*
Appellees. *
___________
Submitted: June 4, 2009
Filed: June 8, 2009
___________
Before RILEY, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
Nearly two years after this court affirmed the adverse judgment in Gerry
DuBose’s 42 U.S.C. § 1983 action against Jennifer Carey, John Kelly, and their law
firm, see DuBose v. Carey, 204 Fed. Appx. 579 (8th Cir. Nov. 9, 2006) (unpublished
per curiam), DuBose filed a motion for relief under Federal Rule of Civil Procedure
60(b), restating theories he had advanced earlier without success. The district court1
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
denied DuBose’s motion, finding it untimely and without merit. He appeals, and,
following careful review, we find no abuse of discretion. See Middleton v.
McDonald, 388 F.3d 614, 616 (8th Cir. 2004) (standard of review).
Accordingly, we affirm for the reasons stated by the district court. See 8th Cir.
R. 47B.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3452872/ | Reversing in part, affirming in part.
Appellant has appealed, and appellee has cross-appealed, from a judgment entered by the Clark Circuit Court in the first of three suits between the parties, who are husband and wife. The second action was instituted in Larue County, and the opinion on the appeal from the judgment in that case is published in210 S.W.2d 140. The opinion on the appeal and cross-appeal from the judgment in the third case, which was instituted in Jefferson County, is published in 210 S.W.2d 142.
Appellant and appellee were married December 19, 1917. Throughout the first twenty-three years of their married life they owned and sold several farms, and finally purchased approximately one thousand sixty *Page 124
acres in Larue County. This farm was deeded to them jointly. Several children were born to the union, two of whom now are minors and unmarried. In the year 1942 Mrs. Noel departed from her home in Larue County and established a residence with her sister in Winchester, and shortly thereafter instituted this action for divorce, alimony, maintenance for and custody of the children, in the Clark Circuit Court; she likewise prayed for a reasonable allowance for her attorneys to be taxed as costs in the action. The ground alleged was cruel and inhuman treatment. Thereafter she filed motion for an allowance for the maintenance and support of herself and children pending prosecution of the action. On the thirty-first day of August, 1943, she filed an amended petition iterating the grounds for divorce and asking the same relief. On the third day of May, 1945, she filed her second amended petition reiterating the allegations and prayers of the original and first amended petitions. On the twelfth day of September, 1945, appellant filed answer and counterclaim denying all the affirmative allegations of the petition as amended, and alleging that appellee, without fault or like fault on his part, had abandoned him and their children on, and continuously since, the twentieth day of May, 1945; he prayed that appellee's petition be dismissed and that he be granted an absolute divorce. The issue was joined by a reply filed on the fourteenth day of September, 1945. Evidence was heard on oral testimony and submitted to the Chancellor, who decreed that neither was entitled to an absolute divorce, but granted each a divorce from bed and board; ordered that the custody and control of the children be determined by the will of the children; decreed that appellant should pay to appellee the sum of Fifty Dollars per month for her maintenance during the pendency of the appeal to this Court; but refused to award permanent alimony to appellee, and refused to tax her attorneys' fee as costs against appellant. Thereupon the Chancellor decreed that each of the parties is the owner of an undivided one-half interest in the farm in Larue County. Appellant has appealed from so much of the judgment as denied him an absolute divorce, awarded appellee maintenance pending the appeal, and declared appellee to be the owner of an undivided one-half interest in the real estate in Larue County. Appellee *Page 125
has cross-appealed from so much of the judgment as denied her an absolute divorce, alimony, maintenance, and attorney fee.
No bill of evidence has been brought to this Court. Where the bill of evidence is not filed in the lower court and certified to this Court, we invariably have held that we can not review alleged errors of judgment of the trial court based upon the evidence, but must presume it to have been sufficient to support the judgment. South et al. v. Truesdale, 233 Ky. 682,26 S.W.2d 519; McCown v. Shelby Supply Co. et al., 251 Ky. 164,64 S.W.2d 497. Thus we are restricted to a determination of the sufficiency of the pleadings to support the judgment, Sapp v. Likens et al., 301 Ky. 445, 192 S.W.2d 394; and the question of jurisdiction presented by the record.
Appellee moved the Court for an allowance for her maintenance during the appeal, and all material allegations of the petition and counterclaim were denied by the respective answers to these pleadings. Thus the pleadings are sufficient to support the judgment on all questions raised by the parties to the action; but we are of the opinion that the Court was without jurisdiction to pass upon the title to the real estate situate in Larue County, and the judgment to that extent is void. Section 62 of the Civil Code of Practice provides that all actions for recovery of an estate, or interest in, partition of, or, except to satisfy debts of a decedent, the sale of real property under a mortgage, lien, or other encumbrance or charge, shall be brought in the county in which the subject of the action is situated. However, Section 425 provides an additional exception to the above provision of the Civil Code of Practice. It reads:
"Every judgment for a divorce from the bond of matrimony shall contain an order restoring any property not disposed of at the commencement of the action, which either party may have obtained, directly or indirectly, from or through the other, during marriage, in consideration or by reason thereof; and any property so obtained, without valuable consideration, shall be deemed to have been obtained by reason of marriage. The proceedings to enforce this order may be by petition of either party, specifying the property which the *Page 126
other has failed to restore; and the court may hear and determine the same in a summary manner, after ten days' notice to the party so failing."
This section of the Civil Code of Practice requires the chancellor who grants a divorce from the bond of matrimony to include in his judgment an order restoring any property not disposed of at the commencement of the action which either party may have obtained from the other during coverture, and in consideration thereof, and additionally provides for the enforcement of the order. In construing this section of the Civil Code of Practice and KRS 403.060(2), formerly Carroll's Ky. Statutes, Sec. 2121, we have held that the chancellor has no authority to require the restoration of property obtained by one of the parties to a divorce action from the other, where the divorce is merely from bed and board. Lewis v. Lewis,196 Ky. 701, 245 S.W. 509, and cases therein cited. That being true, Section 62 of the Civil Code of Practice prevails; and since the action is not to satisfy the debt of a decedent, the Larue Circuit Court is the only court having jurisdiction to pass upon the title to the real estate situate in that County.
But appellee argues that the judgment concerning the ownership of the property is not void, because, she contends, the pleadings made an issue as to the ownership of the property for the purpose of having that question determined by the Court. She further argues that the Clark Circuit Court had jurisdiction of the parties and of the subject matter, and although it did not have venue of the question, venue was waived by denial of this allegation in the reply. We can not agree with this contention. It is true that appellant in his answer alleged that he was the owner of the land in Larue County; but the pleading manifests that the only purpose of this allegation was to reduce an award of alimony should the Court have rendered judgment against him in this respect. That part of the answer containing this allegation reads:
"The defendant for further answer herein says that he owns 1033 acres of land, more or less, situated in Larue County, Kentucky, of the reasonable market value of approximately $7,500.00; that he owes to the Lincoln *Page 127
National Bank of Hodgenville, Ky., the sum of $4,248.00, which is secured by a mortgage on said real estate; that he is indebted to R.W. Noel the sum of $1,800.00 which is secured by mortgage on personal property; that he is indebted to Claxon Commission Company, of Louisville, Kentucky, in the sum of $2,600.00; that he is indebted to the Nolin Production Credit Company, in the sum of approximately $1,400.00, with some interest, the amount of which is unknown to this defendant; that he is indebted to Bunton Seed Company, the sum of Two Hundred Dollars ($200.00) with interest thereon for about four years, the amount of which interest is unknown to the defendant.
"The defendant for further answer says that he owns personal property of the value of about Seven Hundred Dollars ($700.00) all of which personal property is covered by mortgages to the above named creditors, which mortgages are of record in the Larue County Court Clerk's Office at Hodgenville, Kentucky.
"The defendant says that he can hold the real estate owned by him, provided the plaintiff will return to his home and help to make a home for the defendant and their two daughters; that he wants her to return to their home and make a home for said children."
Appellee's reply was a general denial of the affirmative allegations of the answer and counterclaim except those admitted by her petition. It will be noted that the allegation in respect to the ownership of the land in Larue County was not made a counterclaim; neither does the prayer contained in any of the pleadings request the court to determine the ownership of the property. It is obvious, therefore, that the pleadings do not support the judgment in respect to the ownership of the property unless such judgment should be construed to be a restoration which we have pointed out is void because of lack of jurisdiction.
Ordinarily a void judgment will not be reversed or modified by this Court unless a motion to set aside or modify the judgment shall have been made in the inferior court, and which was not done in this case. Section 763, Civil Code of Practice. But in a long line of cases construing this section of the Civil Code of *Page 128
Practice we have held that a party may waive objection to the hearing of an appeal from a void judgment by failing to move this Court to dismiss the appeal, and in such case this Court will reverse the judgment and declare it to be void. Brown et al. v. Vancleave et al., 21 S.W. 756, 14 Ky. Law Rep. 821; and Carter v. Rains, 248 Ky. 206, 58 S.W.2d 396. No motion to dismiss the appeal has been made in this case.
Wherefore, the judgment is reversed in so far as it purports to adjudicate the title to the real estate situate in Larue County; in all other respects it is affirmed, both on the appeal and cross-appeal. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3452873/ | Affirming.
Woodford Swango appeals from a judgment sentencing him to the penitentiary for two years upon a conviction for unlawfully detaining a woman, Bonnie Ledford, against her will in violation of section 1158 of the Kentucky Statutes.
The first ground urged for reversal is that error was committed in refusing to continue the case on account of the absence of a material witness, Omer Hollon. Upon the calling of the case for trial an affidavit was filed setting out that the testimony of this absent witness and stating that the appellant could not obtain the proper effect of the testimony without the presence of the witness in court. The testimony of the absent witness was in effect a complete refutation of the testimony of the prosecuting witness. However, the Commonwealth's Attorney consented for this affidavit to be read as the testimony of the absent witness and it was read to the jury. In spite of this, appellant now contends that prejudicial error was committed against him in refusing to continue the case. We think there is little merit in the contention. Section 189 of the Criminal Code of Practice provides for the reading of such an affidavit as the deposition of an absent witness and provides that the attorney for the Commonwealth shall not be compelled in order to prevent a continuance to admit the truth of the affidavit but only that the absent witness would testify as alleged in the affidavit. This was done. The section referred to does provide that the court may, when the ends of justice require, grant a continuance unless the truth of the matter alleged in the affidavit be admitted, but, in construing this section, we have held that a case should not be reversed for failure to sustain a motion for a continuance unless it shall affirmatively appear that the overruling of such a motion abused a sound discretion. Bishop v. Com., 240 Ky. 494, 42 S.W.2d 742; Pierce v. Com., 214 Ky. 454, 457, 283 S.W. 418. It does not appear to us that the court abused its discretion in overruling the motion for a continuance. *Page 692
It is further insisted that the trial court committed prejudicial error in refusing properly to admonish the jury as to the effect to be given by the jury to the affidavit read as the testimony of the absent witness. This ground, even if it were meritorious (and we do not think it was), may not be considered, since the record shows that no request for such an admonition was made and no exception taken to the failure of the court, if there was such failure, to give the admonition nor was this alleged error made a ground for a new trial in the circuit court. Smith v. Com., 258 Ky. 482, 80 S.W.2d 565; Jones v. Com., 238 Ky. 453, 38 S.W.2d 251.
The final contention is that the trial court failed to instruct the jury, in effect, that the law presumes the innocence of the accused. We have frequently denied this contention and held that the only instruction of this character authorized is one as to reasonable doubt substantially in the language of section 238 of the Criminal Code of Practice (which was given in this case) and that an instruction such as is suggested by appellant is unauthorized as being too favorable to the defendant. Mink v. Com., 228 Ky. 674, 15 S.W.2d 463; Brown v. Com., 198 Ky. 663, 249 S.W. 777. As a matter of fact the identical instruction which counsel for appellant set out in their brief and contend should have been given was condemned by this court in Com. v. Stites, 190 Ky. 402, 227 S.W. 574.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3452913/ | Dismissing appeal.
A few years ago Rosa Proffer and her husband separated. The husband took their infant child, Kenneth Proffer, and turned him over to Arch Richards, who lived in Ballard county. The father has since disappeared and his whereabouts are unknown. The child remained with Arch Richards and wife until the month of February, 1934, when his mother, Rosa Proffer, appeared at the Richards home, took forcible possession of him, and carried him to McCracken county. In a subsequent proceeding before the county judge, Arch Richards was given the custody of the child, subject to the further orders of the court.
A few days later Mrs. Proffer applied to the judge of the McCracken circuit court for a writ of habeas corpus, which was denied. She appeals.
At the outset we are met by the contention that this *Page 446
court is without jurisdiction to entertain the appeal. The point is well taken. The jurisdiction of this court extends only to the final orders and judgments of inferior courts, and not to the orders or judgments which judicial officers are authorized to make out of court. The proceedings upon a writ of habeas corpus are not required by the statute to take place in court, but the officer who issues the writ may require it to be returned and may hear and determine the matter at any place he may designate. The order that he makes on such an occasion is merely the order of a judge or justice, and not an order of court. Therefore, no appeal lies from an order granting or disallowing a writ of habeas corpus, and the rule applies to all cases where one is detained without lawful authority, including cases involving the legal custody of infant children. Weddington v. Sloan, 15 B. Mon. 147; In re Gill's Petition,92 Ky. 118, 17 S.W. 166, 13 Ky. Law Rep. 351; Broadwell v. Commonwealth, 98 Ky. 15, 32 S.W. 141, 17 Ky. Law Rep. 564; Mann v. Russell, 60 S.W. 522, 22 Ky. Law Rep. 1340; Rallihan v. Gordon, 176 Ky. 471, 195 S.W. 783; Black v. Demaree,208 Ky. 632, 271 S.W. 679; Department of Public Welfare v. Polsgrove, 245 Ky. 159, 53 S.W.2d 341.
Wherefore, the appeal is dismissed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2968707/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1426
JOHN DELULLO,
Plaintiff - Appellant,
v.
BANK OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cv-00660-RAJ-TEM)
Submitted: August 22, 2012 Decided: August 24, 2012
Before WILKINSON, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John DeLullo, Appellant Pro Se. Jason Lee Hamlin, GLASSER &
GLASSER, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John DeLullo appeals the district court’s order
dismissing his civil action alleging violations of the Fair Debt
Collection Practices Act. We have reviewed the record and find
no reversible error. Accordingly, we affirm for the reasons
stated by the district court. DeLullo v. Bank of Am., No. 2:11-
cv-00660-RAJ-TEM (E.D. Va. Mar. 14, 2012). 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 |
https://www.courtlistener.com/api/rest/v3/opinions/3447913/ | Reversing.
In the latter part of February, 1930, John G. Matthews, who then resided in Seattle, Wash., conveyed jointly by quitclaim deed to appellant and one of the defendants below, W.T. Clark, and appellee and the other defendant below, J.S. Smith, certain described tracts of land lying in Knox and Clay counties, Ky. The consideration was $500, one half of which was cash and the other half due in six months and evidenced by a note. The cash consideration was advanced by J.S. Smith, and it was refunded, and the payment of the note was made with proceeds of timber that the vendees sold from the land after obtaining their deed, as augmented by sales of oil and gas leases by them. On August 28, 1931, the appellee and plaintiff below, Joe Smith, filed this equity action in the Knox circuit court against the two grantees in the deed, and alleged in his petition that he was contemplating buying the land from Matthews, and that, while he was intending to commence negotiations therefor (but before he began to do so), defendants proposed to him that, if he would desist therefrom, and allow them to continue their then existing negotiations to make the purchase, they would permit him to become a one-third joint owner, if they succeeded in buying the land, and that he consented thereto and abandoned any contemplated efforts to purchase the land himself; that they violated that agreement and understanding, and took the deed jointly to themselves, and refused to execute the alleged trust in his favor by conveying to him a one-third undivided interest in the land. He prayed for a declaration of trust in his favor to a one-third ownership in the land, and for a division thereof by selling it and dividing the proceeds among its three owners, giving to each one-third thereof.
The defendant J.S. Smith answered and admitted the facts as so averred in plaintiff's petition, and also joined him in his prayer for a sale of the land for division. But the defendant W.T. Clark in his separate answer denied plaintiff's alleged constructive trust *Page 52
ownership in any part of the land, and he also put in issue the necessity of selling any of it for the purposes of division, because, as he averred, it could be divided in kind; but which relief to be accomplished in any manner was not available to plaintiff, since he was not the owner of any part of the land. However, J.S. Smith, plaintiff's joint owner, was entitled to a division either in kind or by a sale of the property. Following pleadings made the issues and the court upon submission, after proof taken, decreed a trust in favor of plaintiff to the extent that he claimed, and adjudged that the land could not be divided in kind and ordered a sale of it for that purpose. From that judgment Clark prosecutes this appeal, making the two Smiths appellees.
The trust sought to be established by plaintiff in his favor is one of a class known in the law as "constructive" trusts, and "fraud, active or constructive, is their essential element." They are bottomed on principles akin to the doctrine of equitable estoppel, and are sometimes referred to as "trusts ex maleficio or ex delicto." See 39 Cyc. 169. Since they arise by operation of law from certain essential facts upon which they rest, they do not come within the statute of frauds requiring duly executed writings for their support, and may therefore be established by parol testimony. See same volume, 170, and Faris v. Dunn, 7 Bush, 276; Gibson v. Bartley (Ky.)123 S.W. 324 (not elsewhere reported); Davis v. Spicer (Ky.)128 S.W. 294 (also unreported elsewhere); and Patrick v. Prater, 144 Ky. 771, 139 S.W. 938. At common law such trust arose in favor of the one who paid the consideration for the land from that fact alone; but section 2353 of Carroll's Kentucky Statutes, 1930 edition, modified that common-law rule, and confined its operation to the creation of a trust in favor of the payer of the consideration only when the deed was taken by and to another as grantee "without the consent of the person paying the consideration," or where the grantee in "violation of some trust, shall have purchased the lands deeded with the effects of another person." Since plaintiff in this case neither furnished, nor became bound for, any part of the consideration for the land purchased by the vendees, no such trust would arise in his favor under the principle of the common-law rule referred to, or as modified by *Page 53
the section of our statutes supra, and, if he is entitled at all to the relief he seeks, it is upon other recognized grounds for the establishment of such trusts, chief among which is fraud, and which must generally grow out of a promise, express or implied by the constructive trustee to take the title in his own name and hold it for the benefit of the constructive cestui que trust, but in violation thereof took it to himself, whereby the alleged beneficiary of the trust sustained injury.
More frequently than otherwise it grows out of promises to purchase land at judicial sales for the benefit of an interested party, but which are violated and the purchase is made in the name of the actual bidder and for his exclusive benefit. However, a case might arise in transactions purely inter partes giving the right to invoke the doctrine. See 26 Rawle C. L. 1238, sec. 85, and page 1244, sec. 90. But the evidence to establish the trust will be closely scrutinized and weighed by the court, and, since its effect is to overturn the written muniment of title held by the alleged trustee, its weight "must be greater than a mere preponderance." 26 Rawle C. L. 1251. See, also, to the same effect 39 Cyc. 192, wherein the text says: "A constructive trust can not be established by a mere preponderance of evidence, but must be established by evidence which is clear, definite, unequivocal and satisfactory." Approving that rule are the domestic cases of Wright's Adm'r v. Wright, 108 S.W. 266, 32 Ky. Law Rep. 1223; Carter v. Dotson, 92 S.W. 600, 29 Ky. Law Rep. 155; Planters' Bank Trust Co. v. Major, 79 S.W. 264, 25 Ky. Law Rep. 1969; Deaver-Kennedy Co. v. Cooper, 189 Ky. 366, 224 S.W. 1053; Neel's Ex'r v. Noland's Heirs, 166 Ky. 455, 179 S.W. 430, 433; Foushee v. Foushee, 163 Ky. 524, 173 S.W. 115; Trasher v. Craft, 242 Ky. 101, 45 S.W.2d 827; Chilton's Adm'r v. Shelley, 243 Ky. 576, 49 S.W.2d 305, and others referred to in those opinions.
Conceding for the purposes of this case only that such a trust would arise from the facts relied on by plaintiff, but refraining from determining that question, there still remains the further question of whether or not the testimony to support it is sufficient for that purpose, under the established rule, supra. As to the appellant, Clark, we are clearly convinced that it should receive a negative answer. The undisputed testimony develops that the grantor of the land, Matthews, owned *Page 54
a number of tracts situated in Knox and Clay counties, the title to some of which was doubtful. He also owned mineral rights under other tracts, and he conveyed to the two grantees in his deed all the interest he had or claimed in and to all of the land and all of his mineral rights. Prior thereto he had by letter requested B.P. Walker, then sheriff of Knox county, to effect the sale for him, and constituted Walker his agent for that purpose. Clark saw that letter, and immediately began negotiations to purchase the land and the mineral rights, and which culminated, after about two months of negotiations for the purpose, in the execution of the deed by Matthews, and which was done pursuant to a telegram sent him by Clark, who in the meantime had agreed with J.S. Smith for the latter to be an equal partner in the venture. He (J.S. Smith) testified that he later approached the plaintiff, Joe Smith, and suggested to him that, if he would withdraw as a prospective negotiator for the purchase of the land, he would be taken in as a third owner, if Clark and J.S. Smith were successful in their efforts to procure the title. But we do not understand his testimony to be that he had mentioned that subject to his partner, Clark, before the transaction was completed, nor is it clear as to exactly when his conversation with Joe Smith occurred with reference to the time of the execution of the deed by Matthews. But, under our conclusion from the facts, it is immaterial whether that conversation preceded or followed the execution of the deed, since we are convinced that, whatever may have been its nature and effect, it was entirely without the knowledge or consent of Clark, who was the chief actor in effecting the transfer.
Plaintiff in giving his testimony was asked and answered:
"Q. Did you have any negotiations with John G. Matthews about purchasing the lands in controversy in this case before same was bought? A. Nothing only me and B.P. Walker was talking about it and I was going to take it up with him and then J.S. Smith came to me and said that we would buy it and go partners in it.
"Q. Why did you stop negotiating for this land? A. Because Jim Smith come to me and told me if I *Page 55
would not, if I would not buy it that they was on a trade for it and we would go in partners."
It will be observed that on the occasion he was approached by J.S. Smith, and which was the time when the promise upon which the trust in his favor is sought to be built, he had done nothing except to converse with Walker "about it," and that he was "going to take it up with him" (Walker). He had at that time entered into no negotiations of any kind with Matthews either personally or with his agent, Walker; nor did he testify that it was his fixed intention and purpose to prosecute any contemplated negotiation to a successful termination. In other words he, at that time, only intended preparing to commence to fix to get ready to start to begin launching efforts looking to his possible purchase of the land, and from which it is doubtful if the oral agreement was effective for any purpose on J.S. Smith who made it. But inasmuch as he has not appealed from that part of the judgment against him we will not determine the question.
However, Clark absolutely denied any knowledge, consent, or agreement on his part for Joe Smith to have any share in the benefits of the purchase, either before or after it was made, nor does plaintiff claim to have ever spoken to him upon the subject. But it is insisted in behalf of plaintiff that some remarks made by Clark at a garage in Barbourville, Ky., contradicted the denials he made in his testimony in the case; but he also denied making any such remarks, and he was sustained therein by others who were also present. J.S. Smith further testified that, when he first mentioned the matter to Clark, it was in the way of a suggestion to the effect that, since Joe Smith was a man of some means, it might be wise to take him in as a third owner of the title to the land, and that Clark then said, in substance: "Possibly so," or "that might be a good thing." J.S. Smith nowhere testified positively that he was ever authorized and directed by Clark to take in Joe Smith as an equal partner in the transaction. Therefore we conclude that, so far as appellant is concerned, the evidence does not measure up to the rule supra, so as to burden the interest that he obtained under the Matthews deed with the trust sought to be established by plaintiff.
The law is, that one joint owner of land cannot, by *Page 56
his own unconsented to agreement, burden the interest or title of his joint owner, and that, when he enters into any such transaction not consented to by his associates in interest, or thereafter ratified by him or them, it attaches only to his aliquot part ownership and is not obligatory on any of the others. Tucker v. Phillips, 2 Metc. 416; Womack v. Douglas,157 Ky. 716, 163 S.W. 1130; Geary v. Taylor, 166 Ky. 501,179 S.W. 426; Ann. Cas. 1913D, 1164, note; Lawrence v. Fielder,186 Ky. 324, 216 S.W. 1068, 1069. See, also, 7 Rawle C. L. 876, sec. 71, and 33 C. J. 913, secs. 22 and 23, and cases cited in the notes. That being true, the greatest effect that may be given to the transaction between Joe and J.S. Smith would be to incumber the interest of the latter with the trust in favor of the former, and which the court so declared and from which J.S. Smith has not appealed.
The court also directed a sale of the property and a division of its proceeds, which we are convinced was erroneous. The land consists in a number of tracts of considerable aggregate acreage, and which is sufficient of itself to support a division in kind, to say nothing about the testimony introduced by defendant Clark on that issue. However, the judgment appealed from directed a division of the land between three alleged equal owners when, as we have determined, the prayer for a division, if sustained at all, should have been sustained solely on the cross-petition of J.S. Smith and made only between him and the defendant Clark; in other words, a division into only two parts. Whether the court would have so adjudged if it had found against the trust, which we have determined should have been done so far as the interest of Clark was concerned, and then order a division of J.S. Smith's half equally between him and Joe Smith, is a matter of conjecture. At any rate, no such division was directed, but which is the only one that the court was authorized to decree as affecting appellant's interest. Under the circumstances, we conclude that the judgment directing a sale of the land for the purposes of division should also be reversed.
Wherefore the judgment in its entirety is reversed, with directions to divide the property in kind giving to the appellant, Clark, one half, and the other half jointly to J.S. and Joe Smith, if they consent to such joint ownership of that half; but, if either of them insist *Page 57
upon a division of their half, then the court will so decree and make the division either in kind, or through a sale of it after the appellant, Clark, has been allotted his portion, and for other proceedings consistent with this opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447914/ | Reversing.
The appellee, G.R. Martin, filed suit against the Ogle Coal Company to recover $3,000 alleged to be due him as commissions on coal, under the contract considered in Ogle Coal Company v. Martin, 232 Ky. 564, 24 S.W.2d 296. A general order of attachment was issued, and on December 27, 1929, a copy was served in Kenton county upon S.D. Moss, as president of United Collieries, Incorporated. The collieries company, a non-resident corporation, moved to quash the return. During the ensuing two and one-half years numerous steps were taken in the suit in relation to the collieries company, as garnishee, but it has continued to claim that it was not before the court, and now insists upon several *Page 810
grounds that the judgment rendered against it in favor of the plaintiff on June 9, 1932, for $3,000 and interest is erroneous. In view of our conclusions upon another phase of the case, it seems sufficient to say, without discussion, that in our opinion the appellant was before the court by reason of subsequent pleadings.
No separate affidavit for the attachment was filed and it was obtained upon the verified petition. That petition did not meet the mandatory requirements of section 196 of the Civil Code of Practice. It did show that the defendant was a foreign corporation, and the appellee maintains that its general allegations were sufficient to show "the nature of plaintiff's claim" and "the sum which affiant believes the plaintiff ought to recover." The petition did not state that the claim was just. For the opinion, we may yield the doubtful point on the first two propositions in favor of the appellee, for the omission of the third statement made the pleading a defective one. Wilson v. Barrett (Ky.) 115 S.W. 812; Frick Lindsay v. Lantz Ogden, 199 Ky. 354, 251 S.W. 196; Lewis v. Browning,223 Ky. 771, 4 S.W.2d 734; Hart County Deposit Bank v. Hatfield, 236 Ky. 725, 33 S.W.2d 660. Under the authority of section 268, subd. 2, of the Civil Code of Practice, the plaintiff cured the defect by filing an affidavit stating that his claim was just. According to the record this was not done until July 5, 1932, which was nearly seven months after the attachment and grounds were sustained by the court and nearly a month after the judgment was rendered against the garnishee. But the parties have not raised the point that, this was too late, and we may proceed upon the idea that it was waived. As is expressly provided in section 268, subd. 2, of the Civil Code of Practice, the lien created at that time could not affect a bona fide right or lien previously acquired upon the property or debt due the defendant. Hart County Deposit Bank v. Hatfield, supra. So the rights of the parties are to be determined as of the filing of the supplemental affidavit unless (1) the service of process or voluntary appearance of the garnishee in the case had the effect of making it liable, or (2) the rights of an assignee under an intervening assignment by the debtor of the debt in the hands of the garnishee were not acquired in good faith.
When the order of attachment was issued in December, 1929, the garnishee was indebted to the defendant *Page 811
$3,000 or more, and so reported. However, on February 7, 1930, the Ogle Coal Company, as collateral security for a loan, assigned to the Fletcher-American National Bank of Indianapolis all its right, title, and interest in and to the sum of $4,437.91 owing it by the garnishee herein, the United Collieries Company, as was evidenced by an invoice attached to the assignment. By that document the bank was given specific power to collect the account. On March 24, 1930, the collieries company paid the bank $867.91 on this account, and on November 14, 1930, paid the balance of $3,570. So in the interim between the issuance of the order of attachment and the correcting of the affidavit upon which it was obtained, the bank had acquired an equitable right or lien on the attached property. Forepaugh v. Appold Sons, 56 Ky. (17 B. Mon.) 625; Philadelphia Veneer Lumber Company v. Garrison, 160 Ky. 329, 169 S.W. 714; Millett v. Swift, 138 Ky. 408, 128 S.W. 312. By reason of its satisfaction, the garnishee had nothing in its hands belonging to the defendant when the attachment lien was perfected.
The proceeding in garnishment is special and statutory, affording a harsh remedy, and one pursuing it must bring himself within the statute and follow its mandates. The steps are outlined for vesting the court with jurisdiction over the person of the garnishee and the property in his hands belonging to the principal defendant. It is generally held that these provisions are jurisdictional and unless they have been strictly complied with the court has no authority to proceed. Drake on Attachment, sec. 84 et seq.; People's Wayne County Bank v. Stott, 246 Mich. 540, 224 N.W. 352, 64 A.L.R. 427. This court has held that an order of sale on an attachment issued on a defective affidavit is not void but voidable. Paul v. Smith, 82 Ky. 451. The proceeding is irregular and is ineffectual in respect to bona fide liens subsequently acquired on the property until corrected. Pool v. Webster Co., 60 Ky. (3 Metc.) 278; Smith v. Dungey, 178 Ky. 702, 199 S.W. 777; Appleman v. Lynch National Bank, 221 Ky. 415, 298 S.W. 1097. Cf. Blincoe v. Head, 103 Ky. 106, 44 S.W. 374, 19 Ky. Law Rep. 1742. A distinction is to be noted in this connection where there was merely a defect in the process or its service upon the garnishee and where there was a fatal fault in the foundation upon which the order of attachment was obtained. The garnishee may *Page 812
waive the defects in the service or form of writ, thereby conferring jurisdiction of the court over his person; but he cannot waive the other essential elements giving control over the res or property of the principal defendant sought to be taken from him. People's Wayne 'County Bank v. Stott, supra, and authorities cited; Robinson Co. v. Basham, 6 Ky. Law Rep. 445; Minter Homes Corporation v. Harris, 243 Ky. 210,47 S.W.2d 1013.
The garnishee has the right to raise the question of the validity of the proceeding, particularly where it is sought to make him personally liable by reason of the payment of the fund sought to be subjected. Indeed, self-preservation may require that he do so, for the courts are agreed that if a judgment in a garnishment proceeding is void, as, for example, where there is no jurisdiction acquired, and the garnishee has disposed of the fund, that judgment is no protection against a subsequent action by his creditor or the creditor's assignee to recover the debt. Robertson v. Roberts, 1 A. K. Marsh. 247; Atcheson v. Smith, 42 Ky. (3 B. Mon.) 502; Egnatik v. Riverview State Bank,114 Kan. 105, 216 P. 1100, 49 A.L.R. 1409; Ahrens Ott Mfg. Co. v. Patton Sash, Door Building Company, 94 Ga. 247,21 S.E. 523; Cromwell v. Royal Canadian Insurance Company,49 Md. 366, 33 Am. Rep. 258; and 29 C. J. 202, 214. But Drake on Attachment, sec. 691 et seq., holds that the garnishee is not required to look to the matter of jurisdiction if the principal defendant is personally before the court.
The liability of a garnishee who, pending the proceeding, lets go the fund or property in his possession to the defendant or a third person, does not attach where be discharges a lien on it superior or prior to the attachment lien. 28 C. J. 265; Puget Sound Machinery Depot v. Pearson, 99 Wash. 362,169 P. 847; Dolenty v. Rocky Mountain Bell Telephone Company, 41 Mont. 105,108 P. 921. And in Millett v. Swift, 138 Ky. 408,128 S.W. 312, it was held that a garnishee is entitled to credit on what he owed the defendant for the amount of a past-due note for which he had become liable, the garnishee having in the meantime paid the note.
It is, therefore, concluded that there is no personal liability of the garnishee for the fund paid out by it on *Page 813
the defendant's assignment to the bank after the commencement of the proceeding but before its perfection by the filing of the affidavit, unless there was a collusive fraud on its part and it knew that the lien of the bank was not bona fide.
By an amended petition the collieries company and the bank were made parties defendant to this action and charged with fraud and collusion with the Ogle Coal Company in the matter. If the coal company and the bank were before the court at all, it was by constructive service and neither made an appearance. The, evidence upon this point heard orally by the court developed the facts above outlined. It was further developed that the coal company and the bank had notified the collieries company of the assignment by letters-of March 1st and 3d, respectively. This was nearly a, month after it had been made, and the delay might be regarded as a circumstance tending to negative fraud in order to defeat plaintiff's claim. It was upon request of the bank that the first sum was paid it as above-stated. A sufficient amount to cover plaintiff's claim was retained. Thereafter the bank filed suit in the United States court at Indianapolis against the collieries company to recover the balance. But it appears to have been paid before the judgment. It is suspected by the appellee that the appellant had voluntarily submitted itself to the jurisdiction of that court, as it was a Delaware corporation with its principal office in Ohio. However, the evidence is that it was doing business in Indiana, and there is little basis for the suspicion. Again, collusion of the appellant is suspected because the bank failed to put in its voluntary appearance and assert its innocence. The plaintiff assumed to prove its charge of bad faith and the bank was within its rights in looking the other way and remaining silent. Whatever technical grounds the plaintiff had for objecting to the manner in which the purported copy of the assignment of the coal company to the bank was proved and put in the record were waived by not excepting to the ruling of the court on his objection. Notes to section 333, Civil Code of Practice. It would seem obvious that the charge of fraud and bad faith was not sustained.
For the reasons given the judgment should have gone in favor of the appellant.
The judgment appealed from is reversed. *Page 814 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447915/ | Reversing.
The appellant, Leslie Dority, upon his trial under an indictment of the McCreary county grand jury, charging him with the murder of George Ross, was convicted of manslaughter and his punishment fixed at fifteen years' imprisonment.
Numerous assignments of errors, alleged committed upon the trial, were set out by appellant in his motion and grounds for a new trial, which was overruled, and four or five of which are here presented and insisted upon by his appeal for a reversal of the judgment.
The facts as disclosed by the record, and as very fairly stated in appellant's brief, are that the deceased, George Ross, and the defendant, Leslie Dority (here appellant), were miners, and in addition to such occupation the deceased, Ross, had for some time been also operating a liquor store at his home near the mines at Worley, McCreary county, Ky.
It appears further that at the time of the defendant's admitted shooting and killing of the deceased, Ross, he, together with one or two of his small children, had been living and boarding at the home of the deceased, who was his first cousin and brother-in-law and who it also appears had been his intimate and longtime friend.
The evidence is further that on the evening and night before the defendant's admitted shooting and killing of the deceased, Ross, on the morning of December *Page 202
7, 1936, Ross and his wife, together with the defendant and others, had gone over to a fair at Oneida, Tenn., returning therefrom about midnight. It appears that they all had been drinking somewhat during the evening, and that upon their return, the defendant retired, but that the deceased, together with a friend, Hasting Watters, left the house and went together in a truck over to Worley to make a "night of it," where it appears he continued to drink and returned home in an intoxicated condition about 7 or 8 o'clock the next morning; also, that when on their way back home, and shortly before reaching it, the deceased had drawn his pistol on his companion, Watters, because the latter had suffered the truck to strike a rut in the road, which resulted in somewhat jolting him; that upon the deceased's arrival at his home, he found his wife and children and the defendant, Dority, there and his wife preparing breakfast for the family, during which time the deceased sat in the living room with them, it is stated, in somewhat of a drunken stupor and quarrelsome mood, when he drew his pistol and fired it into the ceiling and his son's room above, thereby scaring his wife and children, who fled from the house to the refuge of the surrounding hills, where she found hiding. The deceased, when asked if his pistol had been accidentally discharged, replied: "Hell no, I did it on purpose."
It appears, further, that the deceased, soon realizing that his wife and children had run away, began to search for them, going to the homes of the nearby neighbors, and to the mining camp at Worley some two miles away, to look for and inquire about them. It appears that the negative replies of some of the parties inquired of angered the deceased and somewhat aroused his suspicion that they were misleading him, prompting his threat that "whoever lied to him was going to get hurt and get hurt bad;" that he soon returned to his home, not having found them, when he began, the defendant testified, to talk abusively to his son, Alva, who had not run away with his mother and the smaller children, and "ordered him to go and bring them back in fifteen minutes or he would come and kick him all the way back." Also, it appears that when Ross, in this alleged condition, had driven away in his truck in search of his wife, the defendant, apprehensive *Page 203
for his safety, lest in his drunken condition he would drive off a cliff and be hurt, followed in the course he had gone, asking as to his whereabouts, and that, failing to overtake him, he returned to the house and entered its whiskey room.
Next following this, it appears, according to the testimony of defendant, the only eyewitness, the deceased came from the living room into the whisky room, where the defendant was standing, and asked him: "Where in the hell are they at?" To which he answered: "I don't know where they are at. They are around somewhere I guess." To which the deceased answered: "God damn you, you know where they are at. You are the cause of them leaving." To which the defendant states he again answered: "George, you know I am not the cause of them leaving;" that deceased then said, "Damn you, you are the cause of them leaving and I am going to kill you," and drew his gun on him and started through the partition wall door, and commenced punching him; also, that after striking at him with a gun, he hit at him with his gun, "glancing him upon the neck"; that just as deceased hit at him, he reeled around and staggered over towards him and threw his gun in the defendant's face, when defendant drew out his own gun and began shooting. Defendant states that the deceased had said he was going to kill him and that he shot to save his own life; that after shooting him five times, each shot striking him, one going through the head, he then went out on the porch and threw the shells out of his gun, after which, as the deceased was laying in the room on his face "kindly struggling," he went back to him and took him by the shoulder and pulled him over on his back; that he did not pick up deceased's gun or change it, or do anything to it at all, but left it as it fell, lying near his hand and body. Also, it was testified by an officer that there was found in the deceased's pistol barrel an empty shell, which, he stated, in an automatic gun of this character "hung it up and it wouldn't fire again," which, if so, would tend to explain deceased's failure to shoot the defendant after drawing or "throwing his pistol in defendant's face. After shooting the deceased, the defendant left and reentered the house a couple of times before any one else came, when he then went out in the road and hollered to some of the neighbors to go down *Page 204
to the deceased's house and do something for him, after which he went over to Fred King's home, where he was later arrested.
The appellant, after making this somewhat lengthy statement of the facts of the case, here, by brief of counsel, discusses the evidence and insists that the verdict of the jury is not sustained by the evidence and is against the law and the evidence, and that there is not a line of incriminating evidence against the defendant nor a scintilla of proof that he was, at the time of his fatal shooting of the deceased, drunk or that his conduct at such time was other than that of any law-abiding citizen of the community, save for the fact that he was at the time carrying his pistol in a holster on his person.
Nowhere is it testified that there existed any ill feeling between defendant and deceased or that any words passed between them while spending the evening at the fair, or upon the deceased's return to his home the next morning, when he discharged his pistol about the breakfast table and scared off his family, or that any ill feeling whatever at any time had existed between them, notwithstanding he says deceased at this time cursed him and said he was the cause of his wife's leaving home.
Also, in support of the appellant's version of this shooting and killing, there is the undisputed evidence that the deceased had returned home after a night's carousal, much under the influence of drink and in a quarrelsome, dangerous, and fighting mood, which was shown by many witnesses to have been his general reputation when drinking.
We have carefully read and considered all the evidence and are led to conclude that the contention of the appellant, that the verdict of the jury was flagrantly against the evidence, is to be sustained, and in fact that all the evidence, both circumstantial and direct, was equally as consistent with the defendant's innocence as with his charged guilt. We have many times written that "a citizen should not be punished on mere suspicion." See Tarkaney v. Commonwealth, 240 Ky. 790,43 S.W.2d 34, 39, where the cases, among others, of Holmes v. Commonwealth, 218 Ky. 314, 291 S.W. 383; Forgy v. Commonwealth, 219 Ky. 177, 292 S.W. 799; *Page 205
York v. Commonwealth, 235 Ky. 751, 32 S.W.2d 331; Slone v. Commonwealth, 236 Ky. 299, 33 S.W.2d 8; Moore v. Commonwealth, 229 Ky. 765, 17 S.W.2d 1021, are cited, holding to such effect.
