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https://www.courtlistener.com/api/rest/v3/opinions/3057260/ | Case: 10-13618 Date Filed: 08/07/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-13618
________________________
D.C. Docket No. 5:10-cv-00244-JDW-GRJ
HIPLOITO CRUZ-PAGAN,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN-LOW,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 7, 2012 )
Before MARCUS, COX and SILER,* Circuit Judges.
SILER, Circuit Judge:
Hipolito Cruz-Pagan (Cruz) petitions for review the district court’s dismissal
of his petition for habeas corpus pursuant to 28 U.S.C. § 2241. We affirm.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
Case: 10-13618 Date Filed: 08/07/2012 Page: 2 of 4
I.
A.
Cruz is an inmate at the Bureau of Prisons (BOP) Coleman-Low correctional
center in Florida. In March 2010, he filed a request for compassionate release.
In April 2010, Cruz sent two emails to the Warden for an update on his request.
He received a written denial of his request on April 28. On April 30, the Warden
replied to Cruz’s emails and stated, “Your paperwork is being processed.”
B.
The BOP Administrative Remedy Program states an inmate may “seek formal
review of an issue relating to any aspect of his[] own confinement” through a three-
level appeal process. 28 C.F.R. § 542.10, et seq. Despite the BOP’s administrative
process, Cruz, pro se, filed a § 2241 petition in the district court after the Warden
denied his request. Cruz claimed the § 2241 petition was proper because there were
fraudulent improprieties in the administrative process, as evidenced in the
discrepancy between the written denial and the Warden’s email, which made the
process futile. The district court dismissed the petition for failure to exhaust
administrative remedies because exhaustion is jurisdictional. See Skinner v. Wiley,
355 F.3d 1293, 1295 (11th Cir. 2004) (per curiam); Gonzalez v. United States, 959
F.2d 211, 212 (11th Cir. 1992) (per curiam).
2
Case: 10-13618 Date Filed: 08/07/2012 Page: 3 of 4
After the parties filed their appellate briefs, the Supreme Court ruled in
Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012), that “[a] rule is jurisdictional if the
Legislature clearly states that a threshold limitation on a statute’s scope shall count
as jurisdictional. But if Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as nonjurisdictional.” (quotation
marks and citations omitted). Since Congress did not place an administrative
exhaustion requirement in § 2241, the parties argue that exhaustion is “a mandatory
but nonjurisdictional” rule. Id. at 656.
At oral argument we requested additional briefing on whether Cruz could
pursue his petition under 18 U.S.C. § 3582(c)(1).
II.
We review § 2241 petitions de novo. Skinner, 355 F.3d at 1294.
III.
Whether our Gonzalez and Skinner line of cases, regarding the jurisdictional
impact of administrative exhaustion, was overruled is a question for another case.
The holding in the Supreme Court’s Gonzalez opinion was that 28 U.S.C. §
2253(c)(3), did not have a jurisdictional requirement. 132 S.Ct. at 646. Since that
statute is not at issue here, we cannot say that our Gonzalez and Skinner line of cases
was overruled.
3
Case: 10-13618 Date Filed: 08/07/2012 Page: 4 of 4
Federal courts must have authority to grant a § 2241 petition and 18 U.S.C. §
3582(c)(1) is a source of that authority. But under § 3582(c)(1)(A), a court cannot
reduce a prisoner’s sentence except “upon [the] motion of the Director of the [BOP]”
and a finding that “extraordinary and compelling reasons warrant” a reduction. The
plain meaning of this section requires a motion by the Director as a condition
precedent to the district court before it can reduce a term of imprisonment. The BOP
has not made a motion on Cruz’s behalf. Accordingly, we do not have the authority
to modify his sentence under § 3582(c)(1)(A). See Fernandez v. United States, 941
F.2d 1488, 1492-93 & n.10 (11th Cir.1991) (The BOP’s decision whether to seek a
compassionate release under the predecessor to § 3582(c)(1)(A)(i) is not reviewable).
Under 18 U.S.C. § 3582(c)(1)(B), courts “may modify” a sentence only “to the
extent otherwise expressly permitted by statute” or Federal Rule of Criminal
Procedure 35. Cruz has not cited a case, statute, or rule of procedure that gives us the
authority to modify his sentence. He admits his § 2241 petition cannot provide him
compassionate release but argues that a hearing should be held anyway. But without
a motion from the Director, a precedential case, an authorizing statute, or an
authorizing Rule granting us subject-matter jurisdiction, we cannot modify his
sentence. Therefore, Cruz’s petition is dismissed.
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3057265/ | Case: 11-11525 Date Filed: 08/06/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 11-11525
Non-Argument Calendar
_____________________________
D. C. Docket No. 7:10-cr-00234-IPJ-PWG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO DEVAL GLOVER,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________________________
(August 6, 2012)
Before HULL, EDMONDSON, and BLACK, Circuit Judges.
PER CURIAM:
Antonio Deval Glover appeals the reasonableness of his 160-month
Case: 11-11525 Date Filed: 08/06/2012 Page: 2 of 5
sentence for carjacking, in violation of 18 U.S.C. § 2119. No reversible error has
been shown; we affirm.
Glover pleaded guilty to carjacking a female friend’s car. Glover held a box
cutter to the victim’s face, forced his way into the driver’s seat, and pushed the
victim into the front passenger seat. When the victim tried to grab the keys from
the ignition, Glover “held her head, bit her ear, and beat her on the head.” Glover
then pushed the victim out of the car while it was still moving, dragging her for
several feet. A few minutes later, Glover released the victim’s two children -- ages
four and nine -- from the back seat of the car and into traffic. Glover then drove
the car out of state before being apprehended.
We evaluate the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 128 S. Ct. 586, 597 (2007). Although
plain error applies where -- as in this case -- the defendant failed to raise an issue
below, see United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), we
have not applied plain error to an inquiry about the reasonableness of a sentence.
And it is unnecessary to decide whether plain error applies in this case because
Glover’s arguments fail under either standard.
Procedural error might exist if the district court improperly calculated the
guidelines, based a sentence on clearly erroneous facts, failed to consider the 18
2
Case: 11-11525 Date Filed: 08/06/2012 Page: 3 of 5
U.S.C. § 3553(a) factors,* or failed to explain adequately the sentence. Gall, 128
S. Ct. at 597. The district court is not required to discuss or state each section
3553(a) factor explicitly. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008). A sentence substantively is unreasonable if it “fails to achieve the
purposes of sentencing as stated in section 3553(a).” United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). The party challenging the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both the
record and the section 3553(a) factors. Id.
We first conclude that Glover’s sentence is reasonable procedurally.
Contrary to Glover’s appellate argument, the district court considered Glover’s
allocution statement and the section 3553(a) factors in imposing Glover’s
sentence. At the sentencing hearing, the court acknowledged Glover’s statements
about his history of drug abuse but also expressed concern about Glover’s
“extremely violent [criminal] record” and the violent nature of the instant offense.
Having considered the nature and circumstances of Glover’s offense and Glover’s
history and characteristics, the court explained that the sentence served the
*
Under section 3553(a), a district court must consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, the defendant’s medical
and educational needs, the advisory guideline range, the Sentencing Commission’s policy
statements, and the need to avoid unwarranted sentencing disparities and provide restitution. See
18 U.S.C. § 3553(a)(1)-(7).
3
Case: 11-11525 Date Filed: 08/06/2012 Page: 4 of 5
purposes of section 3553(a). In particular, the district court concluded that the
sentence promoted respect for the law, provided just punishment for the offense,
would deter criminal conduct, and was necessary to protect the public from further
crimes and to avoid unwarranted sentencing disparities. See 18 U.S.C. §
3553(a)(2)(A)-(C), (6). Because the district court considered Glover’s arguments
and had a reasoned basis for imposing his sentence, we are satisfied that the
court’s explanation of the sentence was adequate. See Rita v. United States, 127
S. Ct. 2456, 2468 (2007) (concluding that in explaining a sentence, “[t]he
sentencing judge should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own
legal decisionmaking authority.”).
Glover’s sentence is also reasonable substantively. His 160-month sentence
is within the guidelines range of 140 to 175 months; and, broadly speaking, we
expect a within-guidelines sentence to be reasonable. See Talley, 431 F.3d at 787-
88 (concluding that, although not per se reasonable, “ordinarily we would expect a
sentence within the Guidelines range to be reasonable”). Given the violent nature
of Glover’s offense and his prior history of violence -- including multiple
convictions for harassment, domestic violence, assault, and resisting arrest -- a
sentence within the guideline range was needed to reflect the seriousness of the
4
Case: 11-11525 Date Filed: 08/06/2012 Page: 5 of 5
offense, to promote respect for the law, to provide just punishment, to deter Glover
from further criminal activity, and to protect the public. Although Glover asserts
that the court failed to consider properly his recent drug rehabilitation as a
mitigating factor, the weight to be given a particular factor is left to the sound
discretion of the district court absent a clear error of judgment. See United States
v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). Because we see no such error,
Glover failed to demonstrate that his sentence was substantively unreasonable.
AFFIRMED.
5 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892739/ | 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 242ND DISTRICT COURT OF HALE COUNTY;
NO. B14888-0303; HON. ED SELF, PRESIDING
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, S.J.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.
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).
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
2
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. . . .”
3
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.
4
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.
5
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
6
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
(5th 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.
7
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.
8 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2677027/ | Case: 13-14314 Date Filed: 06/04/2014 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14314
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cr-00207-MMH-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL LEVERNE PENDER, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 4, 2014)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
James H. Burke, Jr., appointed counsel for Carl Leverne Pender, Jr., in this
direct criminal appeal, has moved to withdraw from further representation of the
Case: 13-14314 Date Filed: 06/04/2014 Page: 2 of 2
appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396 (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 Pender’s conviction and sentence are
AFFIRMED.
2 | 01-03-2023 | 06-04-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/4007145/ | One Frank Wantropski was indicted in the circuit court of Marshall County for unlawfully and feloniously owning, operating, maintaining, possessing, and having an interest in a certain apparatus, mechanism and device for the manufacture of intoxicating liquors commonly known as a "moonshine still." Upon his arraignment the defendant demurred to and moved to quash the indictment. The demurrer and motion to quash having been overruled, he then pleaded not guilty to the charge.
Thereafter, before trial, defendant filed his petition stating that prior to the indictment a special constable, acting under an alleged search and seizure warrant, had invaded his home and seized a still and quantity of mash; that the alleged search warrant was invalid and for this reason the property seized thereunder should not be used as evidence against him; that nevertheless the State, as defendant is informed, intends to offer in evidence at his trial upon said indictment the still and mash aforesaid; wherefore he prays that the still, mash and other substances and things seized and alleged to have been taken out of petitioner's dwelling house, and all other facts of evidential value obtained by said search and seizure, be suppressed and denied to the State as evidence upon said trial.
The circuit court, having sustained a demurrer to the petition, certified the questions of law arising thereon to this Court, and stayed further proceedings pending our decision in the premises.
This proceeding is based upon the practice prevailing in the Federal courts authorizing a defendant to test in advance of trial the admissibility of evidence alleged to have been obtained through illegal search and seizure. Weeks v. UnitedStates, 232 U.S. 370, 58 L. Ed. 652, 34 S.C. 341; Wise v. Mills,220 U.S. 549, 55 L. Ed. 579, 31 S.C. 597; Wise v. Henkel,220 U.S. 556, 55 L. Ed. 581. Such practice, however, has not gained sanction by the State courts as a recognized common law procedure. We held in the case of State v. Montgomery, 94 W. Va. 153, that it was not error for the trial court to sustain a demurrer to such petition upon the *Page 125
theory that in the trial of criminal cases the courts will not stop to try collateral issues, which can be speedily determined in the progress of the trial without impairing the rights of the prisoner.
We hold that the procedure is improper and that the ruling of the circuit court upon the sufficiency of the petition will, therefore, not be considered on certificate, which is accordingly
Dismissed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4007148/ | L. H. Sedinger, committee for E. D. Swaney, a convict, prosecutes this appeal to an order of the state compensation commissioner refusing compensation to Swaney for injuries sustained to his right eye on the 15th day of November, 1928, while in the employ of Crystal Coal Coke Company.
On the day stated claimant was struck in his right eye by some falling coal. He left the mine immediately, and went for medical attention to the company physician, Dr. Dana T. Moore, who administered temporary treatment and sent the patient to Drs. Davis Holcomb, eye specialists at Logan. In his first statement with reference to this case, Dr. Moore *Page 52
said that he could not see any sign of injury to the claimant's eye, although the pupil seemed to be dilated. The doctor made two subsequent statements. In one of them he said that he recollected that claimant came to his office with a handkerchief over his eye and with blood coming out of the eye. In his last statement he confirms the second statement and says that at the time he made his initial statement with reference to the case he was not in his office but was away from his records and did not have the matter clearly in mind. Dr. Moore also says, that on the 7th day of November, 1928, just before the claimant entered the employ of the Crystal Coal Coke Company, he made a physical examination of claimant and at that time claimant's eyes appeared to be normal.
Dr. Davis, in the first statement made by him, said that his examination of the claimant's eyes showed no signs of injury, no redness nor abrasions. Dr Holcomb, in his first statement, stated that the pupil of claimant's right eye was permanently dilated, and that that condition could have been caused by the alleged injury. In a second statement, Dr. Holcomb said that although there was no visible sign of injury to the fundus, the patient evidently had suffered such injury which had grown progressively worse, and that at the time of making the second statement the vision of claimant's right eye had been reduced to blindness. At a still later time, Drs. Davis and Holcomb made a joint statement, in which they say that when claimant came to their office on the 16th day of November, 1928, they found the pupil of his right eye dilated, and that there was some congestion of that eye; that they have found that the condition of claimant's right eye has grown continuously worse since the date of the injury, and that he had become totally blind in that eye. Dr. Davis stated in the said last-mentioned statement that, although he had said on a former occasion that he found no visible sign of an injury to the fundus of claimant's right eye at the time of the examination in November, 1928, the patient evidently had some injury which had grown progressively worse. These two doctors further say in their joint statement that in the light of the fact that Dr. Moore had found the claimant's *Page 53
eyes to be normal a few days prior to the 15th of November, 1928, they are of opinion "that the blindness which is now in said eye could have been and was caused by the injury he received on the 15th day of November, 1928, and is due to said injury."
The claimant was examined by Dr. V. T. Churchman, an eye specialist, who made a statement with reference to the injury, and in the course thereof said: "There is blindness in the right eye beyond a doubt, but it would be impossible for me to say it was due to the injury claimed on November 15, 1928, as I can find no pathological condition to account for same. From the history of good vision prior to time of injury, and blindness following same might be indicative of some deeper injury, not now able to detect." Dr. F. P. Weltner, an eye specialist, also examined claimant. Dr. Weltner at first thought that claimant was malingering, but he later made another examination followed by a statement in which he said: "The condition is without question one of optic atrophy and not malingering, as I suspected in my first examination. I am unable to find any evidence of injury such as opacities or scars of any kind at any place in this eye. And for this reason. cannot believe that the atrophy is due to his alleged injury. Syphilis is suspected." In this connection, however, it is well to observe that A. W. Ferrel, technician for Hatfield-Lawson Hospital at Logan, W. Va., says that he made two blood tests for claimant, one in March, 1929, and the other in August, 1929, and that the result of each test was negative. Several relatives and associates of the claimant state that they never knew of the claimant having any imperfection in his sight prior to the time of the injury on the 15th of November, 1928.
It is urged on behalf of the compensation commissioner, that inasmuch as there is a conflict of evidence and there being substantial evidence to sustain his finding, the same ought to be affirmed by this court. Cases cited: Martin v. StateCompensation Commissioner, 107 W. Va. 583, 149 S.E. 824;Venilli v. State Compensation Commissioner, 107 W. Va. 544,149 S.E. 612; Heaton v. Compensation Commissioner, 106 W. Va. 563,146 S.E. 368. The Martin Case is also cited in *Page 54
support of the proposition that the burden of proof that there was an injury is upon the applicant, and that where the evidence is equally consistent with an injury or no injury, the burden it not discharged. We recognize the force of those decisions and are not disposed to depart therefrom, but, giving the rules of law announced therein full force and effect, we think that they do not preclude the claimant from obtaining compensation in this case. The evidence introduced on behalf of claimant to the effect that he was in fact injured on the 15th day of November, 1928, while in the course of his employment in a mine of the Crystal Coal Coke Company, is not disputed. On the second proposition, as to whether the said injury was the cause of claimant's subsequent blindness in his right eye, there is a conflict of evidence, but we are of opinion that the evidence clearly preponderates in support of claimant's contention. While this court accords great weight to a finding of fact by the commissioner, it will not be bound by such finding when it is contrary to undisputed evidence, or is at variance with a clear preponderance of the whole evidence.Caldwell v. Workmen's Compensation Commissioner, 106 W. Va. 14,144 S.E. 568.
The compensation commissioner denied compensation to the claimant on the 6th day of July, 1929, stating "* * * it being the holding of this office that the evidence does not show that the loss of vision of which you complain is due to injury received on November 15, 1928." In a communication of October 9, 1929, addressed by the commissioner to the claimant, the commissioner says with reference to the subsequent evidence, which the claimant filed with the commissioner: "The evidence that you have submitted, some of the statements being sworn to and some not, is contradictory evidence of the same parties who made the statements before. It would appear to me that either one or the other of these statements is wrong. I hardly see how you could consider any of them now, as the last statement you filed repudiates the former one." It is true that the later statements of Drs. Moore, Davis, and Holcomb are not in accord with their earlier statements, but the explanation which they give for the variance in their *Page 55
statements is, at least, reasonably satisfactory. It is not to be presumed that reputable members of the medical profession would willfully make misstatements with reference to the physical condition of a patient; and if, as in this case, the earlier statements of the physicians are not satisfactory to themselves and they are desirous of correcting such statements or amplifying them, they ought to be permitted to do so when there is nothing in the record even to suggest bad faith on their part.
On the whole, we are of opinion to reverse the order of the compensation commissioner, and to remand the cause in order that an award may be made to the claimant in accordance with the provisions of the statute which specifically fixes the basis of compensation for the loss of an eye.
Reversed and remanded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4007149/ | In this chancery suit for the specific performance of a contract for the sale and exchange of real estate, the chancellor sustained a demurrer to plaintiff's bill of complaint and dismissed the bill. Plaintiff appeals.
According to the allegations contained in the bill, W. D. Cline, residing at Valls Creek, McDowell County, West Virginia, owner of a tract of land on Indian Creek, McDowell County, addressed a letter, dated January 29, 1929, to W. H. Caldwell, at Peterstown, Monroe County, West Virginia in which Cline proposed to pay to Caldwell the sum of $6,000.00 cash and to deed to Caldwell his land on Indian Creek in exchange for Caldwell's land known as the McKinsey farm. The letter further provided that Cline "will give you (Caldwell) eight days in which" to accept or reject the offer. Caldwell received the letter at Peterstown on February 2, 1929. On February 8, 1929, the offeree wired Cline as follows: "Land deal is made. Prepare deed to me. See letter." The telegram reached Cline on February 9, 1929. Upon Cline's refusal to carry out the terms of the alleged agreement, plaintiff instituted this suit for specific performance, the titles to the farms remaining unchanged.
The first ground relied upon by defendant to sustain his demurrer to the bill is that the offer and acceptance are too vague and uncertain. These qualities can certainly not be attributed to defendant's offer. The uncertainty in the offer, if any, relates to the question as to when an offer becomes completed, and not to the duration of the offer. The letter provides for acceptance within eight days, which is indeed a mathematical certainty. If there is any vagueness in the acceptance telegram, it is as to the intendment of the offeree in the use *Page 555
of the words "See letter," for it is not clear whether the words refer to defendant's offering letter, or to one confirming offeree's telegraphic acceptance. A letter purporting to accept an offer, which, in reality, varied the terms thereof, would constitute a defense; but, in the instant case, the record contains only the bill and the demurrer, and the bill relates to but one letter, which is the offering letter of defendant. Without more, the telegram of acceptance appears sufficient to constitute an unconditional acceptance.
Defendant's main contention is that the offer was not accepted within the time limit specified in the offer, and counsel for defendant, in his brief, states the law to be as "the time for acceptance runs from the date of the offer and not from the date of its delivery." The subject of contract by mail began with the English case of Kennedy v. Lee, 3 Meriv., and was followed a few years later by Adams v. Lindsell, 1 B.
Ald. 681 (1818), and courts have had no hesitation in recognizing the validity of simple contracts thus made. Page, Law of Contracts, sec. 198; Campbell v. Beard, 57 W. Va. 501;Cobb v. Dunlevie, 63 W. Va. 398. Adams v. Lindsell, supra, was an action for non-delivery of a lot of wool. On September 2, 1817, the defendant wrote from St. Ives to the plaintiffs, living in Bromsgrove, making an offer of a lot of wool on stated terms, one of which was contained in this phrase, "receiving your answer in due course of post." The letter was misdirected, and, in consequence, was not delivered to plaintiffs until September 5th, when an acceptance was sent by return of post and reached defendants on the 9th. Meanwhile, on the 8th, the wool had been sold to other parties. The court, adjudging that a contract had been made upon the posting of the acceptance, stated "that defendants must be considered in law as making, during every instant of the time their letter was traveling, the same identical offer to the plaintiffs." Taken literally, it would follow that an offer was made at the instant the letter is mailed. That the quoted statement fromAdams v. Lindsell lends difficulty is recognized and criticized by an eminent writer, who finds "the truth of the matter" stated thus in Bennett v. Cosgriff, 38 L. T. Rep. (N.S.) 177: "A *Page 556
letter is a continuing offer or order, or statement by the sender which takes effect in the place where the person to whom it is sent receives it." Williston, Contracts, Vol. 1, p. 50; and other courts and text writers have recognized the rule that where a person uses the post to make an offer, the offer is not made when it is posted but when it is received.Manufacturing Co. v. Berg, 48 Pa. Super. 419; see also Restatement of Law of Contracts, Amer. Law Inst., sec. 23; Page, Law of Contracts, sec. 198; 13 C. J., 300; O'Donohoe v.Wiley, 43 U. C. Q. B. 350. The reason for such a rule is clear. When contracting parties are present, words spoken by one party must strike the ear of the other before there can be mutual assent. So inter absentes, letters, which perform the office of words, must come to the knowledge of the party to whom they are addressed before they are accorded legal existence. "The distinction between contracts inter presentes and those interabsentes has no metaphysical existence, for even interpresentes some appreciable time must elapse between the offer on the one hand and the acceptance on the other. As the parties withdraw from each other this time increases, and when they are so far apart that they are obliged to resort to writing to communicate their thoughts to each other, it is none the less true of the communications made by this medium, than of those made by means of spoken words, that in law they are allowed no existence until they reach the intelligence of the person to whom they are addressed." 1 Amer. Law Rev. 434, 456.
As in other contracts, to consummate a contract for the sale of land, there must be mutual assent (27 Rawle C. L. 323) and where the proposal to sell stipulates a limited time for acceptance, it is essential, to constitute a valid contract, that the acceptance be communicated to the proposer within the time limited. Dyer v. Duffy, 39 W. Va. 148.
The letter, proposing that Cline "will give you eight days" to accept or reject the offer, is, without more, conclusive of the offeror's intention; and, the unconditional acceptance having been received by Cline within the specified time limit, the result was a concurrence of the minds of the contracting parties upon the subject matter of their negotiations; in other words, a consummated contract, (Iron Works v. Construction Co., *Page 557
86 W. Va. 173), and one which equity may enforce.Hastings v. Montgomery, 95 W. Va. 734.
The contention of defendant, relied upon as a third ground in his demurrer, that acceptance could be made only by letter is without merit, since the offer did not provide the means of communication. Lucas v. Telegraph Co., 109 N.W. (Iowa) 191.
Being of the opinion that the allegations contained in the bill were sufficient, we reverse the decree of the lower court and re-instate plaintiff's bill of complaint.
Reversed; bill re-instated; cause remanded. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3233978/ | In the original opinion we held that the motion of defendant to strike out the testimony of the witness Eichelberger, "About Norman Summers and Frank McCraw were to get $1 and Mayor Coleman 50 cents," came too late. The appellant in his brief on application for rehearing insists that he made the motion as soon as he was advised that the testimony was hearsay. This contention is not borne out by the record. In the cross-examination, Eichelberger never testified that he had any agreement with Coleman or Summers, but did testify, first: "I paid Matson, Frank McCraw and the man working for Frank McCraw for the protection." And then testified, evidently in response to questions by appellant, "I did not have any definite agreement with Norman Summers that he was to get a single dollar or with Mayor Coleman either. I figured it up with Frank McCraw. I did not personally make the agreement with either Norman Summers or Mayor Coleman." This would have been the time for appellant to have made his motion in order to have it reviewed. Instead of that, he allowed the witness to continue to testify with reference to his business in selling whisky, after which he added, "I was not present when anything like that was agreed upon." What this last testimony of the witness referred to is not clear from the record. In any event, the motion under all of the decisions came too late.
Another reason why the motion cannot be made the basis of reversible error is that the motion refers to Summers, McCraw, and Coleman jointly, whereas the testimony as to McCraw is not hearsay and, therefore, would not be subject to the motion on that ground. Where a part of evidence which is objected to as a whole is admissible, it is not error to overrule a general objection. The above statement of the rule is borne out in numerous cases digested in 6 Alabama Digest, Criminal Law, 695 (6).
The application for rehearing is overruled.
Application overruled. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892730/ | 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 100
TH
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.
(footnote: 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.
(footnote: 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 [14
th
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.
FOOTNOTES
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/2794082/ | Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-AA-02
MESKEREM GETACHEW, PETITIONER,
V.
OMNI SHOREHAM, RESPONDENT.
On Petition for Review of a Final Order of the
District of Columbia Office of Administrative Hearings
(DOES-2068-13)
(Submitted December 4, 2014 Decided December 15, 2014)*
Meskerem Getachew filed a brief pro se.
No brief was filed on behalf of respondent.
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and FERREN,
Senior Judge.
PER CURIAM: Petitioner Meskerem Getachew seeks review of the Office of
Administrative Hearings (OAH)‟s order dismissing her appeal from the denial of
her claim for unemployment benefits. Petitioner argues that OAH erred in its
*
The decision in this case was originally issued as an unpublished
Memorandum Opinion and Judgment. It is now being published upon the court‟s
grant of the Office of Administrative Hearings‟ motion to publish.
2
determination that she did not timely appeal the Department of Employment
Services (DOES)‟s denial of benefits. We affirm.
I.
Petitioner was fired from her position at respondent Omni Shoreham Hotel
on August 9, 2013, after an unexcused absence. She applied for unemployment
compensation, which DOES denied in a determination letter mailed on
September 19, 2013. Petitioner acknowledged that the letter was dated September
19, 2013, but did not know when she received it because she was ill and
“emotionally stressed out” and depressed following the loss of her job. Petitioner
appealed the denial of compensation on October 29, 2013, outside of the statutory
fifteen-day filing period for appeals to OAH.1
After a hearing, the administrative law judge issued a written final order.
The judge concluded that DOES mailed the determination letter on September 19,
2013; that petitioner received the determination letter and notice of appeal rights;
that petitioner was aware of the fifteen-day appeal deadline; and that petitioner
was, therefore, able to file the appeal in a timely manner. Applying the appropriate
1
D.C. Code § 51-111 (b) (2012 repl.).
3
factors, the judge concluded that petitioner failed to demonstrate good cause or
excusable neglect for the untimely filing of her notice of appeal and dismissed
petitioner‟s case for lack of jurisdiction. Petitioner timely filed notice of appeal to
this court.
II.
This court‟s review of an OAH order is “limited”; the court “must affirm
unless the decisions of OAH, are „arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.‟”2 Because petitioner did not timely file her
notice of appeal to OAH and the judge did not act arbitrarily or capriciously, abuse
his discretion, or otherwise err in concluding that petitioner failed to demonstrate
“excusable neglect or good cause”3 for filing late, we affirm.
Notice of appeal of a determination of a claim for unemployment
compensation must be filed within fifteen calendar days after notice of the
2
Savage-Bey v. La Petite Acad., 50 A.3d 1055, 1060 (D.C. 2012) (quoting
Thomas v. Nat’l Children’s Ctr., Inc., 961 A.2d 1063, 1065 (D.C. 2008)).
3
D.C. Code § 51-111 (b).
4
determination is mailed.4 However, a claimant may cure a late filing and seek to
extend the fifteen-day deadline if she can show “excusable neglect or good
cause.”5 Whether a late filing is the result of “excusable neglect” depends on “„the
length of the delay and its potential impact on [the] proceedings, the reason for the
delay, including whether it was within the reasonable control of the movant, and
whether the movant acted in good faith.‟”6
It is undisputed that, by filing her notice of appeal on October 29, 2013,
petitioner filed more than fifteen days after the determination letter was mailed to
her on September 19, 2013. Additionally, the judge painstakingly evaluated
whether, under all of the circumstances she presented, petitioner demonstrated
“excusable neglect or good cause.” First, the judge concluded that petitioner‟s
self-claimed depression did not constitute good cause because there was no
evidence that she was unable to timely file her notice of appeal. Second, the judge
applied all of the relevant factors for evaluating excusable neglect, concluding that
petitioner was the cause of the delay, that petitioner did not act in good faith
4
Id.
5
Id.
6
Savage-Bey, supra, 50 A.3d at 1061 (alteration in original) (quoting
Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 395 (1993)).
5
because she provided no medical evidence of depression, that the delay was more
than twice the filing period, and that the delay did not cause prejudice to
respondent. Considering those factors, the judge concluded that petitioner did not
demonstrate “excusable neglect.” Accordingly, we cannot conclude that the
judge‟s decision was “„arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.‟”7 We, therefore, affirm.
So ordered.
7
Id. at 1060 (quoting Thomas, supra, 961 A.2d at 1065). | 01-03-2023 | 04-15-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2996853/ | flaniteh gatatw «Euurt of appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 10, 2004
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
. Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. b2-11 13
FRANK THOMAS, Appeal from the United States District
Plaintifl-Appellant, Court for the Northern District
of Illinois, Eastern Division
v.
I No. 00 CV 8211
LAW FIRM OF SIMPSON CYBAK, et a1.,
Defendants—Appellees. David H. Coar,
Judge.
ORDER
The panel’s January 13, 2004 opinion and judgment are vacated. A new opinion will be
issued at a later date. | 01-03-2023 | 09-24-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3004753/ | Fourth Court of Appeals
San Antonio, Texas
September 24, 2015
No. 04-14-00472-CV
ARC PARKLANE, INC.,
Appellant
v.
Arvel SEALS, Jr.,
Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2014-CI-10177
Honorable Larry Noll, Judge Presiding
ORDER
To allow the parties to mediate their dispute, on August 24, 2015, we abated this appeal
until October 8, 2015. On September 21, 2015, the parties filed a joint motion to extend the
abatement to allow the parties to reset the date for mediation.
The joint motion is GRANTED. We ORDER Appellant to file in this court not later than
November 11, 2015, (1) a motion to dismiss the appeal or (2) a motion to reinstate the appeal on
the court’s docket so the appeal may proceed.
If the parties fail to settle, Appellant’s brief will be due on December 1, 2015.
All other appellate deadlines remain SUSPENDED pending further order of this court.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 24th day of September, 2015.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 09-25-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/129984/ | 538 U.S. 1059
FENLONv.THOMAS ET AL.
No. 02-9670.
Supreme Court of United States.
May 27, 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/129983/ | 538 U.S. 1059
PARRISHv.FLORIDA.
No. 02-9685.
Supreme Court of United States.
May 27, 2003.
1
CERTIORARI TO THE DISTRICT COURT OF APPEALS OF FLORIDA FOR THE THIRD DISTRICT.
2
Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 834 So.2d 176. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8540839/ | RESOLUCIÓN
El domingo 15 de septiembre de 2013 falleció el Hon. Efraín Rivera Pérez, quien ocupó el cargo de Juez Asociado de este Tribunal desde el 13 de julio de 2000 hasta el 31 de julio de 2010.
El Hon. Efraín Rivera Pérez nació en Mayagüez, Puerto Rico, el 15 de julio de 1951. En esa ciudad obtuvo su Ba-chillerato en Administración de Empresas de la Universi-dad de Puerto Rico. Luego completó el Juris Doctor en la Pontificia Universidad Católica de Ponce en 1975. Al año *560siguiente, comenzó la práctica privada como abogado liti-gante en Mayagüez.
Su carrera judicial comenzó en enero de 1983 como Juez de Distrito tras ser nombrado por el entonces gobernador Carlos Romero Barceló. Sirvió como Juez Administrador del Tribunal de Distrito, Región Judicial de Mayagüez. En 1984 el exgobernador Romero Barceló lo nominó para Juez Superior, cargo que ocupó hasta el 1985, cuando regresó a la práctica privada en su pueblo natal.
Tras desempeñar varios cargos en el Poder Ejecutivo, en febrero de 1995 el entonces gobernador Pedro Rosselló González lo designó Juez del Tribunal de Circuito de Ape-laciones, posición que ocupó hasta el 13 de julio de 2000, cuando juró como Juez Asociado del Tribunal Supremo. En julio de 2010 se retiró de esta Curia.
La Rama Judicial, en particular este Tribunal, lamenta profundamente el fallecimiento inesperado y trágico del Hon. Efraín Rivera Pérez. Durante su vida profesional, fue un servidor público distinguido, con una gran sensibilidad y sentido de justicia. Su carácter firme y apasionado armo-nizaba con su personalidad afable y afectiva.
La dedicación, la entrega y el compromiso con el servicio público fueron virtudes que lo acompañaron durante su vida y hoy, tras su muerte, todos los miembros de este Tribunal que trabajamos con él durante una década y que fuimos tocados por su risa incomparable y abrazo efusivo lo extrañaremos. El Hon. Efraín Rivera Pérez asumía posi-ciones con mucha pasión y vehemencia, pero con mucho respeto y deferencia a los compañeros y las compañeras de este Tribunal. Su legado permanece como evidencia de una vida dedicada a la justicia.
Expresamos nuestras sinceras condolencias a la familia del Hon. Efraín Rivera Pérez, en especial a su hija Mariela. Que los frutos de una vida productiva y de servicio al país sirvan de aliciente reconfortante en estos momentos de nostalgia y tristeza por la pérdida de un ser querido.
*561
Publiquese.
Lo acordó el Tribunal y certifica la Secretaria del Tribunal Supremo.
(Fdo.) Aida Ileana Oquendo Graulau Secretaria del Tribunal Supremo | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4003873/ | This is an action on a life, health and accident insurance policy to recover sick benefits under a disability clause entitling the insured to $30.00 a month for one year. Judgment was entered upon a verdict of a jury in favor of plaintiff for $353.65, and defendant prosecutes error.
The only specification of defense is that the application of plaintiff for insurance contains misrepresentations relating to his health. The policy recites that it is issued in consideration of the payment of premiums and "the statements and agreements contained in the application * * * which statements the insured makes and warrants to be true" by the acceptance of this policy. The application states, inter alia, that the insured had not been afflicted with any "disease of the throat" or "other disease" and had not "received medical attention or advice within the past five years." It also recites: "I (applicant) understand and agree that the right to recover under any policy which may be issued upon the basis of this application shall be barred in the event that any of the *Page 148
statements made, material either to the acceptance of the risk or the hazard assumed by the company, is false and made with intent to deceive." Plaintiff, becoming incapacitated in July, 1932, immediately entered a government hospital in Dayton, Ohio, where he was treated about one year. He was confined to his bed two weeks. The remainder of the time he was able to walk around the hospital.
The evidence shows that plaintiff contracted influenza on the George Washington steamship in going to or returning from the World War; that he had consulted two doctors, each on a single occasion, for minor complaints within five years prior to the application and occasionally had experienced sore throat and stomachache which was relieved by the use of soda-mint tablets. The nature of the disease from which he suffered during his confinement in the hospital at Dayton does not appear, and it is, therefore, impossible to determine whether his previous throat and stomach symptom bore any relation to the disability upon which the judgment is predicated. (Defendant unsuccessfully attempted to show that he was afflicted with syphilis.)
Defendant contends, under the rulings in Saltesz v. SovereignCamp of Woodmen of the World, 110 W. Va. 513, 159 S.E. 513;Leadman v. Aetna Life Insurance Company, 112 W. Va. 53,163 S.E. 716; and other similar cases that plaintiff is barred from recovery by reason of the representations contained in his application, whether made in good faith or material to risk. The Saltesz case held that false statements in the application warranted to be true (though made in good faith), will prevent recovery on the policy. In the Leadman case, it is stated: "The fact that a specific answer is sought by the insurer in an application, for an insurance policy, makes that answer material. When such an answer is untrue, the policy will ordinarily be forfeited."
The cases relied on are inapplicable. As already observed, the application involved in this case contemplates that the representations, to bar recovery, must be (1) untrue, (2) material to the risk assumed, and (3) intentionally fraudulent. These conditions, if in conflict with the recitals of the policy, will prevail. Conflicts or doubtful construction must *Page 149
be resolved in favor of the insured. "When a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligation of a warranty. The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself."National Bank v. Ins. Co., 95 U.S. 673, 678, 24 L. Ed. 563;Moulor v. American Life Ins. Co., 111 U.S. 335, 28 L. Ed. 447.Schwarzbach v. Ohio Valley Protective Union, 25 W. Va. 622, 52 Am. Rep. 227, involved a life insurance policy, issued in consideration of the "representations, agreements, and warranties" contained in the application constituting a part of the contract. The application represented and warranted that the statements and answers therein were true, but contained a further clause that "if the same be in any material respect untrue or false or tend to deceive" the insurer, then the contract shall be void. The court, in holding that the latter clause converted what might have been warranties into representations, said: "It may be regarded as settled, that in construing a policy the courts lean in favor of the construction, which makes a statement of the insured a representation rather than a warranty, and when taking the whole policy and papers referred to in it as a part of it together, it is doubtful, whether the parties intended, that the statements or answers of the insured should be regarded as representations and not warranties. See Wilkinson v.Connecticut Mutual Insurance Company, 30 Iowa 119; Campbell v.New England Mutual Life Insurance Company, 98 Mass. 381;Garcelon v. Hampton Fire Insurance Company, 50 Me. 580; Hall v.Howard Insurance Company, 14 Wend. 385. Applying these rules in this case it is true, that the applicant in one part of his application *Page 150
says: 'I hereby represent and warrant the answers above are true and correct.' The words by themselves constitute a warranty. But in the same application the applicant states: 'if these answers and statements be in any material respect untrue or false or tend to deceive the association, this contract shall be void.' This unqualified warranty first set forth in the application of the insured immediately following the answers and also the unqualified warranty, with which this application commenced 'that he did thereby declare and warrant that he was then of sober and temperate habits, in good health, of sound body and mind and that he did usually enjoy good health and that his age at his next birthday was fifty-six years,' are to be construed in connection with the statements contained in the latter part of this application, 'if these statements and answers be in any material respect untrue or false or tend to deceive the association, then this contract shall be forfeited to said association.' When so construed according to the rules above laid down, they convert what might have been warranties into representations and not to warranties, to this case."