There was here no direct, but only circumstantial evidence as to the facts and circumstances under which this shooting occurred, except for the report thereof as given by the defendant, who says that his shooting of the deceased was done in his necessary self-defense and only done after the deceased had punched him with his gun and "thrown" it in his face, at the same time swearing he was going to kill him.
There is much evidence tending to show that such was the drunken and dangerous mood of the deceased upon this morning of the shooting, which supports the defendant's claim that such continued to be his violent and fighting mood when he returned to his home, highly incensed and angered at his wife's having, in fright, run away to hiding and safety, after he had shot in the family midst when in the living room.
We are of the opinion that the commonwealth has here, by its evidence introduced, clearly failed to establish beyond a reasonable doubt that the charged crime was committed by the defendant, when it equally and as strongly appears that in his apparent necessary self-defense, as the appellant testifies, he shot and killed his cousin, the deceased.
The evidence, save for that given by the defendant himself in explaining and exculpating his admitted killing of the deceased, was wholly circumstantial. In the case of Marcum v. Commonwealth, 212 Ky. 212, 278 S.W. 611, 614, the court said:
"It thus appears that the evidence introduced herein, tending to establish that a crime was committed when U.G. Johnson met his death, and that appellant, Riley Marcum, was the author of that crime, was wholly circumstantial. In Daniels v. Commonwealth, 194 Ky. 513, 240 S.W. 67, it was written:
" 'The rule is thoroughly established in this jurisdiction that a conviction, even in murder cases, may be had upon circumstantial evidence alone, when it is of such force as to reasonably exclude every hypothesis of the defendant's innocence; and *Page 206
that such evidence is often more conclusive and satisfactory in establishing the guilt of the accused than is positive and direct testimony. Smith v. Commonwealth, 140 Ky. 599, 131 S.W. 499; King v. Commonwealth, 143 Ky. [125] 127, 136 S.W. 147; Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205; Peters v. Commonwealth, 154 Ky. 689, 159 S.W. 531; Mobley v. Commonwealth, 190 Ky. 424, 227 S.W. 584; Bowling v. Commonwealth, 193 Ky. [642] 647, 237 S.W. 381.'
"When the circumstances proved upon the trial of a case to establish the commission of a crime are as consistent with defendant's innocence as with his guilt they are held to be insufficient to reasonably exclude every hypothesis of defendant's innocence; and that has led to the following qualification of the rule, which is as well established as the rule itself:
" 'The rule that a conviction in a criminal case may be had upon circumstantial evidence alone is subject to the qualification that, if the evidence be as consistent with defendant's innocence as with his guilt, it is insufficient to support a conviction.' Chambers v. Commonwealth, 200 Ky. 295, 254 S.W. 906; Mullins v. Commonwealth, 196 Ky. 687, 245 S.W. 285; Daniels v. Commonwealth, 194 Ky. 513, 240 S.W. 67; Hill v. Commonwealth, 191 Ky. 477, 230 S.W. 910; Denton v. Commonwealth, 188 Ky. 30, 221 S.W. 202; 16 C. J. 763, sec. 1568, 8 Rawle C. L. 225, sec. 222."
The evidence adduced by the commonwealth, which was entirely circumstantial, when measured by such criterion, we conclude fails to make a case against the appellant, from which it follows that the verdict based thereon is flagrantly against the evidence, but inasmuch as it yet shows by the express admission of the defendant that he shot and killed the deceased, same was sufficient to support the court's refusal to grant a directed verdict, even though the judgment, we conclude, must be reversed upon the ground that it is flagrantly against the evidence.
Several other assignments of error are presented and argued by the appellant, but, in view of the conclusion we have reached as to the insufficiency of the *Page 207
evidence to convict the appellant, we deem it unnecessary to here discuss or decide them and same are expressly reserved.
From this it follows that, for the reasons above indicated, the judgment herein is reversed and this cause remanded, for proceedings consistent herewith.
Judgment reversed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447916/ | Affirming.
This action was brought by the appellee, Mrs. Mattie L. Royster, September 25, 1931, in the Fulton circuit court to recover a parcel of land within the corporate limits of the city of Fulton, together with damages for its detention.
Upon the trial, the jury returned its verdict for the plaintiff, awarding her the strip of land in question, upon which judgment was entered. From this judgment, the defendant, J.E. Melton, has prosecuted this appeal, seeking its reversal.
The plaintiff, Mrs. Royster, by her petition alleged that she was the owner and entitled to the possession of a certain lot or parcel of ground in the city of Fulton, Ky., situated on the branch of Harris Fork creek, which had been allotted and deeded her in the division of the estate of her father, the deceased W.P. Taylor, which tract was by the deed described as follows:
"A certain town lot lying in the City of Fulton, Kentucky, and beginning at a stake, the southeast corner of the lot; thence west 335-2/5 feet to J.A. Collin's southeast corner; thence north with the Collins line 100 feet to a stake; thence east 235-2/5 feet to a stake, Henry Dement's northwest corner; thence south with Dement's line 80 feet to a stake, Dement's southwest corner; thence east with Dement's line 100 feet to a stake; thence south 20 feet to the point of beginning, said lot fronting on the old Fulton and Wesley public road 235-1/2 feet."
Plaintiff further averred that said described lot thus conveyed her was in September, 1898, conveyed to her father by W.T. Crow and wife and filed attested copies of said deeds with her petition; she further alleged that the defendant, J.A. Melton, now holds and has for the last fourteen or fifteen years wrongfully *Page 170
held off the east end of her lot a certain part thereof, described according to the letters and calls of the following map (which was filed with her petition as an exhibit), a copy of which is here given for purpose of affording a clearer understanding of the location of the lot in controversy with the adjoining lands of the parties as follows:
"Beginning at the letter `N' and running east 39 1/2 feet to Henry Dement northwest corner; thence
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 171
south 80 feet to the letter `O'; thence west 100 feet to the letter `D'; thence south 20 feet to the letter `E'; thence west 139 1/2 feet to the letter `S'; thence north 100 feet to the letter `N,' and the point of beginning."
This map shows the entire tract, or lot, originally belonging to W.P. Taylor and which I now own. That part of said lot which you are now in possession of is outlined by the dotted lines in ink.
Plaintiff's Original Lot:
A to B 235 ft. B to C 80 ft. C to D 100 ft. D to E 20 ft. E to F 335 1/2 ft. F to A 100 ft.
Plaintiff further alleged in her petition that during the time the defendant had so wrongfully held the possession of said parcel of land, and long before said time, that she was and is now the wife of J.F. Royster.
Wherefore, she prayed judgment for recovery of said parcel of land wrongfully withheld from her and for $540 damages, her costs, and all proper relief.
The defendant answered, traversing the allegations of the petition, and further pleading that he was the owner of the parcel of land in controversy, by reason of his purchase thereof from one Raymond Jackson in 1915; and further pleaded that he and those under whom he claimed had been in the actual, continuous, and adverse possession of said land for more than thirty years next prior to the filing of plaintiff's suit and that he had been in the continuous, actual, and adverse possession of said tract, holding exclusive dominion thereover, since his purchase of it in 1915 or holding same through his tenants' occupying the property as renters during such time and, pleading his title acquired in the land both by his purchase and adverse possession thereof as a bar to plaintiff's right of action, prayed that plaintiff's petition be dismissed.
Plaintiff and defendant each claim under a common source of title through one Olden Smith, who in September, 1882, the record shows, acquired title to an *Page 172
acre lot in Fulton from one W.W. Meadows and which lot embraces the lots and intervening smaller tract here in controversy.
By the deed of Meadows to the said Olden Smith, plaintiff's and defendant's remote common grantor, the following described tract was conveyed him:
"Commencing at a stake the north East corner of said lot on Section line between Dr. G.W. Paschall W.F. Carr thence west with Section line between Dr. G.W. Paschall W.F. Carr thence west with Section line four hundred Thirty five feet
eight inches to a stake thence East four hundred
Thirty five feet eight inches to a stake on the Fulton Wesley dirt road under the bridge thence north with said road one hundred feet to the beginning."
The grantee Smith on the same day reconveyed a lot from off the northeast corner of this tract to one Henry Dement under the following description:
"Beginning at a stake on the Old Road, being the north east corner and running West, with Mr. Paschalls South line One hundred and thirty three (133) feet to a stake thence south Eighty (80) feet to stake thence East One hundred and thirty three (133) feet to a stake about the middle of the creek Harris Ford * * * thence north Eighty (80) feet to the beginning,"
who in turn conveyed it to Israel Jackson by the same description. Also, Israel Jackson in 1911 conveyed the same to his sons Perry and Lee Jackson by the following description:
"Beginning at a stake on the old road, being the Northeast corner, thence west with Mrs. Paschalls south line 133 feet to a stake; thence south 60 feet to a stake, thence East 133 feet to a stake about the middle of Harris Ford Creek; thence North 80 feet to the beginning."
These grantees in turn undertook to convey the west 72-foot portion of this 133-foot lot to their brother Raymond Jackson by deed dated October 14, 1915, in their deed describing it as a lot:
"Beginning at a point on Reeds St. at the N.W. corner of said property and the N.E. corner of the *Page 173
lot belonging to Mattie Royster, thence South about one hundred (100) feet to the middle of Harris Ford Creek, thence East seventy two (72) feet to a stake with the said creek; thence North about one hundred (100) feet to Reed St.; thence West seventy two (72) feet to the beginning corner."
This lot was on December 26, 1915, by like description, conveyed by Raymond Jackson to the appellant, Melton.
Plaintiff's chain of title, beginning with Olden Smith, starts with the deed by the master commissioner to Gus Thomas et al. in February, 1891, by which the fellowing lot was conveyed out of Smith's acre tract, previously conveyed by W.W. Meadows in September, 1882, and from and out of which he had also conveyed to one Collins a lot, 100 feet square, from off its west end, also another lot to Henry Dement from off its northeast corner, described as being a lot measuring 133 feet by 80 feet. The description in the commissioner's deed made Thomas is as follows:
"Begins at a stake the S.E. corner thence West 335-2/3 feet to J.A. Collins S.E. corner thence North with said Collins line 100 feet to a stake thence East 235-2/5 feet to stake Henry Dements N.W. corner thence south with Dements line 80 feet to stake Dements S.W. corner thence East with Dements line 100 feet to stake thence south 20 feet to beginning."
This lot was in turn by Thomas et al. conveyed by like description to Clara M. Crow in 1894, and by the grantee Clara M. Crow and husband in September, 1898, to W.P. Taylor, appellee's father, and later deeded in the division of the said Taylor's estate by Pauline C. Davis and others to plaintiff, and appellee, Mrs. Royster.
The evidence for the plaintiff was that the defendant, Melton, as the purchaser of his 74-foot lot from Raymond Jackson, from off the west portion of the Henry Dement lot, which was next the eastern boundary line of plaintiff's lot, had encroached upon her lot and wrongfully taken possession from her of some 35 1/2 feet of same, as her deed called for a frontage of some 235 feet on said Wesly public road, but that there was only some 200 feet thereon left her, due to the defendant's *Page 174
alleged wrongful taking of its eastern 35 1/2 feet; that actual measurements of this north or frontal line of the original Olden Smith tract abutting on this Wesly public road showed that it contained some 468 feet, rather than 435, as by his deed called for, or ample frontage to provide for each lot owner therein to receive the proper lot measurements conveyed them, beginning with the 100 feet west conveyed Collins, the adjoining 235 feet conveyed plaintiff and the 133 foot frontage conveyed Henry Dement from off the northeast corner. Also, the evidence was that after the conveyance to plaintiff of her 235-foot lot, she had taken possession thereof and continued to occupy the entire 235 feet of her lot until she was wrongfully dispossessed by appellant of the 35 1/2 feet from off its eastern portion; also, that there was on the eastern 35 1/2 feet of said lot, when deeded to and received by her, a house which she continued to use and control without question or dispute as her own, until the same burned in 1914, and thereafter until 1915, when the defendant secured the 72-foot Jackson lot adjoining, when he encroached upon, invaded, and took possession of this eastern 35 1/2 feet of her lot as complained of.
The evidence, on the other hand, for the defendant was that the 35 1/2 feet in dispute was a part of the 72-foot lot conveyed him by Jackson and rightly included within its boundaries and that the said 72-foot lot was the west portion of the 133-foot lot which had been in 1892 conveyed by Olden Smith to Henry Dement by such description and which had, by such description of the Dement lot, come through successive mesne conveyances to the defendant. Further, he and his witnesses testified that both he and those under whom he claimed had been in actual, adverse possession of this lot in question for more than thirty years, occupying adversely and continuously as its owners the whole lot, extending from the Wesly public road back to Harris Ford creek; and, further, that a wire fence had for years marked the western boundary of his lot in question from the eastern boundary of plaintiff's lot. Plaintiff, however, contends that there was no such fence there situated, but that there was for years a fence marking the eastern boundary line of her claimed 235-foot lot and to the east of the 35 1/2-foot strip here in controversy, separating it from the western boundary of the Henry Dement lot. *Page 175
Upon the conclusion of all of the evidence, the jury, under the instructions of the court, found for the plaintiff, whereupon the court adjudged her to be the owner of and to recover the strip of land in question from the defendant.
From this judgment the defendant has appealed, contending: (1) That the court erred in its instructions as given the jury; (2) that the verdict is not supported by the evidence; and (3) that the court erred in refusing to permit appellant to file his amended answer, set-off, and counterclaim.
Turning our attention to appellant's first contention, that the court erred in its instructions to the jury, the record shows that the court, upon its own motion, gave to the jury the following instructions:
"1. If the jury believe from the evidence that the strip of land in controversy is embraced within the boundaries described in the deed from W.P. Taylor, Master Commissioner to W.I. Burnett, Gus Thomas and C.E. Rice dated January 3, 1891, then you will find the plaintiff to be the owner of said strip unless they shall further believe from the evidence that the defendant and those under whom he claims had been in actual, adverse, open, notorious, and continuous possession of said strip for thirty years prior to September 5, 1931.
"2. If you believe from the evidence that said strip of land in controversy is embraced within the boundaries described in the deed from Olden Smith to Henry Dement dated August 31, 1892; or if you believe from the evidence that the defendant and those under whom he claims had been in the actual, adverse, open, notorious, and continuous possession of said strip for thirty years prior to September 5, 1931, then they will find the defendant to be the owner of said strip.
"3. By the term 'adverse possession' as used in these instructions is meant an actual entry upon the land in controversy by residence thereon or inclosure thereon with intention to possess and hold same against all other persons."
Criticism is made of instruction No. 3, undertaking to define adverse possession as erroneous, and therefore a reversible error where given upon the courts own motion. *Page 176
Appellant's contention in this is answered by appellee, that if appellant was not satisfied with the instruction given by the court defining adverse possession, that it was appellant's duty thereupon to himself offer what he conceived to be the proper instruction, inasmuch as, he contends, that the court was not bound here to give any instruction unless the same was reduced to writing and duly requested by the objector.
That however, we conceive the rule to be that while it is not the duty of the court in a civil case to give the whole law of the case, yet, if upon its own motion it undertakes to do so, it is bound to give a proper instruction and if an instruction is so given that it is both incorrect and substantially prejudicial, it will, upon proper exceptions being saved, be held reversible error. L. H. St. L. Ry. Co. v. Roberts,144 Ky. 820, 139 S.W. 1073; Crane v. Congleton, 116 S.W. 341; C. O. Ry. Co. v. Dwyers Adm'x, 157 Ky. 590, 163 S.W. 759. But we are not of the opinion that the complained of instruction is prejudicially erroneous.
As to appellant's second contention that the verdict was not sustained by the evidence, we regard the same as without merit, notwithstanding the great disparity in the comparative number of witnesses testifying for plaintiff and those for the defendant, inasmuch as it became the problem of the jury, when confronted with such conflicting evidence, to determine what part of the testimony heard they would believe and what was its proper weight and credibility. There was ample evidence introduced by both parties to sustain the finding of the jury thereon for whomever made. This rule of law is too well settled and established to require the citation of authority in its support.
Appellant's final contention is that the court prejudicially erred in refusing to permit him to file his amended answer, set-off, and counterclaim.
The order of the court as to this offered pleading it appears recites only that it "is lodged" and, further, that the amended answer, set-off, and counterclaim "offered for filing on yesterday coming on for hearing, and the court being advised refuses to order same filed." However, it does not appear that the rejected pleading, although copied into the record, was ever made a part of the record by order of the court or by bill of exceptions, *Page 177
but was only entered or "lodged" and thereafter rejected.
In the case of Casebolt v. Hall, 177 Ky. 394, 197 S.W. 839,840, the court said:
"It has repeatedly been held by this court that a rejected pleading cannot be considered, although copied into the record, unless it has been made a part of the record by an order of the court, or by a bill of exceptions."
We therefore conclude, after a consideration of the whole record, that appellant's contentions as here presented are without merit, from which it follows that the lower court's judgment should be and is affirmed.
Whole court sitting, except Judge Thomas. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447917/ | Reversing.
On January 21, 1924, the appellant and defendant below Laura Whitaker and her husband, C.C. Whitaker, executed to the Hargis Bank Trust Company of Jackson, Ky., their promissory note agreeing to pay it one year thereafter the sum of $3,000, and which they secured by a mortgage on real estate situated in Perry county. The interest demanded and agreed upon was 10 per cent., and which rate was paid to the bank by the makers at each twelve months' renewal period of the note up to and including the last renewal in January, 1930, but it was to run for only a period of six months and upon which only $150 interest was demanded and collected in advance.
The appellee and plaintiff below, Emily Smith, was a depositor in the Hargis Bank Trust Company. On February 5, 1930, her deposit was an amount substantially equal to the Whitaker note, and on that day she agreed to take the note in satisfaction of her deposit account, and which was the last day the bank remained open; it going into the hands of the state banking commissioner for liquidation who took charge of its affairs on the next day.
On September 13, 1930, plaintiff filed this equity action in the Perry circuit court against defendants to collect the note and to enforce the lien to secure it. The banking commissioner intervened in the suit and sought *Page 341
certain relief based upon a charge of fraudulent assignment of the note to plaintiff by the bank and on which defendants in their answer also relied, and made it a cross-petition against both the bank and the banking commissioner, and joined with the latter in the prayer of his intervening petition.
The answer also pleaded the usury that had been paid by the defendants to the bank from the time of the inception of the indebtedness and sought credit therefor. The mortgaged property was insured against loss by fire, and while that policy was in force the insured property was destroyed, and there was due under the policy the sum of $1,309, which was adjudged to be paid to plaintiff, and judgment was rendered against defendants for the balance of the face of the note without allowing any credit for the usury paid, and, complaining of that denial, defendants prosecute this appeal. All other questions raised by the pleadings, as well as those urged by interveners, were disposed of, and from which no appeal has been prosecuted.
We thus see that the only questions for determination are: (1) Whether or not plaintiff, under the facts presented by the record, became and is the holder of the note in due course, and, if so, then (2), whether our negotiable instruments statute, being sections 3720b-1 to and including 3720b-195, of Carroll's Kentucky Statutes, 1930 Edition, protects her as such holder from the defense of usury made and relied on by defendants? In determining the latter question, it becomes necessary to consider the condition of the law as it has been declared in this jurisdiction with reference to contracts which are declared by statute to be "void." It will be perceived that the question as we have so propounded it does not embrace contracts which are void at common law, although in treating the obligatory effect of void contracts in the hands of innocent parties (including notes and obligations for the payment of money) most of the decisions and textwriters draw no distinction between a contract declared to be void by statute and one so declared by the common law. But, because we do not have the latter question in this case, we will confine our discussion to those contracts and instruments declared void by statute.
The almost universal rule regarding such contracts is that they are void and may not be enforced, not only *Page 342
as between the original parties thereto, but likewise are they prohibited from enforcement by one who may become the holder of them in due course, and which is upon the ground that being void they never had any obligatory force and are no more binding upon the maker than if he had never executed them. The theory upon which that conclusion was reached is that the Legislature in so providing (i. e., that the particular contract should be void) did so in furtherance of what it conceived to be a wholesome public policy, and that to prevent that policy from being thwarted through the act of an assignment of the instrument (or contract), would put it into the hands of the parties to it to defeat such declared public policy. The latest text, embodying such court conclusions, will be found commencing on page 556 of Brannan's Negotiable Instruments Law (5th Ed.), and which is thus stated by the author: "It has sometimes been held that illegality ceases to be a real defense under the N. I. L. unless made so by a subsequent statute, and that the statutes previously in force declaring void instruments for gaming or upon usurious interest or other forbidden transactions are impliedly repealed by the N. I. L. Wirt v. Stubblefield, 17 App. D.C. 283; McCardell v. Davis, 49 S.D. 554, 207 N.W. 662 [gaming; but see special sec. 16 in South Dakota, p. 12, supra N. 16]; Wood v. Babbitt [C. C.] 149 F. 818, 822 [usury] semble. The weight of authority however seems contra. Perry Savings Bank v. Fitzgerald,167 Iowa, 446, 149 N.W. 497 [usury] semble; Plank v. Swift,187 Iowa, 293, 174 N.W. 236, 8 A.L.R. 309; with note [gaming]; Alexander Co. v. Hazelrigg, 123 Ky. 677, 97 S.W. 353, 29 Ky. Law Rep. 1212 [gaming]; Holzbog v. Bakrow, 156 Ky. 161,160 S.W. 792, 50 L.R.A. [N. S.] 1023, semble; Lawson v. First Nat. Bank, 102 S.W. 324, 31 Ky. Law Rep. 318, holding that a statute making void a peddler's note unless indorsed with the words 'Peddler's note,' is not repealed by implication by the N. I. L; McAfee v. Mercer Nat. Bank, 104 S.W. 287, 31 Ky. Law Rep. 863, accord [cf. Arnd v. Sjoblom, 131 Wis, 642,111 N.W. 666, 10 L.R.A. (N.S.) 842, 11 Ann. Cas. 1179]; Levy v. Doerhoefer's Ex'r, 188 Ky. 413, 222 S.W. 515, 11 A.L.R. 207 [gaming], noted in 30 Yale L. J. 191; Elkin Henson Grain Co. v. White, 134 Miss. 203, 98 So. 531 [note given for purchase of intoxicating liquor]; Fisher v. Brehm, 100 N.J. Law, 341,126 A. 444, 37 A.L.R. 695, with note [gaming]; *Page 343
Sabine v. Paine, 223 N.Y. 401, 119 N.E. 849, 5 A.L.R. 1444, affirming 166 A.D. 9, 151 N.Y. S. 735 [usury], noted in 4 Corn. L. Q. 44; Kennedy v. Heyman, 183 A.D. 421,170 N.Y. S. 828; Crusins v. Siegman, 81 Misc. 367, 142 N.Y. S. 348
[usury]; Larschen v. Lantzes, 115 Misc. 616, 189 N.Y. S. 137
[gaming]; noted in 70 U. Pa. L. Rev. 52; Fleischer v. Wolf [Sup.] 191 N.Y. S. 691 [gaming]; but cf. Bernstein v. Fuerth,132 Misc. 343, 229 N.Y. S. 791; 29 Colum. L. Rev. 223, not citing the N. I. L.; Martin v. Hess, 23 Pa. Dist. R. 195, 71 Leg. Int. 148 [gaming]; Hamilton-Turner Grocery Co. v. Hander [Tex. Civ. App.] 253 S.W. 833; Raleigh County Bank v. Poteet,74 W. Va. 511, 82 S.E. 332, L.R.A. 1915B, 928, Ann. Cas. 1917D, 359 [stipulation for attorney's fees in note]; Twentieth Street Bank v. Jacobs, 74 W. Va. 525, 82 S.E. 320, Ann. Cas. 1917D, 695 [gaming]; Eskridge v. Thomas, 79 W. Va. 322,91 S.E. 7, L.R.A. 1918C, 769 [usury]; In re Valecia Condensed Milk Co. [D.C.] 233 F. 173 [bonds made void by statute]; Williams v. Layes, 168 Ark. 675, 271 S.W. 11 [patent article], not citing the N. I. L.; Manufacturers' Mechanics' Bank of Kansas City v. Twelfth Street Bank, 223 Mo. 191, 16 S.W.2d 104, 8 Tex. L. Rev. 313 [gaming]; Farmers' State Bank of Texhoma, Okl. v. Clayton Nat. Bank, 31 N.M. 344, 245 P. 543, 46 A.L.R. 952 [gaming]."
To the same effect is the text in 8 C. J. 768, sec. 1033, saying: "If the instrument or contract is declared 'void' by statute it cannot be enforced even by a bona fide holder, and this is so even in those states where the Negotiable Instruments Law has been enacted." In the same section the compiler points out that some of the courts, and perhaps a majority of them, declined to apply the rule to a bona fide holder of a negotiable instrument where the statute stamps the vice in the instrument as merely "illegal"; but even those courts apply the rule as so announced where the particular prohibitive matter in the statute is declared therein to render the contract void. On page 772 of the same volume further emphasizing the same rule, and especially as applicable in Kentucky, the text says: "Where the statute provides that the note shall be void if it does not contain such words it is held that the absence thereof precludes enforcement even by a bona fide holder, unless holders in due course are expressly excepted. And it is held in Kentucky that such a provision *Page 344
making the, note void is not repealed by contradictory provisions of the Negotiable Instrument Law as to bona fide purchasers."
The text in 3 Rawle C. L. 1020, sec. 228, clearly states that under a statute, making void a contract made contrary thereto, is void even in the hands of an innocent holder, and which rule is applicable to usurious contracts to the extent that the statute against usury makes them void. Part of that text, specifically applicable here, says: "Under this statute [12 Anne, Ch. 16, relating to negotiable instruments] and the subsequent enactments that have been modeled thereon, it has generally been held that a note or bill is void for usury even in the hands of an innocent purchaser. This class of cases comes within the exception to the rule — that a bona fide purchaser may enforce a negotiable instrument although as between the original parties it is unenforceable because originating in an illegal transaction — which exists generally when a statute declares a contract void. The contract gathers no vitality by its circulation in respect to the parties executing it, but it and the instrument evidencing it are void in the hands of every holder."
No text-writer contradicts or takes issue with the general rule as so stated, and it is indorsed and followed by a great majority of the courts to the extent that the modern negotiable instruments statutes (ours being the one hereinbefore referred to) do not have the effect of repealing such declared rule, and especially so where the statute declares the particular contract "void." We have applied it from the beginning of the history of this court, and have expressly declared that our Negotiable Instruments Act did not operate to repeal the law as so declared before its enactment. One of the earliest cases in which we so concluded is Lawson v. First National Bank of Fulton, 102 S.W. 324, 325, 31 Ky. Law Rep. 318. The statute there involved was section 4223 of our present Statutes requiring all notes taken for certain enumerated considerations to be indorsed with the words "Peddler's Note." The note sought to be collected in that case measured up to the requirements of the negotiable instruments statute to become negotiable paper under it, and was acquired by the plaintiff in that case (the bank) before its maturity. In denying the right of the bank to recover thereon, we said: "Furthermore, the statute makes such notes *Page 345
void. It is of a police nature, intended to prevent imposition and fraud. The negotiable instruments act does not repeal this statute in terms nor does it by necessary implication. It has never been the policy of the courts to extend the doctrine of implied repeals further than the evident purpose of the last legislation required. The negotiable instruments statute is a most comprehensive piece of legislation. It goes into minutest detail in dealing with the subjects embraced by it. The whole scope of it is shown to be the dealing with commercial paper, so as to protect innocent purchasers of such against mere defenses available as between the original parties. It gives such paper currency, free from original defenses. But it applies only to paper that might have been obligatory between the parties. But, where the parties were never bound because the law made the note void, as contrary to public policy as expressed in the statutes, the negotiable instruments act does not apply, and ought not to. The prevention of crime is of more importance than the fostering of commerce. The later act should be read in view of its purpose, and not as intending to repeal other statutes passed in the exercise of the police power of the state to suppress crime and fraud. Alexander v. Hazelrigg [123 Ky. 677] 97 S.W. 353, 29 Ky. Law Rep. 1214." (Our italics.)
The same conclusion was reached in the Alexander Case,123 Ky. 677, 97 S.W. 353, 29 Ky. Law Rep. 1214, where the note in contest was given in consideration of what is commonly referred to as a "gambling" debt, which is inhibited by section 1955 of our present Statutes, and which says that all such contracts based upon the consideration therein named "shall be void." This court held in that opinion, applying the rule hereinbefore stated, that our Negotiable Instruments Law "does not authorize one holding in due course a note given for a gambling debt to enforce such note." The doctrine of that opinion was referred to and approved in the later case of Citizens' Bank v. Crittenden Record-Press, 150 Ky. 634, 150 S.W. 814. Perhaps the latest domestic case in which the principal question, as well as related ones, were discussed, is First National Bank of Hazard v. Combs, 237 Ky. 834, 36 S.W.2d 644. It is therein pointed out that, if the statute merely denounces the contract as "illegal," the Negotiable Instruments Act would bar the defense as against an *Page 346
innocent holder thereof in due course; but, if the statute went further and declared the effect of the denounced vice in the instrument to render it entirely or pro tanto "void," then the defense would be available against such innocent holder.
In arriving at the latter conclusion, the excerpt hereinbefore taken from volume 8, Corpus Juris, was quoted and approved, followed by a citation of the Lawson and the Alexander Cases, supra, as well as a number of others to be found in the Combs opinion. We will therefore not extend this opinion by a reference to further cases or texts, since the rule as so declared in our Combs and preceding opinions is the prevailing one throughout the country and is thoroughly established as the correct one in this jurisdiction.
Our statute denouncing the taking of usury is section 2219 of the 1930 edition of Carroll's Kentucky Statutes, and it says: "All contracts and assurances made, directly or indirectly, for the loan or forbearance of money, or other thing of value, at a greater rate than legal interest, shall be void for the excess over the legal interest." It will be noted that the statute says that "all contracts and assurances made, directly or indirectly, for the loan or forbearance of money," and which is leveled against the transaction and does not confine its denunciation to any writing that may be executed in evidence thereof. So that the defense is available in favor of the maker, notwithstanding the note evidencing the agreement may be fair on its face and to thereby submerge the vice in the transaction. However, we held in the case of Lear v. Yarnel, 3 A. K. Marsh. 419 (and which has never been departed from) that it was competent for the maker, even as against an innocent holder, to allege and prove the usurious character of the contract which his note evidenced, notwithstanding the latter was silent as to such defensive matter, since, if the usury appeared on the face of the instrument the holder would have notice thereof and would not be an innocent one so as to come within the provisions of the Negotiable Instruments Act.
The same was also held by us in the case of Early v. McCart, 2 Dana, 414, in an opinion written by Judge Robertson, in which he said that the defenses of fraud, deceit, and others not rendering the contract "void" were not available against an innocent holder in due *Page 347
course; but he took the precaution to add: "A gaming, or usurious consideration, is an exception from the general rule, because, as each of them is declared by statute as sufficient to render the bill altogether void, either will be a good defence even against a bona fide endorsee for valuable consideration."
In the inserted text from the work of Mr. Brannan, supra, will be found a number of cases wherein the defense of usury was upheld as against a bona fide holder of the note who obtained it in due course, notwithstanding the sovereignty of the forum had adopted a negotiable instruments statute similar to ours. The defense has been more frequently applied where the denouncing statute makes the transaction entirely void on which a bona fide holder may not recover any part of the debt evidenced by the writing sued on, but some of them uphold the right of a pro tanto defense as against such holder the same as would be available against the original payee if he were plaintiff. Such latter conclusion is inescapable, since it would be false logic to hold that the entire note could be defeated in the hands of an innocent holder if a statute made the whole transaction out of which it grew invalid, but that aportion of the transaction which the statute denounced as void could not be relied on by the maker against a bona fide holder who obtained the instrument under conditions and circumstances that would render him a due course holder under section 3720b-52 of our negotiable instruments statute.
We have seen that Judge Robertson in the Early Case excepts usurious considerations from the immunity extended to bona fide holders, and all of the other domestic cases to which we have referred (as well as others that may be found in those opinions) adopt the same conclusion and which is to the effect that the character of instrument referred to in section 3720b-52 in defining who is a holder of it in due course is avalid and not a void one. If, therefore, a bona fide holder of such an instrument is deprived of recovering any part of it when the consideration of it is declared to be void by the statute, notwithstanding the note evidencing the transaction is fair on its face, no other logical conclusion may be reached than the one that such a holder is not immune from a pro tanto or partial defense to the extent that the statute also declares the transaction void. The same exception disallowing such defenses to an *Page 348
innocent holder when the entire contract is declared to be void necessarily prevails and is preserved to the maker where the instrument evidences a transaction or contract that the statute makes only partially void, and thereby giving to the maker only such pro tanto defense. Such conclusion necessarily results from the axiom that "the whole includes all of the parts."
The substance of our decisions, and which we now hold in this case as embodying the correct rule, is, that the law against usury is of long standing and originated in the execution of a public policy to suppress efforts of selfish lenders to prey upon the necessities of borrowers by exacting from them exorbitant rates of interest which they were compelled to agree to in order to meet pressing emergencies. It has always been regarded as a wholesome statute, and, being so, the courts hold that it will not be considered as repealed by implication through the enactment of a later statute, unless such intention to do so is plainly manifested in such later act, and especially so when the public policy statute renders the transaction denounced, or a specified part of it, as being void. Our negotiable instruments statute contains no language indicating an intention on the part of the Legislature to repeal our gaming statute, or the one denouncing usury, or the one relating to "peddler's notes," or any other one which renders the transaction dealt with "void," and our opinions supra so hold, and which we now approve.
But it may be argued that the conclusion we have reached is contrary to the spirit and purpose of the Legislature in enacting the negotiable instruments statute, and which was to facilitate dealing in commercial paper as therein defined and to thereby stimulate commerce, and, to allow the defense herein urged against an innocent holder of such instruments, acquired in due course, would hamper such purpose and intent, and it should therefore be held that the maker could not rely on such complete or pro tanto defense as against such holder. But that same argument was and is equally applicable to cases where the entire transaction is invalidated by the statute, although the note given in evidence of it is perfectly fair on its face. The same argument would also prevail where the note was forged, or was executed by one who was not sui juris and whose contracts were declared to be void by statute. In other words, that argument, if sound, would prevail against *Page 349
all defenses whatever in actions brought by one who acquired the instrument under circumstances as to render him a holder thereof in due course under the statute. We have seen that the argument, though urged with equal force as it is in this case, was disallowed in the cases supra where the entire consideration was held to be void by the statute, and we again repeat that we can conceive of no logical reason why a different rule should be applied when, not the entire contract, but only a portion of it, is declared void, as is true in our usury statute.
To hold otherwise would virtually nullify its wholesome provisions against charging and collecting usury, since it would be a simple matter to transfer the last renewal of a usurious indebtedness to a third person, under circumstances that would make him a holder in due course and thus deprive the maker of the instrument of the remedy afforded him if the action had been brought by the original payee. The transferee, therefore, "is subject to the same defenses as if it were nonnegotiable," one of which is the right to enforce a credit of all the usurious interest agreed to and which was paid on the indebtedness, upon the balance of it that is sought to be recovered, be they considered as payments, offsets, counterclaim, or what not.
We therefore conclude that the court erred in disallowing to defendants credit by the amount of usury paid on the note, although were it not for such defense plaintiff would be immune therefrom as a holder in due course; but which (question [1] supra) latter, under the evidence in the record, is extremely doubtful. However, we have assumed that fact to be true and have disposed of the appeal without deciding it.
Wherefore, for the reasons stated, the judgment is reversed, with directions to set it aside and to ascertain the usury the defendants have paid on the note from the creation of the debt, and to credit that amount on the unpaid balance of the note, and for other proceedings not inconsistent with this opinion. The whole court sitting; Dietzman, Ratliff, and Perry, JJ., dissenting. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3045025/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 07-3097
________________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Burgess Jesse Perry II, *
*
Appellant. *
________________
Submitted: April 14, 2008
Filed: July 8, 2008
________________
Before GRUENDER, BALDOCK1 and BENTON, Circuit Judges.
________________
GRUENDER, Circuit Judge.
Burgess Jesse Perry II appeals the district court’s2 denial of his motion to
suppress evidence obtained in a search of his residence. Perry contends that the search
1
The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
2
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri, adopting the report and recommendations of the Honorable
James C. England, Chief Magistrate Judge, United States District Court for the
Western District of Missouri.
warrant was not supported by probable cause. Because the good-faith exception to the
exclusionary rule applies, we affirm.
I. BACKGROUND
On January 10, 2003, Leslie Gregory was found dead inside a rolled tarp about
400 yards from her car in Moniteau County, Missouri. An autopsy revealed that she
had been shot five times in the head with a .22 caliber weapon.
On July 7, 2003, the Moniteau County Sheriff’s Department informed Deputy
Ron Wallace of the Douglas County Sheriff’s Department that the homicide of
Gregory possibly occurred in Douglas County, Missouri. Based on information
provided by a confidential informant, the Moniteau County Sheriff’s Department
believed that a man named Dobbie, later identified as Doy Porter, killed Gregory at
Porter’s residence in Douglas County on November 13, 2002.
According to the informant, Porter, Gregory, Fred Mansker, who was later
identified as Perry, and the informant used controlled substances on the night before
the homicide at Perry’s residence, which he rented from Porter. The next day, the four
spent the afternoon at Porter’s residence. While the informant and Perry worked on
a computer in the garage, Gregory and Porter began arguing over drugs. The
argument escalated, and eventually Porter shot Gregory five times with a sawed-off
.22 caliber rifle. Porter then threatened the informant by saying that “snitches die.”
Shortly thereafter, Perry and the informant returned to Perry’s residence, and, after
thirty minutes there, the informant returned to Moniteau County where he lived. Two
days later, Porter called the informant and said he wanted to hide Gregory’s car on the
informant’s grandparents’ land in Moniteau County for a couple of days before having
it crushed. Nearly two months later, Gregory’s body and car were found at this
location.
-2-
The informant, accompanied by a member of the Moniteau County Sheriff’s
Department, traveled to Douglas County. The informant identified Perry’s and
Porter’s residences as the location of the events he had described. On July 10, 2003,
Deputy Wallace prepared an affidavit as part of a search warrant application for
Perry’s residence.3 The affidavit included the above-described information and stated
that the sawed-off .22 caliber rifle, Gregory’s purse, Gregory’s cell phone, and papers,
letters or documents concerning the homicide “could be” located at this residence.
The affidavit also averred that the informant was credible because the informant
described the alleged homicide in great detail and had provided reliable information
on three prior occasions.
Deputy Wallace took the affidavit to the county prosecutor who reviewed it,
and Deputy Wallace signed the affidavit in the prosecutor’s presence. The prosecutor
prepared the search warrant application, which he and Deputy Wallace signed.
Deputy Wallace then presented the application and affidavit to Douglas County
Circuit Judge John Moody. Judge Moody issued the search warrant. Although the
search of Perry’s residence provided no evidence related to the homicide, it did result
in the seizure of eighteen firearms and ammunition as well as methamphetamine and
marijuana.
The State of Missouri charged Perry with possession of controlled substances.
Perry filed a motion to suppress the evidence seized from his residence, claiming that
the search warrant lacked probable cause. Judge Moody granted Perry’s motion.
Thereafter, a federal grand jury indicted Perry on two counts of possession of firearms
3
Another deputy in the Douglas County Sheriff’s Department prepared a
separate search warrant application for Porter’s residence. Both applications were
presented to the judge at the same time, and both warrants were executed at the same
time. Only the search of Perry’s residence is at issue in this case.
-3-
and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1), (3).4
Perry filed another motion to suppress the evidence, again arguing that the search
warrant lacked probable cause.
At the suppression hearing, Deputy Wallace testified that he was aware of
additional information that he had failed to include in his affidavit. Specifically, the
informant had told him that Gregory had a cell phone and a purse with her, and
Deputy Wallace knew that the police did not recover these items when they found her
body. The informant also indicated that he had observed several firearms at Perry’s
residence the night before the homicide. The magistrate judge prepared a report and
recommendations denying the motion to suppress and concluding that the search
warrant was supported by probable cause and, alternatively, that the good-faith
exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897
(1984), applied. After the district court adopted the report and recommendations,
Perry entered a conditional guilty plea to count one of the indictment, preserving his
right to appeal the denial of his motion to suppress. The district court sentenced Perry
to sixty-five months’ imprisonment. Perry now appeals the district court’s denial of
his motion to suppress.
II. DISCUSSION
On appeal from the denial of a motion to suppress, we review a district court’s
findings of fact for clear error and its determination of probable cause and the
application of the Leon exception de novo. United States v. Grant, 490 F.3d 627, 631
(8th Cir. 2007), cert. denied, 552 U.S. ---, 128 S. Ct. 1704 (2008).
4
Count one of the indictment charged Perry with possession of firearms and
ammunition seized pursuant to the search warrant at issue in this case. Count two of
the indictment charged Perry with possession of firearms and ammunition seized
pursuant to a separate search warrant issued months later in November 2004.
-4-
“However, before reviewing the existence of probable cause, we may consider
the applicability of the good-faith exception to the exclusionary rule . . . .” United
States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007). Under the good-faith exception,
evidence seized pursuant to a search warrant that lacked probable cause is admissible
if the executing officer’s good-faith reliance on the warrant is objectively reasonable.
Id. “The good-faith inquiry is confined to the objectively ascertainable question
whether a reasonably well trained officer would have known that the search was
illegal despite the [issuing judge’s] authorization.” Id. (internal quotation omitted)
(alteration in original). “When assessing the objective [reasonableness] of police
officers executing a warrant, we must look to the totality of the circumstances,
including any information known to the officers but not presented to the issuing
judge.” Id. at 431(quotation omitted) (alteration in original).
“In the ordinary case, an officer cannot be expected to question the magistrate’s
probable-cause determination or his judgment that the form of the warrant is
technically sufficient.” Leon, 468 U.S. at 921. However,
Leon identified four situations in which an officer’s reliance on a warrant
would be unreasonable: (1) when the affidavit or testimony supporting
the warrant contained a false statement made knowingly and
intentionally or with reckless disregard for its truth, thus misleading the
issuing judge; (2) when the issuing judge wholly abandoned his judicial
role in issuing the warrant; (3) when the affidavit in support of the
warrant is so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable; and (4) when the warrant is
so facially deficient that no police officer could reasonably presume the
warrant to be valid.
Proell, 485 F.3d at 431 (internal quotations omitted). Perry only contends that the
third situation exists here, asserting that Deputy Wallace’s affidavit in support of the
search warrant was “so lacking in indicia of probable cause as to render official belief
in its existence entirely unreasonable.” See Leon, 468 U.S. at 923 (quotation omitted).
-5-
Specifically, Perry argues that the affidavit (1) failed to establish a reasonable nexus
between Perry’s residence and the evidence sought to be obtained and (2) contained
information that was stale because the crime occurred eight months earlier.
Although “there must be evidence of a nexus between the contraband and the
place to be searched before a warrant may properly issue,” United States v. Tellez, 217
F.3d 547, 550 (8th Cir. 2000), we have held that an officer executing a search warrant
may rely in the permissibility of the issuing judge’s inference that such a nexus exists
when that inference has “common sense appeal,” see United States v. Carpenter, 341
F.3d 666, 671-72 (8th Cir. 2003). Here, the affidavit established that Porter, the
alleged murderer, owned both residences, that Perry’s residence was involved in the
events surrounding the homicide, that Porter sought to hide evidence of the homicide
on someone else’s residence, and that the informant was reliable.5 Gregory, Porter,
Perry and the informant used controlled substances at Perry’s residence the night
before the homicide, and Perry and the informant returned to Perry’s residence shortly
after the homicide. Soon thereafter, Porter asked the informant if he could store
Gregory’s car on the informant’s grandparents’ land. Additionally, although not
expressed in the affidavit, Deputy Wallace knew that Gregory had a cell phone and
a purse with her when she was killed, which had not yet been found, and that the
informant had observed several firearms at Perry’s residence. As a matter of common
sense, one could reasonably infer that Porter had stored the sawed-off .22 caliber rifle,
the cell phone or the purse at Perry’s residence as he did with Gregory’s car on the
informant’s grandparents’ land or that other evidence of the homicide may have been
left at Perry’s residence because the participants and witnesses to the homicide spent
time at the residence shortly before and shortly after the homicide. Therefore, we
cannot say that it was unreasonable for Deputy Wallace to rely on the permissibility
5
The affidavit had established that the informant had provided reliable
information to police on three prior occasions and had witnessed and provided
significant details about the homicide.
-6-
of Judge Moody’s inference of a nexus between the evidence sought and the place to
be searched.6
Perry further argues that reliance on the affidavit was entirely unreasonable
because the information in the affidavit was stale since the crime occurred eight
months before the search. “There is no bright-line test for determining when
information is stale. . . . Time factors must be examined in the context of a specific
case and the nature of the crime under investigation.” United States v. Summage, 481
F.3d 1075, 1078 (8th Cir. 2007), cert. denied, 552 U.S. ---, 128 S. Ct. 875 (2008)
(quoting United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993)). In United
States v. Maxim, we held that four-month-old information indicating that the suspect
possessed firearms was not stale because survivalists and firearm enthusiasts retain
their weapons for a long period of time. 55 F.3d 394, 397-98 (8th Cir. 1995). In
United States v. Rugh, we held that an officer had a good-faith reliance on a warrant
even though it contained sixteen-month-old information that the suspect possessed
child pornography because pedophiles tend to retain such materials for long periods
of time. 968 F.2d 750, 753-54 (8th Cir. 1992). In this case, Porter sought to store
Gregory’s car on the informant’s grandparents’ land for a couple of days, but the car
remained on the land for nearly two months. Because our case law suggests that
firearms may be retained for long periods of time and because Porter failed to destroy
other evidence expeditiously, Deputy Wallace reasonably could have believed that
Porter had given Perry the .22 caliber rifle and that Perry had retained the rifle eight
months after the homicide. Although this evidence may be insufficient to support a
6
Another factor that adds to the reasonableness of Deputy Wallace’s belief that
the affidavit was not so lacking in probable cause was the county prosecutor’s
determination that the affidavit provided probable cause for the search. See United
States v. Hallam, 407 F.3d 942, 947 (8th Cir. 2005) (holding that an officer may
reasonably defer to the judgment of the prosecutor and the issuing judge that the
affidavit provided probable cause); United States v. Terry, 305 F.3d 818, 823 (8th Cir.
2002) (same). The prosecutor in this case reviewed the affidavit and did not indicate
that it lacked probable cause.
-7-
probable cause finding, we do not think the information was clearly stale such that the
affidavit was so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable. See Rugh, 968 F.2d at 753-54.
III. CONCLUSION
Based on the totality of the circumstances, Deputy Wallace’s affidavit was not
so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable. Because it was objectively reasonable for Deputy Wallace to
rely in good faith on the warrant, we conclude that the Leon exception to the
exclusionary rule applies. Accordingly, we affirm the district court’s denial of Perry’s
motion to suppress.
______________________________
-8- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3057211/ | Case: 11-15247 Date Filed: 08/08/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15247
Non-Argument Calendar
________________________
D.C. Docket No. 8:10-cr-00322-VMC-MAP-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
GREGORY MILLER,
llllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 8, 2012)
Before MARTIN, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Gregory Miller appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Miller argues
Case: 11-15247 Date Filed: 08/08/2012 Page: 2 of 5
that the district court erred in refusing to give his proposed jury instruction on
constructive possession. After careful review, we affirm.
We review a district court’s decision to reject a proposed jury instruction for
abuse of discretion. United States v. Moore, 525 F.3d 1033, 1046 (11th Cir.
2008). Under that standard, we will reverse only if “(1) the requested instruction
correctly stated the law; (2) the actual charge to the jury did not substantially cover
the proposed instruction; and (3) the failure to give the instruction substantially
impaired the defendant’s ability to present an effective defense.” United States v.
Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (quotation marks omitted). We bear
in mind that “a district court judge is vested with broad discretion in formulating
[her] charge to the jury so long as it accurately reflects the law and the facts.” Id.
(quotation marks omitted).
The district court in this case relied on the Eleventh Circuit pattern jury
instruction for the element of possession. See generally Eleventh Circuit Pattern
Jury Instructions (Criminal Cases) Special Instruction 6 (2010). The court told the
jury that “[t]he law recognizes several kinds of possession,” including both “actual
possession” and “constructive possession.” The court explained that “[a]ctual
possession of a thing occurs if a person knowingly has direct physical control of
it.” The court also said that “[c]onstructive possession of a thing occurs if a
2
Case: 11-15247 Date Filed: 08/08/2012 Page: 3 of 5
person doesn’t have actual possession of it, but has both the power and the
intention to take control over it later.”
Miller requested the district court to provide an additional instruction
regarding constructive possession:
Also for possession to exist, the government must show that a
defendant “has knowledge of the thing possessed coupled with the
ability to maintain control over it or reduce it to his physical possession
even though he does not have actual personal dominion” or has
“ownership, dominion or control over the premises or the vehicle in
which the contraband was concealed.”
Mere presence near contraband, or awareness of its location, is
insufficient to establish possession.
The district court found the pattern jury instruction the appropriate one to give and
denied Miller’s request.
On appeal, Miller argues that the district court erred in rejecting his
proposed instruction. However, Miller has not met the standard required for a
reversal due to a jury charge. The instruction given by the district court
“substantially cover[ed]” Miller’s proposed charge. Palma, 511 F.3d at 1315
(quotation marks omitted). The district court’s instruction that the defendant must
have had the “power . . . to take control” of the firearm means, as the proposed
instruction put it, that the defendant must have had the “ability to maintain control
over it or reduce it to his physical possession”—for instance, by having
3
Case: 11-15247 Date Filed: 08/08/2012 Page: 4 of 5
“ownership, dominion or control over the premises . . . in which the [firearm] was
concealed.” We see no meaningful difference between the two, and Miller urges
none.
Likewise, the district court’s instruction that the defendant must have had an
“intention to take control” of the firearm necessarily includes the idea that the
defendant must have had “knowledge of the thing.” Further, the requirement that
there be an “intention to take control” precludes a finding of guilt based on
“[m]ere presence” or the mere “awareness of [the firearm’s] location.” See United
States v. Rojas, 537 F.2d 216, 220 (5th Cir. 1976) (holding that an instruction
requiring the jury to find that the defendant had “the power and intention to
exercise dominion and control over the cocaine” was adequate to convey the
principle that “mere presence or proximity” is not sufficient).1 Thus, the district
court’s instruction substantially covered the requested charge.
Neither can we say that any failure on the part of the district court to give
the requested instruction “substantially impaired [Miller’s] ability to present an
effective defense.” Palma, 511 F.3d at 1315 (quotation marks omitted). Miller
raised the issue of whether he had the intention to take control of the firearm
1
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981. Id. at 1209.
4
Case: 11-15247 Date Filed: 08/08/2012 Page: 5 of 5
during both his opening and closing statements. Specifically, Miller argued to the
jury that he did not intend to take control of the firearm, despite his presence on
the premises. He thus conveyed the idea that he was merely present and that this
was not enough to support a conviction. In view of this, we cannot say that the
district court erred. See United States v. Freyre-Lazaro, 3 F.3d 1496, 1505 (11th
Cir. 1993) (holding that the district court’s failure to give the instruction was not
error given that the defendant’s theory was “fully explained . . . in [his] opening
and closing argument”).
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2748719/ | Filed 11/6/14 P. v. Bozeman CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065353
Plaintiff and Respondent,
v. (Super. Ct. No. SCD132807)
STEVE BOZEMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala Harris, Attorney General, for Plaintiff and Respondent.
In 1998, a jury convicted Steve Bozeman of possession of a controlled substance
(Health & Saf. Code, § 11350 subd. (a)), resisting arrest (Pen. Code,1 § 148, subd. (a))
and destruction of evidence. (§ 135.) The court found true allegations he had suffered
1 All further statutory references are to the Penal Code.
two prison priors and five strike priors under the "Three Strikes" Law. The court
sentenced him to an indeterminate term of 25 years to life.
In January 2014, the trial court denied Bozeman's petition for resentencing under
section 1170.126, ruling he was ineligible for resentencing because he "has a number of
sex crimes convictions, including one in the state of Ohio as an adult."
DISCUSSION
There are no relevant facts to discuss in this appeal. Appellate counsel presents no
argument for reversal of the trial court's order, but asks this court to review the record for
error as mandated by People v. Wende (1979) 25 Cal. 3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders), raising the possible but not arguable appellate
issue of whether the court erred in determining that Bozeman did not qualify for recall of
his sentence under section 1170.126. Counsel concedes Bozeman "does have prior
convictions for offenses listed in the exclusionary clause of section 1170.126, subdivision
(e)(3)." We offered Bozeman the opportunity to file his own brief on appeal and he has
done so.
We have reviewed the entire record in accordance with Wende, supra, 25
Cal. 3d 436 and Anders, supra, 386 U.S. 738, and have not found any arguable appellate
issue. Competent counsel has represented Bozeman on this appeal.
2
DISPOSITION
The order denying Bozeman's petition to recall his sentence is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
3 | 01-03-2023 | 11-06-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3447922/ | Affirming.
The Stanley Motor Company brought this action in equity to recover of the defendants, Johnnie Wright and his son Harry Wright, $270, the balance alleged to be due on a car sold to them. The defendants filed answer; proof was heard, and on final hearing the circuit court entered judgment against the defendants for $270, less a credit of $25. The defendants have filed a motion for an appeal.
Harry Wright filed an answer alleging that at the time the contract sued on was made he was an infant under twenty-one years of age and pleaded infancy in bar of the action. By reply the plaintiff denied that he was an infant. But the uncontroverted proof on the trial shows that he was nineteen years of age. Being an infant he was not bound by the contract and no judgment should have been rendered against him thereon.
As to Harry Wright, the motion for an appeal is sustained, and the judgment is reversed and the cause remanded with directions to dismiss the petition as to him.
As to the father Johnnie Wright, the amount in controversy being less than $500, the motion for an appeal is denied and the judgment is affirmed without a written opinion. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3447930/ | Affirming.
Thomas Stephens sued James Justice to recover of him two small strips of land. He was unsuccessful and he has appealed.
Stephens had two sons-in-law, Joshua Damron and James Justice. In 1888 he conveyed to Damron a portion of his land by a very imperfect and unsatisfactory description. The next to the last line in that description is thus described:
"Thence up the hill in a northern course with the old road to Stephens' and Brown's line to a black oak with the top broken out."
In 1913, he conveyed some of his land to Justice by a description equally unsatisfactory. This land was merely described by giving the names of the adjoining landowners, and the west line of the Justice tract was described as bounded by "Joshua Damron's land." These two tracts of land were then, and had been for more than a quarter of a century divided by a rail fence, and Justice went into possession and thereafter continued in possession of the property on the east side of and up to this rail fence. Damron, in his evidence, admits that, but says that it was agreed that the road should be kept open, that the line was to be where the road was, and that the fence was built where it was in order to get it straight, and thus save rails. A large part of this record is devoted to an effort to locate this road. If we had to decide that question, we would have to say that there is no satisfactory evidence by which to locate it at all; but, as we have said, Stephens went into possession of this land up to this fence, and he continued in such possession and had such possession when, in 1914, Thomas Stephens by a deed from Joshua Damron and wife acquired his rights in the premises, hence so much of that deed as may have covered any portion of the land on the east of or Justice's side of this rail fence was champertous. See Crider v. Kentenia-Catron Corp., 214 Ky. 353, 283 S.W. 117; Cherry Bros. v. Tenn. Central R. Co., 222 Ky. 79, 299 S.W. 1099.
The judgment is affirmed. *Page 47 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3236797/ | This action was by appellee against appellant, the Southern Railway Company, for negligently running over and killing a horse and a mule. The case was tried on the plea of the general issue, and the defendant complains of the action of the trial court in refusing the general affirmative charge requested by it in writing.
The killing of the animals described in the complaint by the locomotive or cars of the defendant was admitted; thus a prima facie case was established. O'Rear v. Manchester Lumber Co.,6 Ala. App. 461, 60 So. 462; Ill. Central R. Co. v. Bottoms,1 Ala. App. 302, 55 So. 260; Birmingham Railway Co. v. Morris, 9 Ala. App. 530, 63 So. 768. And therefore the burden was on the defendant to acquit itself of negligence; and if the evidence, as offered by it, is sufficient, if believed by the jury, to show, as a matter of law, that the defendant was not negligent, and such evidence is undisputed, and not in conflict, then the trial court will be put in error for refusing the affirmative charge when requested in writing by the defendant. Ex parte Southern Railway Co., 181 Ala. 486,61 So. 881; Code 1907, § 5476.
The evidence offered by the defendant in this case was that of the engineer, the only eyewitness; and, if the testimony of this witness was uncontroverted or undisputed by other testimony as to the material facts, it would appear that the defendant had met the burden required, and would have been entitled to the general charge in its favor, as requested. But the facts and circumstances surrounding the killing of the stock in question, showing the location of the dead stock, their tracks, etc., as testified to by the witnesses for the plaintiff, presented such a conflict in the testimony, which necessarily required its submission to the jury. Therefore there was no error in the ruling of the court in refusing the general charge requested by the defendant. For like reasons, we cannot say there was error in the ruling of the court in refusing a new trial, or in declining to set aside the verdict as being contrary to the evidence. No other questions being presented, and there being no error in the record, the judgment of the court below is affirmed.
Affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1028941/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8606
ROGER LEE DEAL, SR.,
Petitioner - Appellant,
v.
MICHAEL BELL,
Respondent - Appellee.
No. 09-6070
ROGER LEE DEAL, SR.,
Petitioner - Appellant,
v.
MICHAEL BELL,
Respondent - Appellee.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:08-hc-02132-FL)
Submitted: May 21, 2009 Decided: May 27, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Roger Lee Deal, Sr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Roger Lee Deal, Sr., seeks to appeal the district
court’s order dismissing as successive his 28 U.S.C. § 2254
(2006) petition and the court’s subsequent order denying his
request for a certificate of appealability. The orders are not
appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)
(2006). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find
that any assessment of the constitutional claims by the district
court is debatable or wrong and that any dispositive procedural
ruling by the district court is likewise debatable. See
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Deal has not made the requisite
showing. Accordingly, we deny a certificate of appealability
and dismiss the appeals. 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
3 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2968610/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7316
WAYNE VINSON,
Plaintiff – Appellant,
v.
UNITED STATES MARSHALS SERVICE; DAVID CRANEFORD; DEONTYE
JOYNER,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Richard Mark Gergel, District
Judge. (0:10-cv-00079-RMG)
Submitted: December 15, 2011 Decided: December 20, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Wayne Vinson, Appellant Pro Se. Raymond Emery Clark, Assistant
United States Attorney, Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Vinson appeals the district court’s order
adopting the magistrate judge’s report and recommendation and
dismissing Vinson’s claims brought pursuant to the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2006), and
Bivens v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). We have reviewed the record and
find no reversible error. Accordingly, we affirm for the
reasons stated by the district court. Vinson v. U.S. Marshals
Service, No. 0:10-cv-00079-RMG (D.S.C. Sept. 14, 2011). 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 |
https://www.courtlistener.com/api/rest/v3/opinions/129816/ | 538 U.S. 1047
ALONSO-FLORESv.UNITED STATES.
No. 02-10050.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/998209/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1050
ROBERT E. JONES,
Plaintiff - Appellant,
and
SUSAN M. JONES,
Plaintiff,
versus
MARVIN RUNYON, Postmaster General; UNITED
STATES POSTAL SERVICE; UNITED STATES OF
AMERICA,
Defendants - Appellees.
Appeal from the United States District Court for the Northern Dis-
trict of West Virginia, at Martinsburg. W. Craig Broadwater, Dis-
trict Judge. (CA-98-2-3)
Submitted: March 11, 1999 Decided: March 16, 1999
Before WIDENER and LUTTIG, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Robert E. Jones, Appellant Pro Se. Helen Campbell Altmeyer, OFFICE
OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert E. Jones and Susan M. Jones appeal the district court’s
order granting the Defendant summary judgment on their civil
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 Jones v. Runyon, No. CA-
98-2-3 (N.D.W. Va. Dec. 11, 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.
AFFIRMED
*
Although the district court’s memorandum and order is marked
as “filed” on December 10, 1998, the district court’s records show
that it was entered on the docket sheet on December 11, 1998.
Pursuant to Rules 58 and 79(a) of the Federal Rules of Civil
Procedure, it is the date that the memorandum and order was
physically entered on the docket sheet that we take as the
effective date of the district court’s decision. Wilson v. Murray,
806 F.2d 1232, 1234-35 (4th Cir. 1986).
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2793949/ | Filed 4/15/15 P. v. Turnage CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C075153
Plaintiff and Appellant, (Super. Ct. Nos. CRF041665,
CRF065019)
v.
BARRY TURNAGE,
Defendant and Respondent.
This is an appeal by the People. The sole issue is whether a defendant who was
originally sentenced to an indeterminate term under the “three strikes” law as it stood
prior to November 7, 2012, the operative date of the Three Strikes Reform Act of 2012
(the Act), and whose sentence is vacated on appeal and the matter remanded for
resentencing after November 7, is entitled to be resentenced to a determinate term as
provided by the Act’s amendment to the three strikes law. The trial court herein
concluded defendant was so entitled because this court’s having vacated his sentence
rendered him an unsentenced defendant within the meaning of the Act and therefore
imposed a determinate sentence.
1
For reasons we explain, we conclude that, consistent with the intent of the Act, it
is the date upon which the defendant’s sentence was originally imposed that determines
whether the defendant is entitled to be sentenced under the Act. Because defendant
herein was originally sentenced prior to November 7, he was not entitled to be sentenced
under the Act. Accordingly, we shall vacate defendant’s sentence and remand the matter
for resentencing.
THE ACT
On November 6, 2012, the voters passed the Act and it became operative on
November 7, 2012. The Act consisted of two parts, one prospective and the other
retrospective. The prospective part amended the three strikes law (Pen. Code, §§ 667,
subds. (b)-(i), 1170.12)1 to provide second-strike sentencing to defendants who were to
be sentenced on or after November 7, who had two or more prior serious or violent
felony convictions but whose present felony was neither serious nor violent nor were the
defendants excluded because they came within the scope of other specified circumstances
(§ 667, subd. (e)).2
The retrospective part of the Act added section 1170.126 to the Penal Code. This
section permitted defendants who were serving indeterminate three-strike sentences
imposed prior to November 7, 2012, to petition the trial court for resentencing as second-
strike offenders if the felony for which they were serving the indeterminate term was not
a serious or violent felony and they were not excluded from such sentencing because they
came within the scope of other specified circumstances. Defendants meeting these
1 References to undesignated statutes are to the Penal Code.
2 Section 667, subdivisions (b)-(i) is the Legislature’s version of the three strikes law,
and section 1170.12 is the voter initiative version of the three strikes law. The two
versions are almost identical. (See People v. Hazelton (1996) 14 Cal.4th 101, 103-109.)
While our analysis herein is made with reference to the Legislature’s version of the law,
our analysis is equally applicable to the voter initiative version.
2
threshold conditions were entitled to be resentenced as second-strike defendants unless
the trial court found that they posed an unreasonable risk of danger to the public.
(§ 1170.126, subds. (b)-(f).)
PROCEDURAL HISTORY3
In August 2008 defendant Barry Turnage, who had two prior serious felony
convictions, was sentenced to an indeterminate term of imprisonment under the three
strikes law (§ 667, subds. (b)-(i)) based upon his being convicted by a jury of maliciously
placing a false bomb (§ 148.1, subd. (d)), a felony. Defendant appealed, and in a decision
filed in 2010 we affirmed his conviction but held that the false bomb offense was not
punishable as a felony. We vacated defendant’s sentence and remanded the matter for
resentencing as a misdemeanor. Because defendant was no longer eligible for sentencing
under the three strikes law, we did not address his additional contention that the evidence
was insufficient to support one of his prior strike convictions.
In 2010 the California Supreme Court granted the People’s petition for review.
(People v. Turnage (2012) 55 Cal.4th 62, 67.) In August 2012 the Supreme Court
affirmed defendant’s conviction but reversed our holding that the offense was not
punishable as a felony, and remanded the matter to us for further proceedings. (Id. at
pp. 80-81.) We ordered supplemental briefing, and in May 2013 we filed our opinion,
vacating defendant’s sentence and remanding to the trial court for a retrial on the
allegation that defendant had suffered a 1985 conviction for assault with a deadly
weapon. The remittitur issued in July 2013.
In September 2013 a jury found defendant’s prior strike conviction allegation true,
and in October 2013 the matter came before the trial court for resentencing. After
hearing arguments the trial court concluded defendant was entitled to be sentenced
3 We take judicial notice of our records in defendant’s prior appeal in case C059887.
(Evid. Code, § 452, subd. (d).)
3
pursuant to the Act, reasoning as follows: “The defendant is presently unsentenced. The
true finding as to his second strike occurred after the amendment to Penal Code
Section 667. The Court finds that under the facts of this case the amended Penal Code
Section 667 applies. The defendant’s conviction of Penal Code Section 148.1 is not a
serious or violent felony. None of the exclusions under [section] 667 apply. Therefore,
an indeterminate sentence may not be imposed.” The court then imposed a determinate
term of six years (the upper term of three years, doubled because of the strike) plus an
effective consecutive term of one year four months for a separate case for which
defendant was on probation.
ANALYSIS
“In interpreting a voter initiative, we apply the same principles that govern our
construction of a statute. [Citation.] We turn first to the statutory language, giving the
words their ordinary meaning. [Citation.] If the statutory language is not ambiguous,
then the plain meaning of the language governs. [Citation.] If, however, the statutory
language lacks clarity, we may resort to extrinsic sources, including the analyses and
arguments contained in the official ballot pamphlet, and the ostensible objects to be
achieved. [Citations.].” (People v. Lopez (2005) 34 Cal.4th 1002, 1006.)
The Act makes clear that a defendant whose original sentence is to be imposed on
or after November 7, 2012, and who qualifies for sentencing under amended section 667,
subdivision (e) must be sentenced under that section. However, the Act does not address
whether, as here, a defendant originally sentenced before November 7, but whose
sentence was vacated on appeal and the matter remanded for resentencing after
November 7, is in the same unsentenced position as he or she was when originally
sentenced. Thus, in such circumstances the Act is ambiguous, and therefore it is
appropriate to look to extrinsic evidence, such as the argument contained in the
Amendment’s ballot pamphlet, to determine voter intent. (People v. Yearwood (2013)
213 Cal.App.4th 161, 171 (Yearwood).)
4
According to the Act’s proponents, one of the primary purposes of the Act was to
make the punishment fit the crime while guarding public safety. (Yearwood, supra,
213 Cal.App.4th at p. 171.) As to making the punishment fit the crime, proponents of the
Act argued that people who were convicted of such crimes as “ ‘shoplifting a pair of
socks, stealing bread or baby formula don’t deserve life sentences.’ ” (Ibid.) Public
safety was addressed by limiting application of the Act to defendants whose crimes for
which they were to be sentenced or had been sentenced were neither serious nor violent
felonies, nor did they come within the scope of other specified offenses or circumstances.
(§ 667, subd. (e).) Indeed, the voters were expressly assured that dangerous persons
would not be released under the Act: “Criminal justice experts and law enforcement
leaders carefully crafted [the Act] so that truly dangerous criminals will receive no
benefits whatsoever from the reform. Repeat criminals will get life in prison for serious
or violent third strike crimes.” (Voter Information Guide, Gen. Elec. (Nov. 6, 2012)
argument in favor of Prop. 36 [(the Act)], p. 52.)
“The main difference between the prospective and the retrospective parts of the
Act is that the retrospective part of the Act contains an ‘escape valve.’ ” (People v.
Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1293 (Kaulick).) The escape
valve provides that even if a defendant meets the threshold requirements for resentencing,
namely, that the sentence he was now serving was not for a serious or violent felony and
that he did not come within any other of the disqualifying conditions, the court is still
authorized to deny resentencing if the court determines that “ ‘resentencing the
[defendant] would pose an unreasonable risk of danger to public safety.’ ” (Ibid.)
The circumstances of Kaulick, which we discuss in detail, post, demonstrate the
need for such an escape valve. (Kaulick, supra, 215 Cal.App.4th at p. 1293.) In 1999,
after violently assaulting his neighbor, Barbara S., Kaulick was charged with false
imprisonment by violence (§ 236), assault with intent to commit rape (§ 220), and
making criminal threats (§ 422), the latter two offenses being violent or serious felonies.
5
(Kaulick, at pp. 1286-1287.) It was also alleged that he had two prior serious or violent
felony convictions. (Id. at p. 1287.) In 2000 a jury convicted him of false imprisonment,
which is not a serious or violent felony, but deadlocked on the remaining charges, which
were ultimately dismissed at the prosecution’s request. (Id. at pp. 1287-1288.) The court
found the alleged prior serious or violent felony allegations true and sentenced Kaulick to
25 years to life in state prison. (Ibid.)
In December 2012, around 12 years after his sentencing, Kaulick filed a petition
for resentencing under section 1170.126. (Kaulick, supra, 215 Cal.App.4th at p. 1289.)
Kaulick asserted he was entitled to resentencing because his conviction was for false
imprisonment, which was neither a serious nor violent felony. He minimized his
dangerousness by claiming that his present conviction arose from his effort to retrieve a
gold necklace Barbara S. had purportedly stolen from him, and he claimed that his prior
convictions arose from a family dispute gone awry for which he had naively accepted a
plea bargain. (Ibid.) He submitted no evidence whatsoever regarding his behavior while
in prison or his current risk of dangerousness. (Ibid.) On December 31, 2012, the trial
court, without giving notice or opportunity to be heard to the district attorney, granted the
petition and resentenced Kaulick to seven years. (Id. at pp. 1289-1290, 1296.) Because
Kaulick had served more than seven years, he was entitled to immediate release from
prison. (Id. at p. 1290.)
The district attorney sought and obtained an immediate 30-day stay. (Kaulick,
supra, 215 Cal.App.4th at p. 1290.) A review of Kaulick’s prison records disclosed that
he had been found guilty of serious rules violations—twice for battery on a peace officer
(2002, 2005); six times for fighting (2001, 2003, 2007, 2010, 2011, 2012); and once for
disrespecting staff (2011), possession of alcohol (2009), being under the influence of
alcohol (2008), and destruction of property (2002). (Ibid.)
The district attorney also reviewed the facts of Kaulick’s present and past
convictions, which the defendant had minimized in his petition. (Kaulick, supra,
6
215 Cal.App.4th at p. 1290.) As to Kaulick’s claim that his false imprisonment
conviction arose out of his efforts to recover a necklace Barbara S. had purportedly stolen
from him, he neglected to include evidence from the trial that Barbara S. was helping
defendant move out of his apartment when he closed the door, tore her blouse, choked
her, threatened to kill her, threw her on his bed, ordered her to remove her clothes, and
unbuckled his belt. (Id. at pp. 1286-1287.) Barbara S. managed to escape by kicking
defendant between his legs and fleeing. (Id. at p. 1287.) As to prior strike convictions
purportedly having arisen from a family dispute gone awry, evidence from the
preliminary hearing showed that Kaulick arrived at his parents’ motor home drunk and
demanded a gun from his father. When his father refused, Kaulick repeatedly punched,
strangled, and threatened to kill him. Kaulick eventually got the gun and kidnapped his
parents in their motor home. After consuming more alcohol, defendant drove back to
where the motor home had been parked, released his parents, and drove off in their motor
home, leaving them abandoned. (Id. at p. 1287, fn. 3.)
A writ of mandate directed the trial court to vacate its resentencing of Kaulick
under the Act and to conduct a new hearing wherein the prosecution was afforded the
opportunity to challenge Kaulick’s qualification for resentencing under section 1170.126.
(Kaulick, supra, 215 Cal.App.4th at pp. 1306-1307.)
In the present case, by sentencing defendant pursuant to the prospective part of the
Act the trial court permitted defendant to bypass having the trial court determine whether,
as in Kaulick, facts existed that established he posed an unreasonable risk of danger to
public safety based upon any evidence relevant on the issue. As in Kaulick, such a
bypass was clearly contrary to the intent of the voters in passing the Act.
DISPOSITION
Defendant’s sentence is vacated and the matter is remanded to the superior court
with directions to resentence defendant under the three strikes law as it stood at the time
of his original sentencing, which includes the trial court’s discretion to strike one or more
7
of his prior strikes if the court determines that he so qualifies. The judgment is otherwise
affirmed.
RAYE , P. J.
We concur:
BUTZ , J.
MURRAY , J.
8 | 01-03-2023 | 04-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2828492/ | IN THE COURT OF APPEALS OF IOWA
No. 15-0158
Filed August 19, 2015
IN THE INTEREST OF V.M.,
Minor Child,
T.M., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Louise M. Jacobs,
District Associate Judge.
A mother appeals from the termination of her parental rights to her child.
AFFIRMED.
Christine Branstad of Branstad Law, PLLC, Des Moines, for appellant
mother.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Annette Taylor,
Assistant Count Attorney, for appellee State.
Kimberly Ayotte of the Youth Law Center, Des Moines, attorney and
guardian ad litem for minor child.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
2
DOYLE, P.J.
A mother appeals from the termination of her parental rights to her child,
V.M., born in 2012.1 We affirm.
I. Background Facts and Proceedings
This family came to the attention of the Iowa Department of Human
Services (DHS) in November 2013, following the mother’s arrest for drug
possession and theft. DHS received information the mother was using
methamphetamine and marijuana, which was substantiated by a positive hair
screen she provided. The mother also had unaddressed mental health needs.
The child was not receiving adequate care; among other concerns, the mother
associated with drug users and used drugs while caring for the child,2 the child
has access to medication in the home, and the mother drove with the child
without having a driver’s license. The child was removed from the mother’s care.
Upon removal, the child tested positive for methamphetamine.
In December 2013, the child was adjudicated in need of assistance
(CINA). After an initial placement in foster care and then with maternal relatives,
the child was placed with her paternal great aunt and uncle in January 2014,
where she has remained.
The mother participated in outpatient treatment in December 2013 and
January 2014. After being discharged from treatment, the mother relapsed on
methamphetamine and marijuana. She was also arrested on additional theft
1
The child’s father is deceased.
2
The mother stated she used drugs “a lot of times” while the child was sleeping or
napping.
3
charges. In April, the mother married a man who has a history of substance
abuse. The mother missed visits with the child from March until July 2014.
The State filed a petition to terminate parental rights on June 18, 2014.
On July 8, 2014, the mother entered inpatient substance abuse treatment. The
mother began attending therapy to address her mental health needs. Visits
between the mother and child resumed, and the mother attended to the child’s
needs during visits. In September 2014, the DHS caseworker observed a
positive bond between the mother and child and improvements to the mother’s
mental health, but noted risks remained that “[the mother] will disengage from
services again, like she has done in the past,” or that “[the mother] has or will
relapse and try to care for [the child] under the influence.”
During a visit with the child on October 8, 2014, the mother told the
caseworker she planned to stay at inpatient treatment “even if [her parental]
rights were terminated” because “she was an addict and needs the structure and
support that she gets in treatment.” The next night, the mother walked out of
treatment. She did not tell providers she was leaving and she left without her
belongings. Her husband picked her up and she moved in with him at his
grandmother’s house.
On October 10, the caseworker reported she had “not heard from [the
mother].” The mother contacted the caseworker a few days later asking which
days visits took place. The mother reported to the caseworker that she was
attending three NA meetings a week. The mother’s drug test on October 23
came back negative. Visitation resumed, but the caseworker’s “October update”
noted concerns:
4
Threats for maltreatment are high with [the mother] as it relates to
[the child]’s safety at this time. [The mother] voluntarily left
treatment at House of Mercy on October 9th. This resulted in an
unsuccessful discharge from the program. [The mother] reported to
feeling stressed and overwhelmed in treatment. . . . At this time it
appears, [the mother] is not currently managing her mental health
or substance abuse properly . . . .
The termination hearing took place on October 31, 2014. The mother
testified she had been clean since July 8, the day she entered inpatient
treatment. She explained she left inpatient treatment because “it was not
working for me. I feel that outpatient is a better fit for me.” The mother
acknowledged leaving inpatient treatment was not “the best choice with what’s
going on in my case, but [it was the best choice] for me personally.” She
acknowledged she had not notified DHS when she left treatment.
The mother testified the child could not be returned to her custody safely
“today” because she had “a little bit of work to do with outpatient treatment.” She
stated, “I think I just need to continue doing therapy once a week and finish my
outpatient.” The mother testified she had not seen her therapist since leaving
inpatient treatment, but she had “talked to her this week” to set up an
appointment. She also stated, “I need to get a job so I can get my own
apartment again.” The mother testified she and the child had an “amazing bond
together” and that she called the child “every night.” The mother stated, “I just
think I need a couple more months to prove it.” She further stated:
I’m not a bad mother at all. I just made poor decisions. I made
some mistakes in the past, but that does not define who I am today.
I think if I had this change that I could really show them what I’m
capable of and not mess it up.
5
The caseworker observed the child’s bond with mother grew “stronger” as
they had more visits. The caseworker’s report also noted the child was “thriving”
in her current home placement with her paternal great aunt and uncle and their
two children, she was bonded with that family, and the family expressed it would
be willing to make a permanent commitment to her through adoption.
Following the termination hearing, the court entered its order terminating
the mother’s parental rights under Iowa Code sections 232.116(1)(b), (d), (h),
and (l) (2013).3 The court observed the mother “has yet to demonstrate that she
can establish and maintain sobriety.” The court noted the mother minimized the
impact her poor-decision making had on her child and “has not demonstrated
that she understands that her child needs a permanent home given her age and
needs.” For example, the court noted the mother’s testimony that “she was a
good mother even when she was using illegal substances because her child was
fed and clothed and put to sleep in bed.” The court determined it was not in the
best interest for the child to wait additional time for the mother to complete
treatment and learn skills to allow her to parent the child safely.
The mother appeals. We conduct a de novo review of termination-of-
parental-rights proceedings. In re P.L., 778 N.W.2d 37, 40 (Iowa 2010).
3
The State’s petition alleged the mother’s parental rights should be terminated pursuant
to Iowa Code sections 232.116(1)(b), (d), (h), (i), and (l). In the discussion section of its
order, the court found clear and convincing evidence to terminate the mother’s parental
rights under sections 232.116(1)(b), (d), (h), and (l). In the final paragraph of its order,
however, the court ordered termination of the mother’s parental rights pursuant to
sections 232.116(1)(a) and (f). Because these subsections were neither alleged by the
State in its petition nor otherwise addressed by the court in its order, reference to these
subsections in the final paragraph was clearly a typographical error, which is harmless
given our de novo review. See, e.g., In re D.L.C., 464 N.W.2d 881, 883 (Iowa 1991)
(noting the juvenile court’s error was harmless in light of the de novo review of the
appellate court). Accordingly, we review the court’s order terminating the mother’s
parental rights under sections 232.116(1)(b), (d), (h), and (l).
6
II. Discussion
The mother challenges the termination of her parental rights as to all
sections relied on by the juvenile court. We may affirm the juvenile court’s
termination order on any ground that we find supported by clear and convincing
evidence. In re D.W., 791 N.W.2d 703, 707 (Iowa 2010). Termination may be
ordered when there is clear and convincing evidence a child age three or
younger, who has been adjudicated in need of assistance and removed from the
parent’s care for six of the last twelve months, cannot be returned to the parent’s
custody at the time of the termination hearing. See Iowa Code § 232.116(1)(h).
There is no dispute the first three elements of section 232.116(1)(h) have been
met—at the time of termination, V.M. was two years old, adjudicated CINA, and
had been out of the mother’s custody for six of the last twelve months. See id.
§ 232.116(1)(h)(1)-(3). The mother’s claim implicates the fourth element, see id.
§ 232.116(1)(h)(4) (“There is clear and convincing evidence that at the present
time the child cannot be returned to the custody of the child’s parents”), where
she contends that at the time of the termination hearing, she “had completed
multiple stages of therapy and drug treatment,” “appropriately cared for V.M.
during visits,” and “was seeking employment and communicating effectively with
all parties involved.”
Contrary to the mother’s contention, the record supports the conclusion
that the mother is unable to care for the child safely. She admitted she could not
care for the child at the time of the termination hearing, but stated she needed
time to “continue doing therapy” and “finish” her outpatient treatment.
7
The problem with the mother’s claim is that at the time of the termination
hearing, the mother was not participating in any treatment program. The mother
had participated in (and completed) outpatient treatment in December 2013 and
January 2014, after the child was removed from her care. She relapsed and
went months without treatment, contact with the child, or contact with providers.
After the State filed a petition to terminate her parental rights, the mother began
inpatient treatment and she resumed visits with the child, albeit supervised.
However, the mother left this program in mid-October, was unsuccessfully
discharged, and was given a “poor” prognosis. In the program’s discharge
summary, it was noted the mother “appeared in the contemplation stage of
change where she knew there was a problem with her use but had yet to learn
the skills to incorporate positive agents for change into her life.” In light of the
fact that the mother reported her “biggest regret” was “starting therapy so late in
the case,” we are deeply concerned with her decision to leave treatment less
than a month prior to termination hearing.