The further contention of defendant that recovery for total disability should have been limited to the time plaintiff was actually confined to his bed, is untenable. The total disability clause requires that insured shall be totally disabled and necessarily and continuously confined within the house and therein immediately visited, and personally attended by a legally qualified physician or surgeon at least once in each seven days. Wade v. Mutual Ben. Health Accident Ass'n.,115 W. Va. 694, 177 S.E. 611, holds: " 'Total disability' within health and accident policy does not mean absolute helplessness, but permits recovery where, because of injury or illness, insured has become unable to do substantially all material acts necessary to conduct his business or occupation in substantially his usual manner. Health and accident policy requiring 'continuous confinement within doors' as basis for prescribed rate of indemnity held not violated by insured's occasional departure from house under physician's advice for purpose of obtaining benefits of fresh air, sunshine, and moderate exercise as means of promoting recovery." *Page 151
The evidence, in our opinion, being insufficient to prove as a matter of law that the false statements in the application were material to the risk or made with intent to deceive, the judgment complained of is affirmed.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4051966/ | ZfS-IS NO. PD-0895-15
COURT OF CRIMINAL APPEALS OF TEXAS
TEX." R. APP. P. 68.2(a)
ORIGINAL
RECEIVED ?R
"RTOFCRIiI'MALA^^-ALS
JOHNATHAN COOPER,
Appellant
SEP 23 2015
VS.
FILED IN
COURT OF CRIMINAL APPEALS
THE STATE OF TEXAS,
SEP 23 IZ'.j
Appellee
Abel Acosta, Cierk
Oh Petition for Discretionary Review
from the Second Court of Appeals
in No. 02-15-00145-CR Affirming the Conviction
in No. 1031532D from the
297th District Court
Tarrant County, Texas
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Johnathan Cooper
TDCJ No. 1862306
F.M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
IDENTITIES OF PARTIES
APPELLANT Johnathan Eugene Cooper
STATE'S ATTORNEY
ON APPEAL Debra Windsor
Assistant District Attorney
401 W. Belknap St.
Fort Worth, TX 76196-0201
TRIAL JUDGE Honorable Everret Young
297th Judicial District Court
Tarrant County, Texas
HABEAS TRIAL JUDGE Honorable David C. Hagerman
297th Judicial District Court
Tarrant County, Texas
li
TABLE OF CONTENTS
IDENTITIES OF PARTIES ii
TABLE OF CONTENTS iii
INDEX OF AUTHORITIES iv-v
STATEMENT REGARDING ORAL ARGUMENT 1
STATEMENT OF THE CASE 2
STATEMENT OF PROCEDURAL HISTORY 3
GROUNDS FOR REVIEW 4
1. Does the court of appeals have any jurisdiction to
review the slower court's denial of Appellant's motion
requesting appointment of counsel for purposes of invest
igating, preparing and presenting his ineffective assist
ance of counsel claim(s) in a postconviction Article
11.07 application for writ of habeas corpus?
2. Did the court of appeals err in concluding that it
does not have jurisdiction to review the lower court's
decision without conducting proper inquiry?
3. What court would have proper jurisdiction to review
denial of a request for appointment of counsel made pur
suant to article 11.074, Tex. Code Crim. Proc?
REASONS FOR REVIEW 5
ARGUMENT AND AUTHORITIES 6-10
Ground 1 6-8
Ground 2 8"10
qround 3 10
PRAYER 11
UNSWORN DECLARATION 11
CERTIFICATE OF SERVICE 12
APPENDIX 13-19
ill
INDEX OF AUTHORITIES
CASES
Bright v. State,
296 S.W.3d 329 (Tex.App. - Amarillo 2009) 7, 8
Martinez v. Ryan,
132 S. Ct. 1309 (2012) 6
McKown v. State,
915 S.W.2d 160 (Tex.App. - Fort Worth 1996, no pet.). 7
Pitts v. State,
113 S.W.3d 393 (Tex.App. - Houston [1st Dist.] 2003) 7, 8
Trevino v. Thaler,
133 S. Ct. 1911 (2013) 6
STATUTES
Tex. Code Crim. Proc.
Article 1.051(d) 6
Article 11.07 4
Article 11.074 c 4# 10
Chapter 64 ' 7
Tex. Gov't. Code
Section 24.016 6» 7
Tex. Pen. Code
Section 22.011(a)(2) 2
iv
STATEMENT OF THE CASE
After agreeing to plead no contest in exchange for a recom
mended punishment of two years confinement (time-served), Appel
lant was convicted of the offense of sexual assault of a minor,
Tex. Pen. Code Ann., sec. 22.011(a)(2), in the 297th District
Court of Tarrant County, Texas. Punishment was thereafter asses
sed at the recommended two years confinement.
STATEMENT OF PROCEDURAL HISTORY
Proceeding pro se, Appellant filed motion in the convicting
court seeking appointment of habeas counsel. That motion was
denied. Appellant thereafter sought motion for reconsideration
of the court's perfunctory denial. That motion too was perfunct
orily denied by the convicting court on July 7, 2015. Appellant
took timely appeal. In a written per curiam opinion issued.on
June 18, 2015, the Second Court of Appeals dismissed the appeal
for want of jurisdiction. No motion for rehearing was sought.
GROUND FOR REVIEW 1
Does the court of appeals have any jurisdiction to review
the lower district court's denial of Appellant's motion request
ing appointment of counsel for purposes of investigating, pre
paring and presenting his ineffective assistance of counsel
claim(s) in a postconviction Article 11.07 application for writ
of habeas corpus?
GROUND FOR REVIEW 2 *
Did the court of appeals err in concluding that it does
not have jurisdiction to review the lower court's decision with
out conducting proper inquiry?
GROUND FOR REVIEW 3
What court would have proper jurisdiction to review denial
of a request for appointment of counsel made pursuant to article
11.074, Tex. Code Crim. Proc?
REASONS FOR REVIEW
1. The court of appeals' decision conflicts with another
court of appeals' decision on the same issue. TEX. R. APP. P.
66.3(a)
2. The court of appeals has decided an important question
of state law that has not been, but should be, settled by the
Court of Criminal Appeals. TEX. R. APP. P. 66.3(b).
3. The court of appeals has so far departed from the ac
cepted and usual course of judicial proceedings as to call for
an exercise of the Court of Criminal Appeals' power of super
vision. TEX. R. APP. P. 66.3(f).
GROUND FOR- REVIEW 1
Statement of Facts
Appellant filed in the 297th District Court of Tarrant Coun
ty, Texas, his motion seeking appointment of habeas counsel
pursuant to the United States Supreme Court's decisions in Mar
tinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler,
133 S. Ct. 1911 (2013), as well as article 1.051(d), Tex. Code
Crim. Proc, and section 24.016, Tex. Gov't. Code, for the speci
fic purpose of investigating, preparing and presenting his claim
of ineffective assistance of counsel in an article 11.07 applica
tion for writ of habeas corpus. That motion was perfunctorily
denied by the district court. Appellant thereafter filed motion
for reconsideration in the district court which was denied on
July 7, 2015. Appellant timely noticed appealed to the Second
Court of Appeals sitting at Fort Worth, Texas.
On May 13, 2015, concerned that it lacked jurisdiction over
the appeal because it "has no jurisdiction over matters relating
to postconviction applications under article 11.07, including
requests for appointment of counsel," the court of appeals not
ified the parties that if either desired to continue the appeal,
they must file with the court, on or before May 26, 2015, a
response showing grounds for continuing the appeal (Cooper v.
State, COA No. 02-15-00145-CR j) K'Appendlat li7vl.8).. Appellant filed
a pro se response to the court's May 13, 2015 letter.
In a written per curiam opinion issued on June 18, 2015,
the court of appeals dismissed the appeal for want of jurisdict
ion, explaining that it generally has jurisdiction to consider
an appeal by a criminal defendant only from a judgement of con
viction, citing McKown v. State, 915 S.W.2d 160, 161 (Tex.App. -
Fort Worth 1996, no pet.). The court of appeals went on to opine
that it does not have jurisdiction over a postconviction appli
cation for writ of habeas corpus in a felony case, including
a related motion for appointment of counsel (citations omitted)
(Memo. Op., Appendix at
Argument and Authorities
The court of appeals' disposition of the appeal conflicts
with the Amarillo court of appeals' decision in Bright v. State,
296 S.W.3d 329 (Tex.App. - Amarillo 2009) (court of appeals
possessed limited jurisdiction to review the denial of appoint
ment of counsel), as well as conflicts with the Houston court
of appeals' decision in Pitts v. State, 113 S.W.3d 393 (Tex.App.
- Houston [1st Dist.] 2003) (requiring trial courts to appoint
counsel in exceptional cases under section 24.016, Tex. Gov't.
Code, and that order denying such appointment reviewed by court
of appeals for abuse of discretion).
Appellant argues that court of appeals in this case had,
at the very least, "limited" jurisdiction to consider the lower
court's denial of his motion seeking appointment of habeas coun
sel, similar to that of a denied motion for appointment of coun
sel in a DNA testing request under Chapter 64, Tex. Code Crim.
Proc, Bright v. State, supra, or that of denial of appointment
of counsel in an expunction proceeding, Pitts v. State, supra.
GROUND FOR REVIEW 2
Statement of Facts
Having been unexpectedly notified by the court of appeals
that he was required to show how the court may have jurisdiction
to review the lower court's denial of his motion for habeas
counsel, Appellant moved the court of appeals for an extension
of time in which to research and prepare a showing to continue
the appeal because Appellant was at that time being housed ac
cording to the institutional "in-transit" protocol after return
to TDCJ-CID following benchwarrant to his county of conviction.
Design and operation of access to courts applicable to pris
oners housed in the "in-transit" protocol is such that the pris
oner has only limited access to legal materials from the unit
law library. That is, the prisoner may request only three items
of reference per day. Rather than have the benefit of being
permitted to attend the unit law library where legal reference
materials are kept and maintained, the "in-transit" prisoner
can only request three legal references per day, and those refer
ence Items are delivered to him the day following his request,
and retrieved by unit law library personnel twenty-four hours
later.
These circumstances make it particularly difficult and time-
consuming for the pro se appellant to adequately research appli
cable statutory and decisional law - especially in a matter
such as this one where the issue at hand is new and rather unset
tled or otherwise unclear. In other words, if the court of ap
peals, in its vast knowledge and resources, is unsure whether
it has jurisdiction to review a given lower court decision,
how much moreso for the layman appellant who is proceeding pro
se with very limited access to legal reference materials due
to the circumstances of his being temporarily housed under the
more restrictive "in-transit" protocol.
Argument and Authorities
Appellant argues that it was improper and erroneous for
the court of appeals to dismiss the appeal for want of juris
diction without reviewing the case and itself conducting adequate
inquiry into the matter of jurisdiction, given that the matter
appears unsettled, and/or without granting Appellant adequate
time to further research the matter where, at the time of the
court of appeals' May 13, 2015, notice to the parties through
the May 26, 2015 deadline set by the court of appeals for the
parties to show grounds for continuiing the appeal, Appellant's
institutional housing status was that of "in-transit," which
provides Appellant limited access to law books and legal refer
ence materials.
Moreover, because there has been recent drastic changes
in state and federal law relevant to the appointment of counsel
.in criminal habeas cases which are sure to make request for
habeas counsel in such cases as this one a common and routine
matter, the court of appeals should have taken the opportunity
presented by this case to sua sponte determine whether it posses
ses jurisdiction to review a lower court's denial of requests
for appointment of habeas counsel made pursuant to those recent
changes in relevant state and federal law.
GROUND FOR REVIEW 3
Statement of Facts
Article 11.074, Tex. Code Crim. Proc. is newly added to
the code. Statutory law, at least that available for Appellant
to review within the institutional setting, does not expressly
indicate exactly what court has jurisdiction to review the denial
of a of a request for appointment of counsel made pursuant to
Article 11.074.
Argument and Authorities
Appellant argues that, similar to denials of appointment
of counsel requests made during DNA testing proceedings and
expunction proceedings, the court of appeals should possess
at least a limited jurisdiction to review denials of appointment
of counsel in a proceeding related to a postconviction applica
tion for writ of habeas corpus.
10 '
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Honorable
Court grants discretionary review of the court of appeals' dis
position dismissing the appeal for want of jurisdiction. Appel
lant prays for general relief.
Respectfully submitted,
L
Johnathan Cooper
TDCJ No. 1862306
French M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
UNSWORN DECLARATION
I, Johnathan Cooper, TDCJ No. 1862306, being presently incar
cerated within the French M. Robertson Unit of the Texas Depart
ment of Criminal Justice-Correctional Institutions Division,
located in Jones County, Texas, hereby declare under penalty
of perjury that the foregoing is true and correct, and placed
in the outgoing institutional mailbox on this RSu^ day of Sept
ember, 2015, to be mailed U.S. Mail, first-class postage prepaid,
addressed to: Court of Criminal Appeals of Texas, P.O. Box
12308, Capitol Station, Austin, Texas 78711-2308. Executed on
this the fg£*vday of September, 2015.
johnathan Cooper
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going pleading has been duly served upon opposing counsel by
mailing same U.S. Mail, firest-class postage prepaid, addressed
to: Debra Windsor, Assistant District Attorney, 401 W. Belknap
St., Fort Worth, TX 76102-1913. Executed on this the (Off-?, day
of September, 2015.
johnathan Cooper
12
CAUSE NO. 1031532D
THE STATE OF TEXAS IN THE 297TH
VS DISTRICT COURT OF
JOHNATHAN COOPER TARRANT COUNTY, TEXAS
ORDER ON DEFENDANTS PRO SE MOTION
On this the 7th day ofJuly, 2015, Defendant's Pro Se Motion for RECONSIDERATION OF
DEFENDANT MOTION REQUESTING APPOINTMENT OF HABEAS CORPUS COUNSEL
was presented to the court.
The motion has been considered and said motion is hereby;
(GRANTED) (NO ACTION)
OR Set for hearing beforethis court on the
o'clock .m.
_Copy sent to Defendant, Defense attorney and Attorney for the State
on .by
FILED
THOMAS A WlUDEapiST. CLERK
TARRANT COUNTY. TEXAS
JUL 0 8 2015
BY. sail .DEPUTY
Appendix - 14
Court of Appeals
Second District of Texas
CHIEF JUSTICE CLERK
TERRIE LIVINGSTON TIM CURRY CRIMINAL JUSTICE CENTER
DEBRA SPISAK
401 W. BELKNAP, SUITE 9000
JUSTICES FORT WORTH, TEXAS 76196-0211 CHIEF STAFF ATTORNEY
LEEANNDAUPHINOT LISA M. WEST
ANNE GARDNER TEL: (817) 884-1900
SUE WALKER GENERAL COUNSEL
BILL MEIER FAX: (817) 884-1932 CLARISSA HODGES
LEE GABRIEL
BONNIE SUDDERTH www.txcourts.gov/2ndcoa
May 13, 2015
Johnathan Cooper
Byrd Unit #1862306
21 FM 247
Huntsville, TX 77320
RE: Court of Appeals Number: 02-15-00145-CR
Trial Court Case Number: 1031532D
Style: Johnathan Cooper
v.
The State of Texas
The court has received a copy of the notice of appeal in this case. See
Tex. R. App. P. 25.2(c).
The court is concerned that it lacks jurisdiction over this appeal because
this court has no jurisdiction over matters relating to postconviction applications
under article 11.07 of the code of criminal procedure, including requests for
appointment of counsel. See Tex. Code Crim. Proc. Ann. art. 11.07 (West Supp.
2014).
Unless the appellant or any party desiring to continue the appeal files with
the court, on or before Tuesday, May 26, 2015, a response showing grounds for
continuing the appeal, this appeal may be dismissed for want of jurisdiction. See
Tex. R. App. P. 44.3.
Respectfully yours, i
DEBRA SPISAK, CLERK
By: Bonnie Alexander, Deputy Clerk
Appendix - 15
02-15-00145-CR
May 15, 2015
Page 2
cc: Criminal District Clerk, Tarrant County
Tim Curry Criminal Justice Center
401 W. Belknap, 3rd Floor
Fort Worth, TX 76196
Court Reporter, 297th District Court
Tim Curry Criminal Justice Center
401 W. Belknap St.
Fort Worth, TX 76196-0229
David C. Hagerman
Judge, 297th District Court
Tim Curry Criminal Justice Center
401 W. Belknap, 5th Floor
Fort Worth, TX 76196
Debra A. Windsor
Assistant District Attorney
401 W. Belknap St.
Fort Worth, TX 76102-1913
Appendix - 16
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00145-CR
JOHNATHAN COOPER APPELLANT
V.
THE STATE OF TEXAS STATE
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1031532D
MEMORANDUM OPINION1
On April 30, 2015, Appellant Johnathan Cooper filed a notice of appeal
challenging the trial court's January 28, 2015 order denying his motion for
appointment of postconviction habeas counsel. We sent Appellant a letter
notifying him of our concern that we lack jurisdiction over this appeal because
this court has no jurisdiction over matters relating to postconviction applications
1See Tex. R. App. P. 47.4.
Appendix - 17
under article 11.07 of the code of criminal procedure.2 We indicated that .this
appeal could be dismissed absent the filing of a response showing grounds for
continuing the appeal. Although we received a response, it does not show
grounds for continuing the appeal.
We generally have jurisdiction to consider an appeal by a criminal
defendant only from a judgment of conviction.3 We do not have jurisdiction over
a postconviction application for writ of habeas corpus in a felony case, including
a related motion for appointment of counsel.4
Accordingly, we dismiss this appeal for want of jurisdiction.
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, J J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 18, 2015
2Tex. Code Crim. Proc. Ann. art. 11.07, § 5 (West 2015).
3See McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth
1996, no pet.).
4Taylor v. State, No. 14-13-00614-CR, 2013 W.L 4816409, at *1 (Tex.
App—Houston [14th Dist.] Sept. 10, 2013, no pet.) (mem. op., not designated for
publication); Ex parte Wall, No. 02-11-00326-CR, No. 02-11-00517-CR, 2012 WL
5869595, at *9 (Tex. App.—Fort Worth Nov. 21, 2012, no pet.) (mem. op., not
designated for publication); see Tex. Code Crim. Proc. Ann. art. 11.07, § 5; Ater
v. Eighth \Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig.
proceeding) (stating that the Texas Court of Criminal Appeals is the "only court
with jurisdiction in final post-conviction felony proceedings").
2
Appendix - 18
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00145-CR
Johnathan Cooper § From the 297th District Court
§ of Tarrant County (1031532D)
v. § June 18,2015
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
the appeal should be dismissed. It is ordered that the appeal is dismissed for
want of jurisdiction.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
Appendix - 19
Court of Appeals
Second D i s t r i c t o f Texas
CHIEF JUSTICE CLERK
TERRIE LIVINGSTON tim curry criminal justice center DEBRA SPISAK
401 w. belknap, suite 9000
JUSTICES fort worth, texas 76196-0211 CHIEF STAFF ATTORNEY
LEE ANN DAUPHINOT LISA M. WEST
ANNE GARDNER TEL: (817) 884-1900
SUE WALKER GENERAL COUNSEL
BILL MEIER FAX: (817) 884-1932 CLARISSA HODGES
LEE GABRIEL
BONNIE SUDDERTH www.txcourts.gov/2ndcoa
June 1,2015
Johnathan Cooper— Debra A. Windsor
Byrd Unit #1862306 Assistant District Attorney
21 FM 247 401 W. Belknap St.
Huntsville, TX 77320 Fort Worth, TX 76196-0201
* DELIVERED VIA E-MAIL *
RE: Court of Appeals Number: 02-15-00145-CR"
Trial Court Case Number: 1031532D
Style: Johnathan Cooper
v.
The State of Texas
The pro se's response to our letter dated May 15, 2015, has been filed
under the date of Thursday, May 28, 2015, in the above referenced cause.
Respectfully yours,
DEBRA SPISAK, CLERK
By: Karen Brown, Deputy Clerk
Appendix - 20
NO. PD-0895-15
JOHNATHAN COOPER § IN THE COURT OF
§
vs. § CRIMINAL APPEALS
§
THE STATE OF TEXAS § AUSTIN, TEXAS
MOTION TO SUSPEND RULE 68.11
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Johnathan Cooper, Appellant, pro se, and respect
fully moves the Court to exercise its authority granted by Rule
2, Tex. R. App. Proc, to suspend operation of Rule 68.11, Tex.
R. App. P., in this case. In support of this motion, Appellant
would show the following:
I. .
1. Appellant is petitioning the Court for discretionary
review of the court of appeals' order dismissing the appeal
in Johnathan Cooper v. State of Texas, COA No. 02-15-00145-CR.
2. Rule 68.11 of the Texas Rules of Appellate Procedure,
requires that Appellant serve a copy of the petition upon the
State Prosecuting Attorney in addition to the service required
by Rule 9.5 of said rules.
3. Appellant, as a prisoner confined within the Texas
Department of Criminal Justice-Correctional Institutions Division
does not have access to photocopying equipment capable of making
multiple copies of the petition for service upon both State's
attorneys..
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays the Honorable
Court grants this motion and suspends operation of Rule 68.11,
Tex. R. App. P., in this case. Appellant prays for general relief.
Respectfully submitted,
^Johnathan Cooper
TDCJ No. 1862306
French M. Robertson Unit
12071 FM 3522
Abilene, TX 79601
Appellant, pro se
UNSWORN DECLARATION
I, Johnathan Cooper, TDCJ No. 1862306, being presently incar
cerated at the French M. Robertson Unit of the Texas Department
of Criminal Justice-Correctional Institutions Division, located
in Jones County, Texas, hereby declare under penalty of perjury
that the foregoing is true and correct, and placed in the out
going prison mailbox on this \^P-t day of September, 2015, to
be mailed U.S. Mail, first-class postage prepaid, addressed
to: Court of Criminal Appeals of Texas, P.O. Box 12308, Austin,
Texas 78711-2308. Executed on this the I$Pq day of September,
2015.
6sLo-- Cj-•^au>
ohnathan Cooper
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the fore
going document has been duly served upon opposing counsel
via U.S. Mail, first-class postage prepaid, addressed to:
Debra A. Windsor, Assistant District Attorney, 401 W. Belknap
St., Fort Worth, TX 76196-0201. Executed on this the /S^-
day of September, 2015.
\Johnathan Cooper
Birs*S1Tvv,7 . *r #-i-v" ^ **fx, ^*"*^s» IT ™T- " *Jn. •*> i-^t" Tj* <5^E*—>y$. ' - "V^*^!
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O | 01-03-2023 | 09-29-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2778619/ | IN THE COURT OF APPEALS OF IOWA
No. 14-2083
Filed February 11, 2015
IN THE INTEREST OF D.M. and P.C.,
Minor Children,
A.C., Mother,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,
District Associate Judge.
A mother appeals the termination of her parental rights to her two
daughters. AFFIRMED.
Patrick W. O’Bryan of O’Bryan Law Firm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Kathrine S. Miller-Todd, Assistant
Attorney General, John P. Sarcone, County Attorney, and Amanda Johnson,
Assistant County Attorney, for appellee.
Laura Lockwood of Lockwood Law Firm, P.L.L.C., Des Moines, for father.
Paul White, Des Moines, attorney and guardian ad litem for minor
children.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, J.
This case involves the termination of the parental relationship between a
mother and her two daughters, D.M. and P.C., both of whom have a rare and
potentially fatal genetic disorder. The mother argues on appeal that were it not
for the children’s special needs, the court would not have been involved with the
family and nothing in the record proves she is incapable of caring for the children.
Because attending to the children’s strict medication and dietary needs is critical
to their survival and healthy development, and the professionals who worked with
this family did not have faith the mother could do so, we affirm the juvenile court
order.
I. Background Facts and Proceedings
D.M. is four and P.C. is one year old. Both girls have been diagnosed with
Tyrosinemia type 1, an inherited disorder marked by the lack of ability to
breakdown the amino acid tyrosine. “As a result of this deficiency, toxic
substances build up in the blood and can cause liver failure, kidney disfunction,
and neurological problems.” According to Maria Victoria Dajud, a pediatrician at
Blank Children’s Hospital in Des Moines, “diet and special protein replacements
remain an important part of life-long treatment.” Doctors have prescribed the
drug Orfadin, for D.M. and P.C., which they must drink as a protein-replacement
formula throughout each day in regimented doses. When asked what the
consequences could be if the children did not drink the formula, home health
nurse Carol Shannon testified: “Death.” She explained less dramatic
3
consequences included neurological crises, emotional instability, and
developmental delays.
In addition to the prescription formula, the children’s metabolic disorder
requires them to follow a special low-protein diet. Cheryl Stimson, a registered
dietician at the University Hospitals metabolic clinic, testified it was important for
parents to keep a food record indicating what their child eats, which needs to be
measured out to the half cup or fourth cup so they can stay within the
recommended amount of protein for the entire day.
The mother is correct that her family first came to the attention of the Iowa
Department of Human Services (DHS) because of D.M.’s medical condition.1 In
July 2012, D.M. was hospitalized for dehydration and the hospital staff
determined the parents had not been giving her the prescribed formula. The
parents had failed to follow up with the child’s blood tests and cancelled
appointment with the Visiting Nurse Services. A visiting nurse had recorded
D.M.’s weight as 25.2 pounds on June 26, 2012 and by the time D.M. checked
into the hospital on July 10, 2012, she weighed only 22.2 pounds—a ten percent
1
The family lived in Tennessee before moving to Iowa. Tennessee records indicate the
mother lost custody of her older son in 2009 due to concerns he was being exposed to
domestic violence, but the mother testified she “gave [her] guardianship” of the child to
her sister. That child is not involved in these proceedings. As for D.M., her condition
was diagnosed at Vanderbilt University in June 2011 when she was eight months old.
Tennessee authorities removed D.M. from her parents’ care in March 2012 because
they were not providing her proper medical treatment. In April 2012, a Tennessee court
placed custody of D.M. with her father and allowed him to move to Iowa.
4
drop. While D.M. was hospitalized, her father2 physically assaulted the mother in
front of the hospital staff.
On July 17, 2012, the juvenile court removed D.M. from the mother’s care
and placed her in the custody of DHS as the family “fail[ed] to meet the child’s
medical needs.” The court adjudicated D.M. as a child in need of assistance
(CINA) pursuant to Iowa Code sections 232.2(6)(b), 232.2(6)(c)(2), 232.2(6)(e),
and 232.2(6)(n) (2011) on August 16, 2012.
On September 18, 2012, the court adopted a case permanency plan that
required the mother to undergo a complete psychological evaluation at University
Hospitals as soon as possible and to adhere to recommendations for mental
health treatment. The court was concerned about reports from Tennessee
concerning the mother’s unresolved mental health issues.
On April 9, 2013, the State filed a petition to terminate the parents’ legal
relationship with D.M. On November 14, 2013, the juvenile court denied the
State’s petition and granted a six-month extension for the family to work toward
reunification. Despite the additional time the mother received, she failed to
cooperate with the DHS workers and declined to take advantage of the services
provided to her.
In January 2014, the mother gave birth to P.C. The child was diagnosed
with the same genetic disorder as her older sister, which the mother had a history
of not managing properly. The juvenile court ordered P.C.’s removal in February
2
The father voluntarily consented to the termination of his parental rights and is not a
party to this appeal.
5
2014, finding it was contrary to her welfare to stay with the mother. 3 The court
adjudicated P.C. as a CINA on March 14, 2014.
It was not until this point in the case, March 2014, that the mother
underwent the psychological evaluation ordered by the court eighteen months
earlier. In the evaluation, the mother acknowledged prior diagnoses of
depression and anxiety. The mother did not make the results of the exam
available to DHS until two weeks before the termination hearing.
The mother attended visitations for the children, but would often clash with
the FSRP (family safety, risk and permanency) workers. The workers noticed
D.M. picked up on her mother’s hostility, acting scared, and being aggressive
with her baby sister P.C. The mother did not show a healthy bond with D.M. and
did not insist the child drink her prescribed formula. In fact, on two occasions the
mother dumped out the formula so it would appear to the nurse the child had
received the appropriate dosage. The mother interacted better with P.C., but had
a hard time managing both children at the same time.
On October 1, 2014, the State filed a new petition to terminate the
parental rights of the mother and the father as to both D.M. and P.C. The court
held a hearing on November 14 and 17, 2014. The State presented the
testimony of DHS workers, FSRP staff, a visiting nurse, a nurse practitioner, and
3
Because D.M.’s father, R.M., had been abusive to the mother, a protective order
required they have no contact. The mother maintains R.M. is not P.C.’s father. But
pediatric nurse practitioner Judy Miller testified Tyrosinemia type 1 is an autosomal
recessive condition, meaning for the child to have it, both parents must be carriers of
one copy of a non-working gene. The condition is not common, occurring in only about
one in 120,000 births.
6
a dietician. The mother testified on her own behalf, telling the court she did not
believe her personal life would affect the children’s well-being.
On December 8, 2014, the juvenile court issued an order terminating the
mother’s parental rights under Iowa Code sections 232.116(1)(d), (f), (i), and (h)
(2013). The mother now appeals.
II. Standard of Review
We review termination proceedings de novo. In re A.M., 843 N.W.2d 100,
110 (Iowa 2014). The State must prove the grounds for termination by clear and
convincing evidence. In re D.W., 791 N.W.2d 703, 706 (Iowa 2010). Evidence is
“clear and convincing” when there are no serious or substantial doubts as to the
correctness of the conclusions of law drawn from the evidence. See In re C.B.,
611 N.W.2d 489, 492 (Iowa 2000).
III. Analysis of Mother’s Claims
In her petition on appeal, the mother contends the juvenile court erred in
finding clear and convincing evidence her parental rights should be terminated.
Although the juvenile court relied on three statutory bases for the termination of
rights as to each child, the mother’s petition cites only to Iowa Code section
232.116(1)(d) in support of her argument. She does not challenge Iowa Code
sections 232.116(1)(f) (as to D.M), (i), or (h) (as to P.C.).
The State claims the mother did not preserve error because she does not
mention the specific deficiencies in the State’s proof and fails to cite authority in
support of her position. We agree the mother’s appellate argument does not
adequately address all of the grounds for termination. See Iowa R. App. P.
7
6.903(g)(3) (“Failure to cite authority in support of an issue may be deemed
waiver of that issue.”). But even if we were to reach the merits of the general
argument advanced by the mother, we would affirm the juvenile court’s order.
The juvenile court terminated the mother’s relationship with D.M. and P.C.
based on paragraphs (f)4 and (h)5 respectively. Both require proof the child
“cannot be returned to the custody of the child’s parents . . . at the present time.”
“At the present time” means the time of the termination hearing. See A.M., 843
N.W.2d at 111.
The DHS case worker testified she had not been able to observe the
mother’s home environment because the mother was living with a friend and was
waiting to move into her own apartment. The worker testified stable housing was
critical to ensuring the children adhere to their strict medication and diet regime.
4
Iowa Code section 232.116(1)(f) reads:
The court finds that all of the following have occurred:
(1) The child is four years of age or older.
(2) The child has been adjudicated a child in need of assistance
pursuant to section 232.96.
(3) The child has been removed from the physical custody of the
child’s parents for at least twelve of the last eighteen months, or for the
last twelve consecutive months and any trial period at home has been
less than thirty days.
(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 as
provided in section 232.102.
5
Iowa Code Section 232.116(1)(h) reads:
The court finds that all of the following have occurred:
(1) The child is three years of age or younger; (2) The child has been
adjudicated a child in need of assistance pursuant to section 232.96; (3)
The child has been removed from the physical custody of the child’s
parents for at least six months of the last twelve months, or for the last six
consecutive months and any trial period at home has been less than thirty
days; (4) There is clear and convincing evidence that the child cannot be
returned to the custody of the child’s parents as provided in section
232.102 at the present time.
Iowa Code section 232.116(1)(h) (2013).
8
The mother acknowledged at the hearing she did not yet have suitable
housing for the children. She testified she believed she could care for them, but
added, “I would suggest that until I secure an apartment, I would think that it
would be safe for my children to stay where they are at.” The mother asserted
she would have her own residence by December 1, 2014 (about two weeks after
the termination hearing). But she also testified she had not seen the apartment,
did not know the address, nor did she know what condition the apartment was in.
Considering the entire record, we agree with the juvenile court’s
determination the children could not be returned to the mother’s care at the
present time. Not only did the mother not have suitable housing lined up, she
had not shown enough parenting progress to move beyond supervised visitation.
The mother only recently met the case permanency goal of obtaining a
psychological evaluation. The diagnosis was “severe, recurrent major
depression without psychotic features.” The evaluator noted the mother had
challenges with “anger, coping, learning [and] practicing proper care for her
daughters and their disease, following rules/regulations, finances, lack of
employment, parenting.”
As the juvenile court explained:
As the above information was not made available to DHS until just
eight days prior to the hearing on termination of parental rights,
there was no opportunity for communication between DHS and [the
mother’s] physician assistant and therapist to exchange information
and assist in the provision of mental health services which would
have been more beneficial to [the mother] in her efforts at
reunification. [The mother] testified during the termination hearing
that it is her personal right not to provide information, and that she
does not have to provide information if she doesn’t want to. While
she is correct in her statement, her refusal to timely provide
9
information which would assist in reunification efforts only served to
prevent success.
The mother already had one extension of time to work toward
reunification. The children should not be forced to postpone further a permanent
placement while the mother lines up suitable housing and addresses ongoing
concerns about her mental health. See In re A.B., 815 N.W.2d 764, 778 (Iowa
2012) (“It is simply not in the best interests of the children to continue to keep
them in temporary foster homes while the natural parents get their lives
together.”). Therefore, we affirm the termination of parental rights under
subsections (f) and (h).
When the juvenile court terminates parental rights on more than one
statutory ground, we need only identify support for one of the cited grounds to
affirm. In re S.R., 600 N.W.2d 63, 64 (Iowa 1999). But given the mother’s
assertions on appeal, we also opt to address subsection (i) as a ground for
terminating the relationship between the mother and her daughters.
The mother alleges her rights are being terminated because her children
have a rare genetic disease, which if not properly treated can be fatal, and “the
professionals assigned to this case felt others could do a better job in taking care
of these children than their mother” given her mental health diagnoses. The
mother alleges: “Much was made of the fact that the children do not want to drink
their milk which contains medicine during visits with [the mother], but overlooked
in the criticism is the fact that the children were often fed shortly before these
visits and were not hungry.” The mother’s allegations do not accurately reflect
the evidence offered in support of the termination.
10
In terminating under section 232.116(1)(i),6 the juvenile court found both
children met the definition of CINA based on a finding of neglect through acts or
omissions of the parents. See In re K.M., 653 N.W.2d 602, 605 (Iowa 2002)
(holding first paragraph of subsection (i) does not require an adjudication of
abuse or neglect, but instead a finding the child meets the CINA definition).
These children have a serious metabolic disorder. Failure to provide them
proper medical care and nutrition can result in rapidly deteriorating health—
leading to death. As the district court stated D.M. “was heading in that direction
when DHS first became involved in 2012.” The mother did not cooperate with
the visiting nurse concerning the care of D.M. And when P.C. was diagnosed
with the same serious medical condition shortly after her birth, the mother did not
allow the nurse to see the infant. The district court appropriately decided the
children met the CINA definition for neglect.
We also agree with the district court that there is clear and convincing
evidence the mother’s neglect posed a significant risk to the children’s lives and
the offer or receipt of services would not correct the conditions that led to the
neglect within a reasonable period of time. The mother had not consistently
6
Iowa Code section 232.116(1)(i) reads:
The court finds that all of the following have occurred:
(1) The child meets the definition of child in need of assistance
based on a finding of physical or sexual abuse or neglect as a result of
the acts or omissions of one or both parents.
(2) There is clear and convincing evidence that the abuse or
neglect posed a significant risk to the life of the child or constituted
imminent danger to the child.
(3) There is clear and convincing evidence that the offer or receipt
of services would not correct the conditions which led to the abuse or
neglect of the child within a reasonable period of time.
11
accepted services to assist her in understanding and properly addressing the
children’s medical and nutritional needs. Our case law has recognized that
neglect can take on a distinct meaning in the case of children with special needs.
See In re J.E., 723 N.W.2d 793, 799 (Iowa 2006); see also In re J.W.D., 456
N.W.2d 214, 218–19 (Iowa 1990).
Visiting nurse Carol Shannon, who attended the mother’s visitation with
the children, testified the mother understands what the disease is, “but does not
fully believe or comprehend the impact that it can have on their lives.” Shannon
recalled the mother saying she would like to have a “normal visit of just playing”
with the children. The nurse explained: “There will never be normal visitations
because their life depends on a very consistent, very structured adherence to the
medical plan.” The nurse believed the mother’s mental health issues hindered
her ability to provide for the children’s medical needs and expressed her opinion
the mother had not “fully come to grips with how serious this condition is.”
Contrary to the mother’s allegations, the foster mother testified she offered
D.M. less formula in the mornings when the child had supervised visitation in the
“hope that would help her succeed at the visit with drinking her milk.” The foster
mother also testified to the scrupulous effort she went through to be sure the two
girls followed their prescribed feeding schedule.
Not only did the mother lack the parenting skills and the will to be sure the
children drank the prescribed amount of formula during the visits, the mother
showed little promise that she could meet their demanding nutritional needs if
they were returned to her care. The mother was unable to prepare a sample
12
food log to accurately count the amount of protein the children would be
consuming when served different foods. The mother also failed to recognize the
importance of promptly referring P.C. to occupational therapy to work on her
developmental delay in eating solid foods.
Ultimately, we are persuaded by the views of the children’s guardian ad
litem (GAL), who recommended termination of the mother’s parental rights. The
GAL aptly observed this was a case “where there really isn’t any room for error.
As the expert testified, if that strict diet is maintained, the children have a ninety
percent survival rate. If it is not, . . . death can occur.” Based on his involvement
in the case and the evidence presented, the GAL said he did not “have any
confidence that the mother is able to taken on that role and maintain that diet.”
On this record, we find termination was appropriate under section 232.116(1)(i),
as well as under sections 232.116(1)(f) and (h).