The concerns regarding the mother’s substance abuse, poor decision-
making, and unaddressed mental health issues were initially raised in November
2013, and continued to exist at the time of the termination hearing in October
2014. During this time, numerous services were offered to the mother with the
goal of reunifying her with the child. This child is only two years old and
deserves stability and permanency. The mother is unable to assume custody of
the child now or at any time in the foreseeable future.4 Under these facts and
4
Additional time would not correct the situation. “It is well-settled law that we cannot
deprive a child of permanency after the State has proved a ground for termination under
8
circumstances, we conclude there is clear and convincing evidence that grounds
for termination exist under section 232.116(1)(h).
Giving primary consideration to the “the child’s safety, . . . the best
placement for furthering the long-term nurturing and growth of the child, and to
the physical, mental, and emotional condition and needs of the child,” we
conclude termination of the mother’s parental rights will best provide the child
with the permanency she deserves under section 232,116(2), and termination is
not prevented by a consequential factor under section 232.116(3). See P.L., 778
N.W.2d at 40. Accordingly, we affirm termination of the mother’s parental rights.
AFFIRMED.
section 232.116(1) by hoping someday a parent will learn to be a parent and be able to
provide a stable home for the child.” P.L., 778 N.W.2d at 41; see also In re A.B., 815
N.W.2d 764, 778 (Iowa 2012) (noting the parent’s past conduct is instructive in
determining the parent’s future behavior). Children are not equipped with pause buttons.
“The crucial days of childhood cannot be suspended while parents experiment with ways
to face up to their own problems.” In re A.C., 415 N.W.2d 609, 613 (Iowa 1987). At
some point, as is the case here, the rights and needs of the child rise above the rights
and needs of the parent. There is no reason to delay the child the permanency she
needs and deserves. | 01-03-2023 | 08-19-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3242960/ | Appeal dismissed by appellant. *Page 703 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/8540838/ | Opinión disidente de la
Jueza Asociada Señora Pabón Charneco.
La Opinión que emite una Mayoría del Tribunal se adentra en un mundo imaginario en el que el texto de las Reglas de Evidencia pasó a un segundo plano. Éste se sus-tituyó por un razonamiento jurídico inventado con el único propósito de anunciar el resultado específico al que la Ma-yoría forzosamente quería llegar. El proceder que hoy pre-senciamos es el producto inevitable que se da cuando, a toda costa, existe un deseo de llegar a un resultado particular en un caso sin importar sus consecuencias.
Con este caso, la profesión legal de Puerto Rico es testigo de un Tribunal al que le resultó antipática la aplica-ción de un privilegio probatorio, a pesar del lenguaje claro de las Reglas de Evidencia, infra, y buscó mediante inter-pretación forzada la manera de no aplicarlo.
Esta Opinión crea una norma histórica en nuestro orde-namiento jurídico. Lamentablemente, me temo que será una norma notoriamente histórica tan pronto sus efectos comiencen a repercutir en la práctica de la profesión legal en Puerto Rico. Ante este escenario, me veo obligada a disentir y exponer los escombros que dejó en el camino la Mayoría del Tribunal, mientras buscó la manera de infun-dirle vida a una “criatura jurídica” que anuncia y deja libre por nuestro ordenamiento. Esa criatura —“las Reglas de *544Evidencia vivas”— ha quedado libre en nuestro ordenamiento y los estragos que ocasione están por verse.(1)
I
De entrada, es menester mencionar que comparto el cri-terio de la Opinión mayoritaria en cuanto a que en nuestra jurisdicción aplica la norma que el Tribunal Supremo federal estableció en Upjohn Co. v. United States, 449 US 383 (1981). En ese caso, el más Alto Foro rechazó el uso del denominado “Estándar de Grupo de Control” en los tribu-nales federales para determinar la aplicación del privilegio abogado-cliente en el ámbito corporativo. Por voz del en-tonces Juez Asociado William Rehnquist, el Tribunal dicta-minó que ese estándar era demasiado restrictivo y aten-taba contra el libre flujo de información necesario en un ambiente corporativo, particularmente cuando se trata de la búsqueda de asesoramiento legal. En palabras del Alto Foro:
[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. Upjohn Co. v. United States, supra, pág. 390.
Como correctamente discute la Opinión del Tribunal, no hay duda de que en nuestra Regla 503 de Evidencia, 32 LPRAAp. VI, se adoptó el concepto del privilegio abogado-cliente aplicable al mundo corporativo, según se concibió en Upjohn Co. v. United States, supra. El Comité Asesor *545Permanente de Reglas de Evidencia expresó lo siguiente en cuanto al significado de “representante autorizado” se-gún aparece en la regla:
[S]e codificó lo resuelto en el caso Up John Co. v. US, donde el Tribunal Supremo Federal resolvió que el privilegio se ex-tiende a conversaciones entre el abogado o abogada y los repre-sentantes y empleados del cliente. Esta decisión tiene una im-portancia fundamental en el ámbito de las corporaciones, ya que extiende el privilegio a los empleados de la corporación si tales comunicaciones resultan pertinentes para asesorar al cliente. (Énfasis suplido). Informe de las Reglas de Derecho Probatorio, Tribunal Supremo de Puerto Rico, Comité Asesor Permanente de Reglas de Evidencia del Secretariado de la Conferencia Judicial y Notarial, 12 de marzo de 2007, págs. 227-228.
Otros miembros del Comité también han confirmado esta intención. Así, por ejemplo, el profesor Emmanuelli Jiménez ha hecho constar que la definición de represen-tante autorizado se adoptó precisamente para codificar lo resuelto en Upjohn Co. v. United States, supra. R. Emmanuelli Jiménez, Prontuario de derecho probatorio puertorriqueño 2010, 3ra ed., San Juan, Ed. Situm, 2010, pág. 267. A la misma conclusión ha llegado el profesor Ernesto Chiesa Aponte, Reglas de Evidencia de Puerto Rico 2009, San Juan, Pubs. JTS, 2009, pág. 151.
Tenemos que concluir, entonces, que la norma estable-cida por el Tribunal Supremo federal en Upjohn Co. v. United States, supra, no es solo compatible con la Regla 503 de Evidencia, supra, sino que fue la intención expresa del Comité que redactó la regla codificar lo resuelto en ese caso.
Sin embargo, a pesar de clarificar que los postulados de Upjohn Co. v. United States, supra, aplican en nuestra jurisdicción, la Opinión mayoritaria hace malabares jurídi-cos para no aplicar el privilegio abogado-cliente en el caso de autos. Como veremos a continuación, en este caso se cumplen todos los requisitos estatutarios para que aplique el Privilegio Abogado-Cliente que reconoce la Regla 503 de *546Evidencia, supra. Además, no está presente ninguna de las excepciones que se reconocen en esa Regla para impedir la aplicación del privilegio.
No obstante, una Mayoría de miembros de este Tribunal concluye que, de todos modos, el privilegio no aplica. De entrada, debo confesar que me asombra la extraña lógica que sustenta los fundamentos que utilizó la Mayoría para llegar a ese resultado. Y es que esa conclusión se anuncia de una manera tan apresurada y cortante que hay que releer en varias ocasiones la Opinión para comenzar a de-linear las razones por las cuales se llegó a la conclusión de que en este caso no aplica un privilegio a pesar de que todos sus requisitos se cumplieron. Lamentablemente, eso es lo que ocurre cuando se construyen teorías ad hoc para resolver los casos que llegan hasta este tribunal.
II
Es un principio axiomático de nuestro ordenamiento que el fin último de los procesos judiciales es la búsqueda y consecución de la verdad. Precisamente, para adelantar ese propósito se codifican en nuestro sistema las Reglas de Evidencia. Véase Regla 102 de Evidencia, 32 LPRA Ap. VI. No obstante, en nuestro ordenamiento también se reconoce la existencia de diversos intereses que requieren protec-ción y que, en ocasiones, pueden ser superiores a la bús-queda de la verdad. La existencia de una serie de privile-gios en el derecho probatorio se sustenta en esa realidad.
Un Privilegio es una regla de exclusión que permite que evidencia que podría ser admisible se rechace por razones ajenas a la búsqueda de la verdad. Ortiz v. Meléndez, 164 DPR 16, 28 (2005). A diferencia de otras reglas de exclusión, en el caso de los privilegios, el valor probatorio de la evidencia sencillamente no se considera. E. Chiesa Aponte, Tratado de derecho probatorio, San Juan, Pubs. JTS, 2005, T. I, pág. 186.
*547Todos los privilegios en nuestro ordenamiento se pueden clasificar como absolutos o condicionales. Un privilegio se denomina absoluto porque una vez se cumplen los requisi-tos que lo constituyen, los tribunales carecen de discreción para obligar a divulgar la información privilegiada. Chiesa Aponte, Tratado de derecho probatorio, op. cit., pág. 193. Véase, también, 1-6B The New Wigmore: Evidentiary Privileges Sec. 3.2.4, pág. 168 (2da ed. 2009).(2) A contrario sensu, los privilegios se clasifican como condicionales por-que su aplicación puede ceder ante intereses sociales, aun cuando se cumpla con los requisitos que lo constituyen. Según el profesor Chiesa Aponte, ese es el caso de privile-gios como el de información oficial y el de secretos de negocio. Chiesa Aponte, Tratado de derecho probatorio, op. cit., pág. 193. Este era el esquema en nuestro ordenamiento, hasta que la Mayoría lo trastocó con la decisión que emite.
En nuestro ordenamiento, la Regla 503 de Evidencia, supra, codifica el privilegio abogado-cliente. Su inciso (a) establece los significados de los términos claves que son inexorablemente necesarios al momento de interpretar el alcance del privilegio.
In limine, la Regla 503(a)(1) establece que un abogado es una persona autorizada para ejercer la profesión legal en Puerto Rico o en cualquier otra jurisdicción. Además, según la propia Regla, “[e]s suficiente conque [sic] el cliente razonablemente crea que con quien habla es un abogado, aunque en realidad no lo sea”. Chiesa Aponte, Reglas de Evidencia de Puerto Rico 2009, op. cit., pág. 151.
Por su parte, la Regla 503(a)(1) establece que un cliente es cualquier persona natural o jurídica que consulta a un *548abogado, ya sea para contratar sus servicios legales o para obtener consejo en su capacidad oficial. 32 LPRAAp. VI.
El aspecto más esencial del privilegio abogado-cliente se encuentra codificado en la definición de comunicación con-fidencial que provee la Regla 503(a)(4). Y es en cuanto a este factor que la Opinión mayoritaria se enreda y crea un mundo imaginario para decir que en este caso no se cum-plió con esa definición estatutaria.
Según esta Regla, una comunicación será confidencial para propósitos de este privilegio si es “entre una abogada o un abogado y su cliente en relación con alguna gestión profesional, basada en la confianza de que no será divul-gada a terceras personas, salvo a aquellas que sea necesa-rio para llevar a efecto los propósitos de la comunicación”. (Énfasis suplido). 32 LPRAAp. VI.
De la definición podemos colegir que la comunicación tiene que ser un asesoramiento legal procurado por el cliente y tiene que ocurrir con la expectativa de que la co-municación no será divulgada a terceros, preservando así su carácter de confidencialidad. Emmanuelli Jiménez, op. cit, pág. 267. Es decir, es completamente irrelevante para propósitos de la Regla de Evidencia 503, supra, que quien comunica la información y quien la recibe conozcan el con-tenido de la información. Lo único que tienen que auscul-tar los tribunales para determinar si una comunicación es confidencial para propósitos del privilegio abogado-cliente es si las partes tomaron medidas para que lo comunicado no llegue a terceros. Es en ese momento que la comunica-ción se convierte en “confidencial” para propósitos probatorios.
III
Pasemos a determinar, entonces, si los requisitos para que se constituya el privilegio abogado-cliente están pre-sentes en este caso. Como discutimos, nuestro ordena-*549miento requiere que para reconocer la existencia del privi-legio abogado cliente se cumplan los requisitos siguientes: (a) una comunicación confidencial; (b) realizada por un cliente; (c) a un abogado, (d) para obtener asesoramiento legal.
Primero, debemos determinar si en el caso ante nos, la comunicación se le planteó a un abogado. No hay duda de ello, ya que la reunión que generó la controversia de autos se dio ante los abogados que asesoraban a la corporación First Hospital Panamericano (en adelante First Hospital).
Segundo, debemos auscultar si esa comunicación la hizo un cliente en este caso. La respuesta a ello es, obviamente, afirmativa, ya que First Hospital es el cliente de los abo-gados que estaban presentes en esa reunión. Como vimos, nuestra Regla 503 de Evidencia, supra, permite que el cliente sea un ente con personalidad jurídica. Además, el que realizó la comunicación, el señor Pagán Cartagena, era un representante autorizado de First Hospital, según los requisitos de Upjohn Co. v. United States, supra, y según la conclusión de la Opinión mayoritaria.
Tercero, debemos determinar si lo que el cliente habló con los abogados tenía como propósito el asesoramiento legal. De los autos del caso queda claro que eso era así, ya que a First Hospital le interesaba recibir información en cuanto a las posibles repercusiones legales de un incidente ocurrido en sus instalaciones hospitalarias.
Cuarto, y medular para la controversia de este caso, de-bemos determinar si esa comunicación fue confidencial. Como hemos visto, la Regla 503(a)(4) de Evidencia dispone que una comunicación será confidencial si las partes que la expresan desean que esta no se revele a terceros. Repeti-mos, a terceros. O sea, lo que nuestro ordenamiento exige es que las partes establezcan medidas para que la informa-ción no llegue a entes ajenos a la comunicación. Una vez se determina que las partes tenían esa intención de proteger la comunicación, esta adquiere el carácter de confidencial para propósitos de la Regla 503 de Evidencia, supra.
*550En el caso de autos, esa intención es clara, ya que lo que se discutió en la reunión entre los abogados de First Hospital y el recurrido de autos se dio en el contexto de un asesoramiento ante una posible reclamación judicial. En todo momento First Hospital ha sostenido que tenía la in-tención de proteger de terceros lo que se discutió en esa reunión y levantó su reclamo de privilegio desde la Contes-tación a la Demanda. Además, el recurrido nunca refutó ese hecho ni nos colocó en posición de determinar que First Hospital no manejó la comunicación de manera confidencial. Incluso, la Opinión mayoritaria reconoce este hecho. Opinión del Tribunal, pág. 542.
Ante este cuadro que consta en autos, es forzoso con-cluir que se cumple con todos los requisitos que nuestro ordenamiento requiere para que se reconozca un reclamo de privilegio abogado-cliente. Debemos recordar que en nuestra jurisdicción, el privilegio abogado-cliente es de ca-rácter absoluto, por lo cual una vez se determina que se cumplen los requisitos para constituirlo, los tribunales ca-recen de discreción para negar un reclamo según la Regla 503 de Evidencia, supra. Chiesa Aponte, Tratado de dere-cho probatorio, op. cit., pág. 193. Véase, además, M.M. Martin, Basic Problems of Evidence, 6ta ed., Filadelfia, Ed. A.L.I.-A.B.A., 1988, págs. 155-156. Tampoco poseen discre-ción para conjurar excepciones ad hoc que no estén expre-samente codificadas en las Reglas de Evidencia.
Sin embargo, ya vimos que una mayoría de miembros de este Tribunal concluye que el privilegio abogado-cliente no aplica en este caso. Para ello, la Mayoría confecciona un mundo imaginario en donde coexisten dos (2) teorías mu-tuamente excluyentes.
Primero, la Opinión mayoritaria sostiene que el ele-mento de confidencialidad no está presente en esa situa-ción de hechos porque tanto First Hospital como el recu-rrido conocen el contenido de lo comunicado. Eso es muy cierto. El problema es que eso no es lo que determina si *551una comunicación es confidencial para propósitos de la Re-gla 503 de Evidencia, supra. La Mayoría erró porque aplicó la definición del diccionario de lo que es “confidencial” a estos hechos, en vez de aplicar el texto de las Reglas de Evidencia.(3)
Ciertamente, por lógica y naturaleza humana, cuando dos (2) entes se comunican una expresión, ambos conocen su contenido: entre ellos no hay secreto. Pero la Regla 503 de Evidencia, supra, establece que para que lo expresado sea “confidencial”, solo se requiere que los dos (2) entes tomen medidas para que esa expresión no llegue a oídos de terceros. El hecho de que ambos sepan lo comunicado no forma parte de la doctrina de derecho probatorio para de-terminar que una comunicación es “confidencial”.
Otros tribunales no han tenido problemas para com-prender el significado de lo que es “confidencial” para pro-pósitos del privilegio abogado-cliente. En palabras de un tribunal de distrito federal:
“Confidential” means that the agency official said or wrote something to a lawyer to secure legal advice with the intention that it not be known by anyone other than the lawyer. The information is to be protected if one can say that the person who communicated the information never intended it to be disclosed and, but for its disclosure now, it would never have been known. (Enfasis suplido y escolio omitido). Evans v. Atwood, 177 F.R.D. 1, 5 (D. D.C. 1997).
Increíblemente, una mayoría de miembros de este Tri*552bunal no comprendió el significado de “comunicación con-fidencial” en el derecho probatorio.
Segundo, y más sorprendente aún, en la misma Opinión mayoritaria se concluye que lo comunicado por Pagán a los abogados de First Hospital, en efecto, fue confidencial. Y es que la Opinión mayoritaria tiene que concluir eso por obli-gación porque la “confidencialidad” de la comunicación es uno de los factores del test de Upjohn Co. v. United States, supra. Es decir, no se puede hablar de un “representante autorizado” para propósitos del test formulado en ese caso si no se concluye “ab initio” que una comunicación es confidencial. Véase J.W. Gergacz, Attorney-Corporate Client Privilege, 2da ed., Nueva York, Ed. Garland Law Publishing, 1990, pág. 3-13. Es por eso que Gergacz postula:
[i]f the communication is confidential at the time it was made, no other issue of confidentiality arises in the development of the privilege. (Enfasis suplido). Id., pág. 3-48.
El propio estándar de Upjohn Co. v. United States, supra, que propone la Mayoría requiere que, antes de concluir que un empleado es el “representante autorizado” de un cliente, hay que auscultar si las “la corporación trató sus comunicaciones de forma confidencial”. (Enfasis suplido). Opinión del Tribunal, pág. 44. Asombrosamente, la Mayoría concluye que, en efecto, First Hospital trató las comunicaciones de forma confidencial porque tomó medidas para que no se revelaran a terceros. Id., págs. 46-47. Así que, en una misma Opinión, la Mayoría nos dice, para-dójicamente, que la comunicación objeto de este caso tiene carácter de confidencialidad pero que, a la misma vez, no se cumplieron los requisitos de la Regla 503 de Evidencia, supra, para determinar que una comunicación es “confidencial”. Es decir, para la Mayoría, la comunicación “es” y “no es” confidencial. Este razonamiento es inaudito y, francamente, su lógica se me escapa.
La única forma de explicar este brinco de lógica es si *553aceptamos que, para propósitos de la Regla 503 de Eviden-cia, supra, coexisten dos (2) definiciones de “comunicación confidencial”, a pesar de que el propio texto de la Regla nos provee solo una. Desconozco bajo qué canon de interpreta-ción estatutaria la Mayoría llegó a ese resultado, a menos que las Reglas de Evidencia “vivas” que adopta la Mayoría permitan ese tipo de coexistencia extraña en una misma Regla.
IV
Pero no nos preocupemos, porque como la Mayoría reco-noce que su mundo está construido sobre bases frágiles, nos propone entrelineas una segunda teoría para no apli-car el privilegio abogado-cliente al caso de autos. En ese sentido, nos sugiere que los hechos de este caso “se aseme-jan” a los hechos necesarios para concluir que se cumple con los requisitos de la excepción codificada en la Regla 503(c)(4) de Evidencia, 32 LPRA Ap. VI. Esta establece que cuando existen dos (2) clientes conjuntos, ninguno de ellos puede levantar el privilegio contra el otro en un pleito en-tre ellos. Sin embargo, un análisis del texto y de la juris-prudencia de esa excepción al privilegio nos demuestra la imposibilidad de aplicarlo a este caso.
De entrada, nótese lo bizarro de la teoría de la Mayoría, que estos se ven obligados a conjurar una excepción a un privilegio a pesar de decirnos, ab initio, que no se cumplió con uno de los requisitos que lo constituyen. En teoría, la Mayoría no tendría que hablar de excepciones a un privi-legio porque sencillamente este último no aplica, según su lógica. Tratar de aplicar una excepción en esas circunstan-cias es un non sequitur palmario. Pero en ese mundo ima-ginario de la Mayoría, aparentemente existen excepciones para normas que no aplican.
Sin embargo, para propósitos de este disenso, tratemos de seguir según las reglas de ese mundo. La excepción de *554clientes conjuntos se encuentra codificada en nuestro orde-namiento en la Regla 503(c)(5) de Evidencia que según es-tablece, la excepción aplica cuando
[l]a comunicación es pertinente a una materia de común inte-rés para dos o más personas que son clientes de la abogada o del abogado, en cuyo caso una de las personas clientes no puede invocar el privilegio contra las otras. (Énfasis suplido). 32 LPRAAp. VI.
Como es evidente, la excepción es clara en cuanto a que las “personas” que comparten un interés común tienen que ser clientes de un abogado. Pero, como hemos visto, la pro-pia Regla 503(a)(2) de Evidencia, supra, nos impone una definición de “cliente”:
Cliente. — Persona natural o jurídica que, directamente o a través de representante autorizado, consulta a una abogada o a un abogado con el propósito de contratarle o de obtener servi-cios legales o consejo en su capacidad profesional. (Énfasis suplido). 32 LPRAAp. VI.
Una mera lectura de estas disposiciones es suficiente para revelar la imposibilidad de la aplicación de esa excep-ción a los hechos del caso de autos. Como podemos obser-var, en nuestro ordenamiento probatorio, el cliente y el re-presentante autorizado son el mismo ente jurídico. Por eso no se puede concluir que existen dos (2) entes distintos cuando se analizan las figuras del “representante autoriza-do” y el “cliente”. En el caso de autos, el cliente claramente es First Hospital en su capacidad corporativa y Pagán es un alter ego de First Hospital en su capacidad de represen-tante autorizado. Sencillamente, no hay dos (2) clientes, por lo cual no puede aplicar la excepción de clientes conjuntos.
Esta interpretación es cónsona con las decisiones de otros tribunales que han evaluado la aplicabilidad de esa excepción a casos corporativos. A manera de ejemplo, en Milroy v. Hanson, 875 F. Supp. 646, 649 (D. Neb. 1995), un *555tribunal de distrito federal rechazó aplicar la excepción, pues consideró lo siguiente:
[It is] a fundamental error by assuming that for a corporation there exists a “collective corporate ‘client’ ” which may take a position adverse to “management” for purposes of the attorney-client privilege. There is but one client, and that client is the corporation. (Enfasis suplido).
Otro caso que rehúsa aplicar la excepción es Montgomery v. eTreppid Technologies, LLC, 548 F.Supp.2d 1175, 1187 (D. Nevada 2008), en el cual se expresó:
It makes sense that the corporation is the sole client. While the corporation can only communicate with its attorneys through human representatives, those representatives are communicating on behalf of the corporation, not on behalf of themselves as corporate managers or directors. (Enfasis suplido). Bushnell v. Vis Corp., 1996 WL 506914; In re Marketing Investors Corp., 80 S.W.3d 44 (Tex.App.1998), y Genova v. Longs Peak Emergency Physicians, P.C., 72 P.3d 454 (Colo. App. 2003), casos en los que se llegó a la misma conclusión.
Ante esta situación, los tribunales deberían estar ata-dos por el texto de la Regla 503 de Evidencia, supra, la cual curiosamente está ausente del análisis de la Mayoría al momento de argumentar que la excepción de clientes con-juntos aplica. Como es evidente, no hay manera de inter-pretar razonablemente que en estos casos el “representan-te autorizado” y la “corporación” son dos (2) clientes separados a los cuales les puede aplicar la excepción de clientes conjuntos. Como hemos visto, la definición de “cliente” que dispone la Regla 503(a)(2) de Evidencia, supra, incluye al representante autorizado y la excepción de clientes conjuntos aplica solo cuando se trate de dos (2) clientes. La Opinión mayoritaria nos propone que veamos dos (2) clientes en donde solo hay uno (1), sin ni siquiera considerar los factores siguientes:
[...] payment arrangements, allocation of decision making roles, requests for advice, attendance at meetings, frequency *556and content of correspondence, and the like. [...] In addition, the joint client exception presupposes that communications have been “made in the course of the attorney’s joint representation of a ‘common interest’ of the two parties.” [...] The term “common interest” typically entails an identical (or nearly identical) legal interest as opposed to a merely similar interest. [...] Thus, the proponent of the exception must establish cooperation in fact toward the achievement of a common objective. F.D.I.C. v. Ogden Corp., 202 F.3d 454, 461(1er Cir. 2000).
¿Qué tipo de control del caso tenía el empleado Pagán? ¿Le daba órdenes a los abogados de First Hospital? ¿Era parte de su compensación laboral “compartir” representa-ción legal con el Hospital en casos de reclamación legal? ¿Los abogados de First Hospital lo representarían en el futuro pleito en su carácter individual? Pero, más impor-tante aún, y asumiendo que existen dos (2) clientes en este caso, ¿cuál es el interés común que tienen Pagán y First Hospital? Ciertamente no puede ser sencillamente “ganar el caso”. ¿En realidad existe un interés común entre estos “dos clientes”? ¿No serán en realidad intereses conflictivos los que existen entre ambos? Después de todo, si Pagán es demandado en su carácter individual, su defensa cierta-mente será que la responsabilidad en daños de este caso es del patrono y no de él. ¿Eso es un interés común que activa la excepción de clientes conjuntos? No tenemos respuestas claras a estas interrogantes, y la Mayoría se refugió en el silencio.
Tal vez en reconocimiento de lo forzado de sus argumen-tos, lo que en realidad la Mayoría nos está diciendo es que introdujo en nuestro ordenamiento una nueva excepción a la Regla 503 de Evidencia, supra. Es decir, de hoy en ade-lante, en pleitos entre el representante autorizado y una corporación, el privilegio abogado-cliente sencillamente no aplica. ¿La razón? La Mayoría sostiene que esa nueva ex-cepción “se asemeja” a la excepción de clientes conjuntos. Véase Opinión del Tribunal, págs. 536-537.
Me resulta difícil comprender cómo este Tribunal puede *557literalmente añadir una excepción a un privilegio probatorio. Con ello se obvian principios básicos de adjudi-cación; además, se trastocan el trabajo legislativo y acadé-mico que conlleva la elaboración de un cuerpo de Reglas de Evidencia. En muchas situaciones se podrían concebir ra-zones de política pública por las cuales no debería aplicar un privilegio. Para ello, en la fase legislativa del proceso de redacción de las reglas se realizan estudios y se codifican ciertas excepciones. Es muy cierto que en ocasiones dos (2) entes en una relación privilegiada pueden estar en una situación en la que lo comunicado entre ambos no sea se-creto para propósitos de un pleito. Ciertamente, reconocer en ese escenario un privilegio probatorio no parecería ser conveniente. Pero si se prevé esa situación, el legislador puede codificar una excepción al privilegio. Precisamente, para eso existen excepciones como las contenidas en la Re-gla 504(c)(2) de Evidencia, 32 LPRA Ap. VI, y en la 503(c)(3), en la cual no se reconoce el privilegio si se trata de casos en que se reclaman violaciones de deberes mutuos entre profesionales y sus clientes. En esos casos, cierta-mente se necesita escuchar lo que ambos entes se comuni-caron, lo cual no es secreto para ninguno. Pero la clave es que las excepciones para esas situaciones están codificadas en las Reglas de Evidencia. Previo a este caso, en Puerto Rico ningún tribunal podía legislar una nueva excepción porque se “asemejara” a otra. Ahora parece que sí. Las Re-glas de Evidencia “vivas” corren libres por nuestro ordenamiento.
Con todo este nudo que ató la Mayoría para no aplicar un privilegio a una situación que le pareció incómoda, se culminó avalando un razonamiento que parece decir que cuando “algo” es y no es, pero se parece lo suficiente a otro “algo”, pues es otro “algo”. Lamento que este Tribunal im-ponga ese tipo de razonamiento en nuestro ordenamiento.
*558V
El problema que permea todo el análisis de la Opinión mayoritaria se debe a que falló en reconocer la naturaleza jurídica de un privilegio absoluto. Como explica el profesor Imwinkelried:
The term [absolute] means that if (1) the privilege exists, (2) the privilege applies, and (3) there is no applicable exception to its scope, the opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need for the privileged information. The New Wigmore: Evidenciary Privileges, supra, pág. 168.
Como vimos, un privilegio condicional es aquel que puede ceder a consideraciones de política pública, como por ejemplo, el privilegio de secretos de negocio. Sin embargo, el privilegio abogado-cliente es absoluto, por lo que a pesar de lo incómodo que parezca aplicar el privilegio, los tribu-nales sencillamente no pueden considerar razones de polí-tica pública para no aplicarlo. Esas consideraciones existen en la Opinión que hoy se emite, aunque se tratan de escon-der en las fronteras de su mundo imaginario.
Este caso es ejemplo de la incomodidad que pueden crear los privilegios en el derecho probatorio. El reconoci-miento de un privilegio conlleva obligatoriamente que evi-dencia pertinente y que puede abonar a la búsqueda de la verdad quede fuera de los tribunales. No obstante, los tribunales deben ser conscientes de que los privilegios tienen una razón de ser: proteger relaciones que como sociedad hemos considerado importantes. En el caso de autos, po-dría parecer poco simpático determinar que las discusiones de una reunión que pudieron haber causado el despido de un empleado queden fuera de los tribunales. No obstante, una vez se cumplieron los requisitos que constituyeron un privilegio, no teníamos discreción para pasar juicio en cuanto a las virtudes o los defectos de las razones que sus-tentan la existencia de ese privilegio.
*559De hoy en adelante, parece que sí existirá esa discreción. Que no quede duda: hoy el Tribunal Supremo de Puerto Rico convirtió el texto de la Regla 503 de Evidencia, supra, en discrecional. De hoy en adelante los reclamos de privilegios no solo serán derrotados invocando que no se cumplen sus requisitos o que existe una excepción aplica-ble, sino que las Reglas de Evidencia “vivas” permiten ha-cer un llamado a la discreción de los jueces para que no apliquen los privilegios probatorios cuando los estimen inconvenientes. Para ello, se podrán sentir en libertad de crear excepciones ad hoc, o, peor aún, despreciar el texto de las Reglas de Evidencia. Se abrieron las compuertas; el mundo imaginario en donde se resolvió este caso pasó ahora a nuestro ordenamiento jurídico. It’s open season.
Disiento.
Los hechos del caso de autos están adecuadamente resumidos en la Opinión del Tribunal. Sin embargo, debo resaltar que la etapa procesal en la que se encuentra este caso es en extremo temprana. Según consta en autos, la controversia en cuanto a la aplicación del privilegio abogado-cliente surgió durante la etapa de Contestación a la Demanda. No surge de los autos que el Tribunal de Primera Instancia haya realizado alguna vista para dilucidar la reclamación del privilegio probatorio. Me preocupa que la Opinión del Tribunal parece hacer abstracción de este hecho y, en ocasiones, sugiere que en una Contestación a la Demanda el que reclama un privilegio prácticamente tiene que cumplir con un estándar probatorio que va contra la naturaleza de las alegaciones en nuestro ordenamiento de procedimiento civil.
El profesor Imwinkelried establece:
“The term [absolute] means that if (1) the privilege exists, (2) the privilege applies, and (3) there is no applicable exception to its scope, the opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need for the privileged information”. 1-6B The New Wigmore: Evidentiary Privileges Sec. 3.2.4, pág. 168 (2da ed. 2009).
Según la lógica de la Mayoría, es necesario preguntar para qué se codificó la excepción contenida en la Regla 503(c)(3) de Evidencia, 32 LPRAAp. VI. Esta esta-blece que el privilegio no aplica en un pleito entre el cliente y el abogado en el cual se reclamen violaciones a deberes mutuos en la relación abogado-cliente. Esta excep-ción es muy sabia porque, ciertamente, lo que se comunicaron el abogado y el cliente es de conocimiento mutuo, así que “no hay confidencialidad que proteger”. Pero, ¿para qué hace falta tener esa excepción textualmente en las Reglas de Evidencia si ahora la Mayoría del Tribunal ha decidido que los privilegios probatorios no aplican cuando “no haya confidencialidad que proteger” en una relación en particular? La norma que pauta este caso convierte a algunas excepciones específicamente codifica-das en innecesarias y hasta fútiles. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4538797/ | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SANDIE HIGHLANDE EMILCAR,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2635
[June 4, 2020]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Rosemarie Scher, Judge; L.T. Case Nos.
2018CF006604AXXXMB, 2018CF010358AXXXMB, and
2019CF004847AXXXMB.
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
No appearance required for appellee.
PER CURIAM.
Affirmed.
LEVINE, C.J., CIKLIN and KUNTZ, 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/129843/ | 538 U.S. 1049
HOPKINSv.UNITED STATES.
No. 02-10140.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
2
C. A. 4th Cir. Certiorari denied. Reported below: 43 Fed. Appx. 665. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/129861/ | 538 U.S. 1050
TAYLORv.UNITED STATES.
No. 02-10164.
Supreme Court of United States.
May 19, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/129866/ | 538 U.S. 1050
ELTAYIBv.UNITED STATES.
No. 02-10149.
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: 294 F. 3d 397. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2889263/ | NO. 07-01-0437-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MARCH 25, 2003
______________________________
IN THE INTEREST OF STACEY ANN UVALLE
AND VANESSA UVALLE, CHILDREN
_________________________________
FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;
NO. DR-97C-050(A); HONORABLE JACK D. YOUNG, JUDGE
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.1
OPINION
Presenting two points in which she contends the trial court reversibly erred,
appellant Gracie Uvalle challenges the termination of her parental rights to her daughters
Stacey and Vanessa Uvalle. A jury found her parental rights should be terminated on the
basis that she had endangered their physical or emotional well-being and that the
termination would in the best interest of the children. In her points, she contends 1) the
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
trial court erred in denying her first motion for continuance based upon the want of
testimony of a party to the case; and 2) the evidence was insufficient to sustain the verdict
of the jury. Disagreeing that reversal is required, we affirm the judgment of the trial court.
In March of 1997, appellant and her boyfriend, Frank, purchased a car at a time
when appellant admitted that she had been drinking. They washed the car at their home
while the two girls sat in the back seat. When they were finished, appellant drove the car
with its four occupants from their home at 318 Miller Street in Hereford to her brother’s
house at 310 Miller Street to get some cigarettes. While they were there, appellant averred
that her brother’s children began cursing her and Frank and an argument ensued. As she
left her brother’s house, she said the children began throwing rocks at the car, which broke
the windshield, the rear window and the driver’s side window. Being frightened, she said,
she drove past her house to get to a telephone and call the police. Apparently, as she did
so, she encountered the police and they arrested her for driving while intoxicated. As a
result of her arrest, her two daughters were placed with the Texas Department of
Protective and Regulatory Services (the Department).
In March 2000, the Department filed its petition seeking conservatorship of the
children and the termination of appellant’s parental rights, which resulted in the trial court
order giving rise to this appeal. In its petition, the Department alleged two grounds for
termination, first, pursuant to Family Code § 161.001(1)(D), that appellant knowingly placed
her two daughters in conditions or surroundings that endangered their physical or
emotional well-being, and second, pursuant to § 161.001(1)(E), that she had knowingly
placed the children with people who engaged in conduct endangering their physical or
2
emotional well-being. Pursuant to § 161.001(2), it also alleged that termination would be
in the best interest of the children.
A hearing on the petition was set for April 30, 2001, and on April 26, 2001,
appellant filed a motion seeking a continuance of the trial date. As a basis for the
continuance, appellant alleged she needed the essential testimony of Valdo Mendoza, the
natural father of her daughter Vanessa. The motion was overruled and the trial
commenced on the April 30 date.
At trial, the Department’s sole witness was Ben Larson, the caseworker assigned
to the case after appellant’s arrest. After obtaining temporary custody of the children, as
a part of his duty, Larson began preparing a report on appellant and her family and began
a check on whether the children could be placed with family members. It was his
conclusion that the children could not be placed with family members because all the
relatives who were identified either had significant criminal histories, had their parental
rights terminated, or had problems with drug use. He opined that substance abuse
problems were “endemic with all the family members.”
Larson also averred that appellant did not maintain a stable home for the children,
often moving from one address to another. The only specific physical problem the children
had during the Department’s temporary custody was that Stacey needed some fillings in
her teeth. He recounted his efforts to create a service plan, including treatment for
appellant in Plainview and El Paso, in order that the children could be returned to her
custody. He concluded that the Plainview Women’s Center was well suited for appellant
3
and the children because it is a residential program in which the children stay with their
parents. Although participants typically spend six months in the program, appellant left six
days later, informing Larson she left to be with Frank.
In the summer of 1999, appellant was admitted to a treatment program in El Paso.
After a few days, she was admitted to a hospital in El Paso. Upon her release from the
hospital, she went to Chicago to be with Frank. Because she was on probation from her
DWI conviction, she was arrested in Chicago, her probation revoked, and sentenced to
serve six years confinement in the Institutional Division of the Department of Criminal
Justice. It was after this revocation that the Department began its termination proceedings.
When cross-examined, Larson testified that there had been an allegation of sexual
abuse of the children by appellant and Frank in 1997, that was “validated” in 1997, before
appellant and the children were placed in the Plainview treatment facility in 1998.
However, under continued cross-examination, Larson stated that the children were placed
with appellant in the Plainview facility because the abuse was “mild” and the Department
was “not one hundred percent sure” it occurred or it would have sought criminal
prosecution. The only description Larson gave of the alleged abuse was that appellant had
used Stacey to get Frank “excited.”
After appellant was incarcerated, in recognition of the programs available, the
Department made changes in its service plan. Larson was not aware if appellant
participated in prison treatment programs.
4
Appellant testified and recited the events giving rise to her arrest for driving while
intoxicated. She admitted she had an alcohol problem and had voluntarily left the
Plainview treatment facility in part because she wanted to drink. After leaving Plainview,
she averred, she sought treatment through an Amarillo program and continued to have
regular visitation with her children. She acknowledged that some of her actions created
a risk of losing her children and admitted that she had sought to make changes in her life,
but had been unable to do so.
Appellant went on to explain her continued efforts to change while she was in
prison, including doing work toward her G.E.D., participating in Alcoholics Anonymous, a
job training program, parenting classes, and actively practicing her religion. She felt that
the programs had a positive effect on her, that she took better care of herself, and as a
result, she felt healthier about herself. In the course of her testimony, she introduced
certificates showing her participation in the programs. She also stated that she had
relationships with members of her church in Hereford who would provide her support after
she was released from prison.
Under cross-examination, appellant said her mother often helped her with the
children, but she averred she could care for them even if she was drunk. She
acknowledged being hospitalized for short periods four or five times from 1994 to 1997 as
a result of her diabetes. She also admitted that she continued drinking, even though
doctors told her that was “one of the worst things” a diabetic could do. She also admitted
using cocaine with Frank in December 1998.
5
Appellant initially assigns error to the trial court’s denial of her motion for a
continuance to obtain the testimony of Vanessa’s father, Valdo Mendoza. Continuances
for the purpose of securing testimony are governed by Rules of Civil Procedure 251 and
252. Rule 251 mandates that to be entitled to a continuance, a movant must make a
showing of “sufficient cause, supported by affidavit,” or that the parties agree to the
continuance or that entitlement to the continuance exists by operation of law.
Parenthetically, the motion in question here is not based upon the consent of the parties
or by operation of law. Rule 252 provides that if the motion is based upon a want of
testimony, the moving party must provide an affidavit showing the testimony is material,
the diligence used to secure the testimony, the reason the testimony has not been
secured, and the name and address of the witness. On a first motion, as here, the movant
need not establish the testimony cannot be secured from another source.
In her motion, appellant noted the April 30, 2001 trial setting and alleged that she
had no information on Mendoza’s location before April 23, 2001, when a child support
order was filed with the district clerk showing the name of his employer in Maryland. She
had been unable to verify the information as of the April 25, 2001 date of the motion.
However, the motion stated that Mendoza “may well possess relevant and valuable
evidence.” Appellant swore to the truth of the facts stated in the motion, but did not
present a separate affidavit.2 Although the motion was signed by appellant’s attorney, his
signature was not verified and he did not provide an affidavit.
2
In Hawthorne v. Guenther, 917 S.W.2d 924, 929 (Tex. App.–Beaumont 1996, writ
denied), the court opined that a separate affidavit is not required if the motion for
continuance is verified.