AFFIRMED. | 01-03-2023 | 02-11-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/708574/ | 70 F.3d 1268
U.S.v.Land**
NO. 95-30578
United States Court of Appeals,Fifth Circuit.
Oct 19, 1995
Appeal From: E.D.La., No. 91-CV-1380-I
1
AFFIRMED.
**
Conference Calendar | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/4007150/ | Rebecca Smith, being the owner of two adjoining tracts of land, containing 146 acres and 12 acres, respectively, situate on the left hand fork of Mud River in Boone (now Lincoln) County, by deed dated September 10, 1883, (in which her husband, Ezekiel, joined) granted to "the Missionary Baptist Church", and Allen Griffith, Lorenza McNealey and Henry Dotson, as trustees thereof, a portion of said land containing 1-3/4 acres, more or less, "Beginning on a black walnut standing at a drain above the Church house; thence N. crossing the said Left Hand Fork about 18 poles to a black oak standing on a hillside about a straight line from walnut to oak; thence S. around the hillside about 21 poles to a black oak, standing near a chestnut and hickory and on the East side of a small drain thence a straight line down the hillside bout 9 poles to three small walnuts standing on the bank of the said Left Hand Fork about 10 poles *Page 11
to a forked chestnut standing on top of a rock cliff thence E. around the hillside about a straight line 20 poles to the place of beginning." The conveyance provides: "Now should this Church House fail to be used as a place for holding religious services in for one year, then the title to the described tract of land shall fall back to the parties of the first part (grantors), together the said Church House, to them their heirs or assigns." Thereafter, by deed, dated February 18, 1889, the Smiths granted in fee to Thomas A. Griffith 87 acres, including the church lot, of the 158 acre boundary. By mesne conveyances, the title of Griffith to 87 acre parcel became vested in Horse Creek Land Mining Company, a corporation, October 29, 1907. On the same date, Horse Creek Land Mining Company leased the property to South Penn Oil Company, a corporation, for the production of oil and gas. June 10, 1910, South Penn Oil Company assigned its gas rights under the lease to United Fuel Gas Company, a corporation, which soon thereafter drilled on the land several gas wells that have continued to produce gas in paying quantities. By writing dated November 18, 1929, R. E. Vickers, Willet Hill and Delilah Mullens, as trustees of "the Left Hand Fork Missionary Baptist Church" and as special commissioners of the circuit court of Lincoln county, attempted to lease the church lot for oil and gas purposes to J. V. Kingrey and W. L. Wilkerson, who later assigned their rights to Homer L. Hager. This suit was instituted by United Fuel Gas Company, South Penn Oil Company and Horse Creek Land Mining Company against Willet Hill, Delilah Mullens and R. E. Vickers, as trustees of "the Left Hand Fork Missionary Baptist Church", Vess Swanson, Hal Black and Lee Sanson, doing business as Black Drilling Company, J. B. Kingrey, W. L. Wilkerson, Homer L. Hager, A. F. Black and E. W. Connor, for the purpose of enjoining Black, Connor, Swanson, Black and Sanson, acting under Hager, from drilling said lot for oil or gas. From a decree denying relief, plaintiffs have appealed.
The sole question for determination is the legal effect of the deed from Rebecca Smith and husband to the church. *Page 12
Section 47, Article VI of the state constitution declares: "No charter of incorporation shall be granted to any church or religious denomination. Provisions may be made by general laws for securing the title to church property, and for the sale and transfer thereof, so that it shall be held, used, or transferred for the purpose of such church, or religious denomination." Section 1, chapter 57, Code 1923 (in effect at the date of the instrument) provides that "every conveyance, devise or dedication which has been made since the first day of January, one thousand seven hundred and seventy-seven, and every conveyance of land which shall hereafter be made for the use or benefit of any church, religious sect, society, congregation or denomination, as a place of public worship, oras a burial place, or as a residence for a minister, shall be valid, and shall be construed to give the local society or congregation of such church to whom it was so conveyed, devised or dedicated, the control thereof, except as herein provided; and the land shall be held for such purpose and no other." Section 7 of the same chapter limits the amount of land a religious organization may hold for "such purpose" to four acres within, and sixty acres without, an incorporated city, town or village. For want of interest in another, the state alone (it would seem) may enforce the restrictions of section 1(First English Angelical Luthern Church of Wheeling et al v.Arkle, 49 W. Va. 92, 38 S.E. 486), and section 7 (State v.American Baptist Home Mission Society, 96 W. Va. 447,123 S.E. 440) upon the ownership and use of real estate acquired in fee by a religious organization. The conveyance under consideration, however, reserved such interest in the land to the grantors as would have entitled them to enforce the provisions of the statute, as a part of the deed, limiting the use of the land to a place of public worship, a burial place or as a residence for a minister. The instrument by express terms goes even further than the statute, in declaring that the title shall revert upon the discontinuance for a year of the use of the "church house" on the lot for religious services. Plaintiffs, having succeeded to the rights reserved in the grantors, may enjoin the unauthorized use. *Page 13
In United Fuel Gas Co. v. Morley Oil Gas Co., 102 W. Va. 374,135 S.E. 399, where land was conveyed to a school board "to be exclusively appropriated and used as a site for a schoolhouse and school", it was held that the subsequent assigns of the grantors may enjoin the operation of the property for oil or gas by lessees of the board.
The decree of the circuit court will be reversed and a decree entered here, granting the relief prayed.
Reversed and entered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2869385/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
444444444444444444444444444
ON MOTION FOR REHEARING
444444444444444444444444444
NO. 03-04-00660-CV
Home Interiors & Gifts, Inc., Appellant
v.
Carole Keeton Strayhorn, Comptroller of Public Accounts of the State of Texas,
and Greg Abbott, Attorney General of the State of Texas, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. GN303185, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
OPINION
On August 9, 2005, appellant, Home Interiors & Gifts, Inc., filed an unopposed
motion for rehearing seeking a modification of our opinion and judgment issued on July 28, 2005.
Additionally, on August 15, 2005, the appellees, the Comptroller and the Attorney General, filed a
motion for rehearing. We grant the appellant’s unopposed motion and overrule the appellees’
motion. Accordingly, our opinion and judgment issued on July 28, 2005, are withdrawn, and the
following opinion is substituted.
In this case, we determine whether the earned surplus throwback provision of the
Texas franchise tax as applied to appellant, Home Interiors & Gifts, Inc. (Home Interiors),
unconstitutionally burdens interstate commerce. Home Interiors is seeking a refund of franchise
taxes timely paid to appellee, Carole Keeton Strayhorn (the Comptroller). Both parties filed motions
for summary judgment. The district court denied Home Interiors’ motion and granted the
Comptroller’s motion. On appeal, Home Interiors argues that the application of the earned surplus
throwback provision causes the franchise tax to (1) be unfairly apportioned, (2) discriminate against
interstate commerce, and (3) be unfairly related to services provided by Texas. Because we hold that
the franchise tax as applied to Home Interiors lacks internal consistency and, consequently, is
unfairly apportioned, we reverse the district court’s grant of summary judgment in favor of the
Comptroller and render judgment that the tax is unconstitutional as applied to Home Interiors.
BACKGROUND
Home Interiors
Home Interiors is a Texas corporation that employs approximately 350 employees in
Texas. Virtually all its operations occur in Texas—it has no manufacturing, warehousing, or
administrative facilities outside of this state. It is in the business of purchasing home decor products,
accessories, and gifts and wholesaling them to independent contractors, known as “Displayers.”
Additionally, Home Interiors sells a variety of marketing materials to the Displayers to aid in the
retail sale of the products. All of Home Interiors’ profits are generated from the initial sale of the
products to the Displayers. During the period of time relevant to this appeal, Home Interiors sold
products to Displayers located in all fifty states, Washington D.C., and Puerto Rico.
2
The Displayers generate sales by hosting promotional parties where they provide
samples and demonstrate various products. They also distribute catalogs and recruit new salesmen.
Essentially, the Displayers function as a retail outlet for Home Interiors’ wares. However, the
Displayers are not employed by Home Interiors. Home Interiors does not compensate the Displayers
and does not provide them benefits of any kind. It does, however, pay the Displayers a commission
on sales generated by a newly recruited salesperson. Additionally, Home Interiors has no contact
with any of the Displayers’ retail customers and does not install or repair products outside of Texas.
Between 1994 and 1999, Home Interiors timely paid its Texas franchise taxes. It now
seeks a refund of those taxes, contending that the statutory method for apportioning the earned
surplus component of the franchise tax is unconstitutional. After refund hearings were held, the
Comptroller issued a decision in July 2003 stating that she did not have the authority to rule on the
constitutionality of the statutory provisions. Consequently, Home Interiors brought suit in district
court, which upheld the constitutionality of the earned surplus throwback provision.
Texas Franchise Tax
The franchise tax is imposed on corporations in Texas for the privilege of doing
business here. See Tex. Tax Code Ann. § 171.001(a)(1) (West Supp. 2004-05); Anderson-Clayton
Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166, 169 (Tex. App.—Austin 2004, pet. filed);
Rylander v. Fisher Controls Int’l, Inc., 45 S.W.3d 291, 293 (Tex. App.—Austin 2001, no pet.).
Before January 1, 1992, the franchise tax was assessed solely on a corporation’s taxable capital.
Anderson-Clayton Bros., 149 S.W.3d at 169. The result was that capital-intensive industries bore
3
the brunt of the tax. Id. In an effort to broaden the franchise tax base, the legislature added an
alternative assessment on a corporation’s “net taxable earned surplus.” Id. Presently, the tax is
calculated by adding the tax on net taxable capital to the difference between the tax on net taxable
earned surplus and the tax on net taxable capital. See Tex. Tax Code Ann. § 171.002(b) (West
2002); INOVA Diagnostics, Inc. v. Strayhorn, 166 S.W.3d 394, 398 (Tex. App.—Austin, pet. filed).
Despite this awkward formula, the practical effect is to assess the greater of a 4.5 percent tax on net
taxable earned surplus or a .25 percent tax on net taxable capital. See INOVA, 166 S.W.3d at 398.
A corporation’s net taxable capital consists of its stated capital and its surplus. Fisher
Controls Int’l, 45 S.W.3d at 293. Its net taxable earned surplus is comprised of its reportable taxable
income (for federal income-tax purposes) plus certain other sums and less other amounts. Id. at 294.
A corporation’s net taxable capital or net taxable earned surplus is apportioned to the state by
dividing the corporation’s gross receipts generated in Texas by the corporation’s total world-wide
gross receipts.1 See Tex. Tax Code Ann. § 171.106 (West Supp. 2004-05); General Dynamics Corp.
v. Sharp, 919 S.W.2d 861, 863 (Tex. App.—Austin 1996, writ denied). In addition, a corporation’s
gross receipts from each sale of tangible personal property shipped from Texas to a purchaser in
another state are “thrown back” to Texas and added to the gross receipts from business done in
Texas. Tex. Tax Code Ann. §§ 171.103(1) (West 2002), .1032(a)(1) (West Supp. 2004-05). Gross
1
In apportioning net taxable capital and net taxable earned surplus, the gross receipts of a
corporation from its business done in Texas include the receipts from a number of specifically
enumerated categories of business activities and services performed here. See Tex. Tax Code
§§ 171.103 (West 2002), .1032 (West Supp. 2004-05).
4
receipts used to apportion net taxable capital are only thrown back if the corporation is not subject
to taxation in the purchaser’s state. Id. § 171.103(1) (taxable capital throwback provision).
Importantly, gross receipts used to apportion net taxable earned surplus are thrown back if the
corporation “is not subject to any tax on, or measured by, net income, without regard to whether the
tax is imposed.” Id. § 171.1032(a)(1) (earned surplus throwback provision).
The purpose of the earned surplus throwback provision is to capture and tax income
generated from sales in other states that would otherwise go untaxed as a result of Public Law 86-
272. See id.; cf INOVA, 166 S.W.3d at 397 (explaining purpose of Public Law 86-272). Congress
enacted Public Law 86-272 in 1959 in response to a United States Supreme Court decision that
indicated that the federal constitution does not prohibit individual states from imposing an income
tax on out-of-state corporations, even when their only business activity in the state is solicitation of
purchases. 15 U.S.C. § 381(a) (West 1997); see Wisconsin Dep’t of Revenue v. William Wrigley, Jr.
Co., 505 U.S. 214, 220-21 (1992) (discussing opinion in Northwestern States Portland Cement Co.
v. Minnesota, 358 U.S. 450, 452 (1959)). Less than a year after the Northwestern States Portland
Cement opinion, Public Law 86-272 was passed to create minimum standards for business activity
required within a state before that state may impose state income tax on an out-of-state corporation.
See William Wrigley, Jr. Co., 505 U.S. at 223. Specifically, the statute prohibits a state from
imposing a net income tax if the foreign taxpayer’s only business activity in the state is the
solicitation of orders. See 15 U.S.C. § 381(a). A net income tax is “any tax imposed on, or
measured by, net income.” Id. § 383.
5
All parties in this case concede that Public Law 86-272 protects Home Interiors from
being taxed on income generated from sales of its products to Displayers located in most states.2
Consequently, the gross receipts from sales to Displayers in those states were thrown back to Texas
and added to Home Interiors’ receipts from business done in Texas. Home Interiors claims that the
inclusion of the thrown back receipts is significant because, during the time period at issue here,
approximately ninety percent of its revenues were generated from sales outside of Texas.
Accordingly, Home Interiors contends that the application of the earned surplus throwback provision
results in an unfairly apportioned franchise tax assessment.
STANDARD OF REVIEW
We review the trial court’s summary judgment de novo. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Texas Dep’t of Ins. v. American Home
Assurance Co., 998 S.W.2d 344, 347 (Tex. App.—Austin 1999, no pet.). When parties file
cross-motions for summary judgment, each party in support of its motion necessarily takes the
position that there is no genuine issue of fact in the case and that it is entitled to judgment as a matter
of law. City of Pflugerville v. Capital Metro. Transp. Auth., 123 S.W.3d 106, 110 (Tex.
App.—Austin 2003, pet. denied). Thus, when both parties file a motion for summary judgment, we
determine all questions presented and render such judgment as the trial court should have rendered.
See Commissioners Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).
2
We note that Home Interiors’ activities exceeded those protected by Public Law 86-272 in
fourteen states during certain time periods relevant to this appeal. The Comptroller agreed that gross
receipts from sales to those states during the applicable periods were not subject to the throwback
provision, and those receipts were excluded from the apportionment calculation.
6
In order to determine the judgment that the trial court should have rendered, we must
construe the Texas franchise tax statute. In construing a statute, “our objective is to determine and
give effect to the Legislature’s intent.” National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527
(Tex. 2000); see Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999). Statutory
construction is a question of law for the court to decide. See Texas Dep’t of Transp. v. Needham,
82 S.W.3d 314, 318 (Tex. 2002).
DISCUSSION
Home Interiors argues that the application of the earned surplus throwback provision
causes the franchise tax to unconstitutionally burden interstate commerce because it results in an
assessment that (1) is unfairly apportioned, (2) discriminates against interstate commerce, and (3)
unfairly relates to services provided by Texas. Before directly considering Home Interiors’ claim,
a brief review of Commerce Clause jurisprudence is beneficial.
Commerce Clause
The Commerce Clause of the Constitution expressly grants Congress the power “[t]o
regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
U.S. Const., art. I, § 8, cl. 3. In addition to this express grant of authority, the Supreme Court has
held that the Commerce Clause also prohibits certain state regulation of interstate commercial
activity even when Congress has failed to legislate on the subject. Oklahoma Tax Comm’n v.
Jefferson Lines, Inc., 514 U.S. 175, 179-80 (1995); Quill Corp. v. North Dakota, 504 U.S. 298, 309
7
(1992). This implicit principle is known as the “Dormant” or “Negative” Commerce Clause. While
in theory the concept of the Dormant Commerce Clause is relatively simple to understand, its
application to the practical realities of interstate commerce has proved quite difficult.
Initially, the Supreme Court held that interstate commerce was wholly immune from
state taxation. Jefferson Lines, 514 U.S. at 180. Although there were minor deviations, the Court
maintained this formalistic and mechanical approach to state taxation of interstate commerce until
the late 1930s. In 1938, the Court moved away from its traditional “free trade” approach to the
Commerce Clause. In Western Livestock v. Bureau of Revenue, 303 U.S. 250, 252 (1938), the Court
was asked to determine whether a New Mexico tax on the privilege of engaging in specified business
activities violated the Commerce Clause. The taxpayer was an instate magazine publisher and the
tax involved was measured by gross receipts from the sale of advertising in the magazine. Western
Livestock, 303 U.S. at 252. The magazine publisher argued that the revenue generated from the sale
of ad space to out-of-state advertisers was immune from taxation because the contracts were a form
of interstate commerce. Id. at 253. The Court sustained the tax and stated, “It was not the purpose
of the Commerce Clause to relieve those engaged in interstate commerce from their just share of
state tax burden even though it increases the cost of doing business.” Id. at 254. The Court
explained that the tax did not present the risk of double taxation:
So far as the value contributed to appellants’ New Mexico business by circulation of
the magazine interstate is taxed, it cannot again be taxed elsewhere any more than the
value of railroad property taxed locally. The tax is not one which in form or
substance can be repeated by other states in such manner as to lay an added burden
on the interstate distribution of the magazine.
8
Id. at 260. Shortly after Western Livestock, the Court further developed this rationale by invalidating
an unapportioned gross receipts tax on the ground that interstate commerce would be subjected to
the risk of a double tax burden not similarly imposed on intrastate commerce:
The vice of the statute as applied to receipts from interstate sales is that the tax
includes in its measure, without apportionment, receipts derived from activities in
interstate commerce; and that the exaction is of such a character that if lawful it may
in substance be laid to the fullest extent by States in which the goods are sold as well
as those in which they are manufactured.
J.D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 311 (1938).
The multiple taxation doctrine set forth in Western Livestock was not fully embraced
by the Court and was temporarily repudiated in 1946. See Freeman v. Hewit, 329 U.S. 249 (1946);
see also J. Hellerstein & W. Hellerstein, State Taxation ¶ 4.09 (3d ed. 2004) (hereinafter Hellerstein
& Hellerstein). In Spector Motor Serv., Inc. v. O’Connor, 340 U.S. 602, 607-10 (1951), the Court
held that a state is precluded from taxing the privilege of doing an exclusively interstate business,
even by means of a nondiscriminatory, fairly apportioned net income tax. See Hellerstein
& Hellerstein, ¶ 4.09.
In Northwestern States Portland Cement Co. v. Minnesota, the Court attempted to
clear up “the tangled underbrush of past cases” by outlining the aspects of its Commerce Clause
jurisprudence that remained in full force. See 358 U.S. 450, 457-58 (1959). After distinguishing
Spector on the ground that it only involved a tax on the privilege of doing business, although
measured by net income, the Court held that there is no constitutional barrier to the imposition of
a nondiscriminatory, fairly apportioned direct net income tax on a foreign corporation carrying on
9
an exclusively interstate business within the taxing state. Id. at 458-60; see also Hellerstein &
Hellerstein, ¶ 4.10. After Northwestern States many states replaced franchise taxes levied solely on
the privilege of doing business in the state with direct net income taxes. See Hellerstein &
Hellerstein, ¶ 4.10.
In 1977, the Court overruled Spector. See Complete Auto Transit, Inc. v. Brady, 430
U.S. 274, 288 (1977). The Court stated that “the Spector rule does not address the problems with
which the Commerce Clause is concerned. Accordingly, we now reject the rule of Spector Motor
Service, Inc. v. O’Connor, that a state tax on the ‘privilege of doing business’ is per se
unconstitutional when it is applied to interstate commerce.” Complete Auto, 430 U.S. at 288-89.
In reaching this conclusion, the Court noted that many of its post-Western Livestock opinions
considered the practical effect of a state tax rather than the formal language of the tax statute. Id.
at 279. Furthermore, the Court articulated what has come to be known as the Complete Auto
doctrine. Id. Essentially, the Court declared that a tax will survive Commerce Clause scrutiny
“when the tax is applied to an activity with a substantial nexus with the taxing State, is fairly
apportioned, does not discriminate against interstate commerce, and is fairly related to the services
provided by the State.” Id. The four-pronged Complete Auto test continues to guide Commerce
Clause analysis today. See, e.g., American Trucking Ass’ns, Inc. v. Michigan Pub. Serv. Comm’n,
2005 U.S. LEXIS 4843, at *17 (June 20, 2005).
Home Interiors now avers that, as applied to it, the application of the earned surplus
throwback provision causes the franchise tax to fail the Complete Auto test.
10
Substantial Nexus
The first prong of the Complete Auto test asks whether Home Interiors’ activities have
a substantial nexus with the state justifying the application of the franchise tax. Both parties agree
that Home Interiors’ activities within the state are sufficient to constitute a substantial nexus.
Fair Apportionment
The more difficult question is whether the application of the earned surplus
throwback provision to Home Interiors results in an unfair apportionment of franchise-tax liability
under the second prong of the Complete Auto test. The fair apportionment requirement attempts to
ensure that no State taxes more than its fair share of an interstate transaction. Jefferson Lines, 514
U.S. at 184; Goldberg v. Sweet, 488 U.S. 252, 260-61 (1989). “This principle of fair share is the
lineal descendant of Western Live Stock’s prohibition of multiple taxation, which is threatened
whenever one State’s act of overreaching combines with the possibility that another State will claim
its fair share of the value taxed.” Jefferson Lines, 514 U.S. at 184. In order to determine whether
a tax is fairly apportioned, we first ask whether it is “internally consistent,” and if so, whether it is
also “externally consistent.” Id. at 185; Goldberg, 488 U.S. at 261.
The internal consistency test requires us to imagine a hypothetical scenario assuming
that every state imposes a tax identical to the one at issue. Jefferson Lines, 514 U.S. at 185. In this
hypothetical, if interstate commerce bears a burden that is not also borne by intrastate commerce,
then the tax is not internally consistent. Id. “The test asks nothing about the degree of economic
reality reflected by the tax.” Id. The test is merely a tool used to determine whether, as a matter of
law, a State is attempting to tax more than its fair share of interstate transactions. Id.
11
Although the Supreme Court and various state courts have applied the internal
consistency test on a number of occasions, the two most significant and analogous examples are
Armco, Inc. v. Hardesty, 467 U.S. 638 (1984), and Tyler Pipe Industries, Inc. v. Washington Dep’t
of Revenue, 483 U.S. 232 (1987). In Armco, the Court determined that West Virginia’s business and
occupation tax (B&O tax) was internally inconsistent. Armco, 467 U.S. at 642-46. The B&O tax
had two components, a tax on wholesaling and a tax on manufacturing. Id. at 640-41. In general,
a taxpayer engaged in both wholesaling and manufacturing would be liable for taxes on both
activities. Id. However, there was a “multiple activities” exemption that relieved instate
manufacturers who also wholesaled their products in the state from liability for the wholesale tax.
Id.; see Hellerstein & Hellerstein, ¶ 4.15. The result was that an instate manufacturer/wholesaler
only paid the manufacturing tax, but an out-of-state manufacturer who made wholesale sales in West
Virginia paid the wholesale tax, even if it paid a manufacturing tax in another state.
An Ohio corporation challenged West Virgina’s B&O tax scheme, claiming that it
was facially discriminatory and that it unconstitutionally discriminated against interstate commerce.
Armco, 467 U.S. at 639-40. The Court agreed, concluding that the multiple activities exemption
caused the B&O tax to be internally inconsistent. Id. at 642-46. The Court explained that, if every
state adopted an identical B&O tax scheme, corporations that manufactured products in one state and
made wholesale sales in another state would be subject to manufacturing taxes in the state of
production and wholesale taxes in the state of sale. Id. However, a corporation that both
manufactured and made wholesale sales in the same state would never be subject to the wholesale
tax. Id. Significantly, in response to the argument that an instate manufacturer/wholesaler paid more
12
taxes than an out-of-state manufacturer as a result of the higher tax rate on manufacturing, the Court
held that a showing of actual discriminatory impact was unnecessary. Id. at 644-45.
In Tyler Pipe, the Court addressed Washington state’s B&O tax scheme, which was
nearly identical to the one struck down in Armco. Tyler Pipe, 483 U.S. at 234. The only difference
was that the Washington tax exempted instate manufacturer/wholesalers from the manufacturing tax
as opposed to the wholesale tax. Id. at 236-37. As a result, Washington’s tax was not facially
discriminatory because both instate manufacturer/wholesalers, who benefitted from the exemption,
and out-of-state manufacturers, who made wholesale sales in Washington, were liable for the
wholesale tax. Id. at 239. Nevertheless, the Court concluded that the reasons for invalidating the
West Virginia tax equally applied to the Washington tax. Id. at 234. Like Armco, if every state
hypothetically imposed Washington’s B&O tax scheme, then corporations that manufactured in one
state and sold wholesale in another would ultimately be liable for both the manufacturing and the
wholesale tax, while the instate manufacturer/wholesaler would never be liable for the manufacturing
tax. Again, the Court held that the Washington tax scheme was not internally consistent. Id. at 248.
There are a number of lessons we can learn from Armco and Tyler Pipe regarding
internal consistency. First, a tax may be internally inconsistent even if a corporation doing intrastate
business pays more than a corporation doing interstate business. See id. at 240-41; see also Armco,
467 U.S. at 642-46. This was the case in Armco where the intrastate corporation actually paid more
tax, but the B&O tax scheme was still held to be internally inconsistent because the interstate
corporation was subject to a separate tax under the scheme that the intrastate corporation was not.
Second, the internal consistency test does not require a showing of either actual discrimination or
13
actual multiple taxation; the test is purely hypothetical. See Tyler Pipe, 483 U.S. at 242-47. Finally,
a tax that is internally inconsistent, and therefore unfairly apportioned, discriminates against
interstate commerce. Id. at 247.
Home Interiors argues that the interplay between Public Law 86-272 and the Texas
earned surplus throwback provision causes the franchise tax to be internally inconsistent as applied
to it. To determine if Home Interiors’ argument is valid, our first step is to imagine a situation in
which every state imposes an integrated franchise tax, identical to the Texas tax, in which a
corporation’s liability is the greater of a 4.5 percent tax on net taxable earned surplus or a .25 percent
tax on net taxable capital. Our second step is to imagine two corporations like Home Interiors. The
first corporation (intrastate corporation) resides in Texas and sells its products completely instate.
The second corporation (interstate corporation) also resides in Texas but sells its products to instate
and out-of-state buyers and is protected by Public Law 86-272 from being taxed on its net income
from out-of-state sales. Our final step is to determine whether the interstate corporation bears a tax
burden that is not also borne by the intrastate corporation.
Under this hypothetical tax scheme, the intrastate corporation will only pay franchise
tax to Texas. Its franchise tax liability will be the greater of a 4.5 percent tax on net taxable earned
surplus or a .25 percent tax on net taxable capital. It will never pay a tax on both its taxable capital
and its net taxable earned surplus. See Tex. Tax Code Ann. § 171.002(b). Essentially, the intrastate
corporation’s franchise tax liability will be assessed on 100 percent of either its taxable capital or
its net taxable earned surplus.
14
The interstate corporation is potentially liable for franchise tax in each state in which
it has a substantial nexus, basically each state in which it sold its products. As discussed earlier, the
Texas franchise tax is apportioned based on the gross receipts from sales and other specifically
enumerated business activities attributable to an individual state. However, because the interstate
corporation is protected from being taxed on its net income generated from out-of-state sales by
Public Law 86-272, the earned surplus throwback provision mandates that the gross receipts from
these sales be thrown back to Texas for use in apportioning Texas’ share of the interstate
corporation’s cumulative franchise tax burden. Thus, the interstate corporation’s franchise tax
liability to Texas will be the greater of a 4.5 percent tax on net taxable earned surplus or a .25 percent
tax on net taxable capital. Both parties agree that in Texas the greater of the two franchise tax
components will be the tax on net taxable earned surplus because of the higher tax rate and the
inclusion of the gross receipts resulting from the application of the earned surplus throwback
provision.
Even though Public Law 86-272 protects the interstate corporation from a tax based
on net income in states other than Texas, the interstate corporation would still be liable for franchise
taxes on its net taxable capital in those states that hypothetically apply the integrated Texas franchise
tax. See INOVA, 166 S.W.3d at 401 (where Public Law 86-272 prohibits taxation of earned surplus,
comptroller may impose tax based on capital). Under this hypothetical scenario, the interstate
corporation would be subject to a franchise tax based on its net taxable earned surplus in Texas and
franchise taxes based on its net taxable capital in all other states. Therefore, because an interstate
corporation could be subject to a tax that an intrastate corporation would never bear, the Texas
15
franchise tax as applied to Home Interiors is not internally consistent. See Tyler Pipe, 483 U.S. at
248; Armco, 467 U.S. at 644.
The Comptroller contends that the Texas franchise tax is internally consistent
because, even if every state imposed an identical tax, no more than 100 percent of an interstate
corporation’s taxable capital base or net taxable earned surplus base would be subject to tax. The
Comptroller’s theory is predicated on the notion that the internal consistency test should be applied
to one tax base at a time, net taxable capital or net taxable earned surplus. In support of this theory,
the Comptroller cites to Container Corp. v. Franchise Tax Board, 463 U.S. 159, 163 (1983); Armco,
467 U.S. at 640; Tyler Pipe, 483 U.S. at 253; American Trucking Ass’ns, Inc. v. Scheiner, 483 U.S.
266 (1987); Goldberg, 488 U.S. at 256; and Jefferson Lines, 514 U.S. at 177, to establish that the
Supreme Court has invariably applied the test to one taxable base. The Comptroller’s reading of
Container Corp., American Trucking, Goldberg, and Jefferson Lines is correct because in those
instances the Court was applying the internal consistency test to a singular tax. However, in both
Armco and Tyler Pipe, the Court applied the test to tax schemes that consisted of two distinct tax
bases. See Tyler Pipe, 483 U.S. at 234-36; Armco, 467 U.S. at 640-42. In both cases, the Court
concluded that the tax scheme was not fairly apportioned because, applying the internal consistency
test, an interstate corporation was subject to a tax that would never be assessed on an intrastate
corporation. See Tyler Pipe, 483 U.S. at 248; see also Armco, 467 U.S. at 644-46. Similarly, if the
hypothetical internal consistency test is applied to the integrated Texas franchise tax, an interstate
corporation, that both resides in Texas and is protected by Public Law 86-272 from the imposition
of a tax based on net income in other states, would be subject to both a tax on capital in the other
16
state and on earned surplus in Texas, while a similarly situated intrastate corporation would only be
subject to the greater of the two taxes. Thus, we find no difference between the application of the
internal consistency test in this case and the Supreme Court’s application of the test in Armco and
Tyler Pipe.
The Comptroller insists that the Texas franchise tax is not facially discriminatory and
would pass the internal consistency test in the absence of Public Law 86-272. In her reply brief, the
Comptroller explains, “The risk of taxing multi-state corporations on 100% of earned surplus and
100% of capital does not arise from ‘impermissible discrimination against interstate commerce,’ but
from the relationship between Public Law 86-272 and the franchise tax.” She also states, “Without
Public Law 86-272, Texas franchise taxpayers would all be taxed on the greater of earned surplus
or capital.” She then cites Shell Oil Co. v. Iowa Department of Revenue, 488 U.S. 19, 30 (1988), for
the proposition that “[a] federal law enacted under the Commerce Clause does not invalidate a
neutral state statute under the negative Commerce Clause.” She contends that while in operation
there may be a risk of discrimination against an interstate company, it is only Public Law 86-272,
not the Texas franchise tax, that produces this possibility. Therefore, in light of Shell Oil, the
Comptroller insists that the neutral Texas franchise tax survives Commerce Clause scrutiny.
While we agree that the Texas franchise tax is facially neutral, we disagree with the
Comptroller’s reading of Shell Oil. Nowhere in the opinion do we find support for the general
proposition proffered by the Comptroller. In fact, the Court’s Commerce Clause analysis appears
to dictate a case-by-case analysis when determining whether a federal law preempts a state law, even
when the state law is facially neutral. See Shell Oil, 488 U.S. 24-28. More importantly, Public Law
17
86-272 provoked the earned surplus throwback provision; the throwback provision was designed to
take advantage of the effect of Public Law 86-272—leaving a significant portion of net income from
interstate commerce untaxed by any state—by having those receipts thrown back to Texas for
inclusion in our franchise tax computations when the business has a significant nexus with this state.
See INOVA, 166 S.W.3d at 398 n.3 (recognizing that Public Law 86-272 has been incorporated into
Comptroller’s rules). In the absence of Public Law 86-272, other states would be allowed to impose
net income taxes on corporations that merely solicit sales in their state. Without Public Law 86-272
there would be no earned surplus throwback provision in Texas because there would be nothing to
throw back. Thus, we conclude that it would be improper to analyze the franchise tax without
considering the ramifications of Public Law 86-272.
In conclusion, we hold that the interplay between Public Law 86-272 and the earned
surplus throwback provision causes the franchise tax, as applied to Home Interiors, to be internally
inconsistent. Therefore, it fails Complete Auto’s fair apportionment requirement. Because we hold
that the tax is unfairly apportioned as to Home Interiors, we need not address the final two prongs
of the Complete Auto test.
Although we hold that the franchise tax as applied to Home Interiors lacks internal
consistency, we acknowledge that the Supreme Court has envisioned a remedy. The Court has
recognized that a credit system can be used to cure fair apportionment problems. In Goldberg v.
Sweet, the Supreme Court held that the Illinois Tax Act did not pose a risk of multiple taxation
because of a credit provision. See 488 U.S. 252, 263-64 (1989); see also Tyler Pipe, 483 U.S. at 245
n.13 (noting, “[m]any States provide tax credits that alleviate or eliminate the potential multiple
taxation that results when two or more sovereigns have jurisdiction to tax parts of the same chain
18
of commercial events.”). Similarly, the Texas legislature might explore granting an interstate
company a franchise tax credit to offset any taxes assessed on the interstate company’s capital by a
state that threw back receipts to Texas.
We agree with Walter Hellerstein that “[t]he Court has embraced a doctrine of
‘internal consistency’ that may introduce confusion and uncertainty in an area of the law that has had
more than its fair share of both.” Walter Hellerstein, Is Internal Consistency Foolish?: Reflections
on an Emerging Commerce Clause Restraint on State Taxation, 87 Mich. L. Rev. 138, 188 (1988).
An unfairly apportioned state tax discriminates against interstate commerce, but is a hypothetical test
that ignores the practical interplay of states’ actual taxation schemes on interstate commerce a proper
way to measure internal consistency? We join Justice Scalia in expressing our distrust of
hypothetical assumptions to measure the proper reach of the Dormant Commerce Clause: “It seems
to me that we should adhere to our long tradition of judging state taxes on their own terms, and that
there is even less justification for striking them down on the basis of assumptions as to what other
States might do than there is for striking them down on the basis of what other States in fact do.”
Tyler Pipe, 483 U.S. at 259 (Scalia, J., concurring) (emphasis in original). Home Interiors’ interstate
commerce is not actually burdened by the earned surplus throwback provision; the risk of multiple
taxation is only hypothetical. Nevertheless, the Supreme Court has held that the mere risk of
multiple taxation is sufficient to invalidate a state tax as unduly burdensome on interstate commerce.
See Jefferson Lines, 514 U.S. at 185; Tyler Pipe, 483 U.S. at 247. We cannot ignore that the Texas
earned surplus throwback provision creates such a hypothetical risk as applied to Home Interiors.
19
CONCLUSION
We hold that the interplay between the earned surplus throwback provision and Public
Law 86-272 causes the Texas franchise tax to fail the internal consistency test as applied to Home
Interiors. Accordingly, Home Interiors’ franchise tax assessment is unfairly apportioned. We
reverse the district court’s grant of summary judgment in favor of the Comptroller and render
judgment that the Texas franchise tax, as applied to Home Interiors, unconstitutionally burdens
interstate commerce. We further order the Comptroller to refund to Home Interiors the franchise
taxes in controversy in the amount of $15,480,088 plus interest.
__________________________________________
Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton: Opinion by Justice B. A. Smith;
Concurring Opinion by Justice Pemberton
Reversed and Rendered
Filed: September 22, 2005
20 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130030/ | 538 U.S. 1062
CAMPBELLv.ILLINOIS.
No. 02-9778.
Supreme Court of United States.
May 27, 2003.
1
CERTIORARI TO THE APPELLATE COURT OF ILLINOIS FOR THE FOURTH DISTRICT.
2
App. Ct. Ill., 4th Dist. Certiorari denied. Reported below: 332 Ill. App. 3d 721, 773 N. E. 2d 776. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/2892729/ | 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.
2
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.
1
Appellant does not present separate authority for the two issues, and we will therefore address them
toge ther.
3
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
4
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
5
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.
2
It did not address whether the mistake was intentional for appellant was not arguing that it was.
6
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
7
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.
8 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2908170/ | Preferred Care v. Horn
IN THE
TENTH COURT OF APPEALS
No. 10-94-343-CV
     PREFERRED CARE HEALTH FACILITIES
     OF TEXAS I, INC., d/b/a
     ENNIS CARE CENTER,
                                                                                              Appellant
     v.
     LAURIE HORN,
                                                                                              Appellee
From 40th District Court
Ellis County, Texas
Trial Court # 49,469
                                                                                                   Â
MEMORANDUM OPINION
                                                                                                   Â
      On February 16, 1995, the parties filed an agreement to dismiss the appeal. In the relevant
portion, Rule 59(a) of the Texas Rules of Appellate Procedure provides:
(1) The appellate court may finally dispose of an appeal or writ of error as follows:
(A) In accordance with an agreement signed by all parties or their attorneys and
filed with the clerk; or
(B) On motion of appellant to dismiss the appeal or affirm the judgment
appealed from, with notice to all other parties; provided, that no other party
shall be prevented from seeking any appellate relief it would otherwise be
entitled to.
Tex. R. App. P. 59(a).
      The parties state that have settled their controversy. The agreement is signed by both the
appellant's and the appellees' attorney. They request that we tax the costs of the appeal against
the appellant.
      Pursuant to this agreement, the cause is dismissed with the appellant to bear the costs.
                                                                               PER CURIAM
Before Chief Justice Thomas,
      Justice Cummings, and
      Justice Vance
Dismissed
Opinion delivered and filed March 8, 1995
Do not publish
um. According to the
City Manager, it was the responsibility of the CityÂs engineers to review the
plat prior to approval and to determine, in part, that the CityÂs
infrastructure, including its sewer capacity, was sufficient. It was the
opinion of the engineers that the sewer capacity of the City was sufficient to
support the subdivision until the end of May, 2006 when the engineers informed
the City that the City was operating above its capacity, and that the
moratorium was needed to attempt to get the problem under control until a new
sewer plant could be constructed.