6
The denial of a motion for continuance is measured by an abuse of discretion
standard. We presume the trial court has not abused its discretion when the motion for
continuance does not conform to the provisions of the rules. Garcia v. Texas Employers
Ins. Assn., 622 S.W.2d 626, 630 (Tex.App.–Amarillo 1981, writ ref’d n.r.e.).
Appellant asserts the trial court erred in denying the motion because it was in full
compliance with Rule 252 and the trial court was “made aware of what [she] expected to
prove with the absent testimony.” Although she does not make record references in her
brief, our perusal of the record shows that a hearing on the motion was held during which
appellant argued that Mendoza could “shed light on” the nature of the relationship and
whether he contributed to her alcohol use. In response, the Department pointed out that
Mendoza had not had contact with appellant or his daughter for several years.
As we have noted, Rule 252 mandates that a motion for continuance to secure
testimony be supported by an affidavit showing the testimony is material, the diligence
used to secure the testimony, and the reason the testimony has not been secured.
Accepting appellant’s verification of the motion as satisfying the affidavit requirement, she
merely states in the motion that Mendoza “may well” have relevant information. That is not
sufficient to satisfy the Rule 252 requirement. Additionally, counsel’s unsworn statements
at the hearing on the continuance motion as to what Mendoza’s testimony might be added
little to the written motion and also fell short of meeting the showing required by the rule.
Additionally, the motion completely fails to show the diligence used to secure Mendoza’s
testimony. Indeed, counsel’s argument at the motion hearing indicated a lack of diligence.
At the beginning of the hearing, counsel stated, “I guess everybody had an address for Mr.
7
Mendoza except me.” Thus, under the record before us, we cannot say the trial court
abused its discretion in denying appellant a continuance. Appellant’s first issue is
overruled.
In her second issue, appellant challenges the factual sufficiency of the evidence to
sustain either of the two grounds alleged as a basis for the termination of her parental
rights. Reiterated, as a basis for termination, the Department alleged that appellant had
1) knowingly placed or allowed the children to remain in conditions that endangered the
physical or emotional well-being of the children, and 2) engaged in conduct or knowingly
placed the children with people who engaged in conduct that endangered the physical or
emotional well-being of the children. The Department also alleged that termination would
be in the best interest of the children.
Termination requires the Department to establish one of the statutory grounds by
clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon 2002);
Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). This heightened standard is
required because a termination of parental rights affects a fundamental constitutional right.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Our supreme court, In the Interest of C.H., 89 S.W.3d 17 (Tex. 2002), recently
resolved the split previously existing between the courts of appeals as to the standard to
be used in determining factual sufficiency challenges in cases such as this one. The court
explicated that in cases in which the burden is to establish a right to judgment by “clear and
convincing evidence” rather than the preponderance of the evidence standard traditionally
8
used in civil cases, “the appellate standard for reviewing termination findings is whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction about
the truth of the State’s allegations.” Id. at 25. That standard focuses on whether a
reasonable factfinder could form a firm conviction or belief while retaining the deference
that an appellate court must have for the factfinder’s role. Id. at 26. See also In the
Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980).
In support of this point, appellant argues that 1) termination may not be based upon
a single act or omission,3 and 2) the Department improperly relies upon appellant’s failure
to meet their expectations rather than establishing she placed the children’s physical or
emotional well-being at risk. In support of her second argument, appellant references the
established rule that the term “endanger” as used in Chapter 161 of the Family Code
means more than a threat of metaphysical injury or the possible effects of a less-than-ideal
family environment. Tex. Dept. of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). Finally, appellant argues that the facts of this case are similar to those in In re
K.C.M., 4 S.W.3d 392 (Tex. App.–Houston [1st Dist.] 1999, pet. denied), in which the
appellate court reversed a judgment terminating parental rights. In K.C.M., the Department
sought termination of the parental rights of a mother who was a long time marijuana user
and who had smoked that drug at the end of her pregnancy with K.C.M. She also worked
as a prostitute. She admitted to the regular use of crack cocaine, but never used any
drugs in the presence of her child. Although the Department determined that the child’s
maternal grandparents were not suitable to care for the child, it determined that his
3
See In re K.M.M., 993 S.W.2d 225 (Tex. App.–Eastland 1999, no writ).
9
paternal grandmother would be suitable. The mother was arrested for possession of a
small amount of cocaine and sentenced to one year’s confinement. At the time of trial, she
had completed a G.E.D. course and was awaiting test results. She attended Alcoholics
Anonymous programs, completed life skills and career exploration courses, actively sought
information about K.C.M., and was to be released from confinement within 75 days. It was
upon that evidence that the appellate court found the evidence insufficient to support
termination and reversed the trial court termination judgment.
We believe the facts in K.C.M. are distinguishable from those before us. In K.C.M.,
the only evidence of endangerment was the mother’s drug use. In contrast, the record
here shows appellant’s conduct created a much more tangible risk of injury to her children.
In K.C.M., the mother began treatment and education immediately on entering jail and,
more importantly, had completed three of those programs, including a G.E.D. program.
Appellant did not participate in programs until a few months before trial and had not
completed any of the programs. In K.C.M., the child was placed with a relative and the
mother would be released within 75 days. Here, appellant will not be available to care for
the children for several years and the children could not be placed with a family member,
requiring them to remain in foster care for an extended period.
Additionally, here the initial act that brought appellant to the attention of the
Department was not the sole basis supporting a finding of endangerment. Appellant does
not dispute that driving while intoxicated with the children in the car placed them at risk.
Even so, in reviewing that evidence, that risk must be evaluated against the undisputed
fact that her destination was only four houses down from her home and there is nothing
10
in the record to show that she had ever driven under the influence of alcohol with the
children in the car on any other occasion.
However, in evaluating the evidence here, we must also consider Larson’s testimony
received by the court that appellant’s conduct and habits clearly endangered the children’s
well-being. Additionally, the jury could consider that although appellant acknowledged that
she had placed the children at risk when she drove while intoxicated, the credibility of that
acknowledgment was weakened by her insistence that she could take care of them while
she was drunk. The jury could also have found appellant’s history of alcohol abuse and the
resulting hospitalization on several occasions was evidence that she had endangered the
children’s well being on those occasions. The fact that appellant had relied on her mother
to care for the children on occasion placed them at risk because of evidence that the
mother had her parental rights terminated on two occasions and had a history of drug use.
Moreover, the evidence that appellant and the children moved frequently could support an
inference of risk to the children’s emotional well being. Appellant’s departure from the
Plainview Women’s Center, at least in part because she wanted to drink, also could be
interpreted that she placed a higher priority on her desire for alcohol than in remaining with
her children.
In addition to her own testimony, the evidence appellant presented controverting the
Department’s evidence consisted of testimony from members of her church concerning her
participation in church and certificates showing she had participated in prison treatment
and education programs. However, it is worthy of note that appellant’s participation in the
programs began a year after she was in prison and only a short time before the trial,
11
circumstances from which a trier of fact could reasonably infer her participation was solely
for purposes of the trial. It is axiomatic that the jury, as the exclusive finders of fact, was
free to assess the weight to be given the evidence and the credibility of the witnesses.
Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962). The jury is free to believe
one witness and disbelieve another and to resolve any inconsistencies in any testimony.
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
Under this record, the evidence is sufficient that the jury, as factfinder, could
reasonably form a firm conclusion or belief about the truth of the Department’s allegations.
Appellant’s second point is overruled. In sum, both of appellant’s points are overruled and
the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
12 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3817525/ | Parties appear here in the same order as in the trial court and will be referred to accordingly. In 1917, plaintiff sued Mrs. M.L. Walsh in the district court of Pontotoc county to foreclose mechanics lien on certain real estate belonging to her. During the same year she filed her answer and thereafter, on her application, her tenants of the property were made parties defendant. Thereupon, she filed amended answer and cross-petition against her tenants. They answered the petition of plaintiff and the cross-petition of Mrs. Walsh. Before trial on the merits, and in June, 1920. Mrs. Walsh died, and I.M. King was appointed executor of her estate, and on September 22, 1920, in open court, and under circumstances hereinafter shown, the following entry was made on the court clerk's minutes in this cause: "Death of defendant suggested. Ent. order revivor." In July, 1921, I.M. King, executor of the estate of Mrs. Walsh and also attorney pro se, by special appearance filed motion to dismiss on the ground that more than one year had elapsed since plaintiff could have said cause revived and that no motion had been filed and notice served on him as executor. Plaintiff filed written objection to such dismissal and the court, on January 16, 1922, heard evidence on that issue. The evidence shows, among other things, that just before the year had expired, Mr. Schulte, attorney for plaintiff, attempted to serve written notice for revivor on Mr. King, but due to the absence of the latter, was unable to do so. It was claimed that Mr. King had waived written notice and consented to the alleged revivor already made. Mr. King contended that he did not waive any rights he had, on account of representing minors, and did not make an appearance at the time said former order was made. However, he testified as follows:
"Q. You remember whether you were present when the notice of death was given in open court? A. I think I was present when the notice — when death was suggested to the court. * * * Q. Did you agree that this matter could be taken up orally and you would not make any objection to it? A. Nothing said about orally. I told Mr. Schulte in person I bad no objection; but I was going to require that he comply with the statute; that I represented some orphan children. I was executor and was going to require him to comply with the statute."
Among others, the court made these findings:
"The record shows that about two months after the death of this defendant, there *Page 2
was an order in open court of reviver, seems to have been based on an oral motion and without notice, Now, the fact that Mr. King did not object and did not except would have no legal effect; the fact that he was present in court would have no legal effect. * * * If that order of reviver that appears on the minutes was properly made, then it stands and the cause stands revived, and the only question in that is, whether or not the court has authority on oral motion to make an order of reviver."
The court then asked counsel to look into the question: "Whether or not an oral motion gives the court jurisdiction to make an order of reviver when no notice has been given, and stated: "You might look that up whether or not the fact he was here and listening was an appearance."
At this hearing, the plaintiff asked permission to file amended petition and the same was refused and exceptions saved. The court clerk's minutes of March 20, 1922, show the following: "Ent. order reviver allowed by amended pleading and cause set for trial April 3, 1922." On written motion of plaintiff on the next day, journal entry of such order was filed, showing that the real estate sought to be subjected to the payment of alleged lien of plaintiff, had been transferred to Sallye Oliver and Lucinda Oliver, and granted leave to plaintiff to file amended petition against them and ordered that the action proceed thereafter against them as successors in interest of deceased, Mrs. Walsh. Such amended petition was so filed. The court clerk's minutes, under date of March 27, 1922, shows: "Ent. order setting entire order of revivor aside. Plaintiff excepts."
Record recites that on October 13, 1922, there came on for hearing motion to dismiss and the court made the following order:
"The court finds no agreement between the parties, or their attorneys, with reference to reviver of this cause, and same was revived within twelve months after the death, and the court lost jurisdiction, and therefore the action is dismissed."
Plaintiff excepted and filed motion to vacate said order and for new trial, which being overruled, appeal was duly made to this court. Plaintiff contends that reviver of September 22, 1920, was valid, and also that the second order of reviver against the Olivers, as successors in interest of Mrs. Walsh, was also valid, and that therefore the court erred in dismissing the cause.
1. The first order of reviver made on September 22, 1920, is valid. Section 853, Comp. Stat. 1921, provides: "A motion is an application for an order, addressed to the court, or a judge in vacation," etc. Thus, our statute does not require a motion to be in writing. We think it is well settled that in the absence of statutory provisions or rules of the court requiring it, a motion need not be reduced to writing, but may be made orally in open court, 28 Cyc. 6. It is, of course, better practice for all motions, such as the one in controversy, to be reduced to writing. Section 859, Id., provides:
"Every direction of a court or judge made, or entered in writing, and not included in a judgment, is an order," Foreman v. Riley, 88 Okla. 75, 211 P. 495.
Under our liberal practice it is very usual and practicable, if not necessary, on oral motions, for the court to make orders, same being evidenced by the court clerk's minutes. Section 831, Id., relating to notice for reviver, provides:
"If the order is made by the consent of the parties, the action shall forthwith stand revived; and, if not made by consent, notice for the application for such order shall be served," etc.
Thus, either consent or notice is essential for the making of the order.
2. The order of reviver must be granted as a matter of right, not being dependent on the discretion of the court or of the judge thereof. Kilgore v. Yarnell, 24 Okla. 525, 103 P. 699. In practice, a reviver is usually a matter pro forma. Since Mr. King admits he was present and heard the suggestion of death made in open court, he being both executor and attorney pro se in the matter, and made no objection and took no exception to the making of the order of reviver, he waived the notice provided by the statute and by his said conduct is estopped to deny such waiver. In Federal Life Ins. Co. v. Whitehead, 73 Oklahoma, 174 P. 790 it is said:
"Waiver is the surrender or relinquishment of an existing right. * * * Or waiver may be effected by the omission or failure of a party to assert in his behalf an existing right, which must be preceded by notice. The law enjoins upon all men the necessity to talk when they should talk, or they will not be heard to talk when they want to talk, and here the doctrine of estoppel arises."
While the foregoing was said with reference to agency, we think a fortiori, it is applicable to an attorney under these circumstances. Mr. King may have intended at the time said order was made to require written notice to be served upon him and *Page 3
with good intentions no doubt, he contended later that he had not appeared. We think as a matter of law he did appear to the motion to revive. It is not intended to hold that mere physical presence of a party or his attorney in the court room during the trial, without participation, constitutes an appearance. Mr. King was bound, in law, to know this informal matter of reviver was being taken up by the court the very moment he heard the death of his client suggested in open court, and since said attorney was present and the court announced the reviver in such manner that the clerk heard it and recorded it, we must presume that the attorney was given the opportunity to object to the order, if he so desired. The court's dismissal herein was on the finding that there was no agreement between the parties or their attorneys with reference to the reviver. It is true there was no such agreement but there was a waiver of the notice required by the statute, and thereby appearance made.
In Crites v. City of Miami, 80 Okla. 50, 193 P. 984, this court, speaking through Mr. Justice McNeill, said:
"The procedure to revive a cause of action is by motion and by giving the notice provided by section 5288, Rev. L. 1910. The court held that the defendant had waived the giving of said notice. If this was true, the consent of the mayor was immaterial. The notice provided by said section is to enable the opposing party to be present when the motion is heard and to be given an opportunity to make objections to the order of revivor, but where the party appears by its attorney, and the motion is taken up, and the attorney makes no objection to the hearing of said motion for the reason no notice has been given, and asks for no time in which to file objections, and the court, after hearing the motion, makes the order reviving the cause of action, and the attorney takes no exception to the order of the court, this is certainly a waiver of the notice provided by the said statute."
Since the first said order of revivor is valid it is unnecessary to consider the other contention of plaintiff as to the second order of revivor under other sections of our statutes and decisions of the court as contended for by plaintiff.
The judgment of the lower court dismissing the cause is reversed, with direction that the cause proceed in accordance with law.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892740/ | NO. 07-04-0511-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 16, 2005
______________________________
IN THE MATTER OF THE MARRIAGE OF
FREDERICK IRWIN CHADWICK AND
TAMMY SUE CHADWICK AND
IN THE INTEREST OF C.L.C., A CHILD
_________________________________
FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;
NO. 03-10-3797; HONORABLE STEVEN EMMERT, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
On February 11, 2005, the appellant filed a Motion to Dismiss Appeal. No decision
of this Court having been delivered to date, we grant the motion. Accordingly, the appeal
is dismissed. No motion for rehearing will be entertained and our mandate will issue
forthwith. Tex. R. App. P. 42.1. All costs incurred are adjudged against the party incurring
the same.
James T. Campbell
Justice
thdraw as trustee of various trusts. The
dispute, however, involves a document entitled "Order Granting and Denying Summary
Judgment Motions." In that order, the trial court declared that "Petitioner's First Summary
Judgment Motion, as amended and supplemented, is Granted" while "Robert Wayne
Veigel's Motion for Partial Summary Judgment, as amended and supplemented, is Denied."
It did not include, however, any language in the document expressly adjudicating the rights
involved. Nor was such language included in the April 14th "Agreed Judgment" or the
"Order on Status of Case," also signed on April 14, 2003. (1)
In Chandler v. Reder, 635 S.W.2d 895 (Tex. App.-Amarillo 1982, no writ), and Disco
Machine of Liberal Co. v. Payton, 900 S.W.2d 71 (Tex. App.-Amarillo 1995, writ denied),
we had occasion to consider summary judgments with similar decretal provisions as the
order here. In Disco, we noted that such declarations were "nothing more than an
indication of the trial court's decision vis-a-vis the motion[] for summary judgment." Disco
Machine of Liberal Co. v. Payton, 900 S.W.2d at 74. They do "not express a specific
settlement of rights between the parties" or "disclose the specific and final result officially
condoned by and recognized under the law." Id. at 74. Thus, such orders were not final
because they did not adjudicate the rights involved or evince a final result recognized by
the law.
Here, we have an order granting one motion for summary judgment and denying
another. Yet, without the decretal language discussed in the preceding paragraph, the
order is not a final judgment. Nor is it made final by either the April 14th "Agreed Judgment"
or status order because they too lack the requisite decretal language. Nonetheless, it is
rather clear that the trial court intended for the dispute to be finally adjudicated. Given this
situation, rule of procedure allows us to grant the trial court opportunity to modify the order
from which appeal was taken to make it final. Tex. R. App. P. 27.2 (stating that the
appellate court may allow an appealed order that is not final to be modified so as to be
made final and may allow the modified order and all proceedings relating to it to be included
in a supplemental record).
Accordingly, we abate the appeal and remand the cause to the trial court. Upon
remand, the trial court is ordered to modify the April 14th "Agreed Judgment" or status order
or the January 10, 2002 "Order Granting and Denying Summary Judgment Motions" so as
to decree an adjudication of the rights involved and a result to be recognized by the law.
Finally, the trial court is directed to include each modified judgment or order it may execute
in a supplemental record to be filed with the clerk of this court on or before January 14,
2005.
Per Curiam
1. The trial court did note in the status order that it believed that the prior order granting and denying
summary judgment motions had become final due to the non-suits of various parties and claims. However,
language adjudicating the rights of those involved went missing. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2908209/ | Metropolitan Prop & Liab Ins v Bridewell
IN THE
TENTH COURT OF APPEALS
No. 10-96-220-CV
     METROPOLITAN PROPERTY AND LIABILITY
     INSURANCE COMPANY OF WARWICK, RHODE
     ISLAND, AND NATHANAEL PUGH,
                                                                                              Relators
     v.
     HON. DENNIS WAYNE BRIDEWELL, JUDGE,
     249TH DISTRICT COURT, JOHNSON COUNTY,
     TEXAS,
                                                                                              Respondent
Original Proceeding
                                                                                                   Â
O P I N I O N
                                                                                                   Â
      Metropolitan Property and Casualty Insurance Company of Warwick, Rhode Island
("Metropolitan") and its agent, Nathanael Pugh ("Pugh") (collectively "Relators"), seek to compel
Judge Wayne Bridewell ("Respondent") to stay the proceedings below and order the parties to
arbitration under the Federal Arbitration Act ("FAA"). 9 U.S.C.A. §§ 1-16 (West 1970 & Supp.
1996).
      In 1987, Metropolitan and Roger Harmon ("Harmon"), the real party in interest, entered into
an Agency Agreement whereby Harmon would sell and Metropolitan would underwrite automobile
and homeowner insurance policies. Harmon is an independent insurance agent with many years
experience.
      The Agency Agreement contains the following provision:
Â
X. ARBITRATION In the event of any dispute arising out of or under this agreement
between the Agent and the Company, both agree to submit such dispute to arbitration, and the
expense will be borne equally:
            A.  There will be three arbitrators: one will be selected by the Agent, one will be
selected by the Company, and a third will be selected by those two arbitrators.
            B.  The determination of the arbitrators will be final and binding on all parties hereto.
      In October 1995, Metropolitan notified Harmon that it was terminating the Agency Agreement
effective April 17, 1996. Harmon filed suit against Relators on April 3, 1996, but did not have
them served with process. Harmon's petition alleges three causes of action: (1) negligent
misrepresentation; (2) tortious interference with prospective business relations; and (3) civil
conspiracy. In a letter to Pugh dated April 17, 1996, Harmon's attorneys wrote:
We represent the Harmon Insurance Agency regarding disputes it has with Metropolitan
regarding the above-referenced [Agency] Agreement. . . . [Y]ou purported to terminate the
Agreement effective April 17, 1996, citing as a basis "the unfavorable property loss
experience." The Harmon Insurance Agency disputes the claim that there has been an
unfavorable property loss experience. The Agency has done everything requested by
Metropolitan in this regard over the last several years and the experience has met all levels
demanded by you. In addition, Metropolitan has not complied with the provisions of Texas
Insurance Code art. 21.11-1.
Â
The Agency hereby demands arbitration of these disputes pursuant to Section X of the
Agreement and appoints Al Boenker as its arbitrator. Please, have your attorney or
representative contact me . . . .
      By letter dated July 19, counsel for Relators "confirmed" and "acknowledged" Harmon's
demand for arbitration and "confirm[ed] our agreement to arbitrate this dispute under the
commercial arbitration rules promulgated by the American Arbitration Association." On July 25,
Relators filed a "Motion to Transfer Venue and Motion to Dismiss, or, in the Alternative, Plea
in Abatement, Motion to Stay and Compel Arbitration, or in the Alternative, Original Answer."
      On September 25, Relators filed an "Amended Motion to Stay Litigation and Compel
Arbitration" citing section X of the Agency Agreement. Relators argued that all of Harmon's
claims "arise out of or under the Agency Agreement" and thus should be compelled to arbitration.
Harmon responded that his April 17 letter demanding arbitration referred only to two disputes:
termination of the Agency Agreement based on "unfavorable property loss experience" and failure
to comply with the Insurance Code. Harmon argued that his letter did not refer to his causes of
action for negligent misrepresentation, tortious interference, and conspiracy and that these causes
of action did not arise "out of or under" the Agency Agreement. Respondent overruled Relators'
motion and declined to compel arbitration.
      Relators now seek a writ of mandamus to compel Respondent to stay the lawsuit and order
all Harmon's claims to arbitration. A writ of mandamus may be issued to correct a "clear abuse
of discretion." Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
Mandamus will not issue where there is a clear and adequate remedy at law, such as a normal
appeal. Id. at 840 (citing State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)).
ARBITRATION
      Federal and state law strongly favor arbitration. Cantella & Co., Inc. v. Goodwin, 924
S.W.2d 943, 944 (Tex. 1996) (orig. proceeding) (citing Moses H. Cone Memorial Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 941-42, 74 L. Ed. 2d 765 (1983)). A
presumption exists in favor of agreements to arbitrate under the Federal Arbitration Act. Id. The
party opposing an arbitration agreement bears the burden of defeating it. Id.
      "Once a party seeking to compel arbitration establishes that an agreement exists under the
FAA, and that the claims raised are within the agreement's scope, the trial court `has no discretion
but to compel arbitration and stay its proceedings pending arbitration." Id. (citing Shearson
Lehman Bros., Inc. v. Kilgore, 871 S.W.2d 925, 928 (Tex. App.âCorpus Christi 1994, orig.
proceeding)). A party who is erroneously denied the right to arbitrate under the FAA has no
adequate remedy at law and mandamus relief is appropriate. Id. at 945.
      Relators' motion alleged that the Agency Agreement was governed by the FAA because the
subject of the contract involves interstate commerce. Attached to the motion is Pugh's affidavit
stating that the Agreement "evidences a transaction involving commerce among the several States
because the insurance policies made the subject of the Agency Agreement were issued to Texas
residents by Metropolitan, a Rhode Island Corporation." Harmon did not controvert the affidavit;
thus, the FAA applies to the agreement.
Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266,
269-70 (Tex. 1992) (orig. proceeding).
      We next look to whether Harmon's claims are within the scope of the Agency Agreement.
As we have noted, Harmon alleges in three causes of action that Relators: (1) negligently
misrepresented their willingness to write insurance for his clients; (2) tortiously interfered with
his prospective business relations with existing clients who would have otherwise continued to
procure insurance through Harmon; and (3) conspired to violate section 21.11-1 of the Texas
Insurance Code by applying economic coercion to terminate the Agency Agreement by mutual
agreement rather than by Relators' unilateral action.
      Harmon asserts that these causes of action are "separate and distinct" from the claims arising
out of Relators' termination of the agreement. He says that Relators have "committed torts that
will leave [his] clients without insurance" and that forcing his clients to change insurance carriers
has caused and will cause his clients to place their insurance with his competitors. Relators argue
that, but for the Agency Agreement, there would be no disputes between the parties.
      Under the FAA, any doubts about whether the claims fall within the scope of the agreement
must be resolved in favor of arbitration. Prudential Securities, Inc. v. Marshall, 909 S.W.2d 896,
899 (Tex. 1995) (orig. proceeding) (citing Moses H. Cone Memorial Hosp., 460 U.S. at 24-25,
103 S. Ct. at 941-42). The policy in favor of enforcing arbitration agreements is so compelling
that a court should not deny arbitration "unless is can be said with positive assurance that an
arbitration clause is not susceptible of an interpretation which would cover the dispute at issue."
Id. (citing Neal v. Hardee's Food Sys., Inc., 918 F.2d 34, 37 (5th Cir. 1990)). In determining
whether a claim falls within the scope of an arbitration agreement, we focus on the factual
allegations of the complaint rather than the legal causes of action asserted. Id. at 900 (citing Jack
B. Anglin Co., 842 S.W.2d at 271). The burden was on Harmon to show that his claims fell
outside the scope of section X of the agreement. See id. Â Â Â Â Â Harmon does not dispute that he has
arbitrable claimsâthe termination based on "unfavorable property loss experience" and Relators'
failure to comply with the Insurance Code. However, he argues that his claims of negligent
misrepresentation, tortious interference, and conspiracy do not arise "out of and under" the
agreement. Looking at the factual allegations in Harmon's petition, we cannot conclude with
"positive assurance" that the claims alleged are not "factually intertwined" with the arbitrable
claims. Id.
      Thus, Relators have established that the Agency Agreement exists under the FAA and that the
claims raised are within the scope of that agreement. Respondent had no discretion but to compel
arbitration and stay the proceedings pending arbitration. Cantella, 924 S.W.2d at 944-45.
       We conditionally grant the writ of mandamus and direct Respondent to order that all claims
proceed to arbitration. Because we are confident that Respondent will comply with our decision,
the writ will issue only if he fails to do so.
Â
                                                                                 BILL VANCE
                                                                                 Justice
Before Chief Justice Davis,
          Justice Cummings, and
          Justice Vance
Writ of mandamus conditionally granted
Opinion delivered and filed November 20, 1996
Publish
e to have
him prosecuted. In simpler terms, Braneff is alleging that Troutmen attempted
to frame him for the forged deed. Braneff asserts that, in addition to the
above evidence, the following summary-judgment evidence (from his affidavit)
raises a fact issue on TroutmenÂs state of mind as to lacking probable cause:
Braneff
helped out Troutmen in her law practice in Bryan, where he observed her
use audio and video dubbing equipment to created forged sound recordings.Â
He also observed her using a photocopier to create forged documents:
Â
I also had occasion to be present when
she was creating false documents by cutting portions out of a Xerox or other
photographic process copy of one document, taping it to another page over
printing on another document, and copying it to create a new document which she
would use in evidence as an original, or as a copy of an original document in
her litigation practice. It would have been easy for her to create an envelope
with her attorneyÂs return address, and to create the deed which I was charged
with forging, in order to attempt to get me in trouble. I also saw her
practicing writing the signatures of others until she could create a good copy
of someoneÂs signature and place it on a document to that personÂs detriment.
Â
Troutmen
forged BraneffÂs signature on a post-divorce claim for dental expense
benefits and on the contract for deed between them and their daughter.
Â
Troutmen
made many complaints about Braneff to various law enforcement officers in
Brazos and Robertson Counties, but Braneff was never arrested on any
charge.
Â
Troutmen
claimed that Braneff had burned two houses that were on his Robertson
County property and that were burned down on November 22, 2002, while
Braneff was on his way to Louisiana. Braneff was questioned by Robertson
County sheriffÂs deputies about those fires.
Â
Troutmen
accused Braneff of burning down the house on the Hopkins County land, and
when Braneff was not arrested for it, she accused their daughterÂs husband
for burning it down as a favor to Braneff. In a telephone conversation
Troutmen told Braneff that he had done her a favor by burning down that
house because she received $90,000 in insurance, but Braneff told her he
had nothing to do with the house burning. Before then, Troutmen,
accompanied by her new husband, visited Braneff and tried to persuade him
to burn the Hopkins County house, saying that she would get $80,000 for
the house and for the divorce partition. Braneff declined, even though
Troutmen pointed out that turpentine could be used as the accelerant and
would be undetectable because the house was largely made of pine wood.
Â
Braneff
was questioned by a Robertson County sheriffÂs deputy about Troutmen
wanting to have Braneff killed.
Â
Finally, Braneff points to the July 8,
2002 affidavit of Orvil Schrum,[4]
TroutmenÂs brother, who discusses TroutmenÂs attempts to persuade Schrum to
kill Braneff or have someone kill Braneff:Â ÂFor the past three years, my
sister Ann has been attempting to persuade me to kill Ron Braneff, either as a
favor to her or for money, or, if I would not do so, to employ someone else to
do so. SchrumÂs affidavit discusses several specific attempts. It concludes
with the following:
Also I recall that in the Spring of last
year, 2001, at her office in Brazos County, Texas, Ann requested me to be a
false witness that Ron beat her up and cut her, but I did not see that and
could not so testify. This was before she drove with me over to see Ron. By
the time I got to Robertson County where Ron was living, I had chickened out
completely. Ann said she wanted me as a witness because she was going to claim
that Ron hurt her, so that she could obtain a restraining order. She called
the police by dialing 911. When the Robertson County SheriffÂs Officers came,
I told them that I was there the whole time and had not seen Ron harm Ann in
any way.
Â
The critical question is TroutmenÂs
state of mind. See Kroger, 216 S.W.3d at 795 (ÂAlthough the critical question in this case
was KrogerÂs state of mind, Suberu produced no evidence that Kroger initiated
her prosecution on the basis of something other than a reasonable belief that
she was guilty.Â).
The above evidence
must be viewed in the light most favorable to Braneff, the nonmovant. See
Ridgway, 135 S.W.3d at 601. We conclude that Braneff has rebutted the probable-cause
presumption by producing some evidence that the motives, grounds, beliefs, or other information
on which Troutmen acted did not constitute probable cause. Â See Kroger, 216
S.W.3d at 793; Digby v. Texas Bank, 943 S.W.2d 914, 925 (Tex. App.ÂEl
Paso 1997, writ denied). He produced evidence of prior bad relations with
Troutmen, her alleged preexisting debt to him, and her private motivation to
harm him. See Kroger, 216 S.W.3d at 795; see also South Texas
Freightliner, Inc. v. Muniz, 288 S.W.3d 123, 133-34 (Tex. App.ÂCorpus
Christi 2009, pet. denied); Tranum v. Broadway, 283 S.W.3d 403, 415-16
(Tex. App.ÂWaco 2008, pet. denied) (plurality op.). Accordingly, granting a
no-evidence summary judgment on this element was error.
Malice
Â
           A plaintiff must establish
that the defendant acted with malice, which is defined as ill will, evil
motive, gross indifference, or reckless disregard of the rights of others. Digby,
943 S.W.2d at 922. It is proved by direct or (usually) circumstantial
evidence. Id. The absence of probable cause can provide circumstantial
evidence of a hostile or malicious motive. Id. at 923.
           TroutmenÂs traditional
motion sought summary judgment on the malice element with GilmoreÂs and LongÂs
deposition testimony that they both had the opinion that Troutmen was not
acting with malice toward Braneff. Braneff argues that the same evidence
relating to TroutmenÂs lack of probable cause is evidence that creates a fact
issue on malice. We must
consider all the evidence in the light most favorable to Braneff, indulging
every reasonable inference in favor of him and resolving any doubts against TroutmenÂs
motion.  See Mayes, 236 S.W.3d at 756. We agree with Braneff; a genuine issue
of material fact exists. Â See
Digby, 943 S.W.2d at 925-26; see also Tranum, 283 S.W.3d at 418.Â
Accordingly, either a traditional or no-evidence summary judgment on the malice
element was error.
We sustain BraneffÂs two issues, reverse
the trial courtÂs judgment as to BraneffÂs claim for malicious prosecution, and
remand this case for further proceedings.
Â
Â
Â
REX D. DAVIS
Justice
Â
Before
Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurring with opinion)
Reversed
and remanded
Opinion
delivered and filed November 17, 2010
[CV06]
[1] Braneff also sued Troutmen for
conversion and for partition of community property that had not been divided in
their divorce. Troutmen moved for and obtained summary judgment on those two
claims as well, but BraneffÂs brief is expressly limited to his claim for
malicious prosecution.
[2] The envelope was from the law firm of
TroutmenÂs divorce attorney.
Â
[3] AlbertÂs testimony in BraneffÂs
criminal trial corroborated BraneffÂs explanation for how he received the April
21, 2003 deed.
[4] At the summary-judgment hearing,
Troutmen orally objected to SchrumÂs affidavit as irrelevant, and the trial
court sustained the objection. However, objections to summary-judgment
evidence must be in writing. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 677 (Tex. 1979). SchrumÂs affidavit is thus before
us. | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3808157/ | This is an appeal from an order and judgment of the district court of Love county approving a sheriff's sale of certain real estate made upon order of sale issued in favor of J.W. Gladney.
This action is based upon certain rights of the parties hereto growing out of a former judgment rendered in said court, and appealed from to this court. Kahn v. Gray, 171 Okla. 452,43 P.2d 419.
In 1929, M. Kahn, the plaintiff in error herein, commenced suit in the district court of Love county for foreclosure of a mortgage. J.W. Gladney and Blanche Gladney answered the petition and defended upon the ground that J.W. Gladney had purchased a prior mortgage. In the foreclosure suit brought by Kahn, judgment was entered decreeing J.W. Gladney to have a first and prior lien upon the land involved for the amount of the prior mortgage he had purchased, and further decreed M. Kahn to have a second lien for the amount of his loan. An appeal was taken by Kahn to this court and the judgment of the trial court affirmed allowing J.W. Gladney a first lien.
In February, 1936, J.W. Gladney obtained an order of sale and the sheriff sold the land involved and J.W. Gladney became the purchaser. Before the sale was made, M. Kahn presented a motion to recall the order of sale. The motion was overruled by the court, and after the sale he presented a protest to the approval of the sale, which was likewise overruled and the sale confirmed. From the action of the court, M. Kahn has brought this appeal. Three assignments of error are presented.
It is first contended that the order of sale was issued and the sheriff's sale held before the mandate from this court confirming the judgment was spread of record in the district court and that the order of sale was issued without authority, and sale is therefore invalid. The mandate had been duly received by the clerk, but not recorded. Inasmuch as the cause must be reversed on other grounds, it is not necessary to discuss this contention.
It is next contended that the order of sale did not conform to the order of the trial court contained in the judgment. The order of sale provides for a sale of the property without appraisement. The judgment does not provide for a sale of the property without appraisement and is silent as to how the sale should be made. It is not shown what is provided in the mortgage as to how the sale should be made The sale should conform to the judgment or order of the court. Price et ux. v. Citizens' State Bank of Mediapolls, 23 Okla. 723, 102 P. 800; Pettis v. Johnston, 78 Okla. 277, 190 P. 681.
"Where, on the foreclosure of a mortgage, the real estate covered thereby is sold without appraisement, and an appraisement has not been waived, such sale is void." Brown v. State Nat. Bank of Shawnee, 133 Okla. 173, 271 P. 833; Johnson v. Lynch, 38 Okla. 145, 132 P. 350; section 451, O. S. 1931.
It is next contended that the order of sale was not run in the name of the "State of Oklahoma." *Page 178
Article 7, section 19, of the Constitution of the state of Oklahoma provides: "The style of all writs and processes shall be 'The State of Oklahoma.' "
In Richmond v. Robertson, 50 Okla. 635, 151 P. 203, this court held:
"An order of sale issued for the sale of property in a foreclosure proceeding is a special execution and a writ or process, and as such must run under the style required by the Constitution (art, 7, sec. 19), the 'State of Oklahoma.' " Followed by Conditt v. McKinley, 94 Okla. 266, 221 P. 1007; Martin v. Hostetter, 59 Okla. 246, 158 P. 1174; Folsom v. Mid-Continent Life Insurance Co., 94 Okla. 181, 221 P. 486.
This court holds that the sheriff's sale is void and that the trial court committed error in overruling the motion to recall the order of sale and in confirming the sale which was protested by the plaintiff in error.
The judgment is reversed and the cause remanded and the sale vacated.
OSBORN, C. J., and PHELPS, GIBSON, and HURST, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4007144/ | I. S. Cline was indicted for a felony by a grand jury in McDowell County, the indictment charging that Cline was convicted, fined and sentenced to confinement in the McDowell county jail, in October, 1939, by the Criminal Court of McDowell County, upon an indictment for carrying a revolver without a license, and, further, that Cline committed the same offense in June, 1941. After a demurrer to and motion to quash the indictment had been overruled, a jury trial was had upon the defendant's plea of not guilty, which resulted in a verdict of guilty "as charged in the indictment". To the judgment of the criminal court overruling a motion to set aside the verdict and sentencing Cline to confinement in the state penitentiary for a term of one to five years, Cline petitioned for a writ of error in the Circuit Court of McDowell County. The circuit court found no error in the judgment of the criminal court and affirmed the same as plainly right.
It appears from the record that Cline had a pistol in his possession on the evening of June 23, 1941, when he engaged in an altercation with Vivian Keaton. Cline does not deny the fact that he had no license to carry a revolver. He testified that, as Justice of the Peace for Sandy River District in McDowell County, the pistol came into his possession in connection with a shooting affray some months prior to the altercation herein involved, and that he had kept the same in his office until the evening in question, when he was taking it home for safekeeping because a window had been broken out of his office. Cline states that Keaton "raised a racket" with him when he was *Page 65
on the way to his home and the pistol made its appearance in the ensuing struggle. Keaton testified that Cline struck him with the gun, while Cline says that it fell from his belt when he hit Keaton with his fist. The statute upon which this prosecution was based contains no provision that the carrying of the pistol must be with unlawful intent. State v. Edgell,94 W. Va. 198, 118 S.E. 144. Therefore, we believe it was the jury's province to weigh the facts and circumstances presented as to the possession of the pistol and to render its verdict accordingly.
Code, 61-7-1, provides that a person who carries about his person a pistol without a state license therefor shall be guilty of a misdemeanor, and upon second conviction for the same offense in this State, such person shall be guilty of a felony. Obviously, the indictment herein was drawn under the terms of this statute and plaintiff in error asserts that the demurrer thereto should have been sustained because it does not allege specifically that the carrying of the pistol in June, 1941, was a second offense. We do not believe this point to be well taken for the reason that the indictment fully apprised the defendant therein of its purpose and the facts to be established, for, as previously stated, it referred specifically to the prior conviction as well as the subsequent offense. In this connection, we believe the principles announced in State v. Goldstrohm, 84 W. Va. 129, 99 S.E. 248, are applicable, although the indictment in that case was based upon the statute relating to the second offense of felony. (Code, 61-11-18). It is true that the statute here involved makes it the duty of the prosecuting attorney to ascertain whether the charge of the grand jury is the first or second offense, and, if it be the second offense, "it shall be so stated in the indictment returned". However, where, as in this case, an indictment sets forth in terms the indictment for the first offense, alleges the conviction and sentence of the defendant thereunder and continues with the allegation "that after said conviction and sentence" the defendant committed the same offense, describing it in the statutory language, as used in the prior indictment, we believe that compliance with the statutory requirement mentioned is *Page 66
apparent. To such an indictment the addition of words describing the grand jury's charge as a second offense would in no manner serve to advise the defendant of a fact or facts not already set forth therein.
The statute (Code, 61-7-1) also calls upon the prosecuting attorney to "introduce the record evidence before the trial court of such second offense." Plaintiff in error argues that this provision called for introduction in evidence at this trial of an order showing the empaneling of the October, 1939, grand jury and an order showing the return of the indictment, in addition to the indictment itself and the order showing conviction and sentence, which were introduced.
The use of the term "record evidence * * * of such second offense" in the statute is somewhat misleading. Properly speaking, the second offense is the one last occurring chronologically, which brought about the immediate indictment and which must, of course, be proved beyond a reasonable doubt by proper evidence and testimony introduced before the jury. In the phrase just quoted "second offense" apparently means the prior conviction, for there could be no "record evidence" of the later offense. In order to establish the fact "by record evidence" that the defendant had been formerly convicted, we believe it suffices, under the provisions of Code, 61-7-1, to produce the indictment and the order showing the conviction and sentence, which procedure was followed here.