The final approval of the plat included a
statement by the City Engineer that the plat conformed to the CityÂs
subdivision ordinance and recommended approval of the final plat. A second
engineer certified that Âproper engineering consideration had been given to
the plat that had been signed on June 5, 2006, which was the same day that the
first moratorium was voted on by the City Council. The plat did not become
effective until it was recorded with the County Clerk of McLennan County, which was on June 5, 2006.
           The CityÂs moratorium was adopted by
an ordinance on its second reading on June 12, 2006 to prevent the connection
of any new residential or commercial buildings to the CityÂs sewer system for a
period of 120 days. During the 120 days, the City agreed to exempt from the
moratorium the fifteen lots in Phase V that had either been sold or were under
contract to be sold by BMTP as of June 5, 2006. The original moratorium was
extended and reworded at various times until November 17, 2008, when it was
repealed and replaced by a new moratorium that was in large part substantively
the same as the prior moratoriums.Â
           On April 24, 2008, BMTP filed a
declaratory judgment action against the City of Lorena seeking a declaration
that the CityÂs moratorium in effect at that time did not apply to Phase V;
that the City could not enforce the moratorium as to the lots in Phase V
because they were previously approved for development; and that the City could
not deny building permits for the remaining lots in Phase V due to the
moratorium.[1]
           BMTP filed a motion for summary judgment
and the City filed a plea to the jurisdiction, both of which were denied by the
trial court. The City then filed a traditional motion for summary judgment.Â
BMTP responded to the CityÂs motion, filed a motion to reconsider the denial of
its motion for summary judgment, and amended its petition to include an inverse
condemnation cause of action. The trial court granted the CityÂs motion for
summary judgment and denied BMTPÂs motion to reconsider the trial courtÂs prior
denial of its motion for summary judgment. The City filed another motion for
summary judgment based on the inverse condemnation claim, which the trial court
also granted. The trial court also awarded the City its attorneyÂs fees.
Standard of Review
Both parties motions for summary judgment sought
judgments that would declare the parties rights pursuant to the declaratory
judgment actions. We review declaratory judgments under the same standards as
other judgments. See Tex. Civ.
Prac. & Rem. Code Ann. § 37.010 (Vernon 2008). We look to the
procedure used to resolve the issue before the trial court to determine the
standard of review on appeal. City of Galveston v. Tex. Gen. Land Office,
196 S.W.3d 218, 221 (Tex. App.ÂHouston [1st Dist.] 2006, pet. denied). When a
trial court resolves a declaratory judgment action on competing motions for
summary judgment, we review the propriety of the declaratory judgment using the
same standards that we follow in reviewing a summary judgment. Id.
We review a trial courtÂs
decision to grant or to deny a motion for summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192, 199 (Tex. 2007) (citing rule for review of grant of summary judgment and reviewing denied
cross-motion for summary judgment under same standard). Although a denial of
summary judgment is not normally reviewable, we may review such a denial when
both parties move for summary judgment and the trial court grants one motion
and denies the other. Id. at 192.  In our review of such cross-motions,
we review the summary judgment evidence presented by each party, determine all
questions presented, and render the judgment that the trial court should have
rendered. Tex. Mun. Power Agency, 253 S.W.3d at 192 (citing CommÂrs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)).
Under the traditional
summary judgment standard, the movant has the burden to show that no genuine
issues of material fact exist and that it is entitled to judgment as a matter
of law. Tex. R. Civ. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). If the order granting the summary judgment does not specify the grounds upon
which judgment was rendered, we must affirm the summary judgment if any of the
grounds in the summary judgment motion is meritorious. FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
Local Government Code Chapter 212
           BMTP complains that the trial court
erred by granting the CityÂs motion for summary judgment and denying its motion
for summary judgment because chapter 212 of the Local Government Code prohibits
the imposition of a moratorium on its property that had already been approved
for development prior to the imposition of the original moratorium.
           Under section 212.135 of the Local
Government Code, a municipality has the power to institute a moratorium on
property development if it demonstrates a Âneed to prevent a shortage of
essential public facilities.ÂÂ Tex. Loc.
GovÂt Code Ann. § 212.135(a) (Vernon 2008). Sewer facilities are
included in public facilities. Tex.
Loc. GovÂt Code Ann. § 212.131(1) (Vernon 2008). Property development
is defined as Âthe construction, reconstruction, or other alteration or
improvement of residential or commercial buildings or the subdivision or the
replatting of a subdivision of residential or commercial property. Tex. Loc. GovÂt Code Ann. § 212.131(3)
(Vernon 2008).Â
           In order to impose a moratorium on
property development to prevent a shortage of essential public facilities,
certain written findings must be included by the municipality, one of which is
a summary of Âevidence demonstrating that the moratorium is reasonably limited
to property that has not been approved for development because of the
insufficiency of existing essential public facilities. Tex. Loc. GovÂt Code Ann. §
212.135(b)(2)(B) (Vernon 2008).
           BMTP contends that the approval of
their plats constituted Âproperty development pursuant to section 212.131, and
that the moratorium therefore did not, and could not, apply to sewer
connections on any of the vacant lots in their approved subdivisions pursuant
to the restriction in section 212.131(b)(2)(B) that excludes property that has
been approved for development. The City contends that BMTPÂs scope of approved
property development is too broad and that once BMTP completed all of the
property development that it was permitted to complete, which was the
subdivision and infrastructure only, additional approval was required separate
and apart from that to develop the property further, including connections to
the sewer system. According to the City, once the subdivision was complete
according to the approved plat, then BMTPÂs property development that was
approved was completed and the City could institute a moratorium to prevent
additional development of that property.
           Prior to the amendment of the statute
in 2005, Âproperty development was defined in section 212.131 of the Local
Government Code as Âthe construction of residential buildings.ÂÂ See Acts
2001, 77th Leg., ch. 441, effective September 1, 2001; amended by Acts
2005, 79th Leg., ch. 1321 (H.B. 3461), § 1, effective September 1, 2005. The
statute was amended in 2005 to add other types of residential development as
well as commercial development into the definition of Âproperty development.ÂÂ
The City contends that the statute should be read to contain two separate types
of property development; the first being the Âconstruction, reconstruction, or
other alteration or improvement of residential or commercial buildings, and
the second, Âthe subdivision or replatting of a subdivision of residential or
commercial property.ÂÂ The City further contends that each of the two types of
development is separate and distinct for purposes of determining whether
property has been Âapproved for development. See Tex. Loc. GovÂt Code Ann. §
212.135(b)(2)(B) (Vernon 2008).Â
Neither party has cited to, nor have we found any
authority regarding the scope of chapter 212. We find that the definition of
Âproperty development includes the full range of development contemplated by
section 212.131(3) and that it does not describe each of the component parts
separately and distinctly from the others.Â
This construction of section 212.131(3) is similar
to the application of the term Âproject in Chapter 245 of the Local Government
Code, which regulates the issuance of permit applications. See Tex. Loc. GovÂt Code Ann. Ch. 245
(Vernon 2005). The term Âproject in Chapter 245 has been held to encompass
the entire development process from the preliminary plat to the construction of
a structure within the subdivision, which does not change unless the scope of
the Âproject changes, regardless of changes in ownership. See Hartsell
v. Town of Talty, 130 S.W.3d 325, 328-29 (Tex. App.ÂDallas 2004, pet.
denied). Chapter 245 contemplates that more than one permit is required to
complete a project, but the project includes the entire process, not the
discrete components. The definition of Âproperty development is similarly
broad and includes the entire process from platting to finishing construction
of infrastructure and buildings.
           We hold that the trial court erred by
granting the CityÂs motion for summary judgment based on Subchapter E of
Chapter 212 of the Local Government Code. Further, we find that the trial
court erred by denying BMTPÂs motion for summary judgment to make the
declarations as prayed for by BMTP. BMTP was entitled to the following
declarations:
(1)Â Â Â
Under Chapter 212 of the Local
Government Code, any moratorium currently in effect on the issuance of sewer
taps within the City of Lorena and its extraterritorial jurisdiction does not
apply to any of the lots contained in South Meadows Estates, because South
Meadows Estates was approved for development before the adoption of these
moratoriums;
Â
(2)Â Â Â
The City shall not enforce the
current moratorium or any extension thereof to the lots contained in South
Meadows Estates because those lots have already been approved for development;
Â
(3)Â Â Â
The City shall not deny
building permits for the remaining lots in South Meadows Estates based upon any
existing moratorium.
Â
By this holding, we express no opinion as to
whether the City has the ability to deny a permit for reasons other than the
moratorium or BMTPÂs damages, if any, that might be related thereto. We
sustain issue one. We sustain issue two solely on the basis of subchapter
212. Because we have determined that Phase V was not subject to the moratorium
pursuant to chapter 212, we do not reach the issues of whether or not the
moratoriums were enacted in conformance with the requirements of chapter 212 or
whether chapter 245 applies.
Inverse Condemnation
            BMTP complains that the trial court
erred by granting the CityÂs motion for summary judgment based on BMTPÂs
inverse condemnation claim. BMTP alleged in its petition that the moratorium
constituted a taking pursuant to article I, section 17 of the Texas
Constitution. Tex. Const. art.
I, § 17. The CityÂs motion for summary judgment sought a finding that as a
matter of law the moratorium could not constitute a compensable taking.Â
A taking may be either physical or regulatory. Mayhew
v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998). A compensable
regulatory taking occurs if: (1) the governmental regulations deprive a
property owner of all economically viable use of the property or totally
destroys the propertyÂs value; or (2) the governmental restrictions
unreasonably interfered with BMTPÂs rights to use its property. See id.Â
We are to conduct an essentially Âad hoc, factual inquir[y]Â using the
following guiding factors: (1) the economic impact of the regulation on BMTP;
(2) the extent to which the regulation has interfered with BMTPÂs reasonable
investment-backed expectations; and (3) the character of the CityÂs action. Sheffield
Dev. Co. v. City of Elgin Heights, 140 S.W.3d 660, 672 (Tex. 2004). In
addition to these factors, which are generally referred to as the Penn
Central factors, we should consider all relevant attendant circumstances as
well. Penn Central Transport Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978); Hallco Tex., Inc v. McMullen County, 221 S.W.3d 50, 56 (Tex. 2006).
We note that, based on the precedent of the Texas
Supreme Court in Sheffield, the burden required in the factual
allegations presented by BMTP is a high one. Id. Sheffield complained
that a temporary moratorium constituted a compensable taking but the Court
disagreed. Sheffield also related to a purchaser of property who
purchased the property relying on certain zoning standards then in effect, who
had extensive contacts with City officials regarding his plans for the
development, and who was similarly, as the Court put it, Âblindsided by the
CityÂs moratorium. See Sheffield Dev. Co., 140 S.W.3d at 678. However,
while the Court did not approve of the CityÂs methods in Sheffield, the
Court nevertheless found that there was not a constitutionally compensable
taking, either for the change in zoning or for the temporary moratorium.Â
In Sheffield, however, there was not a
challenge to the ability of the City to impose the moratorium. Sheffield
Dev. Co., 140 S.W.3d at 679. In this case, however, the CityÂs motion for
summary judgment on the inverse condemnation action was premised upon the
application of the moratorium to BMTP. Therefore, we believe that the judgment
entered on the inverse condemnation cause of action must also be reversed and
remanded because of our finding that the moratorium did not apply to BMTPÂs
lots. We sustain issue three.
AttorneyÂs Fees
BMTP complains that the trial court abused its
discretion by awarding attorneyÂs fees to the City and denying its request for
attorneyÂs fees pursuant to the Uniform Declaratory Judgment Act. Tex. Civ. Prac. & Rem. Code Ann. §
37.009 (Vernon 2008). Section 37.009 allows for the recovery of attorneyÂs
fees that are reasonable and necessary as well as equitable and just. Id. Because we have determined that the trial court erred by granting the CityÂs
motion for summary judgment and by denying BMTPÂs motion for summary judgment,
we reverse the award of attorneyÂs fees to the City and remand that issue to
the trial court for a determination of whether attorneyÂs fees should be
awarded and to which party, if any. See State Farm Lloyds v. Borum, 53
S.W.3d 877, 894-95 (Tex. App.ÂDallas 2001, pet. denied) (reversing and
remanding Âbecause the record does not reflect the trial courtÂs reasons for
its award of fees to [the prevailing party], there is no evidence to indicate
whether the trial courtÂs award of fees would also be equitable and just in light
of our opinion in this case.Â). We sustain issue four.
Conclusion
           We find that the trial court erred by
granting the CityÂs motions for summary judgment and by denying BMTPÂs motion
for summary judgment based on the declaratory judgment action. We reverse and
render judgment in favor of BMTP on its declaratory judgment action. We
reverse and remand the inverse condemnation claim to the trial court for
further proceedings. We find that the award of attorneyÂs fees should be
reversed and remanded to the trial court for further proceedings in accordance
with this opinion.
Â
                                                                       TOM
GRAY
                                                                       Chief
Justice
Â
Before Chief Justice
Gray,
           Justice
Davis, and
           Judge Sowder[2]
Reversed and rendered in
part; reversed and remanded in part
Opinion delivered and filed
December 22, 2010
[CV06]
[1]Â
The petition seeking the declaratory judgment was later amended by BMTP to
include all of South Meadows Estates, which included Phase IV.
[2]
The Honorable William C. Sowder, Judge of the 99th District Court of Lubbock County, sitting by assignment of the Chief Justice of the Supreme Court of
Texas pursuant to section 74.003(h) of the Government Code. See Tex. GovÂt Code Ann. § 74.003(h)
(Vernon 2005). | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2889531/ | NO. 07-02-0477-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JANUARY10, 2003
______________________________
IN RE PRESTON JEROME WHITE, RELATOR
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.*
MEMORANDUM OPINION1
By this original proceeding, relator Preston Jerome White, proceeding pro se and
informa pauperis, seeks a writ of mandamus to compel the Lubbock County District Clerk
to provide him with a copy of the clerk’s record to prepare a pro se brief in response to an
Anders2 brief filed by appellate counsel. Under applicable principles of law, the petition
for writ of mandamus is dismissed as moot.
*
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
1
Tex. R. App. P. 47.4..
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
The Lubbock County District Clerk has notified this Court that on December 11,
2002, a copy of the clerk’s record was forwarded to appellant. Thus, this proceeding is
moot.
Don H. Reavis
Justice
2 | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2968818/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1434
TAWANDA BLAIR, on behalf of ILB,
Plaintiff – Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Richard M. Gergel, District Judge.
(8:11-cv-02099-RMG)
Submitted: August 7, 2012 Decided: August 14, 2012
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tawanda Blair, Appellant Pro Se. Marshall Prince II, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tawanda Blair appeals the district court’s order
upholding the Commissioner’s denial of her application for
supplemental security income. The district court referred this
case to a magistrate judge pursuant to 28 U.S.C.A.
§ 636(b)(1)(B) (West 2006 & Supp. 2012). The magistrate judge
recommended that relief be denied and advised Blair 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). Blair
has waived appellate review by failing to file objections after
receiving proper notice. Accordingly, we affirm the judgment of
the district court.
We deny the motion to transfer and 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/3009439/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6793
DAVID DWIGHT RAMAN, JR.,
Petitioner - Appellant,
v.
FRANK PERRY,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Loretta Copeland
Biggs, District Judge. (1:14-cv-00248-LCB-JEP)
Submitted: September 3, 2015 Decided: October 13, 2015
Before KING, FLOYD, and HARRIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David Dwight Raman, Jr., Appellant Pro Se. Clarence Joe
DelForge, III, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Dwight Raman, Jr., seeks to appeal the district
court’s order adopting the magistrate judge’s recommendation to
deny relief on his 28 U.S.C. § 2254 (2012) petition. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012).
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) (2012). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude that
Raman has not made the requisite showing. Accordingly, we deny
Raman’s motion for transcript at government expense, deny leave
to proceed in forma pauperis, deny a certificate of
appealability, and dismiss the appeal. We dispense with oral
2
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
3 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2123954/ | 472 F. Supp. 158 (1979)
Audie HAMBLETT, Paulette W. Baddley, Thomas Burse, Robert J. Swanton, Richard C. Watkins, Walter Huffman, on Behalf of themselves and a class of all other persons similarly situated, Plaintiffs,
v.
The BOARD OF SAVINGS AND LOAN ASSOCIATIONS OF the STATE OF MISSISSIPPI, Brad Dye, Individually and as a Member of the Board, Evelyn Gandy, Individually and as a Member of the Board, A. F. Summer, Individually and as a Member of the Board, W. D. Coleman, Individually and as a Member of the Board, Hamp King, Individually and as a Member of the Board, Heber Ladner, Individually and as Member of the Board, Walter Bullock, Individually and as an Officer of the Board, Bankers Trust Company, Bankers Trust Savings and Loan Association, American Savings and Insurance Company, Charles Carter, Individually and as the Representative of a class consisting of all Officers, Directors and Stockholders of Bankers Trust Company, C. D. Shields, Individually and as Representative of a class consisting of all Officers and Directors of the Bankers Trust Savings and Loan Association, and Chester Simms, Individually and as the Representative of a class consisting of all Officers, Directors and Stockholders of the American Savings and Insurance Company, Defendants.
No. DC 76-97-S.
United States District Court, N. D. Mississippi, Delta Division.
February 28, 1979.
*159 Mayo L. Coiner, Memphis, Tenn., for plaintiffs.
John M. Grower, Brunini, Grantham, Grower & Hewes, Jackson, Miss., for Bankers Trust Sav. & Loan Assn.
*160 John H. Price, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, Miss., for Hamp King.
Richard B. Wilson, Jr., Wise, Carter, Child, Steen & Caraway, Jackson, Miss., for American Sav. Ins. Co. and Chester Simms.
W. D. Coleman, Deputy Atty. Gen., Jackson, Miss., for State Bd. of Sav. & Loan Associations.
C. D. Shields, Jones, Shields & Woodall, Meridian, Miss., pro se.
Charles Carter, Jackson, Miss., pro se.
MEMORANDUM OF DECISION
ORMA R. SMITH, District Judge.
Plaintiffs filed this class action on September 8, 1976. At that time, each plaintiff and each member of the proposed class was a depositor or investor in the Bankers Trust Savings and Loan Association (hereafter "defendant Association").
The class which plaintiffs seek to represent, consists of approximately 60,000 persons, who are said to hold deposits or investments in defendant Association aggregating approximately $210,000,000.00. When this suit was filed, the main office of defendant Association was situated at Jackson, Hinds County, Mississippi, and had numerous branch offices throughout the state.
In an action filed against defendant Association by a depositor and his wife in the Chancery Court, Hinds County, Mississippi, a Chancellor of the court, without notice or hearing, appointed a receiver for defendant Association. This occurred on Friday, May 7, 1976. The next day, Saturday, May 8, 1976, the appointment was vacated by the court.
This action was given extensive publicity and triggered what is commonly referred to as a "run" on defendant Association, resulting in the exhaustion of its liquidity.
Defendant, the Board of Savings and Loan Associations of the State of Mississippi (hereafter "State Board"), acting pursuant to Mississippi Statutory Law, directed its Executive Officer to apply to the Chancery Court for appointment as receiver of defendant Association.
The Chancery Court of the First Judicial District of Hinds County, Mississippi, acting upon the Executive Officer's application, on May 20, 1976, entered an order making the appointment. During the pendency of the depositors suit and the receivership proceedings, the Mississippi Legislature was called by the Governor into special session to consider the financial crisis then existing in the state. The legislature promptly adopted Senate Bill No. 2001. Miss.Code Ann. §§ 81-11-91 et seq. (1978 Cum.Supp.). The statute was signed into law the day of its enactment, June 20, 1976.
The statute provided for appointment of a conservator by the Chief Justice of the Mississippi Supreme Court, or, in his absence, the Presiding Justice of the court, for all state chartered associations subject to the newly enacted law. Honorable Neville Patterson, Presiding Justice of the Mississippi Supreme Court, in the absence of the Chief Justice, appointed Robert W. Warren conservator pursuant to statutory provisions.
Mr. Warren immediately entered upon the duties of the office and was in the process of reorganizing defendant Association when the action sub judice was initiated.
During the pendency of the action sub judice, the court entered an order staying the proceedings. The order was entered January 17, 1977. The stay was effective until September 17, 1977. The court directed the conservator to keep the court currently informed on all developments in the reorganization of defendant Association.
One exception to the stay related to consideration by the court of the question of subject matter jurisdiction. The court previously, sua sponte, at a hearing on December 20, 1976, questioned the court's subject matter jurisdiction of the action. The order of January 17, 1977, provided for submission of briefs on the jurisdictional question. These were received in due course.
Mr. Warren has subsequently submitted reports to the court and the court notes *161 that a successful reorganization of defendant Association has been accomplished. The details of the reorganization need not be here stated. They do not, in any way, relate to the jurisdictional issue.
After the commencement of the action sub judice, defendant Bankers Trust Company was adjudicated a bankrupt in the United States District Court for the Southern District of Mississippi. Bankers Trust Company is now in the process of reorganization under Chapter X of the National Bankruptcy Act (U.S.C. Title 11, Chapter X (§§ 501-676.)
Recognizing the exclusive jurisdiction of the Bankruptcy Court over the estate of the Bankers Trust Company, an order has been entered herein dismissing said defendant from the action sub judice. The order is dated September 28, 1978.
A controversy arose over the right of the Conservator to proceed with the reorganization of defendant Association outside of the bankruptcy proceedings since all of the issued and outstanding capital stock of defendant Association was owned by Bankers Trust Company and was a part of the bankrupt estate.
The matter was litigated in the United States District Court for the Southern District of Mississippi. On appeal, the United States Court of Appeals for the Fifth Circuit determined that defendant Association was not subject to the Bankruptcy Act and that the reorganization should proceed outside the bankruptcy court pursuant to state law. Judge Ainsworth's excellent opinion in the case on appeal[1] contains a concise and lucid recital of events involved in the matter.
During the progress of the reorganization of defendant Association, plaintiffs Audie Hamblett, Paulette W. Baddley, Thomas Burse, Robert J. Swanton, Richard C. Watkins and Walter Huffman, filed the action sub judice. Plaintiffs alleged that they invested various amounts of funds in defendant Association and had suffered damages on account of its closure which resulted from mismanagement and other illegal activities on the part of defendants acting in concert with each other. Plaintiffs sued the Board of Savings and Loan Associations of the State of Mississippi, Brad Dye, Evelyn Gandy, A. F. Summer, W. D. Coleman, Hamp King and Heber Ladner, individually and in their official capacity as members of the Board; Walter Bullock, individually and as an officer of said Board; Bankers Trust Company; Bankers Trust Savings and Loan Association; American Savings and Insurance Company, Charles Carter, individually and as the representative of a class consisting of all officers, directors and stockholders of Bankers Trust Company; C. D. Shields, individually and as representative of a class consisting of all officers and directors of the Bankers Trust Savings and Loan Association, and Chester Simms, individually and as the representative of a class consisting of all officers, directors and stockholders of the American Savings and Insurance Company.
The complaint contains ten (10) counts.
Count I charges a violation by defendant Association of the Securities Exchange Act.
Count 2 charges dereliction of duty by the State Board and its individual members and staff.
Count 3 charges coercion by the State Board and its individual members which resulted in the merger of defendant Association with other insolvent savings and loan associations.
Count 4 charges fraudulent and deceptive misrepresentations by the members of the State Board.
Count 5 charges unjust enrichment by the members of the State Board and its staff.
Count 6 charges certain illegal activities on the part of Bankers Trust Company.
Count 7 charges mismanagement of defendant Association by its parent company, Bankers Trust Company, its officers, directors and stockholders.
Count 8 charges mismanagement of defendant American Savings and Insurance Company.
*162 Count 9 charges the deprivation of plaintiffs' property without due process of law.
Count 10 charges the deprivation of plaintiffs' contractual obligations in violation of plaintiffs' rights under the Constitution of the United States.
The complaint seeks to invoke the jurisdiction of this court for the adjudication of claims arising under the Constitution of the United States and certain Acts of Congress. Plaintiffs also seek to persuade the court to accept pendent jurisdiction over certain claims arising by virtue of state law, said to arise out of a common set of facts under the doctrine promulgated by the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966).
Before proceeding with the instant litigation, the court must first determine whether subject matter jurisdiction exists. If the court does not have jurisdiction over the subject matter of the action, the action must be dismissed. The question of subject matter jurisdiction can and should be raised when the jurisdiction appears questionable.
The plaintiffs invoke jurisdiction pursuant to 15 U.S.C. § 78aa[2] and 28 U.S.C. § 1331[3] for an alleged violation of the Securities Exchange Act of 1934, 15 U.S.C. 78j(b) and Rule 10b-5 promulgated pursuant thereto;[4] and the deprivation of rights secured plaintiffs by the Constitution of the United States. Jurisdiction is also invoked under 28 U.S.C. § 1343[5] for violations of the Civil Rights Act, 42 U.S.C. § 1983.[6]
*163 The court will first consider the question of whether plaintiffs' "investments"[7] in defendant Association constitute "securities" within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934 (Securities Acts).
This question must be considered in the light of circumstances existing at the time of filing suit. Subject matter jurisdiction must exist as of that time. The events occurring since the filing of the action hereinbefore mentioned do not afford assistance to the court in deciding the issue. A recitation of subsequent acts have been incorporated herein to give the background to the litigation. International Association of Machinists v. Central Airlines, Inc., 295 F.2d 209, 216 (5th Cir. 1961) quoting in footnote 20, at page 216, from Osborn v. United States, 22 U.S. 738, 9 Wheat. 738, 823, 6 L. Ed. 204 (1824).
The complaint alleges that plaintiffs and the members of the class they seek to represent purchased securities of and deposited funds in the defendant Association. The court must determine from the record herein, in light of the history of defendant Association, the exact nature and extent of plaintiffs' interest.
Plaintiffs charge that defendant Association, knowingly, willfully and maliciously engaged in false, misleading and deceptive advertising within and by means of instrumentalities in interstate commerce in violation of Section 10b of the Securities Exchange Act, 15 U.S.C. § 78j(b). See also Rule 10b-5, promulgated pursuant to Section 78j(b), (see footnote 4).
Defendant Association was organized and chartered as a stock company, May 15, 1957, and authorized to issue capital stock of 1,001,000 shares. This stock was designated as common or voting stock of the par value of one dollar per share. The authorized stock in its entirety was issued to defendant Bankers Trust Company. Bankers Trust Company was chartered pursuant to the Mississippi statute, April 15, 1957. Plaintiffs did not hold or own any stock in defendant Association when the action sub judice was commenced.
The Mississippi Legislature adopted, effective July 1, 1962, The Savings and Loan Law of 1962, Miss.Code Ann. §§ 81-11-1, et seq. (1972) (hereafter the "Act"). The Act provides that defendant Association and other associations holding stock charters should become subject to its provision and the supervision of the Board of Savings & Loan Associations (hereafter the "State Board"), Miss.Code Ann. § 81-11-19, et seq. (1972).
Section 81-11-3(a) of the Act provides:
When used in this chapter, the following words shall have the following meaning:
(a) "Association" shall mean a savings and loan association, building and loan association, or savings association subject to the provisions of this chapter.
The placing of defendant Association under the Act and subject to its provisions did not, however, in any way, change or impair its corporate powers or alter its characteristics as a stock company. Section 81-11-77 provides in part:
But nothing in this chapter shall be construed to impair or modify any lawful contract, property right or existing charter of any corporation doing business as a savings and loan association on the effective date of this chapter. (Emphasis supplied).
The contention is made that the interest possessed by plaintiffs in defendant Association at the time of the institution of this action, consisted of nothing more than a deposit of funds, that such interest could not be characterized as "share accounts" or "shares" in a "mutual" association, nor "stock shares" in a "stock" association.
Defendants have meticulously pointed out certain amendments made in the Mississippi Senate to the legislation before final *164 enactment. These amendments are reflected in the "Journal of the Senate of the State of Mississippi, Regular 1962 Session".
The Journal reflects, page 915, that Senator Bodron offered an amendment to Section 81-11-3(l).
The section prior to adoption of the amendment read:
"Share accounts", "shares", shall mean that part of the savings liability of the association which is credited to the account of the holder thereof and the words "share account", "account", "savings", and "shares" shall have the same meaning. Share accounts may be evidenced by passbook, certificate or shares.
Senator Bodron's amendment added a sentence, as follows:
The term "stock shares" shall mean ownership shares as distinguished from those terms above which apply to "members".
The amendment was adopted.
To the section entitled "Name of Association" § 81-11-17, the Journal shows at page 970, that Senator Smith offered an amendment which was adopted to distinguish between "a mutual company" and "a stock company". The amendment follows:
Every association that has not issued and is not authorized by its charter or any amendments thereto to issue stock shares, shall use the descriptive words "a mutual company" in connection with the use of its name, and every association which has issued or is authorized by its charter or any amendments thereto to issue stock shares, shall use the descriptive words "a stock company" in connection with its name. The above mentioned descriptive words shall not form a part of the association name but shall be used in every instance where the association name is written, printed or otherwise reproduced, or spoken in connection with all advertisements, announcements, notices, bills, placards, reports, signs, emblems, symbols, devices, letterheads, and like matter. Wherever reproduced, the descriptive words shall be of the same style of calligraphy as the association name and in size at least one-half (½) as large as the association name. (Emphasis added).
The record is not clear with regard to the nature of type of document held by each plaintiff as the result of depositing funds with defendant Association. The parties have stipulated, however, that Exhibits 2-7 attached to defendants' brief are documents held by one or more of plaintiffs. The certificates shown in Exhibits 2 and 4 (Form 10) appear to be certificates of deposits issued by Colonial Savings and Loan, a corporation acquired by defendant Association prior to the period here involved. These appear to be ordinary Certificates of Deposits.
Exhibit No. 3 appears to be a facsimile of a four year "Savings Certificate" currently earning annual dividends of 7½%, paid or compounded quarterly. The document certifies that the holder "is a member of Bankers Trust Savings and Loan Association, a stock company, and holds a savings account of said Association, subject to its charter and bylaws and to the Laws of the State of Mississippi." (Emphasis supplied). Exhibit No. 5 is a facsimile of a "Six Year Savings Certificate", currently earning dividends of 7½%, paid or compounded quarterly. Otherwise this certificate contains language similar to that contained in Exhibit No. 3.
Exhibit No. 6 represents a "Quarterly Passbook" currently earning annual interest at 6% paid or compounded quarterly. Withdrawal is permitted at anytime subject to certain restrictions not here material. Exhibit No. 7 represents "One Year Savings Certificate". The certificate provides that the holder has subscribed to a savings account compounded to earn 7% annually. Exhibits No. 6 and No. 7 contain language similar to that contained in Exhibit No. 3, which refers to defendant Association as being a "stock company".
The jurisdictional question may be summarized as follows. Whether a deposit in a stock savings and loan association evidenced by a "passbook" or "savings certificate", on which a fixed "dividend" or stated rate of *165 "interest" is contracted to be paid uninfluenced by the profits, if any, realized or to be realized by the association from the use of the money and which does not give the holder any voice in the management of the affairs of the association, constitutes a "Security" within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934.
The court must determine whether the particular financing relationship shown here to exist, constitutes a "security" within the meaning of the Securities Acts. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, et al. v. John Daniel, 439 U.S. 551, 99 S. Ct. 790, 58 L. Ed. 2d 808 (1979) (hereafter "Teamsters").
In order to make this determination "[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." S. E. C. v. Howey Co., 328 U.S. 293, 301, 90 L. Ed. 1244, 66 S. Ct. 1100, 1104 (1946). The test is to be applied in light of "the substancethe economic realities of the transactionrather than the names that may have been employed by the parties." United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 851-52, 95 S. Ct. 2051, 2060, 44 L. Ed. 2d 621 (1975).
The court is guided in its determination by the familiar canon of statutory construction that remedial legislation, such as the Securities Acts here involved, is to be construed broadly to effectuate its purposes, and "in searching for the meaning and scope of the word `security' in the Act, form should be disregarded for substance and the emphasis should be on economic reality". Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S. Ct. 548, 553, 19 L. Ed. 2d 564, 569 (1967).
Tcherepnin, supra, involved withdrawable capital shares in an Illinois savings and loan association and the Supreme Court held such shares to be "securities" within the meaning of the Securities Exchange Act. Plaintiffs rely heavily on Tcherepnin and an Eighth Circuit case, S. E. C. v. First American Bank & T. Co., 481 F.2d 673, 678 (8th Cir. 1973) which held that "capital notes", "certificates of investment" and "passbook savings accounts" were "securities" within the meaning of the Securities Act.
Tcherepnin is clearly distinguishable from the action sub judice. There the savings and loan association issued withdrawable capital shares pursuant to the Illinois Savings and Loan Act. These shares represented exclusively all of the association's capital. Here the defendant Association is a stock company. None of its stock is owned by plaintiffs; all of it is owned by the Bankers Trust Co. There each holder of a withdrawable capital share became a member of the association entitled to vote one share for each one hundred dollars of the aggregate withdrawal value of his account. Here, though referred to as "a member" of defendant Association in the passbook and savings certificate, the holder is not entitled to a voice of any nature in the affairs of the defendant Association. The management of the business is vested solely in the holder of its common stock. There the holders of withdrawal capital shares were not entitled to a fixed rate of return; here the holder of a passbook account or a savings certificate is entitled to a fixed rate of return. There the holders of withdrawable capital shares received dividends declared by the Association's board of directors, based on the association's profits; here the right to receive compensation for use of money deposited in defendant Association is based upon the fixed rate of return expressly stated in the passbook or certificate. The right to receive the fixed rate of return is not related in any way to profits of defendant Association. There each borrower automatically became a member of the association, but entitled to only one vote; here, borrowers do not become members of the Association and are not entitled to vote. There the right to make voluntary withdrawals is restricted by statute; here, the right of withdrawal is governed by the contract evidenced in passbook or savings certificate.
The Tcherepnin court based its judgment, at least in part, on the premise that the withdrawable capital shares under consideration possessed the essential attributes of *166 investment contracts as the term is used in section 3(a)(10) of the Securities Exchange Act of 1934 and as defined in Howey ("an investment of money in a common enterprise with profits to come solely from the efforts of others") Howey, supra 328 U.S. at 301, 66 S. Ct. at 1104.[8]
The court is of the opinion that the holding in Tcherepnin does not support a finding here that the "passbook" or "savings certificate" issued by defendant Association, constitutes securities within the purview of the Securities Acts.
In the case of Securities & Exch. Com'n v. First American Bank and T. Co., supra, without a clear discussion of the characteristics of the instruments involved, the court opined:
It is not disputed that First American did offer to sell or in fact did sell through the use of the facilities of interstate commerce, capital notes, certificates of investment, and passbook savings accounts. It is equally clear that for purposes of the Securities Act, these items are "securities."
481 F.2d at 678 (footnote omitted)
The First American court appears to have concluded that the documents there under consideration, i. e., capital notes, certificates of investment and passbook saving accounts, are "securities" within the meaning of the Securities Act of 1933, because of language used in the statute. In support of its conclusion, the court cited Lehigh Val. Trust Co. v. Central Nat'l Bank of Jacksonville, 409 F.2d 989 (5th Cir. 1969), where Judge Goldberg, writing for the court, held that an agreement pursuant to which the bank sold a participating interest in a loan, originated by the bank, to the trust company was a "security" within the meaning of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78(a), et seq.[9]
The "securities" involved in Lehigh and First American do not have the characteristics which are inherent in the "passbook" and "savings certificate" here involved. The court does not find them to be persuasive on the question here presented.
The court concludes that the passbooks and savings certificates issued to plaintiffs by defendant Association and upon which the action sub judice is predicated, are merely instruments which constitute evidence of principal and interest payments accruing by virtue of currency deposited in an account with defendant Association. As such, they are not "securities" within the meaning of the Securities Exchange Act. See Burrus, Cootes, & Burrus v. MacKethan, 537 F.2d 1262, 1265 (4th Cir. *167 1976). See also Bellah v. First American National Bank of Hereford, Texas, 495 F.2d 1109, 1114-16 (5th Cir. 1974).
The determination that the court does not have jurisdiction of the action sub judice because the savings certificates and passbooks held by plaintiffs are not "securities" within the meaning of either the Securities Act of 1933 or the Securities Exchange Act of 1934, does not alone solve the jurisdictional problem.
Plaintiffs sue also under the Civil Rights Act, 42 U.S.C. § 1983, invoking jurisdiction pursuant to 28 U.S.C. § 1343(3).
Plaintiffs do not question the constitutionality of Senate Bill 2001, the vehicle through which defendant Association was placed in conservatorship. This statute was passed and became effective on June 20, 1976. Defendant Association was then in the hands of a receiver appointed by the Chancery Court of Hinds County, Mississippi, on May 20, 1976.
The Fifth Circuit said in Henry v. First National Bank of Clarksdale, 444 F.2d 1300, 1307-08 (1971):
Federal district courts have jurisdiction of actions to redress the deprivation, under color of any state law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the federal constitution or any Act of Congress providing for the equal rights of citizens. . . . It is, of course essential to this "civil rights" jurisdiction that the deprivation of rights contested be "state action." The difficult problem has always been to pinpoint the boundary between state action and nonstate, or private, action. (Citations omitted) (Footnote omitted).
The question here presented is whether the deprivation of the rights[10] held by plaintiffs resulted from "state action" so as to confer jurisdiction on this court under the Civil Rights Act, 42 U.S.C. § 1983 via 28 U.S.C. § 1343(3).
Plaintiffs correctly concede that there was no constitutional barrier to adoption of Senate Bill 2001, though plaintiffs were deprived of their right to withdraw their funds from defendant Association. The right of the State of Mississippi to enact remedial legislation for the protection of its citizens in the savings and loan industry can hardly be questioned. East New York Savings Bank v. Hahn, 326 U.S. 230, 66 S. Ct. 69, 90 L. Ed. 34 (1945); Veix v. Sixth Ward Bldg. & Loan Assoc. of Newark, 310 U.S. 32, 60 S. Ct. 792, 84 L. Ed. 1061 (1940); Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231, 78 L. Ed. 413 (1934).
Plaintiffs do not complain of The Savings and Loan Law of 1962, nor place its constitutionality in question.
The corporate defendants, Bankers Trust Savings & Loan Association, Bankers Trust Company and American Savings and Insurance Company, are private corporations. The individual defendants, other than the members of the Board of Savings and Loan Associations of the State of Mississippi, are private citizens acting in a private rather than a public capacity. The participation by these private defendants in the matters of which plaintiffs complain, does not constitute "state action", unless, in some remote way, the participation can be classified as "state action" because of involvement with state officers, that is to say, members and officials of the State Board.
As Chief Judge Brown said, in Fulton v. Hecht, 545 F.2d 540, 541-42 (5th Cir. 1977):
[T]he proof must show significant state involvement in order to bring an otherwise private concern within the ambit of the Fourteenth Amendment. . . . The protective armor of the Fourteenth Amendment invoked under § 1983 is activated to prevent deprivation of rights secured by the Constitution and laws only when state action or action taken under state law is present.
The Supreme Court, speaking through Mr. Justice Clark on the subject of "state action" in a section 1983 setting, remarked in the opinion rendered in Burton v. Wilmington *168 Parking Authority, 365 U.S. 715, 722, 6 L. Ed. 2d 45, 81 S. Ct. 856, 860 (1961) "[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."
One reason advanced by the state defendants to defeat a Section 1983 claim filed pursuant to the jurisdictional statute, 28 U.S.C. § 1343(3) is that the jurisdictional statute applies only if "personal" rights, as opposed to "property" rights, are allegedly impaired. This question was laid to rest in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S. Ct. 1113, 31 L. Ed. 2d 424 (1972), when the court said:
This Court has never adopted the distinction between personal liberties and proprietary rights as a guide to the contours of § 1343(3) jurisdiction. Today we expressly reject that distinction.
405 U.S. 542, 92 S. Ct. 1117 (footnote omitted)
The right which each plaintiff possessed, prior to the closure of defendant Association, was to surrender the savings certificate or passbook, as the case might be, for redemption pursuant to contract provisions. This is the right which has been impaired. This impairment was brought about by the action of defendant State Board, its members and officers, when a receiver was sought for defendant Association. In making the application for and effecting the appointment of a receiver, defendant State Board, its members and officers were acting pursuant to state law, i.e., The Savings and Loan Law of 1962.[11] It is evident that this law was passed in an effort to safeguard the savings of Mississippi citizens and others in state chartered savings and loan associations. The law passes constitutional muster in every respect. East New York Savings Bank v. Hahn, supra; Veix v. Sixth Ward Bldg. & Loan Assoc. of Newark, supra; Home Building & Loan Assoc. v. Blaisdell, supra.
It is clear from the facts and circumstances here involved that "state action" sufficient to trigger jurisdiction under 28 U.S.C. § 1343(3) is not present in the deprivation of plaintiffs' rights to withdraw their funds from defendant Association.
If state action is to be found to justify the court's jurisdiction, such must be done under the facts and circumstances said to exist prior to the closure of defendant Association.
Plaintiffs rely upon the allegations contained in Counts 9 and 10 of the complaint to support their contention that they have been deprived of the use of their property funds deposited with defendant Association without due process of law, thus giving rise to an action for violation of their civil rights.
Counts 9 and 10 allege:
Count 9: Deprivation of Property Without Due Process of Law
1. Plaintiffs hereby reiterate and rely upon the description of the parties as set forth in Section III, above, and the allegations of Counts 1, 2, 3, 4, 5, 6, 7 and 8, above, of this Complaint as fully as though recited herein verbatim and further allege:
2. Each and every Defendant, acting individually and within their public or corporate offices and acting in collusion and conspiracy with each other, have engaged in a gross dereliction of duty to the plaintiffs and/or willful misconduct.
3. These violations and derelictions of duty made necessary the action of the Mississippi Legislature amending the Mississippi Code and resulting in the subsequent appointment of a conservator for the Defendant Association and other State chartered savings and loan associations.
4. This Legislation and the appointment of said conservator has deprived the Plaintiffs of the use of their money invested in or deposited in the Defendant Association, thereby depriving the Plaintiffs *169 of their property and other rights secured to them by the laws of the United States, without due process of law as guaranteed to Plaintiffs by the Fourteenth Amendment to the Constitution of the United States.
5. At all times, the Defendant Board and the Defendant members of the Board were acting under color of State law in that they were abusing their offices and the authority granted to them by the laws of Mississippi.
6. Whereby Plaintiffs have been injured in the deprivation of property in the amount of approximately $50,000,000.00, the exact extent of which can be determined only by discovery.
Count 10: Deprivation of Contractual Obligations in Violation of Plaintiffs' Rights Under the Constitution of the United States
1. Plaintiffs hereby reiterate and rely upon the description of the parties as set forth in Section III, above, and the allegations of Counts 1, 2, 3, 4, 5, 6, 7, 8 and 9, above, of this Complaint as fully as though recited herein verbatim and further allege:
2. Due to the intentional, willful and malicious activities of each and every Defendant as alleged above, acting under color of State law and in their public and corporate offices, and acting individually and in collusion and conspiracy with each other, the capacity of the Defendant Association to continue its operations was destroyed and it was necessary that the Defendant Association be placed under the management of an appointed conservator, thereby impairing the contractual obligations between the Plaintiffs and the Defendant Association in violation of Article I, Section 10, Clause 1 of the Constitution of the United States, which provides in part: "No state shall . . pass any law . . . impairing the obligations of contracts."
3. Whereby the Plaintiffs have been injured in the amount of approximately $50,000,000.00, the exact extent of which can be determined only by discovery.
It is well to remember that the plaintiffs are mere depositors in defendant Association. They were entitled only to a return of their money with interest pursuant to the contract evidenced by their passbooks and investment certificates. They did not hold any interest in the assets of defendant Association in the sense of a shareholder. The court is not concerned with any common law right of action which the shareholders of defendant Association, or its receiver or conservator, might have against the officers and/or directors of defendant Association, Bankers Trust Company or American Savings and Insurance Company, the Board of Savings and Loan Associations of the State of Mississippi, its officers and members, for mismanagement, or gross dereliction of duty of the affairs of defendant Association.
Plaintiffs allege that the violation and dereliction of duties aforesaid made necessary the action of the Mississippi Legislature in amending the Mississippi Code (Senate Bill 2001) which resulted in the appointment of a conservator for defendant Association thereby impairing the contractual obligations between plaintiffs and defendant Association, in violation of Article I, Section 10, Clause 1 of the Constitution of the United States, which provides in part: "No State shall . . . pass any Law . . . impairing the Obligation of Contracts." As the court has observed, however, the facts here alleged fail to muster a challenge to the constitutionality of either of the Savings and Loan Act of 1962, or Senate Bill 2001, under which plaintiffs' contractual obligations with defendant Associations were impaired.
The court has concluded that the complaint does not allege the existence of facts sufficient to charge defendants with violation of the Civil Rights of plaintiffs within the meaning of 42 U.S.C. § 1983, so as to confer jurisdiction upon the court pursuant to 28 U.S.C. § 1343(3).
The court finds that the action sub judice does not present a federal question which acts to invest the court with jurisdiction to try the case. Since no federal question *170 exists, the court cannot entertain the state claims.
Accordingly, an order will be entered dismissing the action without prejudice for lack of subject matter jurisdiction.
NOTES
[1] Matter of Bankers Trust Co., 566 F.2d 1281 (5th Cir. 1978).
[2] 15 U.S.C. 78aa, provides in part:
The district courts of the United States, and the United States Courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder.
[3] 28 U.S.C. § 1331(a) provides:
The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States. (As this statute existed when complaint was filed, September 8, 1976. This statute was amended October 21, 1976.)
[4] 15 U.S.C. 78j(b), provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange
(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
17 C.F.R. § 240.10b-5 stipulates that:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
[5] 28 U.S.C. § 1343(3) and (4) provides:
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.
[6] 42 U.S.C. § 1983, provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
[7] In the complaint, plaintiffs characterize their deposits of funds with the association to be investments or purchases of securities.
[8] In Tcherepnin, the court said:
Petitioners are participants in a common enterprise a money-lending operation dependent for its success upon the skill and efforts of the management of City Savings in making sound loans. Because Illinois law ties the payment of dividends on withdrawable capital shares to an apportionment of profits, the petitioners can expect a return on their investment only if City Savings shows a profit. If City Savings fails to show a profit due to the lack of skill or honesty of its managers, the petitioners will receive no dividends. Similarly, the amount of dividends the petitioners can expect is tied directly to the amount of profits City Savings makes from year to year. Clearly, then, the petitioners' withdrawable capital shares have the essential attributes of investment contracts as that term is used in § 3(a)(10) and as it was defined in Howey.
389 U.S. at 338-39, 88 S. Ct. at 554 (footnotes omitted).
[9] The full text of 15 U.S.C. § 78c(a)(10) reads as follows:
(a) When used in this chapter, unless the context otherwise requires:
(10) The term "security" means any note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit, for a security, or in general, any instrument commonly known as a "security"; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange or banker's acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.
[10] The right to withdraw with interest funds deposited with defendant Association.
[11] Miss.Code Ann. §§ 81-11-1, et seq. (1972), now repealed, however, by Chapter 445, Laws 1977. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2968758/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6754
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANGELA MUSE
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Susan K. Gauvey, Magistrate Judge.
(1:03-cr-00554-JFM-1)
Submitted: August 16, 2012 Decided: August 21, 2012
Before KING and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Angela Muse, Appellant Pro Se. Joseph Ronald Baldwin, OFFICE OF
THE UNITED STATES ATTORNEY, Bonnie S. Greenberg, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Angela Muse appeals the magistrate judge’s order
denying her motion to dismiss the writ of continuing garnishment
entered against her. The Government has filed a motion to
dismiss the appeal for lack of subject matter jurisdiction. We
grant the motion. 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 | 09-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3222870/ | Appellate and supervisory jurisdiction over the court from the judgment of which this appeal was taken is expressly conferred upon this court by statute.' Local Acts 1923, p. 272, § 24. We have carefully read and considered the entire record in this case, and hold that under all this evidence the conviction of this appellant was wrongful, and cannot be permitted to stand, because of the failure of the state to meet the required burden of proof. The evidence in this case was insufficient to overcome the presumption of innocence with which, under the law, the defendant was clothed; such presumption is evidentiary in its nature, and attended the accused throughout the trial, or until his guilt was shown by the evidence beyond all reasonable doubt and to a moral certainty. If it can be said that there was any incriminating evidence against this appellant as to the accusation here involved it was of the slightest character, and purely and entirely circumstantial, and was not sufficient to afford an inference of his guilt. The law is that a conviction resting solely upon circumstantial evidence should not prevail, or be permitted to stand, unless it is shown by a full measure of proof that the defendant is guilty. Thus said the eminent and lamented Mr. Justice Stone in the case of Ex parte Acree,63 Ala. 234. In that case it was said:
"The humane provisions of the law are that a prisoner, charged with a felony, should not be convicted on circumstantial evidence, unless it shows by a full measure of proof that the defendant is guilty. Such proof is always insufficient, unless it excludes, to a moral certainty, every other reasonable hypothesis but that of the guilt of the accused. No matter how strong the circumstances, if they can be reconciled with the theory that some other person may have done the act, then the defendant is not shown to be guilty by that full measure of proof which the law requires."
The above excerpt is peculiarly applicable to the instant case. We are of the opinion it would be unconscionable to permit the judgment of conviction, pronounced and entered *Page 113
in this case, to stand. At the conclusion of the evidence the court, who tried this case without a jury, should have promptly discharged the defendant. Failing in this, we hold that the adjudication of guilt was erroneous, and we here enter an order reversing the judgment of conviction, and discharging the defendant from further proceedings in this cause.
Reversed and rendered. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/130076/ | 538 U.S. 1066
GONZALEZv.WILEY, WARDEN.
No. 02-10330.
Supreme Court of United States.
May 27, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.
2
C.A. 11th Cir. Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/130077/ | 538 U.S. 1066
WINSTONv.UNITED STATES.
No. 02-10318.
Supreme Court of United States.
May 27, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
2
C.A. 6th Cir. Certiorari denied. Reported below: 55 Fed. Appx. 289. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/8540842/ | per curiam:
Nuevamente nos encontramos con otro miembro de la profesión legal que muestra una conducta inaceptable. Nos enfrentamos, una vez más, con una falta al cumplimiento de las órdenes emitidas por este Tribunal en el ejercicio de su jurisdicción disciplinaria. Tal y como hemos actuado anteriormente, corresponde sancionar esta irrespetuosa conducta mediante la suspensión inmediata e indefinida de la profesión jurídica al abogado en *582incumplimiento. Además de la queja que hoy atendemos, el expediente del licenciado Calixto A. López González con-tiene los siguientes procedimientos disciplinarios en curso que se mantendrán inactivos mientras dure la suspensión: Queja AB-2008-77, Queja AB-2009-149, Queja AB-2010-042, Queja AB-2010-302 y Queja AB-2011-336.
I
El pasado 22 de diciembre de 2009 la Sra. Carmen De León presentó una queja contra de licenciado Calixto A. López González ante la Comisión de Ética del Colegio de Abogados de Puerto Rico. En esencia, la señora De León expuso que contrató al licenciado López González para pre-sentar tres demandas ante el Tribunal de Primera Instan-cia y que, una vez presentadas, el querellado “no mostró interés en continuar el proceso y radicó moción de desisti-miento en los tres casos sin mi consentimiento”. Formula-rio de Queja sobre Conducta Profesional de Abogado(a), presentada por la Sra. Carmen De León. Una vez recibida la queja, el 23 de marzo de 2010 la Comisión de Ética del Colegio de Abogados de Puerto Rico (Comisión de Ética) cursó una comunicación al licenciado López González con-cediéndole un término de 30 días para contestarla. Trans-currido el término, el 28 de abril de 2010 la Comisión de Ética concedió un término adicional de 10 días al quere-llado para que le notificara su posición sobre las imputa-ciones éticas ante su consideración.
Tras una comunicación por parte del licenciado López González donde informaba un cambio de dirección postal, el 12 de julio de 2010 la Comisión de Ética le informó que de no recibir alguna contestación con respecto a la queja en un periodo de 20 días, la remitiría al Tribunal Supremo para que tomáramos la acción que estimáramos corres-pondiente. No es hasta el 6 de agosto de 2010 que el licen-*583ciado López González presentó su contestación a la queja. Alegó que en los casos presentados no se pudieron diligen-ciar los emplazamientos y, por lo tanto, solicitó el desisti-miento sin perjuicio. Además, argüyó que a la fecha de su contestación ninguna de las causas de acción había pres-crito y podrían presentarse nuevamente. Luego de un in-tercambio de comunicaciones entre la querellante y el que-rellado, por medio de la Comisión de Ética, el 28 de febrero de 2011 la Comisión concedió un término de 30 días a am-bas partes para que informaran si habían podido reunirse para resolver el asunto. Asimismo, la Comisión les solicitó que de no llegar a un acuerdo, informaran las medidas que tomarían para no permitir que los casos prescribieran.
El 16 de marzo de 2011 la querellante informó que no tenía interés en llegar a un acuerdo. Mientras que el 12 de abril de 2011 el querellado solicitó 45 días para presentar nuevamente las demandas y diligenciar los emplazamientos. Una vez completara este proceso, pro-puso informar a la señora De León y solicitar al Tribunal que lo relevara de la representación legal. El 28 de abril de 2011 la Comisión de Ética le concedió el término solicitado e informó a ambas partes que este expiraba el 12 de junio de 2011. En vista de la comunicación de la Comisión de Ética, el 27 de mayo de 2011 la señora De León solicitó la devolución de los $1,150 que había adelantado al quere-llado por sus servicios profesionales.
Transcurridos los 45 días concedidos, el 27 de septiem-bre de 2011 la Comisión se comunicó con el querellado in-formándole de su incumplimiento e informando que la se-ñora De León deseaba la devolución del dinero que le había adelantado. Finalmente, apercibió al querellado que de no resolverse el asunto en un término de 30 días referiría el caso a este Tribunal.
El 27 de marzo de 2012, la Comisión de Ética compare-ció ante nosotros por medio de su Oficial Investigadora. Expuso los hechos relatados anteriormente y sometió el *584caso para que tomáramos la acción correspondiente. Eva-luada la Moción Informativa sobre Incumplimiento de Co-legiado, concedimos al licenciado López González un tér-mino de 10 días, contados a partir de la notificación de la Resolución, para que compareciera ante el Colegio de Abo-gados y que expusiese ante nosotros las razones por las cuales no debería ser disciplinado. De la misma manera se le apercibió que el no cumplir con la Resolución de este Tribunal, podría conllevar sanciones disciplinarias seve-ras, incluyendo la suspensión del ejercicio de la profesión. Según consta en el expediente, el querellado quedó debida-mente notificado de esta Resolución el 14 de marzo de 2012. Sin embargo, transcurridos 18 meses, el licenciado López González aún no ha cumplido con lo ordenado.
II
En numerosas ocasiones hemos señalado que los abogados y abogadas tienen el deber y la obligación de responder diligentemente a los requerimientos y órdenes del Tribunal. In re Aponte Del Valle, 189 DPR 245 (2013); In re Morales Rodríguez, 179 DPR 766 (2010); In re Feliciano Jiménez, 176 DPR 234 (2009). En particular, el Canon 9 del Código de Etica Profesional establece que todo abogado o abogada debe observar una conducta caracterizada por el mayor respeto hacia los tribunales. 4 LPRA Ap. IX. La naturaleza de la profesión de la abogacía requiere a todo letrado una atención activa particularmente a los requerimientos relacionados a investigaciones disciplinarias. In re Rivera Rosado, 180 DPR 698 (2011); In re Torres Viera, 179 DPR 868 (2010).
De igual forma, hemos reiterado que ignorar o desatender las órdenes de este Tribunal constituye una falta ética distinta e independiente de los méritos de la queja presentada, cuya sanción disciplinaria conlleva la suspensión indefinida del ejercicio de la profesión. In re *585Aponte del Valle, supra; In re Rivera Rosado, supra; In re Laborde Freyre I, 154 DPR 112 (2001). Este Tribunal no tolerará la indiferencia u obstinada negativa por parte de un miembro de nuestra profesión de cumplir con nuestras órdenes.
III
Este caso nos muestra una vez más a un abogado que ignora por completo nuestros requerimientos. El licenciado López González ha demostrado con su conducta un desin-terés y menosprecio por el procedimiento disciplinario que este Tribunal ha continuado luego de su incumplimiento con el proceso disciplinario llevado a cabo por la Comisión de Ética del Colegio de Abogados.
Según muestra el expediente, una vez la Comisión de Ética refirió a nuestra consideración la queja de la señora De León, se concedió un término razonable al licenciado López González para que compareciera tanto ante el Cole-gio de Abogados como ante nosotros. Sin embargo, a pesar de haber recibido personalmente nuestra Resolución el pa-sado 14 de marzo de 2012, el querellado no ha presentado contestación o solicitud de un término adicional para evi-tar cualquier sanción disciplinaria. La desatención mos-trada por el licenciado López González no nos permite otra cosa que no sea sancionarlo de la forma más severa.
Además, esta no es la primera sanción que el licenciado López González ha recibido por parte de este Tribunal. Se-gún surge de su expediente, en el mes de octubre de 2012 a solicitud de la Oficina de Inspección de Notarías (ODIN) se tuvo que ordenar de manera inmediata la incautación de su obra notarial debido a la falta de colaboración por parte del licenciado López González para que se lograra la ins-pección ordinaria de su obra notarial, su violación al Art. 53 de la Ley Notarial al trasladar sin autorización sus pro-tocolos, 4 LPRA see. 2077, y por información obtenida por *586la Inspectora de Protocolos de que la obra notarial estaba en riesgo. Como se puede apreciar, la conducta mostrada por el licenciado López González no es aislada y requiere que este Tribunal tome las medidas disciplinarias correspondientes.
Por las razones expresadas anteriormente, procede la suspensión inmediata e indefinida del licenciado López González del ejercicio de la abogacía. El licenciado López González tiene la obligación de notificar a todos sus clientes que por motivo de su suspensión no podrá continuar con su representación legal, y deberá devolver los expedientes de cualquier caso pendiente y los honorarios recibidos por tra-bajo no realizado. Igualmente, tiene la obligación de acre-ditar y certificar el cumplimiento de lo anterior dentro del término 30 días a partir de la notificación de esta opinión “per curiam”.
Se dictará sentencia de conformidad.
La Jueza Asociada Señora Fiol Matta no intervino. | 01-03-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/130095/ | 538 U.S. 1067
LATHERNv.UNITED STATES.
No. 02-10361.
Supreme Court of United States.
May 27, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
2
C.A. 8th Cir. Certiorari denied. Reported below: 59 Fed. Appx. 167. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/130114/ | 538 U.S. 1068
SALDANA GONZALES, AKA GONZALESv.UNITED STATES.
No. 02-10397.
Supreme Court of United States.
May 27, 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/130165/ | 539 U.S. 901
Barnhart, Commissioner of Social Securityv.Thomas.
No. 02-763.
Supreme Court of United States.
June 2, 2003.
1
Appeal from the C. A. 3d Cir. [Certiorari granted, 537 U. S. 1187.]
2
Motion of the Solicitor General to dispense with printing the joint appendix granted. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3814836/ | This action was brought by plaintiff in error, as administrator of the estate of Susan J. Duty, against the defendants in error for the cancellation of a deed executed by Susan J. Duty to defendants in error. The parties will hereinafter be referred to as plaintiff and defendants, as they appeared in the trial court.
The deed in controversy was executed October 26, 1908, during the lifetime of Susan J. Duty. The deed was a general warranty deed reserving a life estate in Susan J. Duty and was deposited in the Cleo State Bank by Susan J. Duty to be delivered to the defendants after her death. Susan J. Duty died on April, 17, 1917; thereafter defendants obtained possession of the deed from the bank and recorded it. The case was tried to the court without a jury, and judgment rendered in favor of the defendants, from which the plaintiff has appealed.
The only assignment of error presented is that the judgment of the trial court is clearly against the weight of the evidence. The plaintiff contends that the clear weight of the evidence shows that the deed in question, although deposited by Susan J. Duty *Page 163
in the bank, was deposited by her with the understanding and belief on her part that it was a lien of some kind on her property for the benefit of the defendants and not an absolute conveyance; that the evidence further shows that the instrument was not deposited with the bank with the intention that it should operate as a conveyance in praesenti to the defendants and that Susan J. Duty never relinquished control and dominion over the deed, but continued to exercise control over the same during her lifetime. The law applicable to this case was announced by this court in Shaffer v. Smith, 53 Okla. 352,156 P. 1188, in which the court said:
"Where the owner of land executes an instrument attested as a deed, and in all respects in the form of a deed, and places it beyond recall in the hands of a third person, to be delivered to his daughters at his death, it should be treated by the court as a conveyance passing title in praesenti, with the right to possession postponed until the death of the grantor"
— and in McClintick v. Ellis, 87 Okla. 75, 209 P. 403, in which the court said:
"This court on numerous occasions has discussed the question of delivery of a deed, and has repeatedly announced the rule that the question is always one of fact, and depends soley upon whether the grantor intended that the instrument in question should become operative immediately and vest title in the grantee."
Whether the deed was deposited by Susan J. Duty with the intention on her part that it should operate as a conveyance in praesenti, or whether it was her intention that it should operate as a lien of some kind on her property, was a disputed question of fact. There is evidence introduced tending to prove statements made by Susan J. Duty after the deed had been deposited, which tended to establish the contention of the plaintiff, but the testimony offered by the defendants tended to prove that the deed was delivered as an absolute conveyance and with the intention on the part of the grantor that it should operate as a conveyance in praesenti. The circumstances in connection with the execution of the deed, the form of the deed itself, and the fact that it was still in the possession of the bank at the time of her death, a number of years after it was executed, were all facts tending to support the contention that it was executed and delivered as a conveyance in praesenti. The same is true as to the contention that Susan J. Duty continued to retain and exercise control and dominion over the deed. There is considerable evidence in the record showing that Susan J. Duty did exercise dominion over the property after the deed was deposited in the bank and that she executed a mortgage thereon and attempted to make a sale of the property, but acts of this character cannot affect the grantee's title, if the deed became a valid conveyance in praesenti at the time it was delivered to the bank. On this point the Supreme Court of Washington in the case of Maxwell v. Harper, 98 P. 756, held:
"A grantor who has made a valid delivery of his deed by depositing it with a third person, without reserving any control over it, with instruction's to deliver it on his death to the grantee, cannot withdraw the deed or mortgage the land without the grantee's consent, and a subsequent lease and mortgage by the grantor cannot affect the grantee's title as against the grantor's legatees, though the mortgage was taken without notice of the deed."
We are of the opinion that the judgment of the trial court was not clearly against the weight of the evidence, and should be affirmed, and it is so ordered.
JOHNSON, C. J., and KENNAMER, BRANSON, and HARRISON, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3808511/ | The plaintiff in error, Minnie Allen, was tried in the district court of Payne county upon an information jointly charging her and George W. Carpenter with the murder of one Tom Oglesby, alleged to have been committed in the said county on the 18th day of May, 1915. Upon her separate trial she was found guilty of manslaughter in the first degree, and her punishment fixed at eight years' imprisonment in the penitentiary. From the judgment rendered in pursuance of the verdict she appeals.
It appears from the record that on the 15th day of October, 1915, the cause was submitted to the jury, and they retired in charge of a bailiff to consider of their verdict, and the court thereupon recessed; that Judge Huston, presiding judge, became seriously ill that evening, and, in view of such illness, it was agreed between the county attorney of Payne county and the attorneys for plaintiff in error that, in the event it became necessary for Judge Huston to return to his home in Guthrie before the jury had returned a verdict, Robert A. Lowry, an attorney at the bar of Payne county, should act as special judge for the purpose of receiving the verdict of the jury; that Judge Huston left Stillwater on the morning of the 16th day of October before said jury had returned their verdict; that about an hour later the jury came into the court room in charge of their bailiff, and in accordance with the aforesaid agreement, Robert A. Lowry convened court and inquired of the jury if they had agreed upon a verdict. The jury answered they had. Robert A. Lowry received their verdict and delivered the same to the court clerk. After the verdict was read and the jury polled, Robert A. Lowry ordered the clerk to record the same and have the record *Page 535
show that all proceedings had and done by Robert A. Lowry in said case were in effect had and done by the district judge, present in his own proper person. On October 19th Judge Huston, returning to Stillwater, opened court, and overruled plaintiff's motion to require the court clerk to correct the record in the case to show the facts. See Allen v. Huston, Judge, ante, p. 522,165 P. 742. On the same day motions for new trial and in arrest of judgment were overruled, and in pursuance of said verdict the judgment appealed from was rendered.
It is contended by the plaintiff in error that upon the record the trial court lost jurisdiction during the trial by reason of the fact that the trial judge absented himself from the place where court was being held while the jury was deliberating upon their verdict, and that the plaintiff in error waived none of her rights by reason of said agreement, and that she was entitled to be discharged upon her motion in arrest of judgment. The Attorney General has filed a confession of error and motion to remand the cause that it may be again tried.
Every person charged with crime is entitled to a fair trial in conformity to the laws of the state, and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. In many cases this court has held that it is the duty of the presiding judge at criminal trials to be present during each and every stage of the proceedings before him, and when the record affirmatively discloses that he lost control of the proceedings by reason of his absence from the bench during the progress of the trial, a judgment of conviction will be reversed. Stiles v. State,9 Okla. Crim. 596, 132 P. 822; Wright v. State, *Page 536 7 Okla. Crim. 280, 123 P. 434; Cochran v. State, 4 Okla. Crim. 380,111 P. 974. It is a fundamental principle of law that judicial power cannot be delegated, and a verdict of conviction, to be of any validity, must be delivered in open court.
Under the following provisions of our Procedure Criminal the presence of the presiding judge during the entire course of the trial is essential, and the receiving of the verdict is a judicial act, which cannot be delegated:
"After hearing the charge, the jury may either decide in court, or may retire for deliberation. If they do not agree without retiring, one or more officers must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor do so themselves, unless it be by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court." (Section 5906, Rev. Laws 1910.)
"After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the county attorney and the defendant or his counsel, or after they have been called." (Section 5913.)
"If, after the retirement of the jury, one of them becomes so sick as to prevent the continuance of his duty, or any other accident or cause occur to prevent their being kept together for deliberation, the jury may be discharged." (Section 5914.)
"Except as provided in the last section, the jury cannot be discharged after the cause is submitted to them until they have agreed upon their verdict, and rendered *Page 537
it in open court, unless by the consent of both parties entered upon the minutes, or unless at the expiration of such time as the court deems proper, it satisfactorily appear that there is no reasonable probability that the jury can agree." (Section 5915.)
"In all cases where a jury are discharged or prevented from giving a verdict, by reason of an accident or other cause, except where the defendant is discharged from the indictment or information, during the progress of the trial, or after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct." (Section 5916.)
"While the jury are absent the court may adjourn from time to time as to other business, but it is nevertheless deemed open for any purpose connected with the cause submitted to them until verdict is rendered or the jury discharged." (Section 5917.)
"When there is a verdict of conviction in which it appears to the court that the jury have mistaken the law, the court may explain the reason for that opinion, and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered," and "if the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it." (Sections 5925 and 5926.)
"When a verdict is rendered, and before it is recorded, the jury may be polled on the requirement of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation." (Section 5928.)
Under these provisions, after the retirement of the jury to deliberate and until a verdict is rendered, or the jury discharged in due course of the law, it is the duty of the presiding judge to be where he can respond to any call for the exercise of his judicial authority, and thus give *Page 538
protection and security to all parties interested or concerned in the result of the trial, and such judge cannot delegate these judicial functions to another, even with the consent of the parties. It is well settled that in prosecutions for felonies the continuous presence of the judge during the entire course of the trial is indispensable, and that whether objection be or be not made, a conviction will be reversed in the case of his improper absence.
In Meredith v. People, 84 Ill. 479 (2 American Crim. Rep. 448), which was an indictment for murder, it was held:
"The trial judge must occupy the bench throughout the entire trial, which includes the argument of counsel. Where it is made to appear that, for two days during the argument, the judge was not in the courtroom, but in another part of the building, engaged in other business, and that members of the bar presided in his place, the verdict will be set aside, although this was done by consent of the respondent's counsel, or even by his own consent. The accused cannot waive the presence of the judge during his trial."
In Ellerbe v. State, 75 Miss. 522, 22 So. 950, 41 L.R.A. 569, it was held:
"One prosecuted for crime is entitled to have a legally constituted court at every stage of his trial, and where the presiding judge calls a member of the bar to the bench, and, by consent of counsel, leaves the courthouse for some minutes during the concluding argument for the state, the judgment of conviction will be reversed on appeal of the accused, notwithstanding the waiver of objection by his counsel."
In Durden v. People, 192 Ill. 493, 61 N.E. 317, 55 L.R.A. 240, where it appeared that one circuit judge heard the evidence and a part of the argument of counsel, and then vacated the bench as presiding judge and left *Page 539
the county and thereafter took no part in the trial of the cause, nor in any of the other proceedings therein, until the hearing of the motion for a new trial, which he overruled, the judgment, for this reason, was reversed. The court used the following language:
"In our view, it makes no difference that another circuit judge of equal power and jurisdiction was presiding in place of the absent judge, if he had no such knowledge of the testimony, already given upon the witness stand, and of the proceedings, already taken in the cause, as to be able to direct and control the arguments of counsel when they pass beyond proper limits, and to determine whether or not the instructions to be given to the jury are based upon the evidence already heard in the presence of the jury. * * * In the case at bar, there was no death, nor sickness, which justified the judge who conducted the trial in vacating the bench. It does not appear for what reason he abandoned the trial of the cause and turned it over to another judge. But, even if he went into another county in order to attend to other business upon his circuit, as is alleged by the Attorney General, there was no official business which more properly demanded his attention than the trial in hand, which involved the life of a human being. * * * Hence, when he was absent from the bench, the authorities, which hold that absence from the bench is error such as justifies a reversal, are strictly applicable to his conduct. His absence was not excused by the fact that another judge, not familiar with the evidence, instructed the jury and received the verdict. The injury, which may have inured to the interests of the plaintiff in error, was not counterbalanced by the presence of a new and outside presiding officer."
In People v. McPherson, 74 Hun, 336, 26 N.Y.S. 236, it was held that a criminal case cannot be partly tried before one magistrate and partly before another, and it was there said: *Page 540
"The proposition that a criminal case cannot be partly tried before one magistrate and partly before another seems to me too clear to need argument or citation of authority to sustain it. When the trial of a case has once commenced it must proceed to the end before the same court and jury."
See, also, O'Brien v. People, 17 Colo. 563, 31 P. 230;Hayes v. State, 58 Ga. 35; McClure v. State, 77 Ind. 287; Statev. Carnagy, 106 Iowa 487, 46 N.W. 805.
In Ex parte Patswald, 5 Okla. 789, 50 P. 139, speaking thorough Mr. Justice Tarsney, the court said:
"The one question to be determined is: Did the absence of the presiding judge discharge the jury from the consideration of the cause and, by operation of law, terminate the trial of the cause so as to render void the further proceedings had therein? By law, the terms of the district court of Oklahoma county are fixed to be held at Oklahoma City, and cannot be held at any other place. No person can be lawfully deprived of his liberty except `by due process of law.' Due process of law would, in this case, imply upon conviction by a court of competent jurisdiction. A court of competent jurisdiction for the trial of the crime of perjury consists of a presiding judge and a jury. It is not a court unless there be both judge and jury. It is the very existence and vitality of the court which authorizes the jury to deliberate. It is the existence and authority of the court which keeps them together, and that existence and authority must continue from the time they are impaneled until they are discharged. Barrett v.State, 1 Wis. 156 [175]. For all general purposes the court is considered as in session from the commencement to the close of its term. The jurors, officers and parties are all under its direction. The functions of the court cannot be suspended and the functions of the jury continue. To hold the contrary would be to throw off all those salutary restraints which have been found necessary to the due and solemn administration of justice. The *Page 541
jury are under the control and protection of the court. * * * The jury may, while deliberating, properly require of the court additional instructions as to the law of the case, or require of the court explanation of the meaning of the instructions given. They may, in the presence of the court and by permission of the court, have their memories refreshed as to the testimony in the case. All these privileges and safeguards are in great measure for the protection of the rights of the defendant, and nothing but the existence and presence of the court during every part of the proceedings of his trial can insure them to him. * * * The presence, actual or constructive, of a judge at every stage of the proceedings in a court is necessary, or the proceedings will be coram non judice; the law requires his presence during each and every step. * * * He may take a recess or adjourn as to all other business from day to day, or for rest or refreshment, but he cannot suspend the functions of the court as to the case on which the jury are deliberating. He need not remain actually on the bench or in the courtroom, but he must remain where he may exercise his functions as a court; that is, at the place where the court is by law required to be held. He cannot be at another place or engage in another business which precludes the exercise of such functions. * * * The court cannot be adjourned or its functions suspended as to the cause submitted to the jury. It is constructively open even though the judge be resting or refreshing himself; but to be constructively open the judge must be at the place where the law requires it to be kept open. If the judge should die after a cause was submitted to a jury, we do not think a verdict could be returned by the jury after a successor had been appointed and assumed the functions of the court. The death of the judge would render the jury, as to the cause,functus officio; and absence from the place where, by law, the court is required to be held, or other cause which dissolved the organization of the court, or suspended or prevented the exercise of its functions, would have the same effect as the death of the judge. The termination *Page 542
of the court by operation of law destroys the power of the jury to exist as a part of the court and discharges the jury. State v.Jeffors, 64 Mo. 376. With the termination of the court the jury is discharged by operation of law, and it can then neither make nor return a verdict."
It appears from the record that in the case at bar the jury were without any judicial supervision whatever from the time the presiding judge left the county until they returned their verdict, and then, by consent of the parties, Robert A. Lowry, a practicing attorney of the court, assumed to act as special judge for the purpose of receiving the verdict and discharging the jury. Applying the well-established rules of law enunciated in the cases quoted, we are of the opinion that the verdict of the jury was a nullity, and that no judgment of conviction could be lawfully pronounced on it by the court. It follows that the confession of error is well founded, and should be sustained.
It is now insisted that the plaintiff in error was, by the proceedings of that trial, once in jeopardy, and cannot lawfully be put upon trial the second time. It is a well-settled principle of common and constitutional law that a person cannot be put in jeopardy a second time upon the same charge. Article 2, sec. 21, Constitution of this state, declares:
"Nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life and liberty for the same offense."
It is well established that after the jury has been impaneled and sworn in a criminal case any discharge *Page 543
thereof without sufficient cause operates as an acquittal, in that it effectually bars another trial for the same offense. But to have this operation and effect such discharge must have been made without the consent, expressed or implied, of the defendant. I Bish. New Crim. Law, sec. 998.
In Cooley's Const. Lim. (7th Ed.) p. 467, the author says:
"A person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon indictment or information which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. And a jury is said to be thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will, or by a discharge of the jury and continuance of the cause. If, however, the court had no jurisdiction of the cause, or if the indictment was so far defective that no valid judgment could be rendered upon it, or if by any overruling necessity the jury are discharged without a verdict, which might happen from the sickness or death of the judge holding the court, or of a juror, or the inability of the jury to agree upon a verdict after reasonable time for deliberation and effort, or if the term of the court as fixed by law comes to an end before the trial is finished, or the jury are discharged with the consent of the defendant expressed or implied, or if, after verdict against the accused, it has been set aside on his motion for a new trial, or on writ of error, or the judgment thereon been arrested — in any of these cases the accused may again be put upon trial upon the same facts before charged against him, and the proceedings had will constitute no protection."
The discharge of the jury under the circumstances of this case must be deemed to have been done upon the *Page 544
agreement and with the consent of the plaintiff in error. Again, the statute prescribes (section 5916, supra) that in all cases where the jury are discharged, or prevented from giving a verdict by reason of an accident or other cause, after the cause is submitted to them, the cause may be again tried at the same or another term, as the court may direct. The record shows, and counsel for the plaintiff in error concede, that the sickness of the presiding judge was such that it unfitted him for the further performance of his duties in the trial of the case.
The word "accident," as used in this section, is variously defined as an event happening unexpectedly and without fault, or as an undesigned and unforeseen occurrence of an afflictive or unfortunate character; a casualty or mishap. Under the foregoing principles and authorities, the discharge of the defendant on the claim of once in jeopardy should be denied in any aspect of the case contended for by her counsel.
For the reasons stated, the judgment of conviction is reversed, and the case remanded for a new trial. The warden of the penitentiary at McAlester will surrender the plaintiff in error to the sheriff of Payne county, who will hold her in custody until she shall be discharged, or as otherwise ordered according to law.
ARMSTRONG and MATSON, JJ., concur. *Page 545 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3166631/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 689 MAL 2015
:
Respondent :
: Petition for Allowance of Appeal from
: the Order of the Superior Court
v. :
:
:
PERNELL CHARLES RIDDICK, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 29th day of December, 2015, the Petition for Allowance of
Appeal is DENIED.