We have recently been called upon to consider a similar question arising under our Habitual Criminal Law (Code,61-11-19, as amended by Chapter 26, Acts, 1939), as to the amount of proof necessary to show a prior conviction or convictions. In the cases of State v. Stout, 116 W. Va. 398,180 S.E. 443, and State v. Lawson (decided November 4, 1942),125 W. Va. 1, 22 S.E.2d 643, we endeavored to point out the prejudicial effect of overemphasizing a prior conviction and have sought to eliminate all elements of proof which go beyond the establishment of the identity of the accused and the fact of the conviction, especially where there is no denial of either fact. We believe the *Page 67
same rule should apply in a prosecution under Code, 61-7-1, and, therefore, since record evidence was introduced in this case showing that accused had been indicted and convicted in 1939 of the same charge, the requirements of the statute were met, and it would be useless, if not prejudicial to defendant, to further emphasize the fact of his former conviction by the introduction of other portions of the record pertaining thereto.
The accused strongly contends that the trial court committed prejudicial error in giving the following instruction at the instance of the State over objection of defendant:
"The Court instructs the jury that if you believe beyond all reasonable doubt, from the evidence in this case, presented both on behalf of the State of West Virginia and the defendant, that I. S. Cline, on the 23rd day of June, 1941, in the County of McDowell, State of West Virginia, carried on or about his person a revolver or pistol, without first being licensed so to do as required by law, and not being otherwise exempted, that you shall find him guilty as charged."
This was the only instruction tendered on behalf of the State, and it will be observed that it is binding and defines conduct which under Code, 61-7-1, constitutes a misdemeanor, yet it tells the jury that if they believe the factual premises that they shall find defendant guilty as charged. On reference to the indictment, it is seen that the accused is charged with a felony. The vital element of prior conviction of Cline, which was necessary to make the act of Cline a felony under the statute, was omitted.
Believing that it was prejudicial error to give the instruction herein discussed, we reverse the judgments of the Circuit and Criminal Courts of McDowell County, set aside the verdict, and remand the case for a new trial.
Judgments reversed; verdict set aside; new trial awarded. *Page 68 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/7433309/ | Certiorari dismissed without opinion. 219 So.2d 479. | 01-03-2023 | 07-29-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2968667/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1953
JUDY SMITH,
Plaintiff – Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS; JAMES B. PEAKE, Secretary
of Affairs; ERIC K. SHINSEKI,
Defendants - Appellees.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:08-cv-00272-CCE-WWD)
Submitted: January 26, 2012 Decided: February 14, 2012
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Judy Smith, Appellant Pro Se. Joan Brodish Binkley, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Judy Smith appeals the district court’s order
accepting the report of the magistrate judge and granting
summary judgment to the Defendant in this employment
discrimination action. The district court referred this case to
a magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West
2006 & Supp. 2011). The magistrate judge recommended that
relief be denied and advised Smith that failure to file timely
objections to this recommendation could waive appellate review
of a district court order based upon the recommendation.
The timely filing of specific objections to a
magistrate judge’s recommendation is necessary to preserve
appellate review of the substance of that recommendation when
the parties have been warned of the consequences of
noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th
Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Smith
has waived appellate review by failing to timely file objections
after receiving proper notice. Accordingly, we affirm the
judgment of the district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
2
before the court and argument would not aid the decisional
process.
AFFIRMED
3 | 01-03-2023 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3808158/ | This case presents's error from the district court of Le Flore county and involves the sufficiency of the petition of the plaintiff, in an action to recover the possession of lands allotted to him as a full-blood. Choctaw Indian, and to quiet title. From the petition and the exhibits thereto made a part thereof it appears that the lands in question were allotted to the plaintiff, Folsom, as his surplus allotment of lands of the Choctaw and Chickasaw Nations of Indians, the patents to which were executed by the Principal Chief of the Choctaw Nation and the Governor of the Chickasaw Nation August 23, 1905, and September 26, 1905, respectively. On the 6th day of January, 1905, the plaintiff entered into a contract with the defendant Jones whereby he agreed to sell the latter 179.25 acres of land, more or less (being the lands in question), and in order to secure such agreement or understaking he and his wife executed to Jones their bond in the sum of $2,000 conditioned to be void in case the obligors therein "shall as soon as the time arrives when they can lawfully do so make, execute, and deliver to the said John A. Jones, obligee, a good and valid warranty deed with the usual covenants of title conveying said above-described lands to the said John A. Jones, in fee-simple, in which deed the said Sarah Folsom shall relinquish her dower in and to said land." Thereafter, and on March 26, 1906, Indian Agent Kelsey recommended the removal of the restrictions upon the alienation of the surplus allotment of said Noel Folsom, which recommendation was on April 13, 1906, approved by the Secretary of the Interior, the order of approval being made effective 30 days from date thereof. Afterwards, on the 14th day of May, 1906, following the order of removal of restrictions, Folsom and wife conveyed *Page 234
the lands named and described in the bond to Jones, which deed was on the same day filed for record. Thereafter, according to the allegations of the petition, Jones executed two mortgages on the lands acquired by him from Folsom to the Jefferson Trust Company, one of the defendants, which mortgages, together with the deed of conveyance, plaintiff sought to have canceled by this suit. But two questions are necessary to a decision of the case: (1) The validity of the deed from Folsom to Jones; (2) the sufficiency of the petition because of its failure to tender the return of the consideration.
The first question is ruled by the following decisions of this court: Lewis et al. v. Clements, 21 Okla. 167,95 P. 769; Simmons et al. v. Whittington, 27 Okla. 356,112 P. 1018; Howard et al. v. Farrar, 28 Okla. 490, 114 P. 695; Rogers v. Noel et al., 34 Okla. 238, 124 P. 976; Collins Investment Co. v. Beard, 46 Okla. 310, 148 P. 846; Carter v. Prajrie Oil Gas Company, 58 Okla. 365, 160 P. 319; Nixon et al. v. Woodcock, 64 Okla. 86, 166 P. 183.
In the Atoka Treaty, authorizing the lands within the Indian Territory belonging to the Choctaw and Chickasaw Indians to be allotted to the members of said tribes, it was provided that all contracts looking to the sale or incumbrance in any way of the land of an allottee, except such as was therein provided for should be null and void. 30 Stat. at L. p. 507, § 29. The conveyance from Folsom to Jones does not come within the exception in the agreement. In the subsequent act of July 1, 1902, commonly known as the Supplemental Agreement with the Choctaw and Chickasaw Tribes of Indians (32 Stat. at L. 64), in section 15 thereof, it was provided that lands allotted to members and freedmen should not be affected or incumbered by any deed, debt or obligation of any character contracted prior to the time at which said lands may be alienated under the act, nor should such lands be sold except as therein provided. These provisions of the agreements with the Choctaw and Chickasaw Indians, under which the lands of these tribes were allotted, have been construed by this court in at least three of the foregoing opinions. Indeed, we had supposed the question that conveyances of allotted land made in contravention of the agreement or statute under which the same were allotted had been forever set at rest in view of the repeated holdings of this and other courts that such attempted conveyances were void. Such Clements, supra; Simmons et al. v. Whittington, supra; Howard et al. v. Farrar, supra. Rogers v. Noel et al., supra., is particularly in point. There we said:
"He [the purchaser] and defendant Rhoda Howard were attempting to do that which the law says they shall not do, to wit. contract for conveyance of a part of an allotment of a Choctaw Indian before removal of restrictions. She could not give a valid deed at the time she contracted to convey; nor could she contract to do so, when the law in the future authorized her to convey. In order to circumvent the law and compel the allottee to do that which the law does not authorize or compel her to do, the notes were executed, and the agreement relative thereto was entered into for the purpose of binding Rhoda Howard and her sureties, to protect Thompson from loss in the event she did not carry out the illegal contract. It is a well-settled principle of law that the courts will not aid a party to enforce an agreement made in furtherance of objects forbidden by the statue, or by common law or general policy of the law, or to recover damages for its breach, or when the agreement has been executed in whole or in part by payment of money, to recover it back."
With full knowledge that the lands included in the contract were inalienable; Jones deliberately contracted for their purchase and attempted to bind Folsom and his wife by their bond to make conveyance thereof when the same became alienable. His counsel in this court in their brief admit that he (Jones) knew his contract was void. It was just such transactions that Congress had in mind when it passed the act of April 26, 1906 (34 Stat. at L. 137), wherein it declared in section 19 that every deed executed before or for the making of which a contract or agreement was entered into before the removal of restrictions was void. The purpose of the latter statute is sufficiently stated in Simmons et al. v. Whittington, supra, and has been recognized in Carter v. Prairie Oil Gas Company,58 Okla. 365, 160 P. 319, and Nixon et al. v. Woodcock,64 Okla. 86, 166 P. 183, and perhaps other opinions of this. court.
The arguments of counsel as to the evils. that would attend our giving force to the statute and adhering to our former views requires little, if any, consideration. These provisions of the agreements and the act of Congress in aid thereof have been in force and generally known for a great many years. The repeated decisions of this court are a part of the established jurisprudence not only of the state, but of the federal courts as well. *Page 235
The second proposition, that in order for plaintiff to recover he must pay or tender back the consideration received by him, is without merit. This question is authoritatively settled in Heckman et al. v. United States, 224 U.S. 413, 32 Sup. Ct. 424, 56 L. Ed. 820, where the argument of restoration was argued although under somewhat different circumstances. There the court said:
"Where, however, conveyance has been made in violation of the restrictions, it is plain that the return of the consideration cannot be regarded as an essential prerequisite to a decree of cancellation. Otherwise, if the Indian grantor had squandered the money, he would lose the land which Congress intended he should hold, and the very incompetence and thriftlessness which were the occasion of the measures for his protection would render them of no avail. The effectiveness of the acts of Congress is not thus to be destroyed."
It was further held that the restrictions upon alienation were to be found in the public laws and were matters of general knowledge. That those who dealt with the Indians contrary to such provisions were not entitled to insist that they should keep the land if the purchase price was not repaid, and thus frustrate the policy of the statute. Cases of this court hearing upon the question are Stevens v. Elliott et al.,30 Okla. 41, 118 P. 407; Gill et al. v. Haggerty, 32 Okla. 407,122 P. 641; Coody v. Coody et al., 39 Okla. 719,136 P. 754, L. R. A. 1915E, 465; Collins Investment Co. et al. v. Beard. 46 Okla. 310, 148 P. 846.
To hold that plaintiff cannot recover lands obtained from him in violation of the statute, without the repayment of the consideration paid, would mean to read into the statute a condition not contained therein, and in violation, we think, both of the spirit and letter of the statutes in pari materia. The petition is not therefore vulnerable to attack by general demurrer because of a failure to allege an offer to return or tender back of the consideration received by the plaintiff on account of the transaction complained of.
As to the rights of the mortgagee, Jefferson Trust Company, it is only necessary to say that the petition states a cause of action against it.
From what has been it is obvious that the trial court erred in sustaining the defendants' demurrers to the plaintiff's petition.
The judgment is therefore reversed, and the cause remanded.
All the Justices concurring. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3223165/ | In response to the foregoing question propounded to this court for determination, we advise as follows:
1. Section 229 of the Constitution is mandatory in its requirement that the Legislature "shall, by general law, provide for the payment to the state of Alabama of a franchise tax by corporations organized under the laws of this state"; and the mandate applies to all domestic corporations save only the classes of corporations expressly excepted from the tax, viz. those which are strictly benevolent, educational, or religious.
2. The proviso found in each of the revenue acts referred to (1911 and 1915), in so far as it exempts banks and banking institutions from the payment of the franchise tax imposed in general terms upon "all corporations organized under the laws of this state," is in violation of the mandate of section 229 of the Constitution. The proviso is therefore, as to banks and banking institutions, unconstitutional and void, and must be denied any operation or effect.
3. The clause imposing the franchise tax on domestic corporations in general must be given effect, notwithstanding the nullification of the proviso, for the reason that it is the legislative execution of a constitutional mandate, and it must be presumed that the Legislature intended that it should operate nevertheless according to the force of that mandate. They could not have intended to relieve all corporations of the tax, and so to violate their plain duty in the premises, in order to protect state banks from the burden of its payment.
This presumption is fully confirmed, so far as the revenue act of 1915 is concerned, by the explicit legislative declaration found in sections 289 of the act, that —
"If any section, clause or provision of this act shall be held void, or ineffective for any cause, it shall not affect any other section, clause or provision of this act." State ex rel. Crumpton v. Montgomery et al., 177 Ala. 212, 241,59 So. 294.
These considerations of course render in applicable the general rule that the nullification of a material proviso or exemption carries with it the nullification of the entire section or act, as illustrated by the cases of Vines v. State,67 Ala. 73; McLendon v. State, 179 Ala. 61, 60 So. 392, Ann. Cas. 1915C, 691; and Wilkinson v. Stiles, 200 Ala. 279,76 So. 45.
The foregoing conclusions are soundly stated and supported by BRICKEN, P.J., speaking for the Court of Appeals, in the *Page 257
opinion submitted to us, and which we fully approve.
ANDERSON, C.J., and McCLELLAN, THOMAS, and MILLER, JJ., concur.
SAYRE and GARDENER, JJ., dissent.
Opinion on Response from the Supreme Court. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3808159/ | On the 15th day of September, 1910, judgment was rendered in the county court of Pottawatomie county against appellant for a violation of the prohibitory liquor law and he was sentenced to pay a fine of $50 and 30 days' imprisonment in the county jail. Appellant was allowed 60 days from said date within which to perfect his appeal in said cause. On the 15th day of November, 1910, the court entered a second order attempting to extend the time within which the appeal could be filed in the Criminal Court of Appeals until the 15th day of January, 1911. There being thirty-one days in the month of October, the 60 days originally granted within which appellant should perfect his appeal expired on the 15th day of November, 1910. The second order made by the court attempting to extend the time having been made on November 15th, 1910, and after the time originally granted had expired, was illegal and void. The transcript of the record was not filed until January 15th, 1911, which was long after the time legally granted the appellant within which to perfect his appeal. This court therefore did not acquire jurisdiction of this cause and the appeal is dismissed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3047311/ | Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-3-2009
USA v. Jessie Snyder
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1643
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Jessie Snyder" (2009). 2009 Decisions. Paper 1934.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1934
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1643
___________
UNITED STATES OF AMERICA,
v.
JESSIE M. SNYDER; BUTLER COUNTY, Tax Claim Bureau
Jessie Snyder, Appellant
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 07-cv-00331)
District Judge: Honorable Maurice B. Cohill, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 2, 2009
Before: SLOVITER, AMBRO and STAPLETON, Circuit Judges
(Opinion filed: February 3, 2009)
___________
OPINION
___________
PER CURIAM
Jessie Snyder appeals the District Court’s order denying her motion for
reconsideration of the District Court’s February 5, 2008, order. We will affirm.
The procedural history of this case and the details of Snyder’s claims are well
known to the parties and need not be discussed at length. Briefly, the government filed a
complaint to foreclose on a lien against Snyder’s property in order to fulfill a judgment
against her for unpaid taxes. The District Court entered an order of sale and later
amended the order to require any occupants to vacate or be evicted. Snyder filed a
motion for reconsideration of the amended order. After the District Court denied the
motion, she filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.
Snyder argues on appeal that she discharged her tax debt before the complaint was
filed by tendering a “public office money certificate,” which the District Court noted
correctly was her personal note. For the reasons given by the District Court as to this and
Snyder’s other arguments, we conclude they are without merit. Accordingly, we will
affirm the District Court’s order. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4267305/ | State v. Terry’s Tips, No. 560-9-05 Wncv (Toor, J., Nov. 16, 2005)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
original. The accuracy of the text and the accompanying data included in the Vermont trial court
opinion database is not guaranteed.]
STATE OF VERMONT
WASHINGTON COUNTY, SS
│
STATE OF VERMONT, │
Plaintiff │
│ SUPERIOR COURT
v. │ Docket No. 560-9-05 Wncv
│
TERRY'S TIPS, INC. and │
TERRY F. ALLEN, │
Defendants │
│
RULING ON MOTION TO ENFORCE, MOTION
TO STAY AND MOTION FOR HEARING
This action was filed by the Commissioner of Banking, Insurance, Securities and Health
Care (the Commissioner) to enforce an administrative subpoena issued by the Commissioner in
connection with an investigation of an alleged unregistered internet investment advisor. In
response to the Commissioner’s motion, Defendants have filed a motion to stay this proceeding
until resolution of a related federal proceeding, and have requested a hearing for the purpose of
cross-examining the Commissioner’s investigator.
Background Facts
The subpoenas in question are directed to Terry’s Tips, Inc., and Terry Allen (jointly
“Allen”). They operate a website, TerrysTips.com. They concede that they “publish newsletters,
commentary and trading recommendations for option transactions” on the website. Motion to
Stay Proceedings, p. 1. In addition, their website reflects menu options for, among other things,
“Sign Up For Paid Services” and “Auto-Trade.” Affidavit of Tanya Durkee, Exhibit C. There
are also obviously questionable claims made on the website for returns such as “196.5% profit”
in a single year. Id.
The Commissioner has served the subpoenas in connection with its power to investigate
possible violations of the Vermont Securities Act, 9 V.S.A. §§ 4201- 4241. It is a violation of
the Act to provide investment advice without being registered with the State. Id. § 4213(f)(1).
One who “for compensation, engages in the business of advising others, either directly or
through publications or writings, as to the value of securities, or as to the advisability of
investing in, purchasing, or selling securities,” is an investment advisor. Id. § 4202a(7)(A). The
Act excludes from this definition “a publisher of any bona fide newspaper, news column,
newsletter, news magazine, or business or financial publication or service, whether
communicated in hard copy form, by electronic means, or otherwise, that does not consist of the
rendering of advice on the basis of the specific investment situation of each client.” Id. §
4202a(B)(v).
The Act does more than require registration by investment advisors. It also prohibits
fraud by registered or unregistered persons who make misleading statements in the course of
providing paid advice as to the value of securities. Id. § 4224a(a) and (e).
The Commissioner is given the power to investigate possible violations of the Act,
including issuing subpoenas the Commissioner “considers to be relevant and material to the
investigation or proceeding.” Id. § 4232(b). When a person fails to comply with a properly issued
2
subpoena, this court is directed to “issue an order compelling compliance with the agency
subpoena.” 3 V.S.A. § 809a(d).
The subpoenas in question contain twenty-nine requests for information, including such
things as lists of subscribers, the amounts they each invested in the specific “Strategies” offered
by Allen, the income received from auto-trading clients, and documentation backing up some of
the claims made on the website about investment returns. Affidavit of Tanya Durkee, Exhibits A
and B.
The only information provided by Allen as to the work involved in responding to the
subpoenas is the conclusory statement that compliance “would be extremely onerous and
burdensome” and would require “substantial time and resources.” Affidavit of Terry Allen, ¶ 5.
1. The Motion to Stay
The basis for the motion to stay is as follows. Allen argues that the Commissioner lacks
jurisdiction because Allen is a publisher rather than an investment advisor, and that this issue is
also being litigated in pending federal proceedings brought by the federal Securities and
Exchange Commission (SEC). Allen argues that this court should therefore wait for the federal
court to rule on the jurisdictional issue before proceeding.
This court declines the suggestion. Despite this court’s respect for its colleagues on the
federal bench, the federal court and this court could well reach different conclusions in
interpreting the law. The federal court’s decision would not be controlling in this court. There is
no reason to stay this case to await a decision in that case. The motion to stay is therefore denied.
2. The Jurisdictional Issue
Allen argues that the Commissioner lacks jurisdiction over Allen because Allen is a
newsletter publisher as opposed to an investment advisor, and the Vermont Securities Act
3
excludes such newsletter publishers from its reach. 9 V.S.A. § 4202a(B)(v). That, however, is an
issue for another day. While there might be cases that could be easily resolved at this stage of the
proceedings -- for example, if the subpoena in this case were directed to what was clearly a
grocery store or some other business that on its face was not within the scope of the statute. On
its face, the excerpts from the website raise a fair inference that this case is within the realm
addressed by the statute. For example, the menu choices at the website include “Sign Up For
Paid Services” and “Auto-Trade.” Affidavit of Tanya Durkee, Exhibit C. The merits of any case
the Commissioner later chooses to file may turn on developing the facts further, but at this stage
in the process, the court will not delve into the fact-bound determination of whether any such
case may ultimately succeed.1Accord, United States v. Construction Products Research, Inc., 73
F.3d 464, 470 (2d Cir. 1996)(“at the subpoena enforcement stage, courts need not determine
whether the subpoenaed party is within the agency’s jurisdiction or covered by the statute it
administers; rather the coverage determination should wait until an enforcement action is brought
against the subpoenaed party.”); Federal Trade Commission v. Ernstthal, 607 F. 2d 488, 490
(D.C. Cir. 1979)(where jurisdictional question “turns on issues of fact, the agency is not obliged
to prove its jurisdiction in a subpoena enforcement proceeding”).
Although Allen argues that First Amendment considerations require the court to step in at
this stage, the court finds the cited cases inapposite because they relate to political association
rights, not commercial situations. See Federal Election Commission v. Larouche Campaign, 817
F.2d 233 (2nd Cir. 1987); Federal Election Commission v. Machinists Non-Partisan Political
League, 655 F.2d 380 (D.C. Cir. 1981); Federal Election Commission v. Philips Publishing, Inc.,
517 F.Supp. 1308 (D.D.C. 1981). As the D.C. Circuit noted in Machinists, the political activities
1
If the issue were to be litigated at this stage, the Commissioner would be entitled to discovery on the issue. That
discovery would likely mirror the requests in the subpoenas.
4
overseen by the Federal Election Commission “differ in terms of their constitutional significance
from those which are of concern to other federal administrative agencies whose authority relates
to the regulation of corporate, commercial or labor activities.” 655 F.2d at 387. There is no need
for heightened scrutiny of administrative subpoenas in the realm of commercial activities alone.
The court will grant the Commissioner the deference that administrative subpoenas are
generally accorded. See, e.g., United States v. Morton Salt Co., 338 U.S. 632, 652
(1950)(subpoenas will be upheld if within the agency’s authority, “not too indefinite,” and
reasonably relevant); In re McVane, 44 F.3d 1127, 1134-1136 (2nd Cir. 1995)(same). The
investigation of potential unregistered investment advice, and of fraudulent investment
information, are clearly within the general scope of the Commissioner’s authority. The
subpoenas contain specific, definite requests for information. Allen has not even argued that
they are not relevant to the Commissioner’s investigation. Thus, the subpoenas are entitled to
deference.
3. The Scope of the Subpoenas
Allen argues that the subpoenas in this case are overbroad: “They consist of three and a
half pages of single spaced requests, and seek virtually every piece of paper and computer file
for [Allen’s] business, and in some cases cover a period of five years. The subpoenas are thus
burdensome, oppressive and unreasonable, and are invalid for this reason alone.” Opposition to
Motion to Enforce, p. 7. The court disagrees. The mere fact that the subpoenas are several pages
long and ask for many records does not make them unreasonable. Allen gives no estimate of the
number of pages of responsive records, the number of hours responses will take, or any other
specific information that might affect the reasonableness of the request. It could be that many of
5
the twenty-nine requests could be answered by the production of merely a few pages, for
example. Nothing on the face of the subpoenas makes them patently unreasonable.
Allen goes on to argue that the subpoenas are also unreasonable because they are
“extremely intrusive with respect to [Allen’s] right to publish, as well as on their subscribers’
rights to read the publications without being subjected to government scrutiny.” Opposition at 7.
The only authority offered for this argument is Lowe v. Securities and Exchange Commission,
472 U.S. 181 (1985). However, Lowe merely addresses the distinction between a publisher and
an investment advisor. The case involved whether enforcement action could be taken against a
particular entity – it did not involve the issuance of an administrative subpoena. Lowe does not
require that a court make the determination of a statute’s applicability to a particular entity at the
investigation stage.
As noted above, whether Allen fits within the “investment advisor” definition is an issue
for another day. The web site itself suggests that Allen does provide investment advice, and that
impossible claims are being made as to investment returns. These are sufficient grounds for the
Commissioner to seek further information. Lowe did not say that by merely claiming the status
of publisher, a party may insulate itself from investigation.2
4. The Request for a Hearing
Allen argues that a hearing is necessary so that Allen can cross-examine the
Commissioner’s investigator. The reasons stated for doing so are to determine whether the
Commissioner has issued the subpoenas for an “improper purpose.” Opposition at 8. Allen
2
Moreover, to the extent that Allen is suggesting that the court should be concerned with the privacy rights of
subscribers or investors, this court agrees with the following comment by another court: “It is common knowledge
that securities transactions are heavily regulated by both the state and federal governments. An investor in regulated
securities has no reasonable expectation that his or her identity will be withheld from the state and federal agencies
responsible for enforcing securities laws.” Tom v. Schoolhouse Coins, Inc., 236 Cal. Rptr. 541, 542 (Cal. Ct. App.
1987).
6
argues that the timing and content of the subpoenas suggests an improper motive. The “timing”
to which Allen refers is that the subpoenas were issued after Allen filed a motion to dismiss in
the federal case. The “content” to which Allen refers is not explained, although the suggestion
apparently is that because the federal government is also investigating similar issues, there is
something fishy about the State also doing so.
The court finds the argument unconvincing. There is nothing inappropriate about both
federal and state entities investigating similar issues under their respective laws, nor is there any
evidence proffered that the Commissioner is somehow providing to the SEC information the
SEC would not be able to obtain itself. Nor is any authority cited to suggest that sharing such
information would be improper. Allen offers no legitimate basis for inferring that the
Commissioner is doing anything inappropriate. The court will not grant an evidentiary hearing
based on Allen’s mere speculation.
Order
The Commissioner’s motion to enforce is granted. The respondents’ motions to stay and
motion for an evidentiary hearing are denied.
Dated at Montpelier this 15th day of November, 2005.
_____________________________
Helen M. Toor
Superior Court Judge
7 | 01-03-2023 | 04-24-2018 |
https://www.courtlistener.com/api/rest/v3/opinions/129938/ | 538 U.S. 1055
JOHNSON, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONSv.WALTON.
No. 02A993.
Supreme Court of United States.
May 27, 2003.
1
ON APPLICATION FOR STAY.
2
Application to vacate stay of execution of sentence of death entered by the United States District Court for the Western District of Virginia on May 25, 2003, presented to THE CHIEF JUSTICE, and by him referred to the Court, denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3045014/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1956
___________
Michael E. Acevedo, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
City of Bridgeton, a municipal *
corporation; Mayor of the City of * [UNPUBLISHED]
Bridgeton, Missouri; Chief of Police *
for the City of Bridgeton, Missouri; *
Unknown Eatherly, Police Officer of *
the City of Bridgeton, Missouri; *
Pattonville Emergency Service; L. *
Taylor, Pattonville Emergency Service *
Attendant; St. Joseph’s Hospital, a *
Missouri corporation; Unknown *
Security Guard No. 1; Unknown *
Security Guard No. 2; Unknown Nurse, *
Psycho Ward Nurse; Other Unknown *
Persons, Names Unknown; Unknown *
Benson, Police Officer of the City of *
Bridgeton, Missouri; S. Benson, *
Pattonville Emergency Service *
Attendant, *
*
Appellees.
___________
Submitted: July 3, 2008
Filed: July 9, 2008
___________
Before BYE, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
Michael Acevedo appeals the district court’s1 orders dismissing one defendant
and granting summary judgment in favor of the remaining defendants in this 42
U.S.C. § 1983 action. After carefully reviewing the record de novo and considering
Acevedo’s arguments for reversal, see Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir.
2007) (de novo review of summary judgment); Koehler v. Brody, 483 F.3d 590, 596
(8th Cir. 2007) (de novo review of dismissal for failure to state claim), we affirm. See
8th Cir. R. 47B. We deny appellees’ motion to dismiss.
______________________________
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045019/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2021
___________
Alpine Glass, Inc., *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Illinois Farmers Insurance Company; *
Mid-Century Insurance Company. *
*
Defendants - Appellants. *
___________
Submitted: January 16, 2008
Filed: July 9, 2008
___________
Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
___________
BRIGHT, Circuit Judge.
Illinois Farmers Insurance Company and Mid-Century Insurance Company
(collectively “Illinois Farmers”) appeal from the district court’s1 orders: (1)
dismissing their counterclaim for breach of contract and three requests for declaratory
relief; and (2) consolidating Alpine Glass, Inc.’s (“Alpine Glass”) short-pay claims
in a single arbitration under Minnesota’s No-Fault Automobile Insurance Act (“No-
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
Fault Act”), Minn. Stat. §§ 65B.41-65B.71. We dismiss this appeal for want of
jurisdiction.
Alpine Glass repairs and replaces broken automobile glass. Illinois Farmers
provides, among other services, automobile insurance. In this case, Alpine Glass
apparently fixed or replaced Illinois Farmers’ insureds’ automobile glass on more than
a thousand occasions. And in every instance, Alpine Glass, after allegedly receiving
an assignment from the insured, submitted an invoice to Illinois Farmers to recoup
payment for its services. Alpine Glass claims that in every case Illinois Farmers paid
less than the amount stated on Alpine Glass’s invoice (i.e., short-pays). Alpine Glass
filed suit in Minnesota state court to recover the difference. Because Alpine Glass’s
claims – so called short-pay claims – are subject to mandatory arbitration under the
No-Fault Act,2 Alpine Glass sought a declaration ordering that its claims be
consolidated for arbitration. Illinois Farmers subsequently removed this action to
federal district court.
Before the district court, Illinois Farmers argued that arbitration was improper
in this case because: (1) Alpine Glass lacked standing to proceed as an assignee of
Illinois Farmers’ insureds by virtue of an anti-assignment clause in its automobile
insurance contracts; and (2) Alpine Glass’s policy of receiving assignments in
exchange for performing glass replacement services violated Minnesota’s anti-
incentive statute, Minn. Stat. § 325F.783. Separately, Illinois Farmers also sought a
declaration from the district court regarding “coverage” (i.e., which of the policy’s
endorsements applied) and asserted several breach of contract claims.
After briefing and oral argument, the district court granted (in a series of orders)
Alpine Glass’s motion to consolidate its claims in a single No-Fault Act arbitration,
2
See Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d 792, 800 (Minn.
2004); Minn. Stat. § 65B.525, subdiv. 1.
-2-
dismissed (or denied) the majority of Illinois Farmers’ legal contentions and “entered
judgment.” The district court did not address, however, the endorsement issue. This
appeal followed.
Following briefing and oral argument to this Court, we sua sponte requested
supplemental briefing on whether we properly could exercise jurisdiction either
pursuant to 28 U.S.C. § 1291 or under the collateral order doctrine. See Dieser v.
Cont’l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2005) (“‘[J]urisdiction issues will be
raised sua sponte by a federal court when there is an indication that jurisdiction is
lacking, even if the parties concede the issue.’”) (quoting Thomas v. Basham, 931
F.2d 521, 523 (8th Cir. 1991)). After reviewing the parties’ submissions, we conclude
that we lack jurisdiction.
Under § 1291, the courts of appeals have jurisdiction over “all final decisions
of the district courts of the United States.” A district court’s order is a “final decision”
for the purposes of § 1291 if it “‘ends the litigation on the merits and leaves nothing
more for the [district] court to do but execute the judgment.’” Green Tree Fin. Corp.-
Ala. v. Randolph (“Green Tree”), 531 U.S. 79, 86 (2000) (holding that an order
compelling arbitration and dismissing any remaining claims is a “final decision” under
§ 16(a)(3) of the Federal Arbitration Act) (quoting Catlin v. United States, 324 U.S.
239, 233 (1945)); see also Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
867 (1994); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). Illinois
Farmers contends that the district court’s orders denying its counterclaims and
requests for declaratory relief and granting Alpine Glass’s motion to compel
consolidated arbitration together constitute a “final decision” because they resolved
all the issues before the district court and left it with nothing to do but execute a
judgment following arbitration. In support of its position, Illinois Farmers relies on
cases arising under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., in
which courts of appeals have consistently held that a district court’s order compelling
-3-
arbitration and “dismissing” any remaining claims is a final appealable decision.3
See, e.g., Skirchak v. Dynamics Research Corp., 508 F.3d 49, 55 (1st Cir. 2007)
(holding order compelling arbitration and dismissing claims is final and appealable
under 9 U.S.C. § 16(a)(3)) (citing Green Tree, 531 U.S. at 86); Comedy Club, Inc. v.
Improv West Assoc., 502 F.3d 1100, 1106 (9th Cir. 2007) (same). Even though the
FAA does not apply to Alpine Glass’s arbitration demand, Illinois Farmers contends
these cases are nevertheless apposite because the Supreme Court adopted the well-
established meaning of “final decision”, as understood with respect to § 1291, in
defining the term for the purposes of the FAA. See Green Tree, 531 U.S. at 86
(“Because the FAA does not define ‘a final decision with respect to an arbitration’ or
otherwise suggest that the ordinary meaning of ‘final decision’ should not apply, we
accord the term its well-established meaning.”) (citing Evans v. United States, 504
U.S. 255, 259-260 (1992)). Thus, Illinois Farmers argues, regardless of the statutory
basis for a party’s arbitration demand, a district court’s order compelling arbitration
and dismissing any remaining claims is a “final decision” immediately appealable
under § 1291. Although Illinois Farmers correctly reads Green Tree and its progeny,
we conclude those cases do not control here.
The critical difference between this case and those Illinois Farmers relies upon
is that the district court will have more to do than simply “execute the judgment”
following the No-Fault arbitration. Under the No-Fault Act, “an arbitrator’s decision
on a legal question is subject to de novo review by the district court.” Gilder v. Auto-
Owners Ins. Co., 659 N.W.2d 804, 807 (Minn. Ct. App. 2003); see also Weaver v.
3
Illinois Farmers does not suggest that the FAA applies in this case. And nor
could it as the parties did not have a written agreement requiring arbitration. See 9
U.S.C. § 4 (“A party aggrieved by the alleged failure, neglect, or refusal of another to
arbitrate under a written agreement for arbitration may petition any United States
district court which, save for such agreement, would have jurisdiction under Title 28,
in a civil action . . . of the subject matter of a suit arising out of the controversy
between the parties, for an order directing that such arbitration proceed in the manner
provided for in such agreement.") (emphasis added).
-4-
State Farm Ins. Co., 609 N.W.2d 878, 882 (Minn. 2000) (“To achieve the consistency
desired in interpreting the [N]o-[F]ault [A]ct, this court and the district court review
de novo the arbitrator’s legal determinations necessary to granting relief.”) (citing
Neal v. State Farm Mut. Ins. Co., 529 N.W.2d 330, 331 (Minn. 1995)). And so, the
district court will not only have to confirm (or vacate, or modify) any arbitral award,
but it will also have to review the arbitrator’s legal determinations de novo.
In this case, for example, the district court failed to resolve a key legal
contention - which of Illinois Farmers’ policy’s endorsements applied - before
compelling arbitration. See, e.g., Ill. Farmers Ins. Co. v. Glass Serv. Co., 683 N.W.2d
792, 799 (Minn. 2004) (“The interpretation of contractual language is an issue of law
for the court to decide.”) (citing Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339,
346 (Minn. 2003)).4 Thus, after the arbitration concludes, if either party (or both)
disagree with the arbitrator’s decision with respect to this issue, it (or they) can obtain
de novo review from the district court. Indeed, the district court must review de novo
not only pure questions of law but the arbitrator’s application of the law to the facts.
See Gilder, 659 N.W.2d at 807. Because the parties’ liabilities may be affected by the
district court’s de novo review of the arbitrator’s legal determinations, we conclude
that an order compelling mandatory arbitration under the No-Fault Act does not “end[]
the litigation on the merits and leave[] nothing for the court to do but execute the
judgment.” Cunningham v. Hamilton County, 527 U.S. 198, 204 (1999) (emphasis
added) (citations omitted); see also Maristuen v. Nat’l States Ins. Co., 57 F.3d 673,
678 (8th Cir. 1995) (“A judgment awarding damages but not deciding the amount of
4
We note that there is no per se requirement under Minnesota’s No-Fault Act
that courts resolve any legal issues before ordering arbitration. See Costello v. Aetna
Cas. & Surety Co., 472 N.W.2d 324, 326 (Minn. 1991) (“Where the coverage dispute
arises on a motion to compel arbitration or to enjoin arbitration, the court ought to
decide the issue in the first instance.”) (emphasis added); Gilder, 659 N.W.2d at 807
(“In other words, when called upon to grant relief, an arbitrator need not refrain from
deciding a question simply because it is a legal question.”) (emphasis added).
-5-
the damages or finding liability but not fixing the extent of the liability [are] not . . .
final decision[s] within the meaning of § 1291.”) (emphasis added). In short, the
district court could not have entered a final judgment in light of its mandatory
obligation under Minnesota law to review the arbitrator's legal conclusions de novo.
We are, of course, aware of the Supreme Court’s observation that the possibility
of bringing a “separate proceeding [under §§ 9, 10 or 11 of the FAA] in a district
court to enter judgment on an arbitration award once it is made (or to vacate or modify
it) . . . does not vitiate the finality of [a] [d]istrict [c]ourt’s” order compelling
arbitration and dismissing the claims before it. Green Tree, 531 U.S. at 86 (emphasis
added). The type and degree of “judicial review” available to parties under the FAA
differs materially, however, from that which the district court must conduct following
the No-Fault arbitration in this case. Under the FAA, a district court may “modify or
vacate” an arbitration award on grounds principally relating to egregious conduct by
the arbitrator but unrelated to the merits. See Hall Street Assoc. v. Mattel, Inc., 128
S. Ct. 1396, 1404-05 (2008) (“To begin with, even if we assumed §§ 10 and 11 could
be supplemented to some extent, it would stretch basic interpretive principles to
expand the stated grounds to the point of evidentiary and legal review generally.
Sections 10 and 11, after all, address egregious departures from the parties’ agreed-
upon arbitration . . . ; the only ground with any softer focus is ‘imperfect[ions],’ and
a court may correct those only if they go to ‘[a] matter of form not affecting the
merits.’ Given this emphasis on extreme arbitral conduct . . . then surely a statute
with no textual hook for expansion cannot authorize contracting parties to supplement
review for specific instances of outrageous conduct with review for just any legal
error.”) (emphasis added, alterations in original).
As such, the FAA, unlike Minnesota’s approach to No-Fault arbitration,
severely cabins a district court’s authority to “modify or vacate” an arbitration award.
We therefore understand Green Tree to hold that subsequent intervention by the
district court that has no bearing on the merits does not affect the finality of its order
-6-
compelling arbitration and dismissing any remaining claims. That is not the case here,
however. As we emphasized above, the district court will review de novo the
arbitrator’s legal determinations, and that review necessarily touches upon the merits.5
We understand Illinois Farmers’ desire to have this Court decide the merits of
its appeal. It contends that the district court erred by holding that Alpine Glass had
standing to proceed to arbitration. If the district court erred in this regard, Illinois
Farmers would likely avoid an unnecessary arbitration proceeding. But if the flip
were true – and the district court ruled correctly (we express no view on the merits)
– then this appeal did little but delay the inevitable. And no doubt, following
arbitration and de novo review by the district court, we would again see these parties
on appeal. In short, we can never be confident that permitting an appeal from an order
compelling arbitration (and dismissing any remaining claims) would conserve judicial
resources. Indeed, such a practice might encourage piecemeal appeals – a practice we
must be careful to discourage “because [of] the strong bias of § 1291 against [such]
appeals.” Digital Equip. Corp., 511 U.S. at 872; see also Will v. Hallock, 546 U.S.
345, 349-50 (2006).
5
We recognize that our analysis of the finality of the district court’s order
compelling arbitration depends largely on the fact that Minnesota law requires district
courts to review de novo a No-Fault arbitrator’s legal determinations. Our decision
nevertheless reflects an interpretation of § 1291. We are not considering whether such
orders would or would not be immediately appealable under Minnesota law. See
Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198-99 (1988) (holding in
diversity cases, federal – not state – law controls construing whether an order is a
“final decision” for appealability purposes under § 1291). Rather, our discussion
focuses on whether the district court’s decision compelling arbitration in this case
ended the litigation on the merits. That determination cannot be made without
reference to Minnesota law. Moreover, it should come as no surprise that procedural
niceties can affect the appealability of an order compelling arbitration. Under the
FAA, for example, the appealability of such orders turns directly on whether a district
court “dismisses” or “stays” the litigation. Only in the former case is an order
compelling arbitration immediately appealable. See Green Tree, 531 U.S. at 86 n.2.
-7-
The district court’s decision is also not appealable under the collateral order
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)
(holding that a small class of decisions are immediately appealable even though the
decision did not terminate the litigation before the district court). A district court’s
decision is immediately appealable as a collateral order if it: (1) conclusively
determines a disputed issue; (2) which is an important issue completely separate from
the merits; and (3) is effectively unreviewable on appeal from a final judgment. Digital
Equip. Corp., 511 U.S. at 867; Coopers & Lybrand, 437 U.S. at 468; Kassuelke v.