Mr. Justice Eakin did not participate in the decision of this matter. | 01-03-2023 | 12-30-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3808516/ | This is a case depending entirely upon what is known as "circumstantial evidence." It is therefore proper for us to consider the value of such evidence. Some courts hold that circumstantial evidence is of secondary importance and is inferior to what is called "direct or positive evidence." Our investigation and reflections have caused us to reach a different conclusion. All evidence is largely circumstantial, and even when most direct it depends upon circumstances for its credibility, weight, and effect. By way of illustration, suppose that a number of persons witness a homicide, and all testify that they saw A. point a rifle at B., who was standing some fifty yards away; that they saw a flash and heard the report of an explosion; that they saw B. fall to the ground, and upon going to his body found a small hole in his forehead and a similar hole in the back of his head; and that B. immediately died. This would be called a case of direct and positive evidence. The evidence would be direct and positive only to the extent that they saw A. point a rifle at B., that they saw a flash and heard the report of an explosion, that they saw B. fall to the ground, that upon examination they found a hole through his head, and that he died immediately. No witness could testify as a matter of fact that he saw the bullet come out of the gun and pass through the head of B. That the witnesses saw a flash and heard the report of an explosion, based upon past experiences — that is, circumstances — would prove that A. had fired the gun. Yet it would be possible that A. may have missed B., and another may have fired the fatal shot. To carry this illustration further, suppose that half of the witnesses who saw the homicide testified that B. was not attempting to make an assault on A. at the time of this occurrence, and the other half of the witnesses testified that before A. fired his gun B. had fired at A. This would present an issue of fact to be settled by the jury, and the determination of this question would depend upon a great variety of circumstances, among which might be mentioned the interest or want of interest, bias or want of bias, of each witness in the case, the intelligence of the witnesses, *Page 546
the question as to whether or not they or any of them were suffering from any such physical or mental defect as would impair their sight, hearing, or memory, the viewpoint from which each witness saw the homicide, and the reputation of each witness for truth and veracity. Many other circumstances might be mentioned. All such circumstances must be considered by a jury in weighing the credibility of the witnesses in every case, whether it be of direct or circumstantial evidence. Suppose, for further illustration, we take the case of a contested will, where a number of witnesses testify that they were present and saw the testator execute the will and they signed the same as witnesses at his request, and their evidence is not disputed so far as human testimony is concerned; but, upon an examination of the paper on which the will was written, it is found that the date of the watermark in the paper was several years subsequent to the time of the death of the deceased, which would be the more satisfactory and therefore the best evidence, the direct testimony of these witnesses, or the circumstance of the date of the watermark in the paper? Suppose a number of witnesses testify that they saw a man thrust his hand into a bucket of water, and on taking it out a hole remained in the water where the man's hand had been. It matters not how positive and direct such testimony was, no sane jury would accept it. Why? Because their past experience, based upon circumstances, teaches them that it is contrary to the laws of nature for a hole to remain in water when a solid object is taken therefrom. This knowledge of the laws of nature and this past experience rest upon a great variety of circumstances too numerous to mention. A thousand different illustrations could be made to the same effect.
From these and other reflections we have come to the conclusion that it is a mistake to say that "circumstantial evidence" is inferior to what is commonly called "positive and direct testimony." The truth is that no human testimony is superior to doubt even in cases of the most direct proof. It is always possible that witnesses may err unintentionally or may corruptly falsify their testimony for reasons which are at the time not apparent *Page 547
and not known. If the law required mathematical certainty either as to matters of fact or as to the conclusions drawn by the courts and juries, the enforcement of law would be impossible.
In Coleman v. State, 6 Okla. Crim. 252, 118 P. 594, this court said:
"Law is not based upon fixed and unchangeable facts, and therefore is not, and cannot become, an exact science. It never has required mathematical certainty either on the part of courts or juries. In the very nature of things, more should not be required than moral certainty of the guilt of a defendant before inflicting legal punishment, and moral certainty admits the possibility of error in every case. It is largely on this ground that the pardoning power is placed in the hands of the Governor. This is done principally to enable him to give a prisoner the benefit of any new discoveries that may be made favorable to him after his conviction. It is manifest that no one can say as a matter of knowledge that any given person is guilty of a crime for which he has been convicted. It is always possible in any case that the witnesses for the prosecution may have committed perjury or they may have been mistaken as to the facts with reference to which they have testified; and it is also always possible that jurors may have been influenced by improper motives or they may have misunderstood and misapplied the law and the evidence in the case, and it is also always possible that in any case the appellate court may be mistaken as to the law or mistaken as to its application to the facts of the case. If knowledge was required of courts or juries, it would be impossible to have society, government, and law. Matters of knowledge relate to commonplace things of life. The most of the things we believe are spiritual. Herein lies the true distinction between brutes and human beings. The brute knows; the human being not only knows, but also believes and exercises faith. Experience shows that a man is far more apt to be right when he places his belief and faith and action upon a reasonable basis than he is apt to be right when he thinks that he is acting upon his personal knowledge. Of necessity nearly all of our acts are based upon belief, and but few of them are based upon knowledge. If we only acted on knowledge, we would not accomplish much in life. There are very few things we know for certain. No man knows as a fact that his wife loves and is faithful to him; but most men would stake their lives upon their faith in their wives. Without this faith the marital relation would not be endurable, and would *Page 548
soon cease to exist, and society itself would crumble to pieces, and the world would relapse into the darkness of barbarism. Our everyday experience confirms the statement of inspiration that `by faith we live, move and have our being.' The truth is that the only possible standard of action for the enforcement of law is that we must believe to the same degree of moral certainty that we act upon in matters of the gravest concern to ourselves, and, when we so believe and act, we meet the full measure of our duty."
We feel justified in saying that, in cases of circumstantial evidence, where the facts or circumstances which are proven are not only consistent with the guilt of the defendant, but are also inconsistent with his innocence, such evidence in weight and probative force may surpass direct evidence in its effect upon the jury.
A single fact standing by itself may be of no value as evidence; two or three or more facts or circumstances taken together might not be sufficient to justify a conviction; but where a multitude of facts or circumstances, some of which may be slight, are taken together and proven to be true, they may irresistibly compel the jury to return a verdict of guilt in a case of the most serious moment. In cases depending upon direct testimony, where but few facts are involved, it is a very easy matter to fabricate the evidence in such a manner as to make detection almost impossible. Herein lies the greatest danger in cases depending upon direct evidence. In cases depending upon circumstantial evidence, witnesses may swear falsely as to the circumstances relied upon; but experience shows that it is impossible to fabricate consistency in the circumstances themselves, where many facts are involved. As the law requires, in cases of circumstantial evidence, that the facts or circumstances proven to be true must not only be consistent with the guilt of the defendant, but must also be inconsistent with his innocence, the impossibility of fabricating consistency in the circumstances makes this class of evidence as safe and reliable as human testimony can become.
Suppose for a moment that it was the rule of our being, and that we were so constituted, that we could not believe anything *Page 549
unless it were demonstrated to us by our own senses, or was testified to by the direct evidence of an eyewitness. What would then be our condition? We would only be able to punish such crimes as were perpetrated in the presence of spectators. All secret murders, arsons, burglaries, forgeries, and other offenses could be committed with absolute impunity. Nor would the mischief stop there. Few civil controversies could be settled by juries. No book of original entries could be received in evidence; no note or obligation would avail, unless there was a subscribing witness. Indeed, this would not be sufficient, for if he died before trial, the claim would expire with him. An insurance on the life of the witness would not even avoid the difficulty, for the policy would die with its attesting witness. For the same reason, all receipts would perish with those who saw them signed, and all our deeds and muniments of title would be swept away by the death of the subscribing witnesses and the magistrates before whom they were acknowledged. All proof of handwriting by comparison being annihilated, commerce would be destroyed, or remitted to its infancy in barbarous ages. With the abolition of legal punishment for crime, mob laws and vigilance committees would supersede the use of courts and juries, and the whole framework of society would be impaired, if not destroyed. Not only do business men answer letters, pay drafts, and credit others to the extent of millions daily upon the testimony of circumstances alone, but they commendably carry this faith, as the evidence of things unseen, into the reasoning which connects them with the world beyond our own. A trifling circumstance — the fall of an apple — has proved to the satisfaction of philosophers the great laws of gravitation which control the motions of the universe. The same kind of testimony is the prop of our belief in all the great truths of revelation. If we turn from the world without, to the great mechanism within us, we see again that no rational man pauses for one instant to doubt the force of circumstantial testimony. What evidence have we that it is a heart that beats or a brain that throbs within us, except from the fact that those organs exist in all similarly *Page 550
constituted beings? And we accept remedies for "all the ills that flesh is heir to, "upon precisely the same faith in circumstantial evidence. See Com. v. Twitchell, 1 Brewst. (Pa.) 551.
In the case of Hickory v. U.S., 151 U.S. 303,14 S. Ct. 334, 38 L. Ed. 170, the trial court, in referring to the necessity of determining the condition of the mind of the accused, said:
"Some say we cannot do it by circumstantial evidence, because it is cruel and criminal, they say, to convict a man upon circumstantial evidence. This is a declaration of either fools or knaves, sympathetic criminals, or men who have not ability enough to know what circumstantial evidence is, or to perform the ordinary duties of citizenship. When you consider that these two mental conditions, the fact that the act was done willfully, and done with malice aforethought, can never in any case be found in any other way than by circumstantial evidence, you can see the potency in every case of that class of testimony. Circumstantial evidence means simply that you take one fact that has been seen, that is produced before you by evidence, and from that fact you reason to a conclusion."
An exception was reserved to this instruction; but Chief Justice Fuller, in delivering the opinion of the court, without discussion declared that the objection was without merit.
There is a deep-rooted and widespread feeling, not only on the part of the public, but among many members of the legal profession and many courts, that circumstantial evidence is to be considered as a chain, of which each circumstance relied upon constitutes a separate and distinct link, and that each such circumstance or link must be proven by the same weight and force of evidence and must be as convincing in its conclusiveness of guilt as though it was the main issue in the case. The fallacy of this theory lies in the fact that it makes every such circumstance or link stand by itself and depend alone upon its own strength. It matters not how strong some links in a chain may be; the weaker links will not gain strength by being connected with the stronger links. It is manifest that no chain can be stronger than its weakest link. It is utterly impracticable to apply the chain theory to matters of belief. The man who would apply this theory to his private affairs would never accomplish anything. *Page 551
He would be everywhere looked upon as a self-confessed fool. Why should we apply a theory to the administration of justice in our courts which we repudiate in every other transaction of life? It is an accepted maxim that straws floating on the surface prove the way that the current is flowing. Every man's experience demonstrates that his beliefs are based upon a great number of circumstances, many of which standing by themselves are not fully proven and would amount to nothing, but which, when combined together, give strength to each other and constitute proof as strong as holy writ. From these and other reasons this court has repudiated the chain theory with reference to circumstantial evidence, and has adopted in its place the rope or cable theory as being more in harmony with reason and human experience, and therefore more efficacious in the administration of justice. For further discussion of this matter, see Ex parte Hayes et al.,6 Okla. Crim. 321, 118 P. 609, and also Ex parte Harkins, ante,124 P. 931.
The chain theory is largely responsible for the misconception and consequent prejudice which exists in the minds of so many persons against circumstantial evidence. When we start out with false premises, we are sure to arrive at an unsound conclusion. It may be stated as an axiom that truth is never derived from or will seek companionship with error. It is therefore of the utmost importance that we base our conclusions not only on sound reasoning, but also upon true premises. Instances have been industriously collected in which persons have been wrongfully convicted upon circumstantial evidence which are invariably used for the purpose of intimidating courts and juries and preventing them from enforcing the law upon this class of testimony. But a fair investigation will show that these instances are rare when compared with the great volume of business transacted, and that they have occurred at times and places remote from each other. An investigation will show that a much larger per cent. of persons have been convicted improperly upon direct and positive evidence. The Savior of mankind was crucified upon direct and false testimony. In the first and second *Page 552
verses, twenty-third chapter of St. Luke, we find the following:
"1. And the whole multitude of them arose and led him unto Pilate.
"2. And they began to accuse him, saying, We found this fellow perverting the nation, and forbidding to give tribute to Caesar."
Here was direct and positive testimony which Pilate himself did not believe, but upon which he acted on account of the clamor of the rabble. Stephen, the first martyr in behalf of Christianity after the crucifixion of Christ, was convicted and executed upon direct and perjured testimony. In the sixth chapter of Acts, tenth, eleventh, twelfth, and thirteenth verses, we have a statement of the testimony upon which he was condemned. It is as follows:
"10. And they were not able to resist the wisdom and the spirit by which he spake.
"11. Then they suborned men, which said, We have heard him speak blasphemous words against Moses, and against God.
"12. And they stirred up the people, and the elders, and the scribes, and came upon him, and caught him, and brought him to the council.
"13. And set up false witnesses, which said, This man ceaseth not to speak blasphemous words against this holy place, and the law."
If we are going to reject circumstantial evidence because at some remote time and in distant localities some few persons may have been unjustly convicted thereon, we should be consistent, and we must also reject all testimony, because a great many more persons have been unjustly convicted on direct testimony than have ever been convicted on circumstantial testimony.
The record in this case contains something like 1,000 pages. In it we find the testimony given upon the preliminary examination and also the testimony given upon the examining inquest, and also a great number of affidavits and counter affidavits filed by the petitioner and also by the state. When the argument was finished, we requested counsel on each side to file a synopsis of the testimony upon which they relied. This was done to prevent the members of this court from overlooking any fact which *Page 553
either side thought was material to its case. Realizing the importance of this case to petitioner and to the state, we have laboriously and carefully read every word in this record and have endeavored to classify this testimony and to give to each fact or circumstance, whether proven by the state or by petitioner, its due weight in our consideration of the case. To make a complete written review of all this testimony would more than fill a volume of our reports, and we see no good that could be accomplished by so doing, for our decision is only preliminary, and a jury with the witnesses before them must finally pass on the truthfulness of the testimony.
We do not deem it necessary to do more than say that, applying the principles of law hereinbefore discussed to this testimony and considering it all together, we have reached the conclusion that bail should be denied petitioner pending the final hearing. For the conditions under which bail should be either granted or refused in a capital case, see Ex parteHarkins, ante, 124 P. 931.
The writ of habeas corpus is discharged, and petitioner is remanded to the custody of the sheriff of Nowata county to await trial on the accusation pending against him.
ARMSTRONG and DOYLE, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3808518/ | This action was commenced in the district court of Oklahoma county by the Shaffer Oil Refining Company, against A.J. Stratton, to recover a balance of $11,967.80, and interest, on a series of promissory notes executed by the defendant in July, August, and September, 1920.
The defendant filed an unverified answer alleging, in substance, that said notes were without any consideration.
The reply of the plaintiff is a general denial.
Upon the trial of the case before a jury the plaintiff offered the notes, which were received in evidence without objection and plaintiff rested its case.
The defendant testified that he had received no consideration of any kind for the notes. Upon cross-examination the defendant identified his signature to two certain instruments and they were admitted in evidence *Page 29
over the objection of defendant, who testified that they had been materially altered.
The consideratioin for the execution of said notes is evidenced by these two written agreements entered into by and between the plaintiff and defendant.
At the conclusion of the defendant's testimony counsel for defendant requested the court to strike from the record the two instruments referred to for the reason that they were altered after the signature of the defendant, which was overruled by the court and exception taken.
Defendant then rested and counsel for plaintiff demurred to the evidence offered on the part of the defendant for the reason that the same, under the law, is not sufficient to constitute a defense to the plaintiff"s action.
The court thereupon sustained the plaintiff's demurrer to the evidence.
Judgment was duly rendered for plaintiff in the sum of $12,513, with interest. Motion for new trial was overruled, to which action of the court defendant excepted. The cause comes regularly on appeal to this court.
The first proposition discussed by defendant in his brief is that the court erred in sustaining the plaintiff's demurrer to the defendant's evidence.
The record discloses that the defendant was the only witness in the case. The execution of the notes sued upon was not denied and the defendant in his evidence admitted that he entered into the written agreements introduced in evidence with the plaintiff, and that the subject-matter of these written agreements is the money that defendant received from the plaintiff and which were evidenced by the notes upon which the suit was based. These agreements show that the defendant received the plaintiff's money and thereby became indebted to it.
The said agreements also show that the defendant became the owner of certain oil and gas leases purchased by him with the money that he obtained from the plaintiff, and that the defendant assigned the said leases to the plaintiff as collateral security for the debts.
The defendant testified to the effect that the plaintiff's agent informed him before he executed the notes that "it was just a mere matter of form; that the Chicago office would like to have this evidenced by notes."
It is contended that this testimony is competent to prove that the notes sued on were without any consideration; that they were signed by request of the plaintiff acting by its agent with the assurance to the defendant that it was a mere matter of form to show where the money had been used and that this money was paid to defendant for the express purpose of paying for the leases; that it was so used by him and that he did not receive any benefit for himself.
The case of Jesse French Piano Organ Co. v. Bodovitz,73 Okla. 87, 174 P. 756, is cited in support of defendant's contention.
We do not think the case relied upon lends any support to the position taken by defendant. In that case this court announced the rule in the first paragraph of the syllabus as follows:
"Where an oral agreement is partially reduced to writing and the writing evidencing it is not a complete and final settlement of the entire transaction parol evidence not inconsistent with such written contract is admissible to show the full agreement."
In the instant case the contract between the plaintiff and defendant being complete and unambiguous it cannot be altered by parol evidence except for fraud or mistake, Garrison v. Kress, 19 Okla. 433, 91 P. 1130.
There was no evidence of fraud or mistake in the execution of the notes and no such claim is made in the brief of defendant.
"The execution of a contract in writing whether the law requires it to be in writing or not, supersedes all oral negotiations or stipulations concerning its matter which precluded or accompanied the execution of the instrument." Section 5035, Comp. Stat. 1921.
In the case of Metz v. Winne, 15 Okla. 1, 79 P. 223, it is held in the second paragraph of the syllabus:
"It is not error to sustain a demurrer to an answer which alleges no consideration for a note and which pleads the special facts from which such conclusion is deduced, when from such specific facts it is apparent that such conclusion is erroneous, and that such note is based upon a sufficient consideration."
In the above case, as in this case, it was claimed by the defendant that the notes were without consideration. Defendant in his answer and testimony admitted the execution of the notes. The written contracts were in evidence and their execution was admitted by the defendant. These written agreements evidence the entire transaction between the parties and show, we think, a *Page 30
valuable consideration for the execution of the notes sued upon.
The testimony of the defendant in respect to an oral understanding had with the plaintiff's agent prior to the execution of the notes, and of the written agreements, was an attempt to vary the terms of the contract. This testimony was received over the objection of the plaintiff.
In the case of Clinton National Bank v. McKennon,26 Okla. 836, 110 P. 649, it is said:
"It is the duty of the court in directing a verdict to lay out of consideration incompetent testimony received over objection."
It is further contended that the court erred in holding that there was no competent evidence tending to prove the material alteration in the contract entered into tween plaintiff and defendant prior to the execution of the notes.
It is sufficient to say that the court, after an inspection of the original agreements introduced in evidence, found that the instrument offered did not show a material alteration on its face and an objection to its introduction was overruled.
A careful examination of the record discloses that the only questions presented in the trial court were: First, that prior to the execution of the notes and of the written agreements there was an oral agreement between the defendant and the agent of the plaintiff relating to the payment of the notes; and, second, that a material alteration has been made in one of these agreements, after its execution by the parties.
With respect to the first question the court, as stated, permitted the defendant to testify to the oral agreement which was to the effect that no liability would attach to the defendant by reason of his execution of the notes.
The trial court ruled that whatever arrangement the defendant had with the plaintiff's agent relative to the manner of payment of the notes was later merged in their written agreements. In this we can perceive no error.
As to the second question it appears that the first agreement, which was executed August 11, 1920, provides, in substance, that defendant should refund to the plaintiff all money advanced by it for the purchase of certain oil and gas leases which were to be held by defendant at such time as he should sell or otherwise dispose of said leases, "said time, however, not to exceed six months from the date hereof."
The contention was that the language quoted had been inserted in the original contract after its execution.
The court examined both the original contract and the carbon copy in the possession of the defendant, and after this examination said, "I note a difference in the carbon copy, but I am frank to say I cannot see any difference in that original."
We think the court did not err in holding that there was no competent evidence tending to prove there was a material alteration in the first agreement.
Aside from this, however, the second agreement between the parties relative to the payment of these notes was introduced in evidence bearing date of December 15, 1920, several months after the execution of the first agreement and which completely supersedes the first written agreement and which defendant claims was altered, but there is no claim that the second agreement had been in any manner changed.
Upon the whole record we are of the opinion the court did not err in sustaining the plaintiff's demurrer to the evidence.
We think the judgment of the trial court should be affirmed.
On appeal this court from a judgment of the district court of Oklahoma county, supersedeas bond was filed, executed by A.J. Stratton, as principal, and S.E. Bell and B.E. Chapin, as sureties, to stay execution of said judgment; and the plaintiff in error has asked this court in its brief to render a judgment against the bondsmen of the defendant in error as well as against the defendant in error. No response has been made to this request. The judgment of the trial court was rendered on the 17th day of October, 1921, in the sum of $12,513, together with interest and costs, and judgment therefore is by the court hereby entered against the defendant in error and the sureties on said appeal bond in the sum of $12,513, together with interest and costs, for which execution may issue.
By the Court: It is so ordered.
On Petition For Rehearing. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2892697/ | NO. 07-05-0012-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 28, 2005
______________________________
ELOY MINJARES AND J & L BAIL BONDS, APPELLANTS
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF OCHILTREE COUNTY;
NO. 2358; HONORABLE KENNETH RAY DONAHUE, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
On January 14, 2005, the clerk of this court received a copy of a Notice of Appeal
filed on behalf of appellants Eloy Minjares and J & L Bail Bonds. By letter dated January
14, 2005, the clerk advised counsel for appellants that a filing fee had not been received,
see Tex. R. App. P. 5. The clerk's letter likewise advised that failure to pay the filing fee
may result in dismissal of the appeal. See Tex. R. App. P. 42.3(c).
The filing fee has not been paid. Accordingly, this appeal is dismissed. Tex. R. App.
P. 42.3(c).
James T. Campbell
Justice
a jury.
Appellant was convicted and sentenced to confinement in the Institutional Division of the
Texas Department of Criminal Justice for life.
By two issues appellant urges that we reverse his conviction. First, he contends that
the trial court erred in finding that the State exercised its peremptory challenges in a
racially neutral manner and in overruling appellant's Batson (1) objection. Second, appellant
challenges the factual sufficiency of the evidence to support the jury's verdict.
ISSUE 1: THE BATSON CHALLENGE
By his first issue, appellant, a black male, alleges that the State engaged in
purposeful discrimination in exercising its peremptory strikes against black potential jurors
so that no black jurors would sit on the jury of appellant's trial.
The deliberate or purposeful denial of jury participation to citizens because of race
violates an accused's rights under the Equal Protection Clause of the Fourteenth
Amendment to the Federal Constitution. Id. See also Tex. Code Crim. Proc. Ann. art.
35.261 (Vernon 1989). In Batson, the Supreme Court set out a three step test for the
courts to follow in determining whether there has been an equal protection violation in the
context of racial discrimination. See Rhoades v. State, 934 S.W.2d 113, 123
(Tex.Crim.App. 1996). A defendant who challenges the State's exercise of a peremptory
challenge must prove a prima facie case of racial discrimination. If such a prima facie
showing is made, the burden of production falls to the proponent of the strike to tender a
race neutral explanation. Id. If a race neutral explanation is tendered, the trial court must
evaluate the explanations in light of the circumstances to determine whether the reasons
tendered are merely a pretext. See Johnson v. State, 879 S.W.2d 313, 316
(Tex.App.-Amarillo 1994, no pet.) The Court of Criminal Appeals has articulated a non-exclusive list of factors for the trial court to consider in weighing race-neutral explanations.
See Whitsey v. State, 796 S.W.2d 707, 713 (Tex.Crim.App. 1989). Those factors are:
(1) the reason given for the peremptory challenge is not related to the facts
of the case;
(2) there was a lack of questioning to the challenged juror or a lack of
meaningful questions;
(3) disparate treatment (persons with the same or similar characteristics as
the challenged juror were not struck);
(4) disparate examination of members of the venire such as questioning a
challenged juror so as to evoke a certain response without asking the same
question of other panel members; and
(5) an explanation based on a group bias where the group trait is not shown
to apply to the challenged juror specifically.
Id. at 713-14.
We review the evidence in the light most favorable to the trial court's decision, and
determine whether the record supports the findings of the trial judge. See Pondexter v.
State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996). Our review is based on the evidence
that was before the trial court at the time of its ruling. See Parra v. State, 935 S.W.2d 862,
870 (Tex.App.-Texarkana 1996, pet. ref'd). If there is sufficient evidence to support the
trial judge's finding of no purposeful discrimination, the finding will not be disturbed on
appeal. See Fuentes v. State, 991 S.W.2d 267, 278 (Tex.Crim.App. 1999). In the matter before us, we need not consider whether appellant proved a prima
facie case of racial discrimination because the trial court took evidence as to and ruled on
the ultimate issue of intentional discrimination. See Goode v. Shoukfeh, 943 S.W.2d 441,
445 (Tex. 1997); Johnson, 879 S.W.2d at 315. Thus, we consider whether the State
produced evidence of a race-neutral reason for the peremptory challenge. See Rhoades,
934 S.W.2d at 123. Evidence of a reason offered by the State, as long as it is facially valid
and not inherently discriminatory, is sufficient to rebut a prima facie case of intentional
discrimination. See Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim.App. 1996);
Yarborough v. State, 983 S.W.2d 352, 354 (Tex.App.-Fort Worth 1998, no pet.).
The prosecutor stated that he struck jurors 2 and 6 because those jurors both had
either a friend or relative who had served time in the state penitentiary. In regard to juror
30, the prosecutor stated that she was struck because she had a problem with the "one-witness" rule (2) and because she had a son who was, at the time of appellant's trial, in jail
in Dallas County awaiting trial on a charge of unlawful carrying of a weapon. But, the fact
that a potential juror has or has had a family member in trouble with the law or formally
accused of a crime is a valid, race-neutral reason to exercise a peremptory strike against
that juror. See Whitaker v. State, 977 S.W.2d 869, 875 (Tex.App.-Beaumont 1998, pet.
ref'd); Ealoms v. State, 983 S.W.2d 853, 856 (Tex.App.-Waco 1998, pet. ref'd); Adams
v. State, 862 S.W.2d 139, 145 (Tex.App.-San Antonio 1993, pet. ref'd). Moreover, a
prosecutor's belief that a potential juror could not convict on the testimony of one witness
has also been held to be a valid, race-neutral explanation for the State's exercise of a
peremptory challenge. See Esteves v. State, 849 S.W.2d 822, 823 (Tex.Crim.App. 1993);
Tate v. State, 939 S.W.2d 738, 746-47 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd);
Garrett v. State, 815 S.W.2d 333, 335-36 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd).
Thus, the State articulated racially-neutral reasons for striking jurors 2, 6 and 30.
Proceeding to the third step in the analysis, we next consider in light of the
circumstances of the case whether the race-neutral reasons offered by the State are
supported by the record or are merely pretexts for racial discrimination. See Johnson, 879
S.W.2d at 316. In this regard, appellant contends that the State disparately treated the
venire by failing to strike non-minority (3) potential jurors who shared the same or similar
characteristics the State found objectionable in black potential jurors who were struck, and
disparately examined the venire by failing to ask the same questions of non-minority
potential jurors who possessed the same or similar characteristics the State found
objectionable in black potential jurors in an attempt to manipulate the record so as to
disguise the State's purposeful racial discrimination in the exercise of its peremptory
challenges.
As previously noted, the State's evidence was that it struck black potential jurors 2
and 6 for the racially-neutral reason that they had either a friend or relative who had served
time in the state penitentiary. The prosecutor stated that he challenged non-minority
potential jurors 7, 16, 19 and 24 for the same reason. The prosecutor stated specifically
that in exercising the State's peremptory challenges he differentiated between potential
jurors who had friends or relatives who had been placed on probation versus potential
jurors who had friends or relatives who had served time in the state penitentiary. On cross-examination, the prosecutor stated that he did not strike non-minority potential jurors 1, 12,
20 or 31 because his notes did not demonstrate that any of those jurors had friends or
relatives who had served time in the penitentiary.
The record reflects that Juror 1 had an old friend who had been charged with
burglary of a house approximately seven years prior. Juror 1 never stated whether his
friend had been convicted or if his friend ever served any time in the state penitentiary.
Juror 12 stated that she had an uncle who was sentenced to probation approximately three
years prior. Juror 20 stated that he had a brother and a friend who had been charged with
"drugs" in Dallas County, and that he himself had been charged with DWI 14 years prior.
Juror 20 never stated whether he, his brother or his friend had even been convicted or
served any time in the penitentiary. Juror 31 stated that he had two distant cousins who
had both been charged with child abuse. In the case of one cousin, Juror 31 stated that
the cousin was charged with and "punished" for child abuse. He did not elaborate on what
form of punishment his cousin received. In regard to the other cousin, Juror 31 stated that
his conviction was later overturned. He also stated that "now they're not in the pen."
Viewed in a light most favorable to the trial court's decision, his statements are insufficient
to conclude that either of his cousins had been in the penitentiary. The record, therefore,
does not mandate a conclusion that the State challenged only black jurors who had friends
or relatives who had served time in the penitentiary. In fact, the record demonstrates that
the State challenged non-minority potential jurors 7, 16, 19 and 24 for the same reason. (4)
Additionally, in regard to non-minority potential jurors 1, 12, 20 and 31, the prosecutor's
statement that he did not strike those non-minority potential jurors because his notes did
not demonstrate that any of them had friends or relatives who had served time in the
penitentiary is supported by the record of voir dire.
In regard to juror 30, the prosecutor stated that she was challenged for two reasons,
first, because she had a problem with the "one-witness rule," and second, because she
had a son who was then incarcerated awaiting trial in the same jurisdiction for the offense
of Unlawful Carrying of a Weapon. Appellant argues that the State failed to strike potential
non-minority jurors who also expressed problems following the one-witness rule. However,
the record demonstrates that the prosecutor struck juror 25, a non-minority, because she
also had a problem following the rule.
Moreover, even assuming, arguendo, that there were other non-minority potential
jurors who expressed difficulty understanding or following the rule but were nevertheless
not struck by the State, such treatment does not automatically lead to a finding of
purposeful racial discrimination by the State. Disparate treatment in the exercise of
peremptory challenges cannot automatically be imputed to the State in every situation in
which the prosecutor states a combination of reasons for challenging a particular juror, and
one of the prosecutor's stated reasons would technically apply to another potential juror
whom the prosecutor found acceptable. See Adanandus v. State, 866 S.W.2d 210, 224-25
(Tex.Crim.App. 1993). Different jurors may possess the same objectionable characteristic
but in differing degrees. See Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992).
Such qualitative distinctions may cause a prosecutor to challenge one such juror and not
another. Id. Here, the record shows that the State struck at least one non-minority
potential juror for the same reason as juror 30. Moreover, the prosecutor also stated that
he struck juror 30 for another reason which has already been discussed above and
determined to be racially neutral by the trial court, supported by the record, and non-pretextual. Therefore, under the circumstances of the case, there was sufficient evidence
for the trial court to find that the State did not disparately exercise its peremptory
challenges.
For the first time on appeal, appellant further argues that the State failed to strike
four non-minority potential jurors seated on the fourth and fifth row of the jury panel, even
though the record conclusively demonstrates that these jurors had friends or relatives that
had served time in the state penitentiary. (5) Appellant argues that the State's failure to strike
these non-minority potential jurors who shared the same characteristics which the State
found objectionable in black potential jurors amounted to purposeful racial discrimination
by the State in the exercise of its peremptory challenges.
Appellant has preserved this issue for appeal. (6) The record, however, contains no
evidence as to the prosecutor's reasons for not striking the non-minority potential jurors in
question. It may be, for example, that the prosecutor did not intend to strike any jurors
after a particular number had been reached. See Williams v. State, 939 S.W.2d 703, 706
(Tex.App.-Eastland 1997, no pet.) (prosecutor's explanation that he struck all jurors who
shared a particular characteristic up to juror number 58 constituted a legitimate race-neutral reason for the exercise of peremptory challenges).
The record contains affirmative evidence that the prosecutor's strikes were for
legitimate race-neutral reasons. Viewing the evidence in the light most favorable to the trial
court's decision, the State's unexplained (and unexplored) failure to strike the venire-members in question is insufficient evidence of purposeful racial discrimination to justify
disturbing the trial court's decision.
Next, appellant argues that the State disparately examined black potential jurors so
as to develop a record that would support the State's explanations for striking those jurors,
while not asking the same questions of non-minority potential jurors. Appellant alleges that
when a potential black juror indicated that he or she had a friend or relative who had
experienced trouble with law enforcement, the State consistently asked the potential juror
about the disposition of the case, whereas in regard to non-minority potential jurors, the
State consistently avoided asking about the disposition of any friends' or relatives' cases.
Appellant alleges that the disparate examination was the result of purposeful racial
discrimination by the State.
An analysis of the record indicates that appellant's allegation of disparate
examination is not correct. First, of the 29 potential jurors who indicated they had a friend
or relative who had experienced trouble with the law, 13 jurors volunteered information
regarding the disposition of such cases. The State questioned another 10 jurors regarding
the disposition of their friends' and relatives' cases. (7) Two of those jurors were black, while
the other eight were non-minority. The non-minority potential jurors who were questioned
included juror 7, juror 12, juror 19, juror 24, juror Margotta, and juror Matherson.
Furthermore, from the record of the strikes exercised by the State and the State's
explanation of those strikes at the Batson hearing, the trial court could have concluded that
the jurors' answers to the State's questioning led directly to the striking by the State of non-minority potential jurors 7, 19 and 24. (8) Thus, the record demonstrates that the State
questioned both black and non-minority potential jurors regarding the disposition of their
cases. The State is not required to ask every potential juror any specified rubric of
questions. See Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App. 1993).
In sum, the State provided racially-neutral justifications for striking each juror. The
State's justifications and the trial court's conclusions are supported by the record.
Appellant's first issue is overruled.
ISSUE 2: FACTUAL SUFFICIENCY OF THE EVIDENCE
By his second point of error, appellant contends that the evidence was factually
insufficient to support the jury's verdict. He argues that the evidence was factually
insufficient because the State's eyewitness vacillated in his identification of appellant, and
because there was evidence supporting appellant's defensive alibi theory.
When reviewing the factual sufficiency of the evidence, all of the evidence is
reviewed. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Where, as
here, the verdict is in favor of the party with the burden of proof, the verdict is set aside only
if the proof of guilt is either so weak or so contrary to the overwhelming weight of the
evidence as to be clearly wrong and manifestly unjust. See Johnson v. State, 23 S.W.3d
1, 11 (Tex.Crim.App. 2000).
Unless the record clearly reveals that a different result is appropriate, an appellate
court must defer to the factfinder's determination concerning what weight to give
contradictory testimonial evidence because resolution often turns on an evaluation of
credibility and demeanor, which is primarily a determination to be made by observation of
the witnesses giving the testimony. Id. at 8. The trier of fact has discretion to accept or
reject all or any part of any witness's testimony and reconcile conflicts in the evidence.
See Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). The court of appeals is
not free to re-weigh the evidence and set aside a jury verdict merely because it believes
that a different result is more reasonable. See Cain, 958 S.W.2d at 407.
At the outset, it should be observed that mistaken identification and alibi are
defensive theories offered to negate the identity element of the charged offense. See
Giesberg v. State, 945 S.W.2d 120, 124 (Tex.App.-Houston [1st Dist.] 1996 aff'd, 984
S.W.2d 245 (Tex.Crim.App. 1998). Therefore, appellant's issue is treated as challenging
the sufficiency of the evidence to prove identity. Id.
Alfara identified appellant in court as the person who shot his nephew Nelson.
Alfara testified that appellant and two other men walked up to them as they were sitting
outside his apartment; appellant said "The money, Bato"; and then appellant immediately
shot the victim. Alfara testified that appellant and the other men then slowly ran away, and
appellant was limping as he ran. Alfara testified that he got a good look at appellant, and
that he saw his face clearly.
Alfara testified that he previously identified appellant as the perpetrator on January
3, 1999 from a police photo-lineup. He also testified that in a pre-trial hearing the day
before appellant's trial, he said that he was not sure if appellant was the perpetrator. Alfara
testified that the reason he said he was not sure was because he was afraid of what might
happen to him if he told the truth. He said that he was afraid because his brother told him
about someone in Houston who was killed after identifying someone.
Alfara was cross-examined regarding prior inconsistent statements. He testified that
he described the perpetrator to police as being tall and young, whereas appellant appeared
to him in court to be about 5' 6'' or 5' 7'' (9) and about 35 years old. Alfara also stated that
in the pre-trial hearing, he did not say anything about the perpetrator slowly running away. (10)
Appellant also introduced evidence of an alibi. Appellant's brother and two sisters
testified that appellant had spent the entire weekend of November 22, 1998, at his sister
Beatrice's house in Pleasant Grove. Appellant's witnesses all testified that appellant was
using crutches to walk that weekend and that appellant did not have a car to take him
anywhere. On cross-examination, however, appellant's brother repeatedly testified that
he was not good at keeping up with dates and did not know the date, or even the month,
that appellant was at his sister's house. Appellant's brother also testified that appellant
could have used the bus for transportation. Appellant's sister Lois Head testified that she
did not see appellant every day while he stayed with Beatrice. Moreover, she testified that
she twice saw him walking without his crutches. Thus, appellant's sister Beatrice Smith
was the only defense witness to testify that she was certain that appellant was at her house
the entire weekend that the murder was committed. She also testified that appellant was
at her house at about 11:30 or 11:45 on December 9, 1998.
In rebuttal, the State presented three witnesses. The first witness was Christopher
Allen, a police officer with the City of Dallas. Officer Allen testified that he encountered
appellant in an area near the Apple Creek apartments just after midnight on December 10,
1998. Johanna Rodriguez, the manager of the Apple Creek apartments, testified that she
recalled seeing appellant in the vicinity of the Apple Creek apartments around
Thanksgiving. Finally, the State called Melvin Williams, a private security guard for the
Apple Creek apartments. Williams testified that he saw appellant at the apartment
complex the night after the murder.
The positive identification of a defendant as the perpetrator is sufficient to support
a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978); Ford v.
State, 509 S.W.2d 317, 318 (Tex.Crim.App. 1974); Lopez v. State, 815 S.W.2d 846, 849
(Tex.App.-Corpus Christi 1991, no pet.). Regardless of Alfara's prior statements, at trial
he positively identified appellant as the perpetrator of the crime. As appellant does not
challenge the admissibility or reliability of Alfara's in-court identification, appellant's
challenge goes to the weight of the evidence, not its admissibility. See Bledsoe v. State,
21 S.W.3d 615, 621 (Tex.App.-Tyler 2000, no pet.). The jury was in the best position to
judge Alfara's demeanor and credibility and determine the appropriate weight to give his
in-court identification of appellant as the perpetrator. See Johnson, 23 S.W.3d at 8. The
fact that Alfara may have previously been uncertain in his identification of appellant as the
perpetrator was merely a factor for the jury to consider in assessing the weight of his
testimony. See Garcia, 563 S.W.2d at 928; Bledsoe, 21 S.W.3d at 621.
In regard to appellant's alibi evidence, the jury is entitled to disbelieve evidence of
an alibi. See Ford, 509 S.W.2d at 318. Even if the prosecution fails to rebut alibi
evidence, the jury is not required to believe such evidence or acquit the defendant. See
Johnson v. State, 449 S.W.2d 479, 480 (Tex.Crim.App. 1970). Where, as here, there was
conflicting testimony regarding appellant's alibi, the jury possessed the sole discretion to
decide which evidence to accept or to reject and to reconcile conflicts in the evidence. See
Losada, 721 S.W.2d at 309.
In conclusion, there was sufficient evidence for the jury to resolve the issue of
identity against appellant and convict him of the offense. See Ford, 509 S.W.2d at 318.
The proof of guilt is not so obviously weak as to undermine confidence in the jury's
determination, nor is the proof of guilt greatly outweighed by contrary proof. See Johnson,
23 S.W.3d at 11. The evidence is not factually insufficient to support the verdict.
Appellant's second issue is overruled.
CONCLUSION Having overruled both of appellant's issues, we affirm the judgment of the trial court.
Phil Johnson
Do not publish. Chief Justice
1. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2. No objection was lodged to questions concerning the "one-witness rule."
3. The record does not affirmatively demonstrate the racial or ethnic background of
every potential juror on the panel. For convenience, jurors not affirmatively demonstrated
to be black shall be referred to as "non-minority" jurors, regardless of any potential juror's
actual status as a member of a racial or ethnic minority.
4. In regard to juror 24, a non-minority, the prosecutor stated at the Batson hearing
that he struck her because his notes showed that her ex-husband was in the penitentiary.
A review of the record of voir dire, however, reveals that juror 24 said that her ex-husband
had received probation. Therefore, in regard to juror 24, the prosecutor's notes were not
correct. As the prosecutor made the statement in regard to a non-minority potential juror
that he struck, there is no issue concerning purposeful racial discrimination on the part of
the State due to the prosecutor's inaccurate notes.
5. Potential juror Taylor, a fourth-row juror, had a friend who received five years in the
state penitentiary. Another potential juror in the fourth row had a son who received four
years penitentiary time. Potential juror Curtis, seated in the fifth row, had a friend in the
state penitentiary. Potential juror Nelson, also seated in the fifth row, was then married to
a man who was serving a life sentence in the penitentiary. None of these non-minority
potential jurors were struck by the State.
6. See Young v. State, 826 S.W.2d 141, 146 (Tex.Crim.App. 1991).
7. The remaining jurors either were not questioned by the State regarding disposition
or gave information that was non-responsive to the questioning.
8. See n.4, supra, concerning the State's peremptory strike of juror 24.
9. Alfara stated that he considered appellant to be tall at that height.
10. On re-direct, Alfara testified that in a statement he gave to police, he said "He shot
my nephew with a small, stainless revolver, and then walked away with no hurry." | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3808497/ | This appeal arises out of an action for reformation and injunction wherein the defendant in error was plaintiff and the plaintiff in error A.A. Ray was defendant. We will hereinafter refer to the parties as they appeared in the trial court.
On March 5, 1940, plaintiff recovered a judgment against the defendant and another not here involved for the sum of $16.02 costs, for which execution was directed to issue. On August 20, 1940, plaintiff caused execution to be issued on said judgment. The execution was levied upon a certain tract of land which belonged to the defendant A.A. Ray and which was not exempt from seizure and forced sale. The property so levied upon was duly appraised at the sum of $75 by appraisers called by the sheriff for that purpose, and thereupon advertised for sale in the manner required by law. A sale of said property was had on the 25th day of September, 1940, at which time it was sold to the plaintiff for the sum of $105. Motion to confirm sale was filed September 27, 1940, and came on for hearing October 11, 1940. The defendant filed no written objections to the sale, but on said day appeared in court by attorney and made the following offer:
"Comes now V.E. Stinchcomb, attorney for defendant A.A. Ray, and offers *Page 290
to show that said judgment in this case was a judgment for costs and that the property was levied upon and advertised to be sold without notice to the defendant. That the said defendant was a nonresident of the State of Oklahoma and did not receive notice of said sale until the 10th day of October, 1940. That immediately on receipt of notice that he wired his attorney to redeem said property and that in pursuance to instructions, the sum of $16.02, plus the accrued and accruing court costs, as shown by the records of the court clerk, are hereby tendered into open court in cash in redemption of said property and the said defendant objects to the confirmation of such sale and as grounds for said objections state that said sale was not had in the manner and form as by law provided, and, second, that the redemption is tendered to defeat said confirmation."
The objections so sought to be interposed were overruled and the sale was confirmed. Defendant appeals from this order.
The defendant assigns three specifications of error which he presents under the following proposition:
"Where property is sold under general execution, it is error for the trial court to refuse to hear objections on motion to confirm sale and where there are special equities, it is error for the court to refuse to permit a judgment debtor to redeem before confirmation."
In support of the proposition so advanced defendant cites 12 O. S. 1941 § 765, Millard v. Nelson, 139 Okla. 56, 281 P. 238, and Whitchurch v. Doughty, 133 Okla. 283, 271 P. 1033. An examination of the authorities so cited will reveal that they do not have any application in the case at bar, the gravamen of defendant's complaint being that he did not receive any actual notice of the levy prior to the sale, and that he was not permitted to redeem and thus defeat confirmation of the sale. Defendant admits that he has been unable to find any authority to support his contention that such constitutes an irregularity which would justify the court in denying confirmation, but urges, in substance, that this court should hold that it constitutes an abuse of discretion by the trial court. As said in Schave v. New York Life Ins. Co., 185 Okla. 554,94 P.2d 892:
"It is a settled principle of law in this jurisdiction that the trial court's judgment upon a motion to confirm or set aside a judicial sale will not be disturbed on appeal, unless it affirmatively appears the trial court abused its discretion. See Burton v. Mee, 152 Okla. 220, 4 P.2d 33; Jorden et al. v. Mee, 172 Okla. 457, 45 P.2d 502; Fernow v. Watts,172 Okla. 128, 44 P.2d 24; University of Tulsa v. Moores et al.,177 Okla. 548, 61 P.2d 25."
Defendant does not allege that there was any fraud or unfairness practiced in making the sale or that the property did not sell for an adequate sum. Under these circumstances he is, in effect, requesting that the court arbitrarily relieve him of the consequences of his failure to satisfy the judgment which had been rendered against him before enforcement thereof by execution was undertaken. The statute cited, supra, was adopted from Kansas when it had been construed in a number of well-considered cases. Among others, that of New England Mortgage Security Co. v. Smith, 25 Kan. 622, wherein it was held:
"The court has no right at its mere discretion to release the purchaser or to permit a tender after sale."
This case was cited with approval in Payne v. Long-Bell Lumber Co., 9 Okla. 683, 60 P. 235, which involved the foreclosure of a real estate mortgage. We have adhered to this view in a recent case involving a sale under general execution, being that of Mentzer v. Miller, 176 Okla. 1, 54 P.2d 1038, wherein we said:
"No authority is shown to sustain the view that after sheriffs' sale of real estate on execution, the former owner and judgment debtor may have the sale vacated merely upon payment of the original judgment and costs. To so hold would be to create or extend a redemption period without any authority." *Page 291
It is the policy of the law to hold judicial sales final, and in the absence of fraud, unfairness, or inadequacy of price so great as to shock the conscience of the court, it is not an abuse of discretion to confirm a sale which has been made in all essential respects in conformity with statutory requirements. Barnard v. First National Bank, 176 Okla. 326,55 P.2d 972; Cole v. Prudential Ins. Co. of America,181 Okla. 47, 73 P.2d 119.
The trial court found that the proceedings had by the sheriff on the sale here involved were in all respects regular and in conformity with the statutes, and the record supports such finding. No abuse of sound discretion by the trial court is shown, nor is there any reversible error presented. Under these circumstances the order will not be disturbed.
Judgment affirmed.
OSBORN, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. WELCH, C. J., CORN, V. C. J., and RILEY, J., absent. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3440884/ | Affirming.
These appeals, which are prosecuted from judgments convicting appellants of libel, and fixing their punishment at a fine of $250 each, will be considered in one opinion.
The insufficiency of the indictments is the only ground urged for a reversal.
Omitting the caption, the Cole indictment is as follows:
"The grand jurors of the county of Hopkins, in the name and by the authority of the commonwealth *Page 352
of Kentucky, accuse I. Willis Cole of the offense of libel committed in manner and form as follows, to wit. The said I. Willis Cole, in the said county of Hopkins, on the 17th day of April, 1926, and before the finding of this indictment, and within one year next before the finding of this indictment, in the county aforesaid, did unlawfully, willfully, maliciously, and falsely print and publish and cause to be published in the Louisville Leader, a newspaper published in Louisville, Ky., and having a general circulation in the county of Hopkins, of and concerning the Honorable Ruby Laffoon, who was then and at the time the duly and legally elected, qualified, and acting judge of the Hopkins circuit court, and a resident of Madisonville, Hopkins county, Ky., a certain article or publication containing false and malicious words and sentences, of and concerning the said Ruby Laffoon, judge as aforesaid, as follows, to wit:
" 'The judge, who under the law simply acts as referee in a case, has in this instance busied himself with the prosecution and citizens, a special court has been called, a bigger army than that used at Lexington at a greater expense is to be on duty, and it is the consensus of opinion that Hollis, Fleming, and Bard, and also Blanton, are to be so swiftly convicted and hanged as to make the Lexington affair look like a penny with a hole in it. It makes no difference whether they all confess or not or what the circumstances are.'
"A copy of the entire article is filed herewith as part hereof, marked 'Exhibit A,' for identification.
"That in the said false and malicious words and sentences so written, composed, and published as aforesaid, the said I. Willis Cole unlawfully, willfully, maliciously, and falsely imputed dishonesty, misconduct in office, corruption in the discharge of his duties, and unfitness for the performance of the same to the said Ruby Laffoon, judge of the Fourth judicial district of Kentucky, in that the said Ruby Laffoon had assisted the commonwealth attorneys and other citizens in securing evidence to convict Columbus Hollis, Bunyan Fleming, and Nathan Bard, three negroes, who in his court were charged with rape, and had called soldiers to be then and there *Page 353
present to aid and assist the said Ruby Laffoon as such judge, in the conviction and execution of the aforesaid negroes, and thereby enable the said judge to secure an unlawfully swift conviction and subsequent hanging of the aforesaid three negroes, without any regard, legal or otherwise, to the said Hollis, Fleming, and Bard's rights as citizens of Hopkins county and the state of Kentucky, in his court in Hopkins county, and that he, the said judge, would willfully and maliciously as judge, while trying the said negroes, knowingly and prejudicially refuse to give either of them a fair and impartial trial on the charge against them, but that he, the said judge, would unlawfully assist, aid, and encourage the prosecution in bringing about the unlawful conviction of the aforesaid three negroes upon the charge as made against them; that in said article the said I. Willis Cole falsely charged the aforesaid judge with dishonesty and lack of integrity as a judge, with unlawful and malicious conduct before and during the trial in his court, of the aforesaid three negroes all of which was done for the malicious purpose and intent to injure his good name and fame as a public officer and as a citizen of the commonwealth, and to expose him to public suspicion, hatred, contempt and loss of reputation, against the peace and dignity of the commonwealth of Kentucky."
Exhibit A filed with the indictment, is as follows.
"The Louisville Leader.
"Madisonville Sets Stage for Speedy Trial and Hanging of Negroes.
"Justice will Not Slip as in the Merchant Case.
"Madisonville, Ky., April 15. Outdone by Mississippi, Georgia, and other states south, when it comes to making negroes charged with certain offenses pay the extreme penalty, outside of the courts, Kentucky bids to outdistance them all in the double standard of laws, the mockery of it, when the negro is involved, through speedy trials which fall little short of 'legalized lynching,' at a very high cost, and Madisonville is about to outdo Lexington in the effort to put the old state over. *Page 354
"About 70 days ago in Lexington, Ky., Ed Harris, who became enraged with his partner in the bootlegging business, killed him and his two children, and later, charged with wounding and assaulting the wife, was found guilty within fifteen minutes, paying the penalty by hanging within thirty days after he was convicted by the Fayette county white jury. Thirty days after he was hanged, Chas. Merchant, a white man, raped an 11 year old colored school girl and then marched her through the streets without a piece on her body. His guilt was not questioned, but within the same fifteen minutes a white jury in the same city and county and before the same judge declared him insane.
"In Madisonville three negroes, Columbus Hollis, Bunyan Fleming, and Nathan Bard, have been arrested and charged with assaulting a young white woman on Wednesday night, April 7. A fourth negro, Joe Blanton, whose photograph was found in a white woman's pocket book, turning public light on an association between the races that has been going on for some time, is also being held in an effort to connect him in some way with the assault that his neck may also be speedily broken. Blanton and Hollis are held in the Eddyville penitentiary, having been moved from jails of this section for safe-keeping. Fleming and Bard were first moved to Louisville but later taken to the penitentiary at Frankfort for safekeeping, it is said. The opinion is, however, that they were safe in Louisville, but were moved for fear of receiving some of the legal help due them even if guilty. It is reported that the men when seen on the train which carried them into Louisville early last Monday were beaten and bloody over their heads and faces. Hollis is said to have confessed to the crime and implicated Fleming and Bard, who strenuously deny guilt. The judge, who under the law simply acts as referee in a case, has in this instance busied himself with the prosecution and citizens, a special court has been called, a bigger army than that used at Lexington at a greater expense is to be on duty, and it is the consensus of opinion that Hollis, Fleming, and Bard, and also Blanton, are to be so swiftly convicted and hanged as to make the Lexington affair look like a penny with a hole in it. It makes *Page 355
no difference whether they all confess or not or what the circumstances are.
"The strange thing about Harris' case was that he killed three persons and then turned and committed assault. Taking for granted he was guilty of such a thing, and something was wrong with his mind, he had no chance to prove it. It is known here that there has been frequent association of at least three of these negroes with white women, and yet they needed to assault others. If they are guilty, they cannot possibly be insane in Kentucky, and no such plea will mean anything to them. Committing them to an insane asylum, as was Merchant, who raped the colored girl, and attempted the second, would be out of the question. Negroes here are quiet, while the white people are waiting patiently for the neck-breaking party. The white women associates of the colored men are being held. They will at least be given the gate out of the community. Other negro men who may be guilty of like association will be given hasty get-out orders. To make the law fair, negro women and white men companions might also be given rush-out orders. It would be hard to know where to start in Kentucky and the South, however. Exhibit A."
Omitting the caption, the Warley indictment is as follows:
"The grand jurors of the county of Hopkins, in the name and by the authority of the commonwealth of Kentucky, accused William Warley of the offense of libel committed in manner and form as follows, to wit: The said William Warley in the said county of Hopkins on the 17th day of April, 1926, and before the finding of this indictment, and within one year next before the finding of this indictment, in the county aforesaid, did unlawfully willfully, maliciously, and falsely print and publish, and cause to be published in the Louisville News, a newspaper published in Louisville, Ky., and having a general circulation in the county of Hopkins, of and concerning the Honorable Ruby Laffoon, who was then and at the time the duly and legally elected, qualified, and acting judge of the Hopkins circuit court, and a resident of Madisonville, Hopkins county, Ky., a certain *Page 356
article or publication containing false and malicious words and sentences, of and concerning the said Ruby Laffoon, judge as aforesaid, as follows to wit:
" 'Legal Lynching Coming?
" 'Madisonville Men Apparently Being Rushed to the Gallows by Farcical Trial.
" 'Up-to-Date No Guilt Proven — Guilty or Not, a Fair and Deliberate Trial Due Them.
" 'Is Kentucky to have another "legal" lynching? That is the question on the lips of every negro in Kentucky.
" 'The word is sent out that on April 23 these men will be indicted, tried, convicted, and sentenced to death. And 30 days after they will be hanged.
" 'What is this but mob law? No presumption is made one or all may be innocent. The presumption that a man is innocent until proven guilty has never been given a thought.
" 'Little or no identification has been made. Three negroes arrested, that is enough! Why railroad men to death without a fair and deliberate trial?'
"A copy of the entire article is filed herewith as part hereof, marked 'Exhibit A' for identification.
"That in the said false and malicious words and sentences so written, composed and published, as aforesaid, the said William Warley unlawfully, willfully, maliciously, and falsely imputed dishonesty, misconduct in office, corruption in the discharge of his duties, and unfitness for the performance of the same to the said Ruby Laffoon, judge of the Fourth judicial district of Kentucky, in that the said Ruby Laffoon was apparently rushing to the gallows three negroes charged with rape, by a farcical trial in his court in Hopkins county, and that he, the said judge, would willfully and maliciously, as a judge, while trying said negroes, knowingly and prejudiciously refuse to give either of them a fair and impartial trial on the said charge against them; that in said article the said William Warley falsely charged the aforesaid judge with dishonesty and lack of integrity as a judge, all of which was done for the malicious purpose and intent to injure his good name and fame *Page 357
as a public officer and as a citizen of the commonwealth, and to expose him to public suspicion, hatred, contempt, and loss of reputation, against the peace and dignity of the commonwealth of Kentucky."
Exhibit A, filed with the indictment, is as follows:
"The Louisville News.
"Legal Lynching Coming?
"Madisonville Men Apparently Rushed to the Gallows by Farcical Trial.
"Up-To-Date No Guilt Proven — Guilt or Not, a Fair and Deliberate Trial Due Them.
"Is Kentucky to have another 'legal' lynching? That is the question on the lips of every negro in Kentucky.
"A few weeks ago Ed Harris was rushed to the gallows after a seventeen-minute trial on the alleged charge of rape. (Tried in seventeen minutes by twelve of his 'peers' and sentenced to death, while it took the inanimate rope eighteen minutes to choke him to death.) He was charged with killing a man, two children, and then raping a woman. The killing of the man was proven, the rape of the woman was never convincingly proven. He 'confessed' to that.
"Charles Merchant, white, was charged with rape of an 11 year old colored girl. He never 'confessed,' but it was proven without a doubt. Merchant was declared insane. Harris was black and alone; his own people being afraid to express a doubt. Merchant was white, with wealthy parents; his victim was black. No denial of the crime was made. He was just crazy. SO THIS IS JUSTICE!
"Before that rotten stench gets out of the nostrils along comes a series of alleged outrages on women in Madisonville. White women, with male company, are attacked. Bloodhounds and officers fail to trail or trace the guilty parties.
"Finally a white man finds in the purse of a white woman roomer a picture of a negro and letters from him showing past association. He exposes the woman, officers used the picture as a clue and arrest three negroes. *Page 358
"One 'confesses' and names two others.
"The word is sent out that on April 23 these men will be indicted, tried, convicted, and sentenced to death. And 30 days after they will be hanged.
"What is this but mob law? No presumption is made one or all may be innocent. The presumption that a man is innocent until proven guilty has never been given a thought.
"Little or no identification has been made. Three negroes arrested, that is enough!
"A white business man of Louisville, who has interests in Madisonville, is quoted to the News as having said conditions in that town are rotten. He alleges white men openly consort with colored women, and, whereas black men are not so open with white women, they do mingle, and white people close their eyes to conditions.
"Since the alleged attacks on the women, this gentleman says, the better element have declared to 'purify Madisonville' and drive all that class of people away. So well and so good. But why railroad men to death without fair and deliberate trial? How do they know these men are guilty, and, if guilty, are not as crazy as Merchant? Kentucky already stands in the eyes of the thoughtful world in a very poor light.
"If she stages another 'legal' lynching, Kentucky will sink to the level of Mississippi at its lowest."
The Louisville News indictment is the same as the Warley indictment, with the exception that it is charged with the actual publication of the matter that Warley is charged with causing to be published.
Libel is an offense at common law, and is defined to be any false and malicious publication, which tends to blacken the memory of one who is dead, or to degrade or injure one who is alive or bring him in contempt, hatred, or ridicule, or which accuses him of any crime punishable by law, or of any act odious or disgraceful to society. Commonwealth v. Duncan,127 Ky. 47, 104 S.W. 997, 31 Ky. Law Rep. 1277. Language concerning one in office which imputes to him a want of integrity or misfeasance in his office, or a want of capacity generally to fulfill the duties of his office, or which is calculated to diminish *Page 359
public confidence in him as an officer, or charges him with a breach of some public trust, is actionable. Townsend on Slander and Libel, section 196; Dixon v. Chappell, 133 Ky. 663,118 S.W. 929. "Anything which assails the integrity or capacity of a judge, is actionable." Robbins v. Treadway, 25 Ky. (2 J. J. Marsh.) 540, 19 Am. Dec. 152. It is true that the interests of society and the efficiency of the public service require that the acts of all officers may be fairly criticized by the press and the public. It is likewise true that such comment may be caustic or severe if the facts warrant it; hence the ruling that comment on, and criticism of, the acts and conduct of public men are privileged, if fair and reasonable and made in good faith. Under this rule it is not libelous to express the opinion that a judge erred in judgment. Robbins v. Treadway, supra. It must not be overlooked, however, that the right to criticize does not embrace the right to make false statements of fact, or to draw inferences or express opinions not based on the truth. Democrat Publishing Co. v. Harvey, 181 Ky. 730,205 S.W. 908; Vance v. Louisville Courier-Journal, 95 Ky. 41,23 S.W. 591, 15 Ky. Law Rep. 412. Not only so, but the right to comment or criticize does not extend to or justify allegations of a fact of a defamatory character. Sweet v. Post Publishing Co., 215 Mass. 450, 102 N.E. 660, 47 L.R.A. (N.S.) 240, Ann. Cas. 1914D, 533. Hence, if the publication is not a comment or criticism, but a statement of fact, the rules to be applied are those applicable to any other case of defamation. Van Lonkhuyzen v. Daily News Co., 203 Mich. 570, 170 N.W. 93.
Analyzing the language used in the Cole case, we find that it makes the following charges:
(1) The judge is busying himself with the prosecution.
(2) Hollis, Fleming, Bard, and Blanton are to be swiftly convicted and hanged, no matter what the circumstances are. Under our system of jurisprudence, the judge must hold the scales of justice equally balanced between the commonwealth and the accused. Therefore the office of judge and the office of prosecutor are wholly incompatible, and, if the judge abandons the office of a judge and takes up the role of prosecutor, he is necessarily guilty of misconduct as a judge. Hence a false charge to that effect is libelous. While under our system *Page 360
the guilt of the accused is for the jury, where the evidence is conflicting, the judge has the power to refuse to submit the case to the jury where there is no evidence of guilt, or to set aside a verdict of guilty if flagrantly against the evidence. In view of this power no judge worthy of the name will permit a conviction to stand where there is no evidence of guilt. It follows that a false allegation that the accused were to be swiftly convicted and hanged, no matter what the circumstances are, amounts to a charge of gross misconduct on the part of the judge, and is therefore libelous.
Analyzing the language in the Warley and Louisville News cases, it is clear that, although partly put in the form of questions, a direct charge was intended. In the first place, there is the charge that the Madisonville men apparently were being rushed to the gallows by a farcical trial. There was in substance the further charge that Kentucky was to have another legal lynching. There was also the charge that this was mob law. There was the further charge that the presumption that a man is innocent until proven guilty had never been given a thought. Charging that a judge is conducting a farcical trial, or that the trial is mob law, or that he had not given a thought to the presumption of innocence that the law throws about the accused, is certainly a charge of want of integrity on the part of the judge, and it is therefore libelous.
But the point is made that the publications do not refer to Judge Laffoon. It was not necessary that he be mentioned by name, where it was alleged and shown that the words used referred to him and were so understood by others. Axton Fisher Tobacco Company v. Evening Post, 169 Ky. 64, 183 S.W. 269, L.R.A. 1916E, 667, Ann. Cas. 1918B, 560; 36 C. J. 1158. In the conduct of particular trials, courts are not impersonal. There can be no trial without a judge. The charge is not a general one concerning the actions of courts. The language employed in each case has reference to a particular trial. It is admitted that the trial was to be conducted by Judge Laffoon. The charge that the judge was busying himself with the prosecution is a direct charge against the judge himself. The time of the trial of the Madisonville men was within the control of the judge. The only person that could rush them in the trial was the judge. He alone could railroad them to death without a fair and deliberate *Page 361
trial. We are therefore forced to the conclusion that the language was a direct attack and reflection on the judge conducting the trial, who, as stated above, was Judge Laffoon.
There is no merit in the contention that the publication is privileged under section 1, subsec. 6, Bill of Rights, which provides:
"All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: . . .
"6. The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance."
Neither of the publications in question was a petition, address, or remonstrance, within the foregoing provision. It was not an application to those invested with the power of government for redress of grievances or other proper purposes. It was simply a newspaper article addressed to no one and intended to be read by the public, and, if by the judge, not as a judge but as a member of the public. The publications, as well as their falsity, being admitted, there can be no doubt that appellants were guilty of criminal libel.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2908751/ | Steve Kermit Steffey v. State
IN THE
TENTH COURT OF APPEALS
No. 10-98-265-CR
     STEVE KERMIT STEFFEY,
                                                                         Appellant
     v.
     THE STATE OF TEXAS,
                                                                         Appellee
From the 40th District Court
Ellis County, Texas
Trial Court # 17684CR
                                                                                                               Â
                                                                                                        Â
O P I N I O N
                                                                                                                     We are again presented with the question: Can a criminal defendant who pleaded guilty bring
an appeal without complying with the rule of appellate procedure which gives this court
jurisdiction? We again hold that by failing to comply with the rule, the defendant has not invoked
our jurisdiction to consider this appeal and it must be dismissed.
      Appellant Steve Kermit Steffey was indicted for the offense of aggravated sexual assault of
a child. See Tex. Penal Code Ann. § 22.021(a)(1)(B), (2)(B) ( Vernon Supp. 1998). On June 28,
1991, appellant entered a plea of nolo contendere and accepted a plea bargain offer for ten years
of deferred adjudication probation. Pursuant to the State's plea recommendation, the court
deferred an adjudication of Steffey's guilt and placed him on probation (now community
supervision) for ten years. On January 14, 1998, the State filed a petition to revoke probation
and adjudicate guilt. Steffey pleaded ânot trueâ to alleged violations of community supervision.
After hearing evidence of the alleged violations, the trial court determined there had been a
violation and adjudicated Steffey guilty of aggravated sexual assault of a child and sentenced him
to twenty years imprisonment and a $1000 fine.
     A defendant who has pleaded guilty or nolo contendere in exchange for deferred adjudication
must comply with Rule 25.2(b)(3) of the appellate rules when he seeks to appeal a subsequent
sentencing. See Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App 1996) (applying former
appellate rule 40(b)(1) now Rule 25.2(b)(3)). Rule 25.2(b)(3) provides in pertinent part that if a
defendant seeks to appeal:
from a judgment rendered on the defendant's plea of guilty or nolo contendere under
Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the
punishment recommended by the prosecutor and agreed to by the defendant, the notice
must:
(A) specify that the appeal is for a jurisdictional defect;
(B) specify that the substance of the appeal was raised by written motion and ruled
on before trial; or
(C) state that the trial court granted permission to appeal.
Tex. R. App. P. 25.2(b)(3).
      Steffey had pleaded nolo contendere to the original charges. After his adjudication of guilt,
Steffey filed a general notice of appeal which does not recite that the appeal is for a jurisdictional
defect; that the substance of the appeal was raised and ruled on by pretrial motion; or that the trial
court granted him permission to appeal. Thus, Steffeyâs notice of appeal does not comply with
the requirements of Rule 25.2(b)(3).
      Because Steffey's notice of appeal does not comply with these requirements, we have no
jurisdiction over this appeal. Watson, at 714. See Tressler v. State, 10-98-355-CR, (Tex.
App.âWaco delivered and filed February 24, 1999). This holding has been uniformly accepted
by the courts that have addressed this issue. See Okigbo v. State, 960 S.W.2d 923, 925 (Tex.
App.âHouston [1st Dist.] 1998, pet. ref'd ); Walter v. State, 970 S.W.2d 27, 29 (Tex.
App.âDallas 1997, no pet.); Carothers v. State, 928 S.W.2d 315, 317 (Tex. App.âBeaumont
1996, pet. ref'd)(both applying former rule 40(b)(1)). Accordingly, we dismiss this appeal for
want of jurisdiction.
Â
TOM GRAY
                                                                                     Justice
Before   Chief Justice Davis,
            Justice Vance, and
            Justice Gray
Dismissed
Opinion delivered and filed on April 28, 1999
Do not publish
Â
Â
notice of the removal of this case to federal court. You may then wonder:Â under what authority does the Court render
any order other than a determination that we have no jurisdiction to take some
action sought by the parties? I did
too. I was referred only to cases that
hold we have jurisdiction to determine our jurisdiction but no jurisdiction to
take any other action if we determine we have no jurisdiction and to other
cases that support the notion we could possibly abate a collateral matter until
an automatic bankruptcy stay in a related matter is lifted. In re
McDaniel, No. 10-04-00166-CV, 2004 Tex. App. LEXIS 10114, * 8-9 (Tex. App.ÂWaco Nov. 10, 2004, order) (order abating an original proceeding
when the related matter was stayed by bankruptcy).Â
I have found no authority that gives us
jurisdiction to render an abatement order when it is undisputed that we no
longer have jurisdiction of the case.
To the extent the Court expresses an opinion on
conditional circumstances and events that have not yet occurred, I have always
thought that was an advisory opinion; something we do not have authority to do.
 See
Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991) (the courts
are without authority to render advisory opinions).
I have been unable to determine what this order
accomplishes or why it is necessary.
I dissent.
Â
                                                                  TOM
GRAY
                                                                  Chief
Justice
Â
Â
Dissenting opinion
delivered and filed January 19, 2005
Publish | 01-03-2023 | 09-10-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3440888/ | Affirming.
On October 11, 1924, the appellee, Mae Parrott, and C.B. Parrott, her husband, executed and delivered to Josh Parrott their negotiable promissory note for the sum of $2,200, due twelve months thereafter. To secure the payment of this note, Mae Parrott and her husband executed a mortgage on a house and lot owned by her in Barbourville, Ky. Josh Parrott, before maturity, assigned and transferred the note in due course to E.F. Baker, thus making the five-year statute of limitations (Ky. Stats. sec. 2515) applicable thereafter to any suit upon such note. Holt Bros. Mining Co. v. Stewart et al., 250 Ky. 199, 61 S.W.2d 1073. An indorsement on the back of the mortgage recited that it was assigned by Josh Parrott to E.F. Baker on March 20, 1925. On *Page 616
March 23, 1925. the First State Bank of Pineville, Ky., appellant herein, and hereafter referred to as the bank, loaned to E.F. Baker $1,250. The Mae and C.B. Parrott note above mentioned was pledged as collateral security for the payment of this loan. On February 15, 1926, Baker assigned the aforesaid mortgage to the bank. On February 23, 1926, the bank made a loan to C.B. Parrott in the sum of $1,900, and took from him his individual note for this amount due six months thereafter. Out of this loan of $1,900, there was used the sum of $1,250 to satisfy the note owing by E.F. Baker to the bank. C.B. Parrott seems to have made some other payment to Baker, who surrendered to him the $2,200 note of Mae Parrott and C.B. Parrott. C.B. Parrott attached this $2,200 note as collateral to his individual note of $1,900. C.B. Parrott's note was renewed semiannually until February 15, 1932. At this time another renewal note was sent to him for execution, but he failed to sign it. Thereupon this suit was brought on April 6, 1932, on the $2,200 note, the bank, however, seeking to recover only the sum of $1,900, with interest from February 15, 1932. It also sought a foreclosure of the mortgage given to secure this note. The $2,200 note filed with the petition bore on its back these indorsements:
"Josh Parrott,
"Paid $25.00, Oct. 15, 1925,
"Paid $398.90, Dec. 26th, 1927, to N.R. Patterson,
"Balance due on this note on Aug. 15th, 1926, is $1900.00,
"Interest paid to Feb. 15th, 1932."
After the institution of this action, C.B. Parrott died, and it was duly revived against his estate in the name of Mae Parrott, administratrix with will annexed of C.B. Parrott. Just how the bank arrived at the conclusion it did that when suit was filed on this $2,200 note in 1932 there was only due upon it the sum of $1,900 is incomprehensible in the light of the indorsements on the back of the note. The confusion is not cleared by any evidence or testimony in the case. The only testimony we have is the deposition of Mr. George H. Reese, president of the bank, who testified from the records of the bank, having no personal knowledge of the transactions embodied in those records. The evidence *Page 617
is silent as to any knowledge on the part of Mae Parrott of any of the transactions we have detailed above beyond, of course, the execution by her and her husband of the $2,200 note secured by the mortgage on her property to Josh Parrott. The evidence does show that the interest on C.B. Parrott's individual note of $1,900 was paid by the checks of Mae Parrott. The interest thus paid by her was on a principal sum of $1,900, not on a principal sum of $2,200, or that sum with any of the credits or debits embodied in the indorsements on the back of the $2,200 note. There is no showing whatever that these checks of Mae Parrott were sent by her to apply on what we call the $2,200 note to distinguish it from C.B. Parrott's individual note of $1,900. There is no showing that she knew that the $2,200 note had been pledged as collateral security to this $1,900 note, or that it had not been satisfied when Baker was paid off, or indeed any evidence to show that she knew her $2,200 note had passed out of the ownership or possession of Josh Parrott. It is sought to infer from the fact that her checks paid the interest on the $1,900 note as it fell due, and that the $2,200 note bore an indorsement that there was on August 15, 1926, only $1,900 due thereon, that she was paying the interest on her note and knew that it had been pledged as collateral security on her husband's individual note. But there is no showing that Mae Parrott knew about this indorsement on the back of the $2,200 note. It plainly does not accord with the facts as expressed in the other indorsements on the note. Undoubtedly this indorsement was put upon the note by the bank with no evidence to show that it had brought home to Mae Parrott any notice that it had done so. We cannot say that the simple fact that a wife who seems to have had money pays the interest due on an obligation of her husband, who, as discovered later when he dies, is insolvent, is any proof that the wife was doing other than trying to help her consort on his individual obligations. It is no proof in and of itself that she is keeping alive by interest payments her own note which the proof fails to show that she knew had passed out of the ownership or possession of its original payee. This being true, in the light of the facts and circumstances of this case, Mae Parrott's checks paying the interest on her husband's obligation was not a keeping alive of her $2,200 note, and hence the plea of limitations which she interposed *Page 618
to the suit against her on this latter obligation was a valid defense, and the lower court did not err in dismissing the plaintiff's petition.
The judgment is affirmed.
Whole court sitting. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2987288/ | Affirmed and Memorandum Opinion filed April 2, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00287-CR
NO. 14-12-00288-CR
KELLYE HENSKE CARTWRIGHT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause Nos. 13,934 & 14,493
MEMORANDUM OPINION
Appellant entered a plea of guilty to two counts of felony driving while
intoxicated and was placed on probation. On March 6, 2012, the trial court
revoked appellant’s probation and sentenced appellant to five years’ confinement
in cause number 13,934, and ten years’ confinement in cause number 14,493.
Appellant filed a timely notice of appeal.
Appellant’s appointed counsel filed a brief in which he concludes the appeal
is wholly frivolous and without merit. The brief meets the requirements of Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional
evaluation of the record and demonstrating why there are no arguable grounds to
be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
A copy of counsel’s brief was delivered to appellant. Appellant was advised
of the right to examine the appellate record and file a pro se response. See Stafford
v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). As of this date, more than
forty-five days have passed and no pro se response has been filed.
We have carefully reviewed the record and counsel’s brief and agree the
appeal is wholly frivolous and without merit. Further, we find no reversible error
in the record. We are not to address the merits of each claim raised in an Anders
brief or a pro se response when we have determined there are no arguable grounds
for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005).
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Panel consists of Justices Frost, Brown, and Busby.
Do Not Publish - TEX. R. APP. P. 47.2(b)
2 | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3183076/ | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1848
___________________________
FedEx Freight, Inc.
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
International Brotherhood of Teamsters, Local 71
lllllllllllllllllllllIntervenor
___________________________
No. 15-1999
___________________________
FedEx Freight, Inc.
lllllllllllllllllllllRespondent
v.
National Labor Relations Board
lllllllllllllllllllllPetitioner
International Brotherhood of Teamsters, Local 71
lllllllllllllllllllllIntervenor
___________________________
No. 15-2494
___________________________
FedEx Freight
lllllllllllllllllllllPetitioner
v.
National Labor Relations Board
lllllllllllllllllllllRespondent
International Brotherhood of Teamsters, Local 107
lllllllllllllllllllllIntervenor
___________________________
No. 15-2732
___________________________
FedEx Freight
lllllllllllllllllllllRespondent
v.
National Labor Relations Board
lllllllllllllllllllllPetitioner
International Brotherhood of Teamsters, Local 107
lllllllllllllllllllllIntervenor
-2-
____________
National Labor Relations Board
____________
Submitted: January 12, 2016
Filed: March 7, 2016
____________
Before MURPHY, SMITH, and BENTON, Circuit Judges.
____________
MURPHY, Circuit Judge.
The International Brotherhood of Teamsters locals in Charlotte, North Carolina
and Croydon, Pennsylvania petitioned the National Labor Relations Board (NLRB)
seeking to represent collective bargaining units including both city and road drivers
who work at terminals operated by FedEx Freight, Inc. FedEx proposed that the units
should also include the dockworkers at the terminals. In considering the proposal the
NLRB regional director applied a two step analysis from Specialty Healthcare and
Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). In each case the director
found that (1) the union's proposed bargaining unit was composed of a readily
identifiable group of employees sharing a community of interest, and (2) FedEx did
not meet its burden to show that the dockworkers shared an "overwhelming
community of interest" with the drivers which required their inclusion in the same
unit. The Board denied review, and the Teamsters won the elections in both cities.