Alliant Techsystems, Inc., 223 F.3d 929, 931 (8th Cir. 2000). As a narrow exception
to the general rule that a single appeal, taken after the entry of a final judgment,
provides a party with a sufficient opportunity to complain of all of the district court’s
errors, the Supreme Court has described the conditions for satisfying the collateral
order doctrine as stringent. See Will, 546 U.S. at 349-50; Digital Equip. Corp., 511
U.S. at 868. Accordingly, “the chance that the litigation at hand might be speeded, or
a ‘particular injustice’ averted by a prompt appellate decision” are, standing alone,
insufficient reasons for classifying a district court’s decision as an appealable
collateral order. Id. (internal citation omitted).
Although the district court conclusively decided each of the issues raised by
Illinois Farmers’ appeal, we need not decide whether any are “important” because
none are “effectively unreviewable” on appeal from a final judgment. Id. at 869. To
satisfy this condition, a party, at a minimum must demonstrate that the interest it seeks
to vindicate immediately would be “irretrievably lost” if it had to wait to appeal until
after a final judgment. See id. at 872 (“[A]nd so the mere identification of some
interest that would be ‘irretrievably lost’ has never sufficed to meet the third Cohen
requirement.”) (citing Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499 (1989)).
Illinois Farmers doesn’t contend, however, that any of the issues it raises would
be “irretrievably lost” if forced to wait to appeal after the entry of a final judgment.
-8-
And nor could it. Each of the issues raised by its appeal: (1) whether Alpine Glass
has standing to assert the short-pay claims; (2) whether Minnesota’s anti-incentive
statute proscribes Alpine Glass’s practice of receiving assignments in exchange for
performing glass repair services; and (3) whether the district court erred by dismissing
Illinois Farmers’ requests for declaratory relief and breach of contract claim are issues
of law that this Court can review de novo following a judgment on the merits. Thus,
the district court’s orders are not appealable under the collateral order doctrine.
For the foregoing reasons, we dismiss the appeal for want of jurisdiction.
______________________________
-9- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045020/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1873
___________
Alpine Glass, Inc., *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Allstate Insurance Company, * [PUBLISHED]
*
Defendant - Appellant. *
___________
Submitted: January 16, 2008
Filed: July 9, 2008
___________
Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.
___________
PER CURIAM.
Allstate Insurance Company (“Allstate”) appeals from the district court’s1 order
consolidating Alpine Glass’s 618 short-pay claims in a single arbitration under
Minnesota’s No-Fault Automobile Act (“No-Fault Act”). On appeal, Allstate
contends that the district court erred by: (1) failing to consider several legal defenses
before referring the matter to arbitration; and (2) consolidating all of Alpine Glass’s
claims in a single arbitration. We dismiss the appeal for want of jurisdiction.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
Alpine Glass repairs and replaces broken automobile glass. Allstate provides,
among other services, automobile insurance. In this case, Alpine Glass apparently
fixed or replaced Allstate’s insureds’ automobile glass on 618 occasions. And in
every instance, Alpine Glass, after allegedly receiving an assignment from the insured,
submitted an invoice to Allstate to recoup payment for its services. Alpine Glass
claims that in every case Allstate paid less than the amount stated on Alpine Glass’s
invoice (i.e., short-pays). Alpine Glass filed suit in Minnesota state court to recover
the difference. Because Alpine Glass’s claims – so called short-pay claims – are
subject to mandatory arbitration under the No-Fault Act, Alpine Glass sought a
declaration ordering arbitration. Allstate subsequently removed this action to federal
district court. After briefing and oral argument, the district court granted Alpine
Glass’s motion to consolidate its claims in a single arbitration. Although the district
court never entered judgment, its docket sheet reflects that the case was closed. This
appeal followed.
Following briefing and oral argument to this Court, we sua sponte requested
supplemental briefing on whether we properly could exercise jurisdiction either
pursuant to 28 U.S.C. § 1291 or under the collateral order doctrine. See Dieser v.
Cont’l Cas. Co., 440 F.3d 920, 923 (8th Cir. 2005) (“‘[J]urisdiction issues will be
raised sua sponte by a federal court when there is an indication that jurisdiction is
lacking, even if the parties concede the issue.’”) (quoting Thomas v. Basham, 931
F.2d 521, 523 (8th Cir. 1991)). After reviewing the parties’ submissions, we conclude
that we lack jurisdiction.
Under § 1291, the courts of appeals have jurisdiction over “all final decisions
of the district courts of the United States.” A district court’s order is a “final decision”
for the purposes of § 1291 if it “‘ends the litigation on the merits and leaves nothing
more for the [district] court to do but execute the judgment.’” Green Tree Fin. Corp.-
Ala. v. Randolph (“Green Tree”), 531 U.S. 79, 86 (2000) (quoting Catlin v. United
States, 324 U.S. 239, 233 (1945)); see also Digital Equip. Corp. v. Desktop Direct,
-2-
Inc., 511 U.S. 863, 867 (1994); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467
(1978). In this case, the district court did not enter a final judgment after granting
Alpine Glass’s motion to compel consolidated arbitration.2 Rather, the district court
simply signed Alpine Glass’s proposed order in granting its motion. In our view, this
does not constitute a final judgment. But assuming that the district court did attempt
to enter a final judgment, for the reasons we have explained in Alpine Glass v. Illinois
Farmers Ins. Co., No. 07-2021, slip op. at 3-7 (8th Cir., filed contemporaneously July
9, 2008), the order would nevertheless not be a final appealable decision under §
1291.
The district court’s decision is also not appealable under the collateral order
doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)
(holding that a small class of decisions are immediately appealable even though the
decision did not terminate the litigation before the district court). A district court’s
decision is immediately appealable as a collateral order if it: (1) conclusively
determines a disputed issue; (2) which is an important issue completely separate from
the merits; and (3) is effectively unreviewable on appeal from a final judgment. Digital
Equip. Corp., 511 U.S. at 867; Cooper & Lybrand, 437 U.S. at 468; Kassuelke v.
Alliant Techsystems, Inc., 223 F.3d 929, 931 (8th Cir. 2000). As a narrow exception
to the general rule that a single appeal, taken after the entry of a final judgment,
provides a party with sufficient opportunity to complain of all of the district court’s
errors, the Supreme Court has described the conditions for satisfying the collateral
order doctrine as stringent. Digital Equip. Corp., 511 U.S. at 868. Accordingly, “the
chance that the litigation at hand might be speeded, or a ‘particular injustice’ averted
by a prompt appellate decision” are, standing alone, insufficient reasons for
classifying a district court’s decision as an appealable collateral order. Id. (internal
citation omitted).
2
Our review of the district court’s docket sheet indicates that the case was
“closed.” But whether this closure reflects an administrative stay or formal entry of
judgment is unclear.
-3-
Although the district court conclusively decided the principal issue raised by
Allstate’s appeal, we need not decide whether it is “important” because it is
“effectively [reviewable]” on appeal from a final judgment. Id. at 869. To satisfy this
condition, a party, at a minimum must demonstrate that the interest it seeks to
vindicate immediately would be “irretrievably lost” if it had to wait to appeal until
after a final judgment. See id. at 872 (“[A]nd so the mere identification of some
interest that would be ‘irretrievably lost’ has never sufficed to meet the third Cohen
requirement.”) (citing Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499 (1989)).
Allstate doesn’t contend, however, that the issue of consolidation would be
“irretrievably lost” if forced to wait to appeal after the entry of a final judgment. And
nor could it. The Court can readily review that determination following a judgment
on the merits.3
For the foregoing reasons, we dismiss the appeal for want of jurisdiction.
3
Even if Allstate could establish that its interest regarding consolidation would
be “irretrievably lost” if it had to wait for a final judgment, this interest is not
sufficiently important to merit consideration as a collateral order. See Will v. Hallock,
546 U.S. 345, 351-53 (2006); Digital Equip. Corp., 511 U.S. at 877-78.
-4- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3447691/ | Reversing.
By this equity action filed by appellants and plaintiffs below, A.L. Story and wife, against the appellee and defendant below, Thomas Allen, plaintiffs seek to establish a passway over and across a tract of land owned by defendant in Russell county, and to enjoin him from obstructing it and requiring him to remove obstructions he theretofore put therein. The petition alleged that the involved passway had been open and used and traveled under a claim of right by plaintiffs and their predecessors in title and by other members of the public for a continuous period of more than 50 years, and that in this manner the right to use it was acquired by plaintiffs as well as the public. The answer was a traverse of the material allegations of the petition, and upon submission the court upon the proof taken and filed in the cause dismissed the petition, and from that judgment plaintiffs prosecute this appeal.
The insertion of the map prepared by a surveyor and filed as a part of the record would elucidate to the reader the physical facts, but since only a question of fact is involved, and to insert the map as a part of this opinion would not only delay its publication, but would also incur considerable expense in procuring the necessary cut, we have concluded to omit it, but will make some references *Page 196
to certain points on it for the purpose of designating the location of the passway and the application of the opinion to it under such designation.
Plaintiffs own two farms in that vicinity, one on the north and the other on the south side of the Cumberland river, and each of them borders on it. They reside on the farm north of the river, and immediately opposite that farm south of the river is a tract of land owned by defendant. Plaintiffs' farm on the south of the river lies up that stream from their residence and joins defendant's farm along its west line. The involved passway starts from the bank of the river at a point near the mouth of Indian creek, designated on the map by the figure 7 and a little east of south from plaintiffs' residence, and runs in a southwestern course, with designated turns and angles, to a point opposite defendant's residence at the figure 8 on the map, and thence practically west to plaintiffs' farm on the south side of the river at the figure 9 on the map. A short distance from figure 7 defendant constructed a wire fence across the passway at number 10 on the map, and to remove that obstruction and to enjoin defendant from repeating it in the future this action was filed.
More than 50 or 60 years ago one Joshua Grider owned the land, perhaps on both sides of the river covering all of the involved territory. But, whether that be true as to the land north of the river, it is admitted that he owned all of the involved land south of that stream. The continuation of the passway west from the east line of their farm on the south of the river, and from figure 9 on the map, leads to certain churches and country post offices; while the passway at its other end, after it crosses the river, furnishes a convenient outlet to similar places and to the county-seat towns of Russell and Clinton counties as well as to the homes of citizens living along and near to the passway. It is in proof, without objection and uncontradicted, that Joshua Grider before his death, and perhaps as much as or more than 50 years ago, sold to a man by the name of Williams the tract of land now owned by plaintiff's on the south side of the river, and that he then verbally agreed that Williams, his vendee, might have as an appurtenant to that tract a passway leading from figure 9 to figure 7 on the map, and that Williams bought that tract of land with that oral agreement as a part of the consideration. It is in proof that at least from that time, not only Williams and the members of his *Page 197
family, but his surrounding neighbors, used and traveled the passway, as last above designated, without let or hindrance, and that people living north of the river also so used it whenever they had occasion to do so. So much is conceded as to the passway, from figures 9 to 8 on the map, but defendant claims that from that point, which, as we have stated, is the location of his residence, plaintiffs and other members of the public used another passway, which he concedes to be established by prescription, and which runs from 8 in a southwesterly direction to 14, and from thence to 13 on the map, where it intersects the Jamestown and Albany public road; but he denies that there was ever a passway from figures 8 to 7 on the map. In that contention he is overwhelmingly contradicted by the proof in the cause, since, not only plaintiff A.L. Story and about ten other witnesses introduced by him testified as to the existence of the passway to figure 7 on the map, but also practically all the witnesses introduced by defendant said that such passway has existed and been used at such times as Cumberland river was fordable for a great number of years extending beyond the recollection of some of the witnesses. It is true that in times of high water so as to render the river nonfordable the passway was not used, but when such obstructing conditions did not exist it was used by plaintiffs and others who had occasion to do so. It is likewise true that one or two witnesses for defendant testified that when they first moved into that vicinity and not knowing the character of the passway they asked for permission to use it, but such facts do not have the effect to destroy the character of use that had theretofore and since been made of it by plaintiffs and others, nor would it have the effect to lessen the right of plaintiffs in and to it. While such evidence might be competent on the issue as to whether the use of the passway was permissive, it is by no means conclusive upon the rights of those who sought no such permission, and the testimony in this case as to the character of use of the passway in question by plaintiffs, as well as their predecessors in title to their farm on the south side of the river, is most convincing that it was not permissive but under a claim of right originating, either from long prior use, or from the oral agreement of Joshua Grider with Williams when the former sold the tract to the latter.
Of course, such oral agreement would not serve to convey the right in and to the easement instanter, but the following use based upon it is thereby conclusively shown *Page 198
to be under a claim of right. It would serve no useful purpose to point out either in detail or substance the testimony of each witness appearing in the cause, and we therefore conclude that the above-stated effect of the general tenor of all the testimony in the cause is sufficient.
The rules of law as well as of evidence by which courts are guided in the determination of prescriptive establishments of passways are referred to and applied in our opinion this day rendered in the case of Hendrickson v. Cruse, reported in221 Ky. 190, 293 S.W. ___ and we deem it unnecessary to repeat them here or to again insert our prior opinions upon the subject, many of which will be found in the Hendrickson opinion. Applying the evidence in this case to the governing rules as to both the law and the facts in such cases, we are constrained to conclude that the trial court was in error when he necessarily found that the use of the passway in question was permissive and not under a claim of right and for that reason dismissed the petition.
Our most careful reading of the record convinces us otherwise; and the judgment is reversed, with directions to set it aside and render one enjoining defendant from obstructing the passway as claimed in the petition. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892728/ | NO. 07-03-0458-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 22, 2005
______________________________
JERRY DALE JENKINS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 100TH DISTRICT COURT OF HALL COUNTY;
NO. 3247; HON. DAVID M. MCCOY, PRESIDING
_______________________________
Before QUINN, REAVIS, and CAMPBELL, JJ.
Appellant, Jerry Dale Jenkins, appeals his conviction for possessing a controlled
substance (cocaine) with intent to deliver. In 11 issues, he contends that 1) he was
subjected to double jeopardy in violation of the federal and state constitutions, 2) the trial
court erred in refusing to grant his motion to suppress evidence obtained pursuant to an
invalid search warrant, 3) the affidavit attached to the search warrant was insufficient to
establish probable cause, 4) the trial court erred in overruling his objections to the court's
charge during the guilt/innocence phase, 5) the trial court erred in refusing to grant his
motion to suppress because the affidavit in support of the warrant contained misstatements
resulting from an intentional or reckless disregard for the truth, 6) the evidence is legally
and factually insufficient to support the jury's finding that the officers acted in good faith
reliance on the search warrant and that the misstatements resulted from simple negligence
or inadvertence, and 7) the evidence is legally and factually insufficient to support the
verdict. We affirm the judgment.
Background
Memphis Police Chief Gary Gunn found Caesar Samaniego in possession of stolen
tools and, in exchange for leniency with respect to that crime, arranged for Samaniego to
purchase cocaine from appellant. The next day, Gunn met Samaniego, searched him and
his vehicle, gave him two $20 bills that had been photocopied, followed him to appellant's
house, and watched Samaniego enter and exit the house and drive away. Thereafter,
Gunn followed Samaniego to a predetermined location and received two rocks of cocaine
from him.
Gunn then signed an affidavit in support of a warrant to search appellant's residence
for "methamphetamines and other narcotics." The affidavit also described the drug
transaction alluded to in the preceding paragraph and Samaniego's ability to recognize
"methamphetamine" because he had used it before.
The search warrant was issued based upon the affidavit of Gunn and executed.
When the latter occurred, appellant was found in the residence along with two young
women. So too was a plastic bag with crack cocaine found floating in the toilet. Further
inspection of the toilet revealed that it was not bolted to the floor. Thus, it was removed
from its location, and this resulted in the discovery of a bag of cocaine in the underlying
pipe.
Issues 1 and 2 - Double Jeopardy
In his first two issues, appellant argues he was subjected to double jeopardy in
violation of the United States and Texas Constitutions. (1) We overrule the issues.
The substance of appellant's argument involves the failure of the State to "properly
file the second page of the 'Inventory and Return' for the 'Search Warrant' in this matter."
The omission was discovered by the prosecutor the day after the jury was impaneled, and
appellant was told of it that morning. Thereafter, appellant moved for a mistrial in order to
develop additional defenses. The motion was granted. Later, another jury was impaneled,
which jury eventually convicted appellant of the charged offense. Appellant now argues
that jeopardy attached when the trial court granted the mistrial after the first jury was
impaneled. Thus, he could not again be tried for the charged offense. We disagree.
The second page of the inventory contained one of the $20 bills that had been given
to Samaniego for use in the drug buy. Furthermore, defense counsel admitted that he
previously "looked" at, and therefore "understood," what was recovered during the search,
which included the $20 bill listed on the second page.
Absent prosecutorial misconduct, double jeopardy does not bar a subsequent trial
when the first one resulted in a mistrial sought by the defendant. Ex parte Peterson, 117
S.W.3d 804, 810-11 (Tex Crim. App. 2003). Furthermore, the prosecutorial misconduct
contemplated in the rule consists of more than inadvertence, sloppiness, negligence or
blunder, even though same may result in prejudice. Id. at 817.
While there is evidence that the prosecutor failed to give appellant the second page
of the inventory prior to trial, there is no evidence that he did so deliberately or recklessly.
Again, the prosecutor represented to the trial court that he did not know about the second
page until informed of its existence after the jury was impaneled. Moreover, when the
discovery was made, he immediately informed appellant's counsel of it. Given this, one
could reasonably liken the omission to inadvertence or blunder. And, since that type of
conduct does not resurrect the double jeopardy bar, the trial court did not err in refusing to
sustain appellant's double jeopardy plea.
Issues 3 and 4 - Validity of Search Warrant
In his third and fourth issues, appellant alleges that the trial court should have
granted his motion to suppress evidence obtained pursuant to the search warrant because
the warrant was invalid. We overrule the issues.
The search warrant was allegedly invalid because 1) it failed to disclose "the person,
place and thing" to be searched, and 2) it was not properly sealed and lacked the proper
certification. To the extent that statute requires one to name or describe the person, place
or thing to be searched, see Tex. Code Crim. Proc. Ann. art. 18.04(2) (Vernon 1977)
(requiring same), that information was contained in the affidavit executed by Gunn in
support of the warrant. Furthermore, the warrant expressly incorporated the affidavit by
reference. Given these circumstances, the State did not fail to comply with the
requirements of art. 18.04(2), and the warrant was not invalid. See Ashcraft v. State, 934
S.W.2d 727, 735 (Tex. App.-Corpus Christi 1996, pet. ref'd) (holding that a warrant that
fails to name the persons, place, or items to be searched is not invalid where the
information is contained within an affidavit that is incorporated, by reference, into the
warrant).
As to the matter of certification and seal, we note that ministerial violations of the
statutes regulating the issuance of search warrants do not invalidate the warrant in the
absence of a showing of prejudice. State v. Tipton, 941 S.W.2d 152, 155 (Tex. App.-
Corpus Christi 1996, pet. ref'd); Robles v. State, 711 S.W.2d 752, 753 (Tex. App.-San
Antonio 1986, pet. ref'd). So, assuming arguendo that the warrant was required to be
certified and sealed as appellant contended, it matters not since he failed to allege or show
prejudice arising from the omissions.
Issues 5 and 7 - Suppression of Illegal Warrant
Appellant argues in his fifth and seventh issues that the trial court erred in failing to
suppress the evidence obtained as a result of executing the search warrant because 1) the
affidavit supporting the issuance of the warrant was insufficient to establish probable cause,
2) the misstatements contained in the affidavit were intentionally or recklessly uttered, and
3) the reliability of the hearsay declarant was not established in the affidavit because it did
not illustrate that he was familiar with methamphetamine. We overrule the issues.
Each contention is premised on the fact that the affiant, Gary Gunn, substituted the
word "methamphetamine" for "cocaine" in the affidavit. Yet, at the hearing upon appellant's
motion to suppress, Gunn testified that "crack cocaine," not methamphetamine, was the
drug Samaniego believed he could and did buy from appellant. So too did he say that the
local district attorney prepared the affidavit, that he (Gunn) "probably" used the slang term
for cocaine (i.e. "crack") when informing the district attorney of the substance involved, that
the slang term for methamphetamine was "crank," that he did not read the affidavit as
closely as he should have, that he meant cocaine instead of methamphetamine, that the
substitution of "methamphetamine" for "cocaine" was a mistake, that the mistake was not
deliberate, and that he did not "catch that mistake." Thereafter, the trial court concluded,
in open court, that the mistake was not the result of recklessness. (2)
A misstatement in an affidavit resulting from simple negligence or inadvertence does
not render the affidavit invalid. Dancy v. State, 728 S.W.2d 772, 783 (Tex. Crim. App.
1987). Given the foregoing testimony and the similarity between the terms "crack" and
"crank" and the different drugs each describes, evidence existed upon which the trial court
could have reasonably concluded that the reference to methamphetamine instead of
cocaine was merely inadvertent. Indeed, the trial court was the sole trier of fact and
whether to credit Gunn's testimony lay within its authority. See Champion v. State, 919
S.W.2d 816, 818-19 (Tex. App.-Houston [14th Dist. 1996, pet. ref'd) (based on testimony
that the use of an incorrect address in multiple places in the affidavit was a typographical
error, the court could have reasonably concluded it was the result of an inadvertent clerical
error); Rios v. State, 901 S.W.2d 704, 707 (Tex. App.-San Antonio 1995, no pet.) (based
on testimony that the use of the word "vehicle" instead of "premises" as the place to be
searched was a clerical error and the preparer did not proof the warrant after it was printed,
the court could have reasonably concluded the use was an inadvertent clerical mistake).
Thus, we cannot say that the trial court abused its discretion in rejecting the attacks
encompassed by these points of error.
Issue 6 - Jury Charge
Appellant contends in his sixth issue that the trial court erred in overruling his
objections to the jury charge. Because this issue went unbriefed, it was waived, however.
Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000).
Issues 8 and 9 - Legal and Factual Sufficiency of Negligence Finding
Appellant's issues 8 and 9 concern the jury's implicit finding that the officers
searching the residence acted in objective good faith reliance upon a warrant and that any
mistake in the affidavit resulted from simple negligence or inadvertence. He posits that the
findings lack legally and factually sufficient evidentiary support. We overrule the issues.
The standards by which we review legal and factual sufficiency are well established.
We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979), Sims v. State, 99 S.W.3d 600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d
589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) for
an explanation of them.
Next, during trial, Gunn again testified that 1) the use of the word
"methamphetamine" instead of "cocaine" in the affidavit was a mistake and not done
deliberately, 2) both drugs were controlled substances prohibited by the same statute with
the same degree of penalty, and 3) both substances can also be white powdery looking
substances with one having the slang name "crack" and the other having the slang name
"crank." While appellant argued that the word "methamphetamine" was used in order to
create probable cause so a warrant could be obtained, the use of the word "cocaine" would
have achieved the same result. Furthermore, nothing of record indicates that Gunn had
anything to gain by using the name of the wrong controlled substance and, therefore, a
reasonable trier of fact could have found beyond a reasonable doubt that the misstatement
was merely negligent and that the officers relied in objective good faith on the warrant when
searching appellant's residence. Further, the findings are neither manifestly unjust or
contrary to the overwhelming weight of the evidence.
Issues 10 and 11 - Legal and Factual Sufficiency
In his final two issues, appellant contests the legal and factual sufficiency of the
evidence to sustain the verdict. We overrule the issues.
Appellant's arguments are founded upon the contention that the evidence of cocaine
should have been suppressed given the purported deficiencies in the affidavit which we
addressed in the prior issues. Yet, having found that the trial court did not err in refusing
to suppress the evidence, the basis for appellant's argument is non-existent. Thus, we
cannot but reject his allegations.
Accordingly, the judgment is affirmed.
Brian Quinn
Justice
Do not publish.
1. Appellant does not present separate authority for the two issues, and we will therefore address them
together.
2. It did not address whether the mistake was intentional for appellant was not arguing that it was. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892738/ | NO. 07-04-0046-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
FEBRUARY 17, 2005
______________________________
CIPRIANO GONZALEZ LEGARDA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242
ND
DISTRICT COURT OF HALE COUNTY;
NO. B14888-0303; HON. ED SELF, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.
(footnote: 1)
In this appeal, appellant Cipriano Gonzalez Legarda seeks reversal of his state jail felony conviction of possession of cocaine and the court-assessed sentence of two years jail time and a $2,000 fine. The sentence was probated under community supervision for a period of three years with the condition that he serve 60 days confinement in the Hale County jail.
In pursuing his appeal, he presents two issues for our decision. Those issues are: 1) whether the trial court reversibly erred in denying his timely request for mistrial after the State’s detective testified that he had already suspected appellant of drug trafficking, and 2) whether the evidence is legally and factually sufficient to support the conviction because there was no in-court identification of appellant as the one in possession of the controlled substance. For reasons we later express, we affirm the judgment of the trial court.
The nature of appellant’s challenge requires us to review the pertinent evidence. The State’s evidence was that Hale County Reserve Deputy Ruben Ramirez arrested appellant for an unrelated offense on January 30, 2003. As he did so, he performed a “pat-down” search for weapons, handcuffed appellant, and placed him in a patrol car. Ramirez averred that a “pat-down” search was only external unless the officer feels something like a weapon at which time he could remove the object. Ramirez testified that appellant never changed clothes at the time of the arrest and that no one put anything in appellant’s pocket.
Appellant was transported to the Hale County Sheriff’s Office and appellant was released to Hale County jailers Dustin Aven and Greg Gonzales. In the course of the book-in process, they obtained appellant’s name, social security number, and fingerprints. He was asked to take everything out of his pockets and, as he did so, a clear plastic bag containing a white powdery substance fell out of appellant’s pocket.
Lupe Canales, a former Hale County deputy sheriff, testified that he was on duty and present when Ramirez arrested appellant. He averred that neither he nor Deputy Ramirez put anything in appellant’s pockets, that no one else had any opportunity to do so, and that appellant did not change clothes that night. Hale County jailer Greg Gonzales testified that he was on duty and assisted in booking appellant. He said that he asked appellant to empty his pockets and, as appellant did so, a little plastic container fell out of appellant’s left front pants pocket. Hale County jailer Dustin Aven testified that he picked the plastic baggie off the floor and handed it to jailer Gonzales. He also identified appellant in the courtroom as the person brought into the jail on that night.
Ramiro Sanchez testified that he was the narcotics investigator for the Plainview Police Department and was sometimes assigned to work with the South Plains Regional Narcotics Task Force. He averred that the primary part of his daily job duties involved narcotics activity. He went to the jail to “field test” the substance and determined it was cocaine. He also said that the cocaine found at the jail was in an amount that could have been missed in a pat-down search such as that conducted at the time of appellant’s arrest. He added that it was not unusual for people to sometimes drop contraband on the ground as they emptied their pockets. His determination as to the substance being cocaine was later confirmed by the testimony of DPS criminalist Scott Williams.
Appellant’s wife, Deanna, was called by the defense. She said that Deputy Canales and another officer came to appellant’s house on the night in question as appellant was outside dressed in sweat pants. As they arrested appellant, she said, she saw them put handcuffs on him. She averred they searched him by sticking their hands in his pockets with Deputy Canales first, and “the other one, he took everything from his pocket, and he had his keys and change or wallet and put it on top of the [sheriff’s] car. . . .”
Deanna also testified that she had called the police because she and appellant had been arguing and appellant had “pushed” her son Hector. She denied telling the officer that appellant had hit her on the head and said the officer would be lying if he said he went out on a domestic call and arrested appellant for assaulting her.
The State recalled Deputy Ramirez, the other officer present at the time in question. Ramirez denied that either of the officers put their hands in appellant’s pockets and stated that appellant never emptied his pockets. He also identified a written statement by Deanna in which she stated that appellant had struck her on the head with his fist. Deputy Canales was recalled and denied that either of the officers had put their hands in appellant’s pockets or that appellant had taken anything out of his pockets at the time. Canales also averred that he had known Deanna for some 15 years and that she had a bad reputation.
Detective Sanchez was then recalled by the State and, in the colloquy giving rise to appellant’s first issue, stated that after he had been at the Hale County jail, he went back to appellant’s residence. When queried why he went back, he responded, “In my investigations, I had already suspected Mr. Legarda of narcotic trafficking. . . . ” At that point, appellant objected on the basis that Sanchez referenced an extraneous offense. The State responded that appellant had opened the door to that testimony by implying there was some “inappropriate” reason for Sanchez’ trip to the residence. The objection was then sustained, and the jury was also instructed to disregard the question and the response. The motion for mistrial was overruled.
A trial court’s denial of a motion for mistrial is reviewed under an abuse of discretion standard.
Wood v. State
, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A mistrial is only proper for errors that are highly prejudicial and incurable, that is, an error so prejudicial that “expenditure of further time and expense would be wasteful and futile. “
Id.
In
Ovalle v. State
, 13 S.W.3d 774, 783 (Tex. Crim. App.
2000), the court reiterated the rule that a prompt instruction to disregard will cure error associated with an improper question and answer and that a mistrial should only be granted when the answer is clearly prejudicial and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.
See also Hernandez v. State,
805 S.W.2d 409, 414 (Tex. Crim. App. 1990).
Appellant further supports his argument that a mistrial should have been granted by pointing out the colloquy following the trial court’s ruling in which the State, without objection, queried Sanchez as to whether it was common to follow up on an investigation when an individual had been found in possession of a narcotic and that was why he returned to appellant’s house. He also refers to the portions of the State’s closing argument in which the prosecutor argued that this was a simple case because the dope was in appellant’s pocket and the only witnesses testifying to the contrary had the motive to say something that did not make sense to obtain a different outcome. He then reasons that the argument, when taken in conjunction with
Sanchez’ reference to his suspicions, was a calculated attempt to arouse prejudice in the minds of the jurors in order to convict appellant on evidence not directed solely to the crime charged.
We disagree. Viewed in its context, the passing reference to the officer’s prior suspicions was not so prejudicial that the prompt jury instruction to disregard was not sufficient to remove any reversible taint. This is particularly true in view of the fact that no other reference to the prior suspicions of the officer was made. Moreover, we do not think the portions of the State’s argument to which appellant referred were more than permissible references to the State’s view of the evidence. Appellant’s first issue is overruled.
As we have noted, in his second issue, appellant questions whether the evidence is legally and factually sufficient to support the conviction because there was no in-court identification of him as the one in possession of the controlled substance. In presenting that argument, he says that the only evidence of identity was presented through jailer Aven, “who testified solely that Appellant was in the courtroom and was the person brought to jail the night of January 30, 2003.” He then argues appellant was “not located in the courtroom by Jailer Aven or anyone else, and from the record there is no way to ascertain who Aven was referring to at the time he answered,” and there is no testimony identifying appellant as the one accused of possessing the contraband on the night in question. Thus, because this identification was a fundamental element of the State’s case, he contends the evidence is not sufficient to sustain his conviction. Because of this underlying argument, we consider it sufficient to question both the legal as well as the factual sufficiency of the evidence to support the conviction.
The standards governing our consideration of these contentions are axiomatic. In reviewing the legal sufficiency of evidence the question is whether, viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found all the essential elements of the offense charged beyond a reasonable doubt.
See Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 849 660 (1979). In considering a factual insufficiency claim, the reviewing court asks whether a neutral review of the evidence, both for and against the jury verdict, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.
See Johnson v. State
, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Identity can be proven either by direct or circumstantial evidence.
Oliver v. State
, 613 S.W.2d 270, 274 (Tex. Crim. App. 1979).
In supporting his argument, appellant cites
United States v. Hawkins
, 658 F.2d 279 (5
th
Cir. 1981) for the proposition that an uncertain in-court identification is insufficient if it is the only evidence. In considering the applicability of that proposition to this case, we note that in
Hawkins,
the court commented that although the witness in question was “somewhat less than unequivocal,” the witness’ description of the defendant and his testimony about the defendant’s involvement “were more than sufficient to support the jury’s verdict.”
Id.
at 289. We also note that in cases such as
Bickems v. State,
708 S.W.2d 541 (Tex. App.--Dallas 1986, no pet.), the court determined that other evidence, including the witness’ positive identification of that appellant as the culprit, taken together with the circumstantial evidence that placed him in the area wearing similar clothing to those the victim had described his assailant as wearing at the time, was sufficient to support the conviction.
Id.
at 543.
In this case, jailer Aven was not only asked if he saw appellant in the courtroom, he was asked if he was the person brought into jail that night. He also testified that during the booking-in process at the jail, he and the other jailer took appellant’s name, his social security number, and his date of birth. Additionally, there was the testimony we recited above about the arrest of appellant, his transportation to the jail, and the reference to the contraband falling out of his pocket. Under the record, the evidence was amply sufficient, both legally and factually, to support the verdict of the jury. Appellant’s second issue is overruled.
In sum, both of appellant’s issues are overruled and the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
Do not publish.
FOOTNOTES
1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005). | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2908183/ | Empy v. State
IN THE
TENTH COURT OF APPEALS
No. 10-94-121-CR
     LATONIA DENISE EMPY,
                                                                                              Appellant
     v.
     THE STATE OF TEXAS,
                                                                                              Appellee
From the Criminal District Court No. 4
Dallas County, Texas
Trial Court # F92-35814-K
                                                                                                   Â
O P I N I O N
                                                                                                   Â
      This is an appeal by Appellant Empy from her conviction for class A misdemeanor theft, for
which she was assessed one year in the county jail, probated.
      In 1989, Laura Proctor, complainant, became acquainted with Appellant as a result of a
mutual interest in stolen children. In October 1989, Proctor and Appellant were in an accident
in Proctor's vehicle and Appellant was injured. After the accident, Appellant moved into
Proctor's condominium, paid her some rent, and looked after Proctor's child. Appellant was
about twenty-six years of age, had several aliases, and had been arrested for giving bad checks.
      After a year of associating with Appellant, Proctor believed that Appellant had a multiple-personality disorder, and decided to move out of the condo she shared with Appellant. On
October 14, 1991, she moved some of her property from the condo. At that point nothing was
missing but when Proctor returned the next day with movers for additional things, she noticed the
following items were missing: (1) three sofa cushions, (2) an oil painting, (3) a lamp, (4) two
Lladro figurines, (5) four china figurines, (6) a music box, (7) a tea service, (8) two brass pigs,
(9) a brass butterfly, and (10) a wood marlin.
      Only Proctor and Appellant had keys to the condo. There was no damage or evidence of a
forced entry. Proctor testified she locked the door to the condo when she left. After Proctor
discovered the items were missing, Appellant changed the locks. Proctor reported the matter to
the police who investigated. Appellant was indicted for the felony theft over $750, but less than
$20,000. Appellant pled not guilty, waived a jury and, after trial, the court found her guilty of
the lesser-included offense of misdemeanor theft, and assessed her punishment at one year in jail,
probated. Appellant appeals on four points of error.
      Point one: "The evidence is factually insufficient to support the trial court's rejection of
Appellant's defense of insanity in that it is against the great weight and preponderance of the
evidence."
      Insanity is an affirmative defense and the accused has the burden of proof by a preponderance
of the evidence. Tex. Penal Code Ann. § 8.01(a); Thompson v. State, 612 S.W.2d 925 (Tex.
Crim. App. 1981). The issue of sanity is a fact question, and the trier of fact may believe, or
disbelieve, experts or lay witnesses. Brooks v. State, 719 S.W.2d 259, 261 (Tex. App.âWaco
1986, pet. ref'd). While from a medical standpoint, one may be insane by reason of mental
disease or defect, from a legal aspect he is not excused from a crime committed while in that
condition, unless or until his mental condition has reached the point where he is unable to
distinguish right from wrong. Graham v. State, 566 S.W.2d 941, 948 (Tex. Crim. App. 1978);
Taylor v. State, 856 S.W.2d 459, 468 (Tex. App.âHouston [1st Dist.] 1993).
      In our case, Dr. Pittman, a psychiatrist, testified he could not determine one way or the other
whether Appellant was, or was not, afflicted with multiple-personality disorder; but that Appellant
was not insane. Appellant testified that she was not insane. Proctor testified that Appellant
suffered from multiple-personality disorder.
      The trial court found that Appellant was not insane. We hold that such finding is not against
the great weight and preponderance of the evidence.
      Point one is overruled.
       Point two: "The evidence is insufficient to show that Appellant is guilty of theft."
Where there is a claim of insufficient evidence to support a verdict in a criminal case, the
reviewing court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, S.Ct., U.S. 307, 319; Turner v. State, 805
S.W.2d 423, 427 (Tex. Crim. App. 1991). The reviewing court does not resolve any conflict of
facts, weigh the evidence, or evaluate the credibility of the witnesses. The trier of fact is the sole
judge of the credibility of the witnesses and the weight to be given their testimony. Bonham v.
State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).
      The evidence shows that on October 14, 1991, Proctor took some of her property out of the
condo. At that point nothing was missing. When Proctor returned the next day for additional
things, the items were missing as alleged in the indictment. Only Proctor and Appellant had keys
to the condo. Proctor said she locked the door every time she left the condo and there was no
evidence of forced entry. Ginger Shirley testified that, after the offense, Appellant told her that
a person named Ken had stolen the items, but that she could obtain them. Detective Wright, who
investigated the theft, testified that Appellant told him in a phone call that she had a pillow and
some other miscellaneous items which she wished to return to Proctor.
      While the evidence is circumstantial, we think that a rational trier of fact could have found
beyond a reasonable doubt that Appellant took the property.
      Point two is overruled.
      Point three: "The evidence is insufficient to establish the ownership of the property in
question."
      Appellant contends that, other than Proctor's testimony, there is no evidence that the stolen
property ever existed, much less that it was owned by Proctor, because there were no pictures,
serial numbers, or demonstrative proof which identified the stolen property. Appellant testified
that none of the property claimed to have been Proctor's property ever existed. Ownership of
personal property may be proved by oral testimony. Smith v. State, 638 S.W.2d 476, 478 (Tex.
Crim. App. 1982).
      Proctor testified that: The property belonged to her; she bought the couch that contained the
cushions in 1987 or 1988, and had had the couch since then; she had gotten the wood marlin in
Mexico; she had owned the lamp since 1986 or 1987; she had received the Lladro figurines as
gifts and had them in her possession since 1980; and she had had the music box, tea service, brass
pigs and butterfly since 1980.
      The evidence of Proctor's ownership and the identity of the items stolen is sufficient to
support the conviction. In reviewing the evidence and by applying the standard set forth in
Jackson, supra, i.e., viewing the evidence in the light most favorable to the verdict, a rational trier
of fact could have found beyond a reasonable doubt that Proctor was the owner of the stolen
property alleged in the indictment.
      Point three is overruled.
      Point four: "The evidence is insufficient to establish the fair-market value of the items in
question so as to prove the jurisdictional amount for a class A misdemeanor."
      Value is the fair-market value of the property at the time and place of the offense, or, if the
fair-market value cannot be ascertained, the cost of replacement of the property. Tex. Penal
Code Ann. § 31.08(a). The owner of property is competent to testify as to the value of his own
property and can testify as to its fair-market value either in terms of purchase price or the cost of
replacement. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986).
      Proctor testified that the cost of replacing the three sofa cushions was $75; that the oil painting
had a replacement cost of $300 and a fair-market value of $200; that the lamp had a fair-market
price of $20 and a replacement cost of $40; that the Lladro figurines, in October 1991, had a
market value of $250; that the four china figurines had a market value of $15 to $20 each; that the
music box would sell for $20, the tea service for $15, the two brass pigs for $15, the brass
butterfly for $15, and the wood marlin for $20.
      We hold that Proctor gave sufficient testimony to establish value for each of the items alleged
in the indictment, and that the trial court was authorized to believe the value of the property was
in excess of $200 but not more than $750. Moreover, if the manner of proving value did not meet
the accused's approval, it was incumbent on her to object at the time of the introduction of the
testimony. Brown v. State, 640 S.W.2d 275, 279 (Tex. Crim. App. 1982). It was further
incumbent on Appellant to offer controverting evidence as to the value of the property. Sullivan,
supra.
      Point four is overruled. The judgment is affirmed.
Â
                                                                               FRANK G. McDONALD
                                                                               Chief Justice (Retired)
Before Justice Cummings,
      Justice Vance, and
      Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed February 1, 1995
Do not publish
rule the Montanges
second issue on the Hagelsteins claim for prescriptive easement, which alone
will support the trial courtÂs judgment declaring an unspecified easement.[6]Â
We thus need not address the Montanges first and third issues on easement by
estoppel and easement by necessity.
Scope of the Easement
         The trial court declared
an easement Âfor all purposes of ingress and egress. The Montanges fourth
issue complains that the evidence is legally and factually insufficient to
support the breadth of this scope. Other than pointing to future possible
annoying uses (such as rock hauling or chicken transporting), the Montanges
make no argument how the evidence is insufficient. Historically, the HagelsteinsÂ
use of the easement for ingress and egress was never limited. Over time, their
use has been for personal, agricultural (a tractor), and business (deer
hunters) purposes. We find the evidence legally and factually sufficient to
support the scope of the easement.
AttorneyÂs Fees
         Issue five challenges the
Hagelsteins ability to recover attorneyÂs fees under the Uniform Declaratory
Judgments Act (Tex. Civ. Prac. &
Rem. Code Ann. § 37.009 (Vernon 1997) (the UDJA)), arguing that the
Hagelsteins easement claim is not the proper subject of a declaratory judgment
claim. We agree that a party may not recover attorneyÂs fees under section
37.009 when the UDJA is used solely as a vehicle to recover attorneyÂs fees. See
National Enterprise, Inc. v. E.N.E. Props., 167 S.W.3d 39, 44 (Tex. App.ÂWaco 2005, no pet.) (ÂA declaratory judgment action may not be used solely to
obtain attorneyÂs fees that are not otherwise authorized by statute.Â). But numerous
cases reflect an award of attorneyÂs fees under the UDJA to parties seeking to
establish an easement or to defeat an easement claim.[7]
The Hagelsteins
rely on section 37.004 as the basis for their declaratory judgment claim.[8]
 The UDJA is remedial, and we are to construe it liberally; Âits purpose is to
settle and afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations.ÂÂ Tex.
Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1997). The
Hagelsteins sought a declaration of their rights in the road, and they introduced
at least three different deeds into evidence, and two of them make specific
references to the road. Based on a liberal construction of section 37.004 and
its remedial purpose, and the history of similar cases awarding attorneyÂs
fees, we find that the Hagelsteins request for declaratory relief falls within
section 37.004. The trial court did not err in awarding the Hagelsteins
attorneyÂs fees. We overrule the Montanges fifth issue.
        We affirm the trial
courtÂs judgment.
Â
BILL VANCE
Justice
Â
Â
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
         (Chief
Justice Gray dissenting)
Affirmed
Opinion delivered and filed March 15, 2006
[CV06]
Â
   [1]      In
reviewing the legal sufficiency of the evidence, we view the evidence in the
light favorable to the verdict, crediting favorable evidence if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could
not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). There is legally insufficient
evidence or Âno evidence of a vital fact when (a) there is a complete absence
of evidence of a vital fact; (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact;
(c) the evidence offered to prove a vital fact is no more than a mere
scintilla; or (d) the evidence conclusively establishes the opposite of the
vital fact. Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla
of evidence exists when the evidence supporting the finding, as a whole, Ârises
to a level that would enable reasonable and fair-minded people to differ in
their conclusions.ÂÂ Id. (quoting Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
Â
   [2]      When the party without the
burden of proof at trial complains of the factual sufficiency of the evidence
to support an unfavorably answered jury finding or an adverse express or
implied finding, we must consider and weigh all of the evidence, not just the
evidence that supports the verdict. Maritime Overseas Corp. v. Ellis,
971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27
S.W.3d 625, 633 (Tex. App.ÂWaco 2000, pet. denied). We will set aside the
finding only if it is so contrary to the overwhelming weight of the evidence
that the finding is clearly wrong and unjust. Ellis, 971 S.W.2d at 407.
 Reversal can occur because the finding was based on weak or insufficient
evidence or because the proponent's proof, although adequate if taken alone, is
overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at
633.
Â
   [3]      When
challenged on appeal, findings are not conclusive on the appellate court if
there is a complete reporterÂs record, as there is here. Zac Smith &
Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). Generally, we
will not disturb a trial courtÂs findings if there is evidence of probative
force to support them. See Ski River Dev., Inc. v. McCalla, 167 S.W.3d
121, 136-37 (Tex. App.ÂWaco 2005, pet. denied). A finding may be disregarded
if it is not supported by the evidence or is immaterial. See S.E. Pipeline
Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999). A finding on a question
is immaterial if the question should not have been submitted to the factfinder
or if it has been rendered immaterial by other findings. Id. The trial court is required to
make findings of fact only on controlling issues, not on matters of evidence. ASAI
v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.ÂEl Paso
1996, no writ); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex.
App.ÂHouston [1st Dist.] 1995, writ denied).
Â
   [4]      In its findings of fact and conclusions of law,
the trial court found that the evidence raised the presumption of nonpermission
and concluded that the use was adverse, which we treat as a fact finding. See
Lucas v. Tex. DepÂt Prot. & Reg. Servs., 949 S.W.2d 500, 502 (Tex.
App.ÂWaco 1997, pet. denied).
Â
   [5]      Cf. Cottrell v. Amburn,
1999 WL 1101360, at *3 (Tex. App.ÂTexarkana Dec. 7, 1999, pet. denied) (not
designated for publication) (ÂEveryone else who
testified, regardless of the different dates that they stated, left a period of
time of more than ten years between the time that the road was built and the
time when the gates were locked. It was completely within the province of the
jury, based on the evidence that was presented, to find that sometime between
1957 and the present the public used the Roadway continuously for a period of
ten years or more.Â).
Â
   [6]      At
the end of their brief, and without asserting a separate issue, the Montanges
challenge the sufficiency of the evidence for findings 15, 17, 21, and 23. We
agree with their assertion that these findings are evidentiary, and we will
disregard them as immaterial.
   [7]      E.g.,
Fagan v. Crittenden, 2005 WL 428469, at *3 (Tex. App.ÂWaco Feb. 23, 2005,
pet. filed); Steel v. Wheeler, 993 S.W.2d 376, 381 (Tex. App.ÂTyler 1999, pet. denied) (ÂWe hold that invoking the Declaratory Judgments Act to
determine rights of ingress and egress is proper.Â) (citing Lindner v. Hill,
691 S.W.2d 590, 591 (Tex. 1985)); Houston Bellaire v. TCP LB Portfolio I,
981 S.W.2d 916, 922-23 (Tex. App.ÂHouston [1st Dist.] 1998, no pet.); Elder
v. Bro, 809 S.W.2d 799, 800-01 (Tex. App.ÂHouston [14th Dist.] 1991, writ
denied); Canales v. Zapatero, 773 S.W.2d 659, 661 (Tex. App.ÂSan Antonio
1989, writ denied).
Â
   [8]      It
provides in pertinent part:
Â
(a) A person interested under a deed, will,
written contract, or other writings constituting a contract or whose rights,
status, or other legal relations are affected by a statute, municipal
ordinance, contract, or franchise may have determined any question of
construction or validity arising under the instrument, statute, ordinance,
contract, or franchise and obtain a declaration of rights, status, or other
legal relations thereunder.
Â
Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon 1997). | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2793982/ | FILED
NOT FOR PUBLICATION APR 15 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER O’NEILL, No. 14-15447
Plaintiff - Appellant, D.C. No. 3:12-cv-00030-LRH-
WGC
v.
ROBERT BANNISTER, Dr.; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted April 7, 2015**
Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.
Christopher O’Neill, a Nevada state prisoner, appeals pro se from the district
court’s summary judgment dismissing his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Cir. 2004), and we affirm.
The district court properly granted summary judgment because O’Neill
failed to raise a genuine dispute of material fact as to whether defendants were
deliberately indifferent in treating his Hepatitis C and associated pain. See id. at
1057 (a prison official is deliberately indifferent only if he or she “knows of and
disregards an excessive risk to inmate health” (internal citations and quotation
marks omitted)); see also Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir.
2014) (“A difference of opinion between a physician and the prisoner – or between
medical professionals – concerning what medical care is appropriate does not
amount to deliberate indifference.” (internal citations and quotation marks
omitted)).
The district court did not abuse its discretion in denying O’Neill’s motion to
amend because it sought to add a “separate, distinct and new cause of action.”
Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (per
curiam) (internal citations and quotation marks omitted) (standard of review); see
also United States ex rel. Wulff v. CMA, Inc., 890 F.2d 1070, 1073 (9th Cir. 1989)
(“The erroneous characterization of the corrected pleading as an amended
complaint rather than as a supplemental pleading is immaterial.” (internal citations
2 14-15447
and quotation marks omitted)).
AFFIRMED.
3 14-15447 | 01-03-2023 | 04-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2793979/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDIBERTO ALVAREZ-LOPEZ, AKA No. 08-73168
Edilberto Cornelio Alvarez-Lopez,
Agency No. A098-389-712
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 7, 2015**
Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges.
Ediberto Alvarez-Lopez, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the IJ’s factual findings, Wakkary v. Holder, 558 F.3d 1049,
1056 (9th Cir. 2009), and we review de novo claims of due process violations,
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for
review.
Substantial evidence supports the IJ’s finding that Alvarez-Lopez’s past
experiences in Guatemala with gang members did not rise to the level of
persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir. 2003) (record
did not compel finding of past persecution); see also Prasad v. INS, 47 F.3d 336,
340 (9th Cir. 1995) (“Although a reasonable factfinder could have found [these
incidents constituted] past persecution, we do not believe that a factfinder would be
compelled to do so.”) Substantial evidence also supports the IJ’s finding that
Alvarez-Lopez failed to demonstrate a well-founded fear of future persecution.
See Nagoulko, 333 F.3d at 1018 (fear of future harm is too speculative). In light
of these conclusions, we reject Alvarez-Lopez’s due process contention regarding
his political opinion. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring prejudice to prevail on a due process challenge). Thus, Alvarez-
Lopez’s asylum claim fails.
2 08-73168
Because Alvarez-Lopez’s failed to establish eligibility for asylum, his
withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006).
Finally, Alvarez-Lopez does not make any specific arguments challenging
the IJ’s denial of his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256,
1259-60 (9th Cir. 1996) (issues not supported by argument are deemed
abandoned).
PETITION FOR REVIEW DENIED.
3 08-73168 | 01-03-2023 | 04-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045021/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1362
___________
Vera Arnold, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director, Arkansas *
Department of Correction; John * [UNPUBLISHED]
Maples, Warden, Grimes/McPherson *
Unit, ADC; Larry May, Deputy *
Director, Arkansas Department of *
Correction, *
*
Appellees. *
___________
Submitted: July 3, 2008
Filed: July 8, 2008
___________
Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Former Arkansas inmate Vera Arnold appeals the district court’s1 order
granting defendants summary judgment in her 42 U.S.C. § 1983 action. Following
1
The Honorable H. David Young, United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
careful de novo review, we conclude that summary judgment for defendants was
proper. Accordingly, the judgment is affirmed. See 8th Cir. R 47B. We deny
Arnold’s motion to strike and for sanctions.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3045022/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 07-2905
________________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Randall Lee Comstock, *
*
Appellant. *
________________
Submitted: April 15, 2008
Filed: July 8, 2008
________________
Before GRUENDER, BALDOCK,1 and BENTON, Circuit Judges.
________________
BALDOCK, Circuit Judge.
1
The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
A jury in the Southern District of Iowa found Defendant Randall Lee Comstock
guilty of being a felon, and drug user, in possession of firearms and ammunition.
See 18 U.S.C. §§ 922(g)(1), (g)(3); id. § 924(a)(2). The district court imposed a 180
month term of imprisonment. On appeal, Defendant challenges the district court’s2
denial of his motion to suppress evidence seized during authorities’ warrantless search
of his residence, as well as the district court’s decision to sentence him under the
Armed Career Criminal Act. See 18 U.S.C. § 924(e)(1). We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and affirm.
I.
On May 5, 2006, authorities conducted a warrantless search of Defendant’s
home and detached garage. Officials seized, among other things, the firearms and
ammunition that gave rise to the underlying charges. The parties’ respective accounts
of how Defendant and his wife, Jessica Comstock, came to give written consent to
authorities’ search diverge at certain points. Nevertheless, except where otherwise
noted, the facts are uncontested.
This case arose in connection to a West Des Moines Police Department
(WDMPD) burglary investigation. On April 30, 2006, perpetrator(s) broke into Corn
States Metal, a West Des Moines business, and stole approximately $80,000 in
property, including a variety of metal fabrication equipment and a Chevrolet pickup
truck. WDMPD’s investigation revealed that Randy DePhillips was selling the
equipment stolen from the burglary. Accordingly, WDMPD Detective Daniel Paulson
made arrangements to purchase, in an undercover capacity, a welding tool from
DePhillips. On May 5, 2006, Detective Paulson met DePhillips at a Des Moines area
residence and purchased a stolen Cornstates Metal welder for $1000, using pre-
2
The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
-2-
marked police funds. During the transaction, DePhillips indicated he could sell
Detective Paulson additional Cornstates Metal tools. He stated that, although the
other items were with someone “down south,” he could get them to Des Moines if the
detective was interested. Later, DePhillips said he would try to make the
arrangements within the hour. When he left Detective Paulson, WDMPD surveillance
followed DePhillips, but briefly lost sight of him near the intersection of Northwest
52nd and Lovington streets. Defendant lived five or six houses south of that
intersection, on Northwest 52nd Street.
WDMPD officers regained contact with DePhillips a short time later. Police
followed him as he traveled north on Northwest 52nd Street, turned east onto
Lovington Street, and returned to his place of business. After the surveillance team
monitored DePhillips for a short time, Detective Paulson approached, identified
himself, read DePhillips his Miranda3 rights, and asked if DePhillips would speak with
him. DePhillips agreed. Detective Paulson asked DePhillips for the $1000.
DePhillips denied having the cash, saying he delivered the $1000 to Defendant at his
home. He explained that he was selling items stolen from Corn States Metal for
Defendant. DePhillips denied knowing who burgled Corn States Metal. When asked
by Detective Paulson if anyone else was present when he dropped off the $1000,
DePhillips said Dave, the person from “down south” storing additional tools stolen
from Corn States Metal, was at Defendant’s house. DePhillips described Dave’s
vehicle as a station wagon or small minivan. After speaking with DePhillips,
WDMPD officers decided to do a “knock and talk” at Defendant’s residence.
Detective Paulson testified that, had the “knock and talk” proved unsuccessful,
WDMPD officers were prepared to write a search warrant for [Defendant’s] residence.
Detective Paulson, Detective Lloyd Carlson, and Officer Kelly Griffith went to
Defendant’s Northwest 52nd Street residence. As the officers approached the
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
-3-
property, they noticed numerous vehicles parked in the vicinity of Defendant’s home.
Two cars were parked in Defendant’s driveway, a van-like vehicle was parked in the
driveway of the abandoned residence immediately north of Defendant’s house, and
numerous parked vehicles congested the street in front of Defendant’s residence.
Detective Paulson testified that at least one matched DePhillips’ description of the
vehicle driven by Dave (i.e., from “down south”). Accordingly, Detective Paulson
believed multiple individuals could be inside Defendant’s house.
Detective Paulson knocked on the door and displayed his WDMPD badge when
Defendant answered. The detective told Defendant that WDMPD was investigating
a case involving stolen property. He said he knew Randy DePhillips just delivered
$1000 to Defendant, and that he wanted WDMPD’s cash back. Detective Paulson told
Defendant that he was not under arrest and asked Defendant if he would speak with
him. Defendant agreed and invited the officers into his home. The three WDMPD
officers entered and spoke with Defendant in the front room, immediately adjoining
the front door. Before sitting down, Detective Paulson asked Defendant if he had the
$1000. Defendant said yes, and that he obtained the money from DePhillips.
Defendant retrieved the cash from his pocket. Detective Paulson briefly inspected the
bills’ serial numbers, which matched the $1000 he gave DePhillips for the welder.
The three officers proceeded to interview Defendant about the stolen property
and the Corn States Metal burglary. During this conversation Detective Carlson,
asked Defendant if anyone else was in the house. Defendant said no. When Detective
Carlson asked whether he could search the residence to verify as much, Defendant
agreed. Detective Carlson testified that he made the request for officer safety
purposes. Detective Carlson and Office Griffith proceeded to sweep the house,
entering a bedroom off the living room, the kitchen, and then the basement via a
kitchen stairwell. Detectives Paulson described Defendant’s demeanor throughout the
sweep as being very relaxed, docile, cooperative, and complacent. Detectives Paulson
-4-
and Carlson testified that Defendant never objected to the officers’ protective sweep,
nor attempted to limit, qualify, or revoke his consent thereto. Conversely, Defendant
testified that the officers never asked whether they could conduct a protective sweep.
Further, he testified that, when Detective Carlson headed towards the basement, he
signaled his objection by saying “hey.”
In any event, a short time after Detective Carlson and Office Griffith entered
the basement, they returned and informed Detective Paulson they found a marijuana
grow operation in the basement. At that point, approximately 8:00 p.m., Detective
Paulson handcuffed Defendant (with his arms behind his back), advised him of his
Miranda rights, and summoned narcotics officers to respond. Detective Paulson told
Defendant that, while he did not want to discuss the drugs, he would like to continue
their conversation about the stolen property, while awaiting the narcotics team’s
arrival. Defendant agreed and proceeded to make several admissions concerning the
burglary, including that the vehicle stolen from Corn States Metal was the Chevrolet
truck in his driveway and that other stolen items were in his garage. Detective
Paulson testified that a fence obstructed his view of the truck when he approached the
house and, therefore, he had not recognized the truck as the vehicle stolen from Corn
States Metal until Defendant’s admission.
Thereafter, Jessica Comstock and a friend arrived at the Comstock residence.
When informed that officers had found the grow operation, Mrs. Comstock responded
by saying it was for personal use and they had no intention of selling the marijuana.
She also denied knowing that the Chevrolet truck was stolen. Detective Paulson
described Mrs. Comstock’s demeanor towards the officers as being very docile and
cooperative, though she seemed irritated to learn that the Corn States Metal truck and
tools were stolen. Throughout this interval, Defendant remained handcuffed. Officers
did, however, remove the handcuffs to allow Defendant to use the restroom. They
also briefly removed the handcuffs so Defendant could put on a shirt.
-5-
Additionally, at some point, Mrs. Comstock asked to turn on the heat (which
required flipping the breaker switch located in the basement). The police acceded and
Detective Carlson accompanied her to the basement. According to Mrs. Comstock,
when Detective Carlson accompanied her downstairs, he asked her about the object
located to the left of the breaker box. In response, Mrs. Comstock testified that she
entered the combination (which she indicated that she alone had) and opened the gun
safe so the detective could look inside. Mrs. Comstock further stated that after
looking in the safe, Detective Carlson closed, without locking, the safe, directed her
to go back upstairs, and exited the basement behind her. Notably, Detective Carlson
testified that the aforementioned events concerning the gun safe never occurred.
Sometime after Defendant admitted to Detective Paulson that he had other
stolen items in his garage, Detective Paulson testified that Defendant gave him
permission to get the tools, as well as specific instructions on where to find them.
After trying unsuccessfully to locate the items, Detective Paulson had Mrs. Comstock
accompany him to the garage and, with her assistance, retrieved the tools. Aside from
these efforts, Detective Paulson testified that he did not search the garage or the
residence. Conversely, Defendant testified that he had not given Detective Paulson
express consent to fetch the tools from the garage. Further, Defendant maintained that
the officers searched his residence from the time they handcuffed him, until the
narcotics team arrived nearly two hours later.
The Mid-Iowa Narcotics Enforcement Task Force (the narcotics officers or the
narcotics team) arrived at the Comstock residence at approximately 10:00 p.m. The
WDMPD officers briefed the narcotics team and then, evidently, directed them
downstairs to see the marijuana grow. Before seizing anything from the residence, a
narcotics officer asked Defendant and Mrs. Comstock to sign a standard consent-to-
search form. Both Defendant and Mrs. Comstock signed, indicating they authorized
police to search their residence, including the garage, without any limitations. They
also initialed next to the following statement: “no promises, threats, force, or coercion
-6-
of any kind have been used to gain my consent to the above describe search or to have
me sign this form.” At least five police officers were on the premises when the
Comstocks signed the search forms.4 Thereafter, narcotics officers searched the
property and seized the firearms charged in the underlying indictment.
Narcotics officers apparently viewed the marijuana plants in the basement
before seeking consent to search from Defendant or Mrs. Comstock, but did not seize
anything until after obtaining consent.5 Neither Detective Paulson, nor Detective
Carlson, testified in detail about what the narcotics officers said when requesting
Defendant and Mrs. Comstock to sign the consent forms. Both Defendant and Mrs.
Comstock testified that officers told them that refusing to consent would require
officers to obtain a search warrant from a judge, which would mean waiting several
hours longer. The Comstocks stated that they signed the consent forms to expedite
the process, and because officers had already been through the house several times by
that time. Defendant also emphasized that the handcuffs hurt his wrists and arms, and
that officers’ statements — i.e., that he would remain at the house in handcuffs for
“another couple of hours” if they had to get a search warrant — impacted his decision
to sign. Defendant and Mrs. Comstock respectively denied being under the influence
of alcohol, drugs, or otherwise being impaired on the night in question. Additionally,
Mrs. Comstock testified that narcotics officers not only viewed the marijuana grow,
but also entered the detached garage before seeking consent to search. She further
asserted that police individually took her and Defendant to a back room where they
4
How many narcotics officers responded to the Comstock residence is unclear.
The written consent forms demonstrate that at least two narcotics officers were
present. Thus, coupled with the three WDMPD officers, a minimum of five officers
were on the premises when the Comstocks signed the forms.
5
To be clear, Defendant does not contend that the narcotics team’s viewing of
the marijuana grow when they first arrived on the scene — i.e., before they presented
Defendant and Mrs. Comstock with the consent-to-search forms — constituted an
unlawful search. Accordingly, we express no opinion on the matter.
-7-
were questioned before being presented with consent-to-search forms. By contrast,
Detective Paulson testified that the narcotics officers asked the Comstocks to consent
in a hallway just off the living room and that he witnessed them sign the forms.
In advance of trial, Defendant moved to suppress all evidence — namely the
three firearms and ammunition charged in the underlying Indictment — seized by
authorities pursuant to their two warrantless searches of his home on May 5, 2006.
Defendant argued that police officers carried out the warrantless searches of his
residence without probable cause, exigent circumstances, or consent. Alternatively,
Defendant maintained police exceeded the scope of any consent he tendered.
Ruling from the bench, the district court found, as to the officers’ protective
sweep: (1) Defendant voluntarily admitted the officers into his home; (2) Defendant
voluntarily consented to officers’ protective sweep of the house; (3) Defendant did
nothing to limit, qualify, or withdraw that consent; (4) the officers had a legitimate
concern that other persons could be in the house, given the number of vehicles parked
in the immediate vicinity of Defendant’s residence; (5) officers’ entry into the
basement and discovery of the marijuana grow, which prompted authorities to take
Defendant into custody, was within the scope of Defendant’s consent to the protective
sweep; and (6) authorities had probable cause to arrest Defendant no later than the
point at which they discovered the marijuana grow, and likely at the time Defendant
produced the $1000 cash. Regarding the search of Defendant’s residence following
the narcotics team’s arrival, the district court ruled — without making detailed
findings — that Defendant and his wife voluntarily and effectively executed the
consent-to-search forms. Accordingly, the district court ruled that police had not
violated Defendant’s Fourth Amendment rights and denied his motion to suppress.
The case proceeded to trial and a jury convicted Defendant of being a felon and drug
user in possession of firearms and ammunition. See 18 U.S.C. §§ 922(g)(1), (g)(3),
924(a)(2).
-8-
In advance of sentencing, the Presentence Report (PSR) calculated Defendant’s
recommended Guidelines range to be 188-235 months, with a total offense level of 33
and a criminal history category of IV. Therein, the PSR found Defendant subject to
the Armed Career Criminal Act (ACCA) because he had “three previous convictions
. . . for a violent felony or a serious drug offense, or both.” See 18 U.S.C. § 924(e)(1).
According to the PSR, Defendant had six prior convictions that qualified as predicate
ACCA offenses: (1) felony delivery of cocaine; (2) felony distribution of narcotics;
(3) operating a motor vehicle while intoxicated (OWI), second offense; (4) attempted
burglary; (5) OWI, third offense; and (6) operating a motor vehicle without the
owner’s consent. Accordingly, the PSR applied the ACCA’s fifteen year (180 month)
sentencing enhancement. Defendant only objected to the application of the ACCA on
the grounds that his prior convictions for “operating a vehicle under the influence”
(OWI) in violation of Iowa law fell outside the ACCA’s definition of “violent felony.”
See 18 U.S.C. § 924(e)(2)(A). At sentencing, the district court agreed that the
applicable, advisory Sentencing Guidelines range was 188-235 months, but, pursuant
to the 18 U.S.C. § 3553(a) factors, imposed the ACCA’s 180 month mandatory
minimum sentence.
II.
Defendant first argues that the district court erred in denying his motion to
suppress. See U.S. Const. amend. IV. Specifically, Defendant asserts that authorities’
warrantless protective sweep of his home, as well as the warrantless search carried out
after Defendant and Mrs. Comstock gave written consent to the narcotics officers,
violated his Fourth Amendment rights. As such, Defendant insists any evidence
derived therefrom must be suppressed and that the district court committed clear error
in concluding otherwise. In response, the Government maintains Defendant waived
his right to challenge the district court’s suppression ruling.
-9-
At trial, each time the Government moved to admit evidence that Defendant’s
pretrial motion sought to suppress (namely, the firearms and ammunition seized from
Defendant’s home), defense counsel stated “no objection.” “Normally the denial of
a pretrial motion to suppress evidence preserves the objection for appeal and defense
counsel need not renew the objection at trial.” United States v. Johnson, 906 F.2d
1285, 1290 (8th Cir. 1990); accord Lawn v. United States, 355 U.S. 339, 353 (1958)
(denial of suppression motion by the trial court generally “preserves the point and
renders it unnecessary again to object when such evidence is offered at trial”). Yet,
this Court has “found pretrial objections waived when an appellant’s counsel
affirmatively stated ‘no objection’ at trial to the admission of evidence previously
sought to be suppressed.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951
(8th Cir. 2001) (emphasis added); Johnson, 906 F.2d at 1290. This is precisely what
occurred here. As such, we hold Defendant “consciously and intentionally waived
any objection” to the district court’s receipt of the evidence at issue in his pretrial
suppression motion. United States v. Wedelstedt, 589 F.2d 339, 345-46 (8th Cir.
1978).
In any event, reviewing the district court’s factual determinations for clear error
and its legal conclusions de novo, Defendant’s position is unavailing. See United
States v. Esquivel, 507 F.3d 1154, 1158 (8th Cir. 2007); Gonzalez-Rodriguez, 239
F.3d at 951 (pronouncing an alternative holding on the merits, after finding
suppression issue waived). Under the Fourth Amendment, “searches and seizures
inside a home without a warrant are presumptively unreasonable.” Payton v. United
States, 445 U.S. 573, 586 (1980). Equally fundamental, however, is the principle that
a warrantless search of a residence does not violate the Fourth Amendment where
police obtain a resident’s consent.6 See Schneckloth v. Bustamonte, 412 U.S. 218,
6
For clarity’s sake, we note that Defendant does not challenge the
voluntariness of Mrs. Comstock’s consent. In any event, we need not reach this issue
because we ultimately conclude that Defendant voluntarily consented to authorities’
(continued...)
-10-
219 (1973). We “must affirm an order denying a motion to suppress unless the
decision is unsupported by substantial evidence, is based on an erroneous view of the
applicable law, or in light of the entire record, we are left with a firm and definite
conviction that a mistake has been made.” United States v. Castellanos, 518 F.3d 965,
969 (8th Cir. 2008). Therein, the fact “[t]his court is highly deferential to district
court credibility determinations” bears underscoring. United States v. Williams, 521
F.3d 902, 908 (8th Cir. 2008).
Regarding the protective sweep, Defendant does not dispute he consented when
officers asked if they could verify that no one else was in the house. Rather,
Defendant maintains that the protective sweep exceeded the scope of his consent when
officers searched the house beyond the area immediately around the front room where
Defendant and the officers were seated. “We measure the scope of consent to search
by a standard of objective reasonableness.” United States v. Siwek, 453 F.3d 1079,
1085 (8th Cir. 2006). That is, “what the ‘typical reasonable person would have
understood by the exchange between the officer and the suspect.’” Id. (quoting
Florida v. Jimeno, 500 U.S. 248, 251 (1991)).
Notably, the district court credited the officers’ consistent testimony that
Defendant did not limit, qualify, or attempt to revoke his consent to the protective
sweep. “A credibility determination made by a district court after a hearing on the
(...continued)
search. See United States v. Hudspeth, 518 F.3d 954, 958-61 (8th Cir. 2008) (en
banc). Compare Georgia v. Randolph, 547 U.S. 103, 122-23 (2006) (“physically
present inhabitant’s express refusal of consent to a police search is dispositive as to
him, regardless of the consent of a fellow occupant” (emphasis added)), with Illinois
v. Rodriguez, 497 U.S. 177, 179 (1990) (consent to search residence by a third party
— whom police “reasonably believe to possess common authority over the premises,
but who, in fact, did not” have such authority — valid as to sleeping occupant), and
United States v. Matlock, 415 U.S. 164, 171 (1974) (co-occupant’s consent to conduct
warrantless search valid as to absent co-occupant).
-11-
merits of a motion to suppress is ‘virtually unassailable on appeal.’” United States v.
Frencher, 503 F.3d 701, 701 (8th Cir. 2007) (citation omitted). As such, a typical
reasonable person would understand that, by granting authorities’ request to confirm
he was the only person in the house, Defendant authorized the officers to check “every
room, the sum of which is the house.” United States v. Fleck, 413 F.3d 883, 892 (8th
Cir. 2005). Quite plainly, this was the only way to verify Defendant was alone. See
Payton, 445 U.S. at 589. Defendant’s position that his consent only signaled
permission to sweep the area immediately surrounding the seating area — and not the
basement or other rooms in the house — is nonsensical. As such, the district court
properly concluded that the police’s protective sweep did not exceed the scope of
Defendant’s consent. See United States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th
Cir. 2005) (“Determination of consent necessarily involves judging the credibility of
witnesses, a task generally left to the district court.”).
As to the search of Defendant’s house conducted after Defendant signed the
consent form, Defendant maintains that he did not voluntarily consent despite signing
the consent-to-search form. “[W]hether consent was voluntary is a question of fact,”
requiring “intensive inquiry.” United States v. Lee, 356 F.3d 831, 834 (8th Cir. 2003).
The totality of the circumstances governs whether consent is voluntary. United States
v. Saenz, 474 F.3d 1132, 1137 (8th Cir. 2007). The Government bears the burden of
establishing, by a preponderance of the evidence, that consent was voluntary, though,
like all factual determinations, we review the district court’s factual findings related
to voluntariness for clear error. Id. The following factors are relevant to evaluating
whether Defendant’s consent was voluntary:
1) his age; 2) his general intelligence and education; 3) whether he was
intoxicated at the time; 4) whether he consented after being informed of
his Miranda rights; and 5) whether he was aware of his rights and
protections due to previous arrests. Other relevant circumstances
include: 1) the length of time the subject was detained; 2) whether the
-12-
officers acted in a threatening manner; 3) whether any promises or
misrepresentations were made; 4) whether the subject was in custody or
under arrest at the time; 5) whether the consent occurred in public; and
6) whether the subject was silent as the search was conducted.
Id. Though these “factors are valuable” and guide our analysis, we do not employ
them mechanically. United States v. Chaidez, 906 F.2d 377, 380-81 (8th Cir. 1990).
Regarding Defendant’s individual characteristics, Defendant is an adult, of
apparently average intelligence (e.g., the record reflects he answered officers’
questions appropriately), who was not under the influence of alcohol, drugs, or
otherwise impaired on the date in question. The fact Defendant acquiesced to speak
with Detective Paulson about the Corn States Metal burglary after being advised of
his Miranda rights also bears note. See Lee, 356 F.3d at 834 (recognizing that
Miranda warnings “can lessen the probability that a defendant was subtly coerced”
into consenting); see also United States v. Mancias, 350 F.3d 800, 805 (8th Cir. 2003)
(assessing voluntariness of consent and, therein, noting the defendant “generally
appeared to cooperate with the officers during both the stop and the search”). Further,
Defendant’s prior convictions suggest he had an “increased awareness of his rights.”
Mancias, 350 F.3d at 805. Taken together, the record suggests Defendant was a “fully
functioning adult who has a greater than average familiarity with the criminal justice
system.” Lee, 356 F.3d at 834.
The circumstances under which Defendant consented, on the whole, further
bolster the conclusion Defendant voluntarily consented to the search. While several
law enforcement officers were present, no evidence suggested the officers physically
intimidated, threatened, or coerced Defendant in any manner. See id. at 835; see also
United States v. Va Lerie, 424 F.3d 694, 709 (8th Cir. 2005) (en banc) (presence of
two or three armed officers in a private room inside bus terminal did not negate
-13-
defendant’s consent). Nor did the evidence demonstrate authorities made any
misrepresentations or promises to Defendant. See United States v. Vera, 457 F.3d
831, 836 (8th Cir. 2006). The record reflects Defendant signed the form promptly
after officers first requested his consent and that they treated Defendant and his wife
politely. See United States v. Devore, 135 F. App’x 902, 904 (8th Cir. 2005). Neither
Defendant nor Mrs. Comstock objected when the officers conducted the search.7
Defendant’s wife was present. See Lee, 356 F.3d at 835. Authorities sought
Defendant’s consent in his home. See, e.g., United States v. Biggs, 491 F.3d 616,
622-23 (7th Cir. 2007) (consent voluntary where defendant signed form in an
abandoned factory parking lot, with four officers present, after being placed in the
back of a police cruiser). Moreover, in addition to signing the consent form,
Defendant initialed the form to indicate officers had not made any “promises, threats,
force, or coercion” to procure his consent.
On the other hand, a few circumstantial factors arguably aid Defendant’s
position. First, when Defendant signed the consent form, he had been handcuffed for
approximately two hours and narcotics officers had already viewed the marijuana
grow. But being handcuffed “does not preclude a finding of voluntariness.” United
States v. Becker, 333 F.3d 858, 861 (8th Cir. 2003); United States v. Harper, 466 F.3d
634, 644 (8th Cir. 2006) (fact police handcuffed defendant within seconds did not
render consent invalid). Indeed, we have expressly recognized that “even persons
who have been arrested and are in custody can voluntarily consent to [a] search . . .
.” Chaidez, 906 F.2d at 382. As to narcotics officers’ pre-consent trip to the
basement, we cannot see how this would compel Defendant to consent to an entire
search of his residence and garage. Defendant, of course, knew that WDMPD officers
7
We recognize that Defendant and Mrs. Comstock testified to the contrary, but
underscore that the district court credited the officers’ testimony. Finding the district
court’s ruling supported by substantial evidence, we defer to its credibility
determinations. See Williams, 521 F.3d at 908 (“This court is highly deferential to
district court credibility determinations.” (emphasis added)).
-14-
had found the marijuana grow and notified the narcotics team before the narcotics
officers arrived at his house. Nothing in Detective Paulson and Detective Carlson’s
testimony indicates authorities had — nor that Defendant had any reason to believe
they had — found any other contraband (i.e., firearms or ammunition) in the basement
prior to signing the form. In short, under the circumstances at bar, we are not
persuaded that either the two hours Defendant spent handcuffed, or the fact the
narcotics team viewed the marijuana grow in the basement, vitiate the effectiveness
of Defendant’s consent.
Second, the officers apparently stated that if Defendant refused to consent to the
search they would obtain a search warrant, during which time Defendant would
continue to be detained in handcuffs for an additional two hours.8 Defendant does not
challenge the veracity of the officers’ statements, nor does he maintain the officers
made them in a coercive manner. Further, Defendant failed to cite any authority for
the proposition that the officers’ statements were unduly coercive. Consequently,
mindful of the fact-intensive nature of our inquiry, and the fact that no “per se rules”
exist in this context, we decline to find that the officers’ statements rendered
Defendant’s consent invalid. See Va Lerie, 424 F.3d at 710-11 (finding consent
voluntary where “there was no application of force, no intimidating movement, no
overwhelming show of force, no brandishing of weapons, no blocking of exits, no
threat, no command, not even an authoritative tone of voice.”). Under the totality of
the circumstances, the numerous facts supporting a finding that Defendant voluntarily
consented far outweigh those to the contrary. See United States v. Drayton, 536 U.S.
194, 201, 207 (2002) (“for the most part per se rules are inappropriate in the Fourth
Amendment context;” instead, the “totality of the circumstances must control.”).
8
Because the officers’ suppression hearing testimony is not to the contrary, and
Defendant and Mrs. Comstock’s respective testimony was consistent in this regard,
we assume the narcotics officers made these statements.
-15-
Thus, the district court’s conclusion that Defendant signed the consent-to-search form
voluntarily is not clearly erroneous.9 See Castellanos, 518 F.3d at 969.
III.
Defendant also argues that the district court erred in applying the ACCA
sentencing enhancement and, thus, asks us to remand for resentencing. Specifically,
Defendant maintains: (1) his convictions for operating a vehicle under the influence
(OWI) are not predicate ACCA prior convictions; and (2) even if an OWI conviction
can constitute a “violent felony” for ACCA purposes in some cases, the Government
failed to properly evidence that Defendant’s OWI convictions were, in fact, ACCA
“violent felonies.” The Government counters that the ACCA enhancement applies
because: (1) pursuant to Eighth Circuit authority Defendant’s Iowa OWI felonies
each constitute a “violent felony” under the ACCA; and (2) regardless, aside from the
OWI offenses, Defendant has three other previous ACCA predicate convictions.
“This court reviews de novo the finding that a defendant’s prior conviction constitutes
a violent felony” for ACCA purposes. United States v. Vincent, 519 F.3d 732, 733
(8th Cir. 2008).
During the pendency of this appeal, the Supreme Court “overruled our
interpretation of § 924(e)(1) and held driving under the influence of alcohol is not a
violent felony as defined in the [ACCA].” United States v. Heikes, 525 F.3d 662, 664
(8th Cir. 2008); see United States v. McCall, 439 F.3d 967, 972 (8th Cir. 2006) (en
banc), overruled by Begay v. United States, 128 S. Ct. 1581 (2008). Such a change
9
Having concluded authorities did not violate Defendant’s Fourth Amendment
rights, we need not address the Government’s alternative argument that Defendant’s
suppression motion was properly denied in light of the “inevitable discovery”
doctrine. See United States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008).
-16-
in the law while a defendant’s case is pending triggers plain error review. See Heikes,
525 F.3d at 664. Fed. R. Crim. P. 52(b) dictates that we may rectify an error if the
error is plain, affects a defendant’s substantial rights, and seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. Though
Defendant’s OWI convictions are not ACCA “violent felonies,” Defendant is not
entitled to plain error relief because he has at least three other qualifying ACCA
predicate offenses — i.e., felony delivery of cocaine, felony distribution of narcotics,
and attempted burglary. See 18 U.S.C. § 924(e)(1). As such, the district court’s error
did not affect Defendant’s substantial rights. See United States v. Barnett, 410 F.3d
1048, 1052 (8th Cir. 2005); cf., e.g., Heikes, 525 F.3d at 664 (holding plain error relief
warranted under Begay where defendant’s criminal history included convictions for
three prior OWI offenses and one misdemeanor assault offense).
For the forgoing reasons, we AFFIRM the district court’s judgment.
-17- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3099772/ | NO. 07-11-00329-CR, 07-11-00330-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 31, 2012
TERRY LYNN FLEETWOOD, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 63,731-D; HONORABLE RICHARD DAMBOLD, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Terry Lynn Fleetwood, was convicted of aggravated sexual assault
(Cause No. 07-11-00329-CR), and aggravated assault (Cause No. 07-11-00330-CR).
On August 9, 2011, appellant filed notices of appeal in each cause. Appellant’s
appointed counsel has filed a motion to permanently abate this appeal, and has
provided this Court a certified copy of appellant’s death certificate stating that appellant
died on April 5, 2012.1 At the time of appellant’s death, no mandate from this Court had
been issued.
If an appellant in a criminal case dies after an appeal is perfected but before the
mandate of the appellate court is issued, the appeal should be permanently abated.
TEX. R. APP. P. 7.1(a)(2). The death of an appellant during the pendency of his appeal
deprives an appellate court of jurisdiction. Hanson v. State, 790 S.W.2d 646, 646
(Tex.Crim.App. 1990) (en banc). Consequently, these appeals and any further
proceedings are ordered permanently abated.
Mackey K. Hancock
Justice
Do not publish.
1
We note that appellant’s appointed counsel filed appellant’s brief on March 14,
2012.
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/998275/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-2177
JOHN MERRITT JAMES,
Plaintiff - Appellant,
versus
SECRETARY OF LABOR,
Defendant - Appellee.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, District
Judge. (CA-97-723)
Submitted: February 9, 1999 Decided: March 22, 1999
Before WILLIAMS and MOTZ, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John Merritt James, Appellant Pro Se. Gary L. Call, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Merritt James appeals from the district court’s order
granting summary judgment to the Defendant on his action seeking to
recover a relocation allowance in connection with his job transfer.
Our review of the record and the district court’s opinion discloses
no reversible error. Accordingly, we affirm on the reasoning of
the district court. James v. United States Dep’t of Labor, No. CA-
97-723 (S.D.W. Va. July 21, 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.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
Subsets and Splits