FedEx now petitions for review of the Board's orders forcing it to bargain with
the unions, arguing that the Specialty Healthcare standard violates the National Labor
Relations Act, our own circuit law, and the Administrative Procedure Act. The Board
petitions for enforcement of its orders. After full consideration, we deny the FedEx
petitions and grant the Board's petitions for enforcement.
-3-
I.
FedEx operates freight terminals across the country. The terminal in Charlotte,
North Carolina includes a main building containing a dock with 224 operational
doors surrounded by a yard. FedEx employs approximately 115 city drivers, 106 road
drivers, and 186 dockworkers at this terminal. The city drivers pick up and deliver
freight to and from customers in the area while the road drivers transport freight
between the terminal and other FedEx facilities. All these drivers are employed full
time and must possess a commercial driver license and wear a uniform while driving.
FedEx maintains separate seniority lists for each class of driver. While city drivers
occasionally do road driving, road drivers rarely do city driving.
The dockworkers load and unload freight from the trailers and move freight
around the dock using forklifts. This work takes place exclusively at the terminal.
One hundred and fourteen of the 186 dockworkers are "supplemental" part time
employees and are not on a seniority list. The other 72 dockworkers work full time.
These individuals are part of a one year "dock to driver" program in which they work
full time on the dock while taking a course to obtain their commercial driver license.
Eighteen of the 221 drivers are graduates of this program. The full time dockworkers
have a seniority list. The only requirement for employment as a dockworker is being
at least 18 years of age; they are not required to wear uniforms.
Around one quarter of the drivers performed some dock work during the six
month period surveyed in the stipulated record. City drivers also occasionally
perform "hostling" work, which involves moving trailers and other equipment around
the yard. Road drivers rarely do hostling work. Dock and hostling work take up a
total of around 5% of the city drivers' time and less than 1% of the road drivers' time.
Although dockworkers do not do any driving work, they use specialized trucks that
do not require a commercial driver license to perform hostling work.
-4-
The terminal in Croydon, Pennsylvania (referred to as the East Philadelphia
terminal) is smaller than the one in Charlotte, having only 51 operational doors.
FedEx employs about 29 city drivers, 14 road drivers, and 19 part time supplemental
dockworkers in East Philadelphia. Seven of these drivers are graduates of the dock
to driver program. In comparison to the Charlotte terminal, more of the East
Philadelphia dock work is done by drivers. Approximately 34% of the dock and
hostling hours there are worked by drivers. Forty one of the 43 drivers performed
dock or hostling work, and 13 of the drivers performed over 100 hours of dock work
in six months.
The Teamsters locals in both cities petitioned the Board to represent bargaining
units for both the city drivers and the road drivers. FedEx contended that such units
were inappropriate because they did not include the dockworkers. After hearings, the
NLRB regional director employed the Specialty Healthcare two step analysis and
found that the proposed units were appropriate but that FedEx had not met its burden
to show the dockworkers must be included in these units. FedEx filed requests for
review of the regional director's decisions which the Board summarily denied. After
the drivers in both cities voted to unionize, FedEx contested the certification of the
bargaining units by refusing to bargain. See NLRB v. St. Clair Die Casting, LLC,
423 F.3d 843, 848 (8th Cir. 2005). The Board's general counsel filed refusal to
bargain complaints against FedEx, and the Board granted the general counsel's
motions for summary judgment and ordered FedEx to bargain with the unions. Now
before us are petitions for review by FedEx and for enforcement by the Board. We
have jurisdiction over the matter under 29 U.S.C. § 160(e), (f) because FedEx
transacts business in this circuit.1
1
FedEx has also filed a petition for review raising the same issues as here in a
case about driver unionization at its terminal in Monmouth Junction, New Jersey.
FedEx Freight, Inc. v. NLRB, No. 15-2712 (3d Cir. filed July 16, 2015).
-5-
II.
The first question raised is whether FedEx preserved its challenges to the
Specialty Healthcare framework. The Board argues that in the proceedings below
FedEx failed to raise and preserve an argument against Specialty Healthcare. An
objection to a Board decision cannot be heard unless it has been "urged before the
Board, its member, agent, or agency" such that the Board has "received adequate
notice of the basis for the objection." Nathan Katz Realty, LLC v. NLRB, 251 F.3d
981, 985 (D.C. Cir. 2001); 29 U.S.C. § 160(e).
FedEx stated in a footnote in each of its requests for review of the
determinations by the regional director that "Specialty Healthcare was decided
erroneously" for the reasons stated in Board member Hayes' dissent. See 357 NLRB
No. 83 at *15 (Hayes, dissenting). FedEx indicated that it would focus its briefing
assuming that the Board would not revisit its decision. FedEx later incorporated its
arguments in its responses to the Board's show cause orders in the refusal to bargain
cases. The Board was aware of the FedEx challenge to Specialty Healthcare, as
shown by member Johnson's concurring statements attached to the two summary
affirmance orders by the Board. By adopting member Hayes' dissent, FedEx signaled
that it might bring a challenge to the Specialty Healthcare framework if the Board
were to apply it. This gave the Board adequate notice that FedEx was objecting to
the regional director's use of the Specialty Healthcare framework. We therefore have
jurisdiction to review the FedEx claims. See Nathan Katz Realty, 251 F.3d at 985.
III.
The central question here is whether the Board's Specialty Healthcare analysis
comports with the National Labor Relations Act (the Act), our own case law applying
the Act, and the Administrative Procedure Act (the APA). Section 9 of the Act "gives
the Board the power to determine the unit appropriate for the purpose of collective
-6-
bargaining." NLRB v. St. Clair Die Casting, LLC, 423 F.3d 843, 848 (8th Cir. 2005).
Review of the Board's certification decision "is limited to a determination of whether
the decision is arbitrary, capricious, an abuse of discretion, or lacking in substantial
evidentiary support." Id. The Board's interpretations of the Act are also "entitled to
considerable deference." St. John's Mercy Health Sys. v. NLRB, 436 F.3d 843, 846
(8th Cir. 2006) (quoting Ford Motor Co. v. NLRB, 441 U.S. 488, 495 (1979)).
Section 9(a) of the Act provides for the designation or selection of an exclusive
representative for the purposes of collective bargaining "by the majority of the
employees in a unit appropriate for such purposes." 29 U.S.C. § 159(a). Section 9(b)
requires the Board to "decide in each case" which unit of employees is appropriate.
Id. § 159(b). To make that determination, the Board applies a "community of
interests" analysis. Cedar Valley Corp. v. NLRB, 977 F.2d 1211, 1217 (8th Cir.
1992). The relevant factors in that analysis include "bargaining history, operational
integration, geographic proximity, common supervisor, similarity in job function, and
employee interchange." Id. (quoting Elec. Data Sys. Corp. v. NLRB, 938 F.2d 570,
573 (5th Cir. 1991)). The Board has "broad discretion to determine whether a group
of employees has a sufficient 'community of interest.'" NLRB v. MEMC Elec.
Materials, Inc., 363 F.3d 705, 707 (8th Cir. 2004). On appeal, "the NLRB's
determination as to the appropriateness of a bargaining unit will rarely be disturbed
and this court's scope of review is narrow." Cedar Valley Corp., 977 F.2d at 1218.
In Specialty Healthcare, the Board reviewed its standards for making unit
determinations. The Board explained that it begins by examining the unit sought by
the union. 357 NLRB No. 83 at *8. The Board determines whether the proposed unit
is appropriate because it consists of employees who are "readily identifiable as a
group (based on job classifications, departments, functions, work locations, skills, or
similar factors)" and who "share a community of interest after considering the
traditional criteria." Id. at *9, 12.
-7-
Next, the Board described what would be required "to demonstrate that a
proposed unit consisting of employees readily identifiable as a group who share a
community of interest is nevertheless not an appropriate unit because the smallest
appropriate unit contains additional employees." Specialty Healthcare, 357 NLRB
No. 83 at *10 (emphasis in original). Merely showing that another unit is appropriate
or even more appropriate than the proposed unit "is not sufficient." Id. Thus, when
the proposed unit is shown to be prima facie appropriate under the community of
interest test, a "heightened showing" by the party opposing the proposed unit is
required. Id. at *11. The party favoring the larger unit must demonstrate "that
employees in the larger unit share an overwhelming community of interest with those
in the petitioned-for unit." Id. at 12–13.
On appeal, the Sixth Circuit enforced the Board's decision in Kindred Nursing
Ctrs. E., LLC v. NLRB, 727 F.3d 552, 554 (2013). The court concluded that the
overwhelming community of interest test was not a material change in the Board's
section 9 jurisprudence, because the Board had used the standard before. Id. at 561.
The court also noted that the same overwhelming community of interest test had been
approved by the D.C. Circuit in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C.
Cir. 2008). In Kindred Nursing the Sixth Circuit also rejected the employer's
argument that the Specialty Healthcare framework violated the Act "by making it
impossible for an employer to challenge the petitioned-for unit." 727 F.3d at 563–64.
The court also concluded that the Board had not violated the Administrative
Procedure Act. Id. at 565.
A.
The Specialty Healthcare decision comports with section 9(b) of the Act and
our cases interpreting that statute. In the first step, the Board evaluates whether the
employees in the proposed unit are "readily identifiable as a group" and "share a
community of interest." 357 NLRB No. 83 at *12. The Board applies the "traditional
-8-
criteria" for determining whether the employees share a community of interest. Id.
It has also listed a number of factors it uses to determine whether a community of
interest exists:
[W]hether the employees are organized into a separate department; have
distinct skills and training; have distinct job functions and perform
distinct work, including inquiry into the amount and type of job overlap
between classifications; are functionally integrated with the Employer's
other employees; have frequent contact with other employees;
interchange with other employees; have distinct terms and conditions of
employment; and are separately supervised.
Id. at *9 (quoting United Operations, Inc., 338 NLRB 123, 123 (2002)). These
factors parallel our previous description of the community of interest test. Cedar
Valley Corp., 977 F.2d at 1217. The Specialty Healthcare framework thus begins by
applying the same test we have approved.
FedEx contends that Specialty Healthcare is a departure from precedent
because it examines the proposed unit in isolation, but the community of interest test
does in fact compare the interests and characteristics of the workers in the proposed
unit with those of other workers. The factors listed by the Board question whether
the employees in the proposed unit have characteristics that are "distinct" and
"separate," and compare the employees to "other employees." 357 NLRB No. 83 at
*9; see Blue Man Vegas, 529 F.3d at 421 (the Board looks at the characteristics of
the employees in the proposed unit "in distinction from other employees"). The
precedents relied on by the Board in Specialty Healthcare make clear that the Board
does not look at the proposed unit in isolation. See Wheeling Island Gaming, Inc.,
355 NLRB No. 127 at *1 n.2 (2010).
FedEx suggests that the Board must consider other possible units before
determining whether the union's proposed unit is appropriate, but nothing in the Act
-9-
prohibits the Board from focusing its analysis on the proposed unit. The language of
section 9(a) "implies that the initiative in selecting an appropriate unit resides with
the employees," and "suggests that employees may seek to organize 'a unit' that is
'appropriate'—not necessarily the single most appropriate unit." Am. Hosp. Ass'n v.
NLRB, 499 U.S. 606, 610 (1991) (emphasis in original). In our circuit it is a "long-
standing principle" of unit determination under the community of interest test that
"the Board need only certify 'an appropriate' bargaining unit, rather than 'the most
appropriate' one." Watonwan Mem'l Hosp., Inc. v. NLRB, 711 F.2d 848, 850 (8th
Cir. 1983) (emphasis in original).2 The Board explained well before Specialty
Healthcare that "[i]n deciding the appropriate unit, the Board first considers the
union's petition and whether that unit is appropriate." Overnite Transp. Co., 322
NLRB 723, 723 (1996). If the Board concludes that the petitioned for unit is "an
appropriate unit," it has fulfilled the requirements of the Act and need not look to
alternative units. See Boeing Co., 337 NLRB 152, 153 (2001). We conclude that the
first step in the analysis described by Specialty Healthcare, in which the Board
analyzes the union's proposed bargaining unit under the traditional community of
interest test, is not a departure from the Board's precedent and is consistent with the
requirements of section 9(b) of the Act.
2
This principle has long been applied by the other circuits as well. Friendly Ice
Cream Corp. v. NLRB, 705 F.2d 570, 574 (1st Cir. 1983); Staten Island Univ. Hosp.
v. NLRB, 24 F.3d 450, 455 (2d Cir. 1994); NLRB v. Saint Francis Coll., 562 F.2d
246, 249 (3d Cir. 1977); Arcadian Shores, Inc. v. NLRB, 580 F.2d 118, 119 (4th Cir.
1978); NLRB v. Bogart Sportswear Mfg. Co., 485 F.2d 1203, 1206 (5th Cir. 1973);
NLRB v. First Union Mgmt., Inc., 777 F.2d 330, 333 (6th Cir. 1985); NLRB v.
Aaron's Office Furniture Co., 825 F.2d 1167, 1169 (7th Cir. 1987); NLRB v. Mercy
Hosps. of Sacramento, Inc., 589 F.2d 968, 972 (9th Cir. 1978); NLRB v. Foodland,
Inc., 744 F.2d 735, 737 (10th Cir. 1984); Daylight Grocery Co. v. NLRB, 678 F.2d
905, 908 (11th Cir. 1982); Bentson Contracting Co. v. NLRB, 941 F.2d 1262, 1267
(D.C. Cir. 1991).
-10-
FedEx also contends that the "overwhelming community of interest" standard
applied in the second step of the Specialty Healthcare analysis is a departure from
precedent. The Board has however repeatedly required a heightened showing to
challenge a proposed unit found appropriate under the community of interest test. In
Engineered Storage Products Co., the Board explained that under this step in the
analysis:
[C]ontrary to the Employer's contentions, the fact that [other employees]
may share a community of interest with the petitioned-for employees
does not mean that they must be included in the unit or that the
petitioned for unit is inappropriate. Rather, the test is whether the
community of interest they share with the solely employed employees
is so strong that it requires or mandates their inclusion in the unit.
334 NLRB 1063, 1063 (2001) (emphasis added). In Laneco Construction Systems,
Inc., the Board rejected the employer's argument that certain other employees "shared
such an overwhelming community of interests" with the employees in the unit "that
a unit excluding the former employees would be inappropriate." 339 NLRB 1048,
1049 (2003); see also Overnite Transp., 322 NLRB at 726 (group of employees "do
not share such a close community of interest . . . as would mandate their inclusion")
(emphasis in original). Although the Board has used different phrasing to describe
its heightened standard, we agree with the Sixth Circuit that the overwhelming
community of interest standard "is not new." Kindred Nursing, 727 F.3d at 561; see
also Colo. Nat'l Bank of Denver, 204 NLRB 243, 243 (1973) ("substantial community
of interest"); Mc-Mor-Han Trucking Co., 166 NLRB 700, 701 (1967) (shared
interests "not so significant as to require the inclusion of all the employees in a single
unit"); United Rentals, Inc., 341 NLRB 540, 541 (2004) ("overwhelming and
undisputed evidence" of shared interests).
The courts have also imposed a heightened standard on parties seeking to show
that a group of employees has been improperly excluded from a bargaining unit. Our
-11-
court has held that "[t]o set aside a Board certified unit, the employer must show that
the designated unit is not appropriate. It is not enough to show that another kind of
unit would have been more appropriate." NLRB v. Metal Container Corp., 660 F.2d
1309, 1313 (8th Cir. 1981). Like the Board, our requirement for a heightened
showing stems from the Act's requirement that the Board must certify an appropriate
bargaining unit. In Arlington Hotel Co. v. NLRB, the union petitioned for a unit
consisting of various hotel employees but excluding four categories of employees
such as front desk personnel and clerical workers. 712 F.2d 333, 334 (8th Cir. 1983).
The hotel contended that the only appropriate bargaining unit included all hotel
employees. Id. at 335–36. We upheld the Board's determination: "although the unit
found by the Board is not the only possible unit, it is an appropriate unit and that is
all that is required." Id. at 336 (citing 29 U.S.C. § 159(a)). The hotel, we concluded,
"has not shown that the unit is totally inappropriate or that the Board abused its
discretion in designating this unit." Id.; see also NLRB v. Cell Agric. Mfg. Co., 41
F.3d 389, 397 (8th Cir. 1994) (concluding that "overwhelming evidence" showed the
certified unit was inappropriate and the record "support[ed] only one plausible
conclusion"—that the appropriate bargaining unit needed to include other
employees).
Other circuits have also applied a heightened standard. Most instructive is the
D.C. Circuit's comprehensive opinion in Blue Man Vegas, LLC v. NLRB, a case
decided three years before Specialty Healthcare. 529 F.3d 417 (D.C. Cir. 2008). The
court explained that previous decisions by the Board and the courts "generally
conform to a consistent analytic framework":
If the employees in the proposed unit share a community of interest, then
the unit is prima facie appropriate. In order successfully to challenge
that unit, the employer must do more than show there is another
appropriate unit because “more than one appropriate bargaining unit
logically can be defined in any particular factual setting.” Rather, as the
-12-
Board emphasizes, the employer's burden is to show the prima facie
appropriate unit is “truly inappropriate.”
Id. at 421 (quoting Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C.
Cir. 2000)) (citation omitted).
A unit is truly inappropriate "if, for example, there is no legitimate basis upon
which to exclude certain employees from it," such as employees who "share an
overwhelming community of interest with the included employees." Id. The Blue
Man Vegas "truly inappropriate" standard closely resembles our use of a "totally
inappropriate" requirement. See Arlington Hotel, 712 F.2d at 336. Other circuits use
the same standard with slight variations of phrasing. Sandvik Rock Tools, Inc. v.
NLRB, 194 F.3d 531, 534 (4th Cir. 1999) (employer has the burden to show that the
approved bargaining unit is "utterly inappropriate"); Dunbar Armored, Inc. v. NLRB,
186 F.3d 844, 847 (7th Cir. 1999) ("clearly inappropriate"); Friendly Ice Cream Corp.
v. NLRB, 705 F.2d 570, 574 (1st Cir. 1983) (same); NLRB v. J.C. Penney Co., 559
F.2d 373, 375 (5th Cir. 1977) ("clearly not appropriate"). The Board's framework is
thus consistent with appellate precedent.
In summary, the Specialty Healthcare framework is a reasonable interpretation
of how the Board should apply section 9(b) and decide on an appropriate unit, and is
therefore an interpretation to which we must defer. St. John's Mercy Health Sys., 436
F.3d at 846. We conclude that the overwhelming community of interest standard
articulated in Specialty Healthcare is not a material departure from past precedent and
is consistent with the requirements of section 9(b) of the Act.
B.
FedEx next contends that the Specialty Healthcare standard violates section
9(c)(5) of the Act, which states that when the Board is determining an appropriate
-13-
bargaining unit, "the extent to which the employees have organized shall not be
controlling." We disagree.
The Supreme Court has stated that the extent of organization may be
considered by the Board as one factor in the Board's determination, so long as it is not
given controlling weight. NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 442 & n.4
(1965). According to Specialty Healthcare, the Board begins by analyzing whether
the union's proposed unit is appropriate using the multifactor community of interest
test. 357 NLRB No. 83 at *9. In Kindred Nursing, the Sixth Circuit followed the
D.C. Circuit's analysis and concluded that so long as the overwhelming community
of interest test is applied "only after the proposed unit has been shown to be prima
facie appropriate, the Board does not run afoul of the statutory injunction that the
extent of the union's organization not be given controlling weight." 727 F.3d at 565
(emphasis in original) (quoting Blue Man Vegas, 529 F.3d at 423). We agree.
FedEx argues that the Specialty Healthcare framework is foreclosed by NLRB
v. Lundy Packing Co., in which the Fourth Circuit rejected the Board's use of a
version of the overwhelming community of interest test. 68 F.3d 1577, 1581 (4th Cir.
1995). The Lundy court concluded that the Board violated section 9(c)(5) when it
adopted a "novel legal standard" under which "any union-proposed unit is presumed
appropriate unless an 'overwhelming community of interest' exists between the
excluded employees and the union-proposed unit." Id. By making that presumption,
the court reasoned, "the Board effectively accorded controlling weight to the extent
of union organization." Id. FedEx contends that Specialty Healthcare similarly
stacks the deck against employers, but it "misread[s] the Fourth Circuit's opinion."
Blue Man Vegas, 529 F.3d at 423. The Lundy court did not hold that any heightened
standard violates section 9(c)(5), and four years after Lundy the Fourth Circuit
reiterated that an employer challenging a bargaining unit selected by the Board must
show that the unit is "utterly inappropriate." Sandvik Rock Tools, 194 F.3d at 534;
see id. at 538 (distinguishing Lundy on its facts). We agree with the D.C. Circuit that
-14-
the use of an overwhelming community of interest test at the second step of the
Board's analysis does not violate section 9(c)(5) because the Board "did not presume
the union's proposed unit was valid, as it had done in Lundy." Blue Man Vegas, 529
F.3d at 423.
FedEx also argues that Specialty Healthcare violates section 9(c)(5) because
it creates an impossible standard, and that in practice the union's choice of a
bargaining unit is "sure to prevail." In at least one case however the Board has
applied Specialty Healthcare to find that the employer successfully challenged a
union's proposed unit. Odwalla, Inc., 357 NLRB No. 132 (2011). In Odwalla, the
Board found that certain excluded employees shared an overwhelming community of
interest with the employees included in the union's proposed unit. Id. at *5. Quoting
Specialty Healthcare, the Board explained that the union had proposed a "fractured"
unit consisting of an arbitrary segment of an appropriate unit. Id. There was "no
legitimate basis upon which to exclude" the other employees, the Board reasoned,
because they shared the relevant community of interest characteristics with the
employees in the proposed unit. Id. (quoting Blue Man Vegas, 529 F.3d at 421).
Moreover, "none of the traditional bases for drawing unit boundaries," such as
classification lines drawn by the employer, supervision, or methods of compensation,
supported the union's division of the employees. Id. at *5–6. Courts have
demonstrated a willingness to reject bargaining units that are inappropriate. E.g., Cell
Agric. Mfg., 41 F.3d at 397. Because the Specialty Healthcare framework does not
make the extent of union organization "controlling," we conclude that it does not
violate section 9(c)(5) of the Act.
C.
FedEx also contends that the Board violated the APA by announcing the
overwhelming community of interest standard in the course of adjudicating Specialty
Healthcare rather than by notice and comment rulemaking. The Supreme Court has
-15-
held that "the Board is not precluded from announcing new principles in an
adjudicative proceeding," and that "the choice between rulemaking and adjudication
lies in the first instance within the Board's discretion." NLRB v. Bell Aerospace Co.
Div. of Textron, Inc., 416 U.S. 267, 294 (1974); Oiciyapi Fed. Credit Union v. Nat'l
Credit Union Admin., 936 F.2d 1007, 1010 (8th Cir. 1991). The Board clarified the
state of the law in a reasoned opinion that cited its own precedent and relevant
appellate decisions. We agree with the Sixth Circuit that the Board's decision to
proceed by adjudication was not an abuse of discretion and therefore not a violation
of the APA. Kindred Nursing, 727 F.3d at 565.
D.
Having approved of the Specialty Healthcare standard, we next ask whether in
this case substantial evidence supported the Board's unit determinations under that
standard. See St. Clair Die Casting, 423 F.3d at 848. FedEx has never taken the
position that the road and city drivers do not share a community of interest and form
an identifiable group. FedEx thus has the burden to show that there is no legitimate
basis for excluding dockworkers from the unit because they share an overwhelming
community of interest with the drivers. Specialty Healthcare, 357 NLRB No. 83 at
*12–13. Keeping in mind the Board's discretion and our deferential standard of
review, we conclude that several common sense logical distinctions separate the
drivers and the dockworkers.
Most importantly, the drivers and dockworkers are hired to do substantially
different jobs. Drivers are required to have a commercial driver license. The
qualifications to become a dockworker are minimal. Although drivers occasionally
work on the dock, their primary role is to transport freight between the distribution
centers and other centers or customers. Moreover, the drivers are all full time
employees, whereas all (in East Philadelphia) or a majority (in Charlotte) of the
dockworkers are part time. FedEx asserts that the "best evidence of the total
-16-
integration" of the drivers and dockworkers is the amount of dock work performed
by drivers. Although the drivers in East Philadelphia perform about one third of the
dock work, the more important fact is that dock workers cannot and do not perform
driving work for FedEx. These differences support the Board's determination that the
dockworkers do not share an overwhelming community of interest with the drivers.
We conclude that the Board's decisions to certify bargaining units consisting of the
road and city drivers were supported by substantial evidence and were not arbitrary,
capricious, or an abuse of discretion.
IV.
For these reasons we deny FedEx's petitions for review and grant the Board's
petitions for enforcement.
______________________________
-17- | 01-03-2023 | 03-07-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/130221/ | 539 U.S. 906
Drasarv.California.
No. 02-9862.
Supreme Court of United States.
June 2, 2003.
1
Appeal from the Ct. App. Cal., 2d App. Dist.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3453530/ | Affirming.
On November 7, 1867, the commissioner of the Nicholas circuit court, pursuant to a judgment entered in the action of James M. Hughes et al. v. Jessie Holladay, *Page 727
exposed for sale the realty directed to be sold under that judgment. It consisted of two tracts of land, one lying to the north, and the other to the south, of the Licking river; the two together being part of the famous Blue Lick Springs property. James H. Holladay, the father of the appellant, Jessie Holladay Ogle, became the purchaser. The sale was thereafter confirmed, but it was not until 1880 that the commissioner executed to Holladay a deed to the property which he had bought with certain exceptions. It seems that, after the sale in 1867, Holladay sold a part of the tract of land lying north of the Licking river he had bought to W.T. Overbey, and directed the commissioner of the court to make a deed to such part directly to Overbey, which the commissioner did. Hence, when the commissioner came to deed the rest of the land which Holladay had bought to him, he described the tract north of the Licking river as follows:
"One parcel lying on the north side of Licking river near the salt spring and bounded on the south and southeast by that part of the property conveyed to W.T. Overbey and on the north and northeast and west by the lands of Daniel P. Bedinger's heirs. The lot herein conveyed is the same upon which the house known as the Ballingal property is situated, and any other land not conveyed by said Holladay to said W.T. Overbey."
The tract of land lying to the south of Licking river is not involved in this litigation, and neither is the Ballingal property. Holladay died in 1888 insolvent, leaving surviving him as his only heir at law his daughter, the appellant, Jessie Holladay Ogle, who was born on December 11, 1872. She married on April 3, 1901. On the 15th of September, 1925, she brought this suit alleging that she was the owner of _____ acres of land, which description she attempted to render more definite in her proof by claiming it to be 200 to 300 acres. She further stated that she derived title to this land under that portion of the Holladay deed above referred to which reads: "And any other land not conveyed by said Holladay to said W.T. Overbey," and that the appellee Cole was in possession of this land claiming it as his own. She asked for a judgment for the recovery of said land, and that the defendant Cole be adjudged no interest in it. There was no other description of the land in question in the petition *Page 728
than that which we have set out. The appellant's proof rendered it no more certain except to the extent of the acreage. The appellee by his answer denied the appellant's alleged ownership of the land, and pleaded the 15 and 30 year statute of limitations. No reply was filed to this answer. On final submission the court dismissed the appellant's petition, and she has appealed.
This was not an action to quiet title under section 11 of the statutes, since the appellant did not claim any possession of the property in herself. The appellee did not seek to establish his title by a counterclaim. His prayer was simply that the appellant's petition be dismissed. Though this suit was tried in equity, it was essentially then an action in ejectment. This being true, the appellant had to recover on the strength of her own title, and could not rely on the weakness of that of her adversary. Payne v. Edwards, 210 Ky. 417, 276 S.W. 116. Appellant did not trace her title back beyond the Holladay deed, and hence showed no title back to the commonwealth. As said in Payne v. Edwards, supra:
"The plaintiff in ejectment must recover on the strength of his own title, either by showing paper title back to the Commonwealth or that he and those under whom he claims have been in continuous, adverse possession of the lands for the statutory period next before the institution of the action."
The appellee did not claim any of the disputed land under the Holladay deed, but under a deed to him from the Bedinger heirs. It therefore follows that the principle that a claimant to title to land does not have to trace his title back beyond a common source of title has no application here. The appellant, therefore, having failed to establish her title to the land in question as the law requires, her petition was properly dismissed. Further, there was no reply filed to either of the pleas of the 15 and 30 year statute of limitation, so that they both stood confessed. Civil Code, section 126. But beyond this the evidence clearly established both pleas. Finally, the proof very clearly showed that the only land sold under the commissioner's sale, to which we have referred, was the Ballingal lot, and that which Holladay directed to be conveyed to Overbey. The proof failed to show, as appellant contended, that any land lay between these two pieces and the "lands of Daniel P. Bedinger's heirs." On the contrary, the proof clearly established *Page 729
that these two tracts were bounded on the north, northeast, and west by the Bedinger land, from which it follows that the expression in the Holladay deed, "and any other land not conveyed by said Holladay to said W.T. Overbey," was inserted in the Holladay deed as a matter of precaution, and did not, in truth, cover any property.
The judgment dismissing appellant's petition being in accordance with these views, it is affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2828490/ | IN THE COURT OF APPEALS OF IOWA
No. 15-0501
Filed August 19, 2015
IN THE MATTER OF J.G.,
Alleged to be Seriously Mentally Impaired,
J.G.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Douglas S.
Russell, Judge.
J.G. appeals from a district court order requiring hospitalization due to his
serious mental impairment. AFFIRMED.
Kristin L. Denniger, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Gretchen Witte Kraemer, Assistant
Attorney General, Janet M. Lyness, County Attorney, and Elizabeth Dupuitch,
Assistant County Attorney, for appellee State.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
2
DOYLE, P.J.
J.G. appeals the district court’s order finding him to be seriously mentally
impaired and requiring his hospitalization. We affirm.
I. Background Facts and Proceedings
J.G. is currently serving a four-year sentence for assault and domestic
abuse assault. He is scheduled to be discharged sometime in August 2015. In
May 2014, J.G. assaulted a peer while at the Mt. Pleasant Correctional Facility.
Several months later, in July, J.G. lunged at staff and made threats to assault
them while at the Clarinda Correctional Facility. In October, while at the Clarinda
facility, J.G. destroyed items in his cell by smearing feces and urine on them,
threatened to assault staff, and tied a bag around his head. In November, J.G.
again destroyed items in his cell, tore up his mattress, played with feces, and
plugged the toilet. He was emergently treated at least three times in October and
November with medications due to extreme agitation and disruption.
On November 20, 2014, J.G. was transferred to the Iowa Medical and
Classification Center (IMCC) in Coralville. An application for order of involuntary
hospitalization was filed and on December 16, 2014, a judicial hospitalization
referee entered an order pursuant to Iowa Code section 229.13 (2013) finding
J.G. to be seriously mentally impaired and ordering him to be placed for a
complete psychiatric evaluation and appropriate treatment at the Mental Health
Institute (MHI) in Independence. The order further provided that J.G.’s “actual
transfer of placement to MHI Independence is subject to the term of [his] present
incarceration, if applicable, and a safety and security assessment by MHI staff.”
J.G. remained incarcerated at IMCC in Coralville.
3
J.G. appealed the referee’s order to the district court. A hearing was held
on March 9, 2015. Dr. Keller, a doctor at IMCC, and J.G. testified at the hearing.
The district court entered its ruling the same day concluding:
The State of Iowa has established by clear and convincing
evidence that [J.G.] is seriously mentally impaired as defined by
[Iowa Code] section 229.1(17). The Court further concludes by
clear and convincing evidence that [J.G.] lacks insight into his
illness and lacks sufficient judgment to make responsible decisions
with respect to his medical treatment, particularly the requirement
of medication when not under commitment and would be at risk to
himself and others if not under civil commitment for appropriate
psychiatric monitoring and treatment. The Court concludes that the
commitment should remain in place, that the current alternative
placement at IMCC is appropriate, and that if [J.G.] takes the
prescribed medication as directed, the commitment will be serving
its purpose.
The court denied and dismissed J.G.’s appeal. J.G. now appeals.
II. Standard of Review
We review sufficiency of the evidence challenges in involuntary
commitment appeals for errors at law. See In re B.B., 826 N.W.2d 425, 428
(Iowa 2013). The district court’s findings of fact are binding on us if supported by
substantial evidence. See In re J.P., 574 N.W.2d 340, 342 (Iowa 1998).
“Evidence is substantial if a reasonable trier of fact could conclude the findings
were established by clear and convincing evidence.” Id. Clear and convincing
evidence “means that there must be no serious or substantial doubt about the
correctness of a particular conclusion drawn from the evidence.” See B.B., 826
N.W.2d at 428.
III. Serious Mental Impairment
J.G. contends the State failed to prove by clear and convincing evidence
that he is seriously mentally impaired. Iowa Code section 229.1(17) provides
4
that a person is “seriously mentally impaired” where the person is mentally ill
and, “because of that illness lacks sufficient judgment to make responsible
decisions with respect to the person’s hospitalization or treatment,” and is likely,
if allowed to remain at liberty, to inflict physical injury on himself or others or to
inflict emotional injury on the designated class of persons. See also B.B., 826
N.W.2d at 432. “Likely” is construed to mean “probable or reasonably to be
expected.” In re Oseing, 296 N.W.2d 797, 801 (Iowa 1980). “[T]he
endangerment element requires a predictive judgment, based on prior
manifestations but nevertheless ultimately grounded on future rather than past
danger.” In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986) (internal quotation marks
omitted). The danger the person poses to himself or others must be evidenced
by a “recent overt act, attempt or threat.” Id. (internal quotation marks omitted).
“In the context of civil commitment . . . an ‘overt act’ connotes past aggressive
behavior or threats by the respondent manifesting the probable commission of a
dangerous act upon himself or others that is likely to result in physical injury.” In
re Foster, 426 N.W.2d 374, 378 (Iowa 1988). Overt acts include behavior such
as threats to kill. See id. at 379.
Dr. Keller, board certified in adult psychiatry, testified J.G.’s “diagnosis
currently has been Schizoaffective Disorder, Bipolar type,” which is considered a
mental illness under DSM-V. The doctor’s March 4, 2015 report, considered by
the court, states the same diagnosis. The report also indicates that in the
doctor’s judgment, J.G. is mentally ill. At the hearing, the doctor opined J.G. was
seriously mentally impaired. We find this evidence sufficient to establish J.G. is
mentally ill.
5
At the hearing, Dr. Keller also opined J.G.’s “judgment is so impaired and
so incapacitated that he’s not able to choose the proper course of treatment for
himself,” and that J.G. was not capable of realizing and making rational decisions
with respect for his need for treatment. The doctor explained:
[J.G.] initially was compliant with medications on the basis of
this order; otherwise, he had been taking medications that he
believed would be helpful but weren’t effective and they were, as he
had told me, the easiest to get off in the community when he left.
I have been able to at least start these medications that have
partially treated him, but he continues to have delusional thoughts
about his past, his military history, various other aspects including
his family life.
He remains disorganized in giving me his history. I still have
limited history from him, and I do believe that even with his last visit
he has ideas that he’s receiving different medications than what’s
been prescribed despite all the orders remaining the same.
I did note for him that we did have a change in one of the
generic medications which was the Depakote. We went from a
gray tablet to a white tablet, but he believes the other medications
have changed and have been changing.
So I believe that he has managed to maintain some
improvement in our structured care in the mental health unit, but I
believe he remains at the disorganized high risk of stopping his
medications.
The doctor also testified he believed commitment was necessary in order
to enable J.G. to continue his medication. The doctor’s March 4 report also
states J.G. is not capable of making responsible decisions with respect to his
treatment. We find this evidence sufficient to establish J.G. lacks sufficient
judgment to make responsible decisions with respect to his treatment.
Dr. Keller’s March 4 report indicates, in the doctor’s judgment, that J.G. is
likely to injure himself or others. The report explains:
He had a history when not on meds of assaulting peers and
assaulting staff. In October [2014] he tied a bag around his head,
and in early November [2014] he tore up things in his cell and
smeared feces. This combined with his history of agitation when off
6
medication is very disruptive to the unit. When not on consistent
medications or ineffective medication, he had been agitated and
made numerous verbal threats to staff besides the above noted
disruptions and fights.
The report also indicates that in the doctor’s judgment, J.G. is likely to inflict
severe emotional injury on those unable to avoid contact with him, explaining that
if J.G. “is not on medications, he can become very activated and not rest at night
keeping peers up making noises and being loud, yelling at unseen stimuli, etc.”
At the hearing, the doctor also opined J.G. would be a danger to himself if left
untreated. In particular, it was the doctor’s opinion that if left untreated, J.G. was
likely to inflict serious emotional injury on those who are unable to avoid contact.
He explained, “[J.G.] has displayed in the past very disruptive actions on the
units he’s been on. Currently, again, there have been some complaints; but he
has been more redirectable since on treatment. But without treatment, I do
believe that he will decompensate.”
J.G. argues the “endangerment element” was not proven by clear and
convincing evidence because there were no recent overt acts, attempts, or
threats. To support this contention, J.G. claims there were no incidents beyond
May of 2014—approximately ten months prior to the hearing on the appeal from
the hospital referee’s decision. We disagree. The record shows multiple threats
to harm peers and staff, assault on staff, and self-harm, including: May 2014,
J.G. assaulted a peer; July 2014, J.G. attempted to assault a correctional officer
and continually made threats to staff; October 2014, J.G. destroyed his cell,
threatened to assault staff, and tied a bag around his head; and November 2014,
7
J.G. again destroyed his cell and was extremely agitated and disruptive, at which
time he was moved to the IMCC and adjudged “seriously mentally impaired.”
The hospitalization hearing was held on December 16, 2014. There can
be no genuine dispute—and J.G. did not claim otherwise at the hearing—that the
incidents in 2014 (particularly the October and November incidents) were “recent
overt acts.” The appeal hearing was held on March 9, 2015, almost three
months after the hospitalization hearing. The nature of the hearing was a trial de
novo. See Iowa Code § 229.21(3)(c). Since the time of the hospitalization
hearing, J.G. has been under court-ordered treatment and on consistent
medications; as a result, and as hoped, his condition has improved, and he has
ceased the threats to staff. We agree with the State that although a recent overt
act is required to prove the dangerousness element, the focus is not solely on the
temporality of the act, particularly under the circumstances presented here.
The endangerment element “requires a predictive judgment, ‘based on
prior manifestations but nevertheless ultimately grounded on future rather than
past danger.’” Mohr, 383 N.W.2d at 542. Dr. Keller testified J.G. was so
seriously mentally impaired that J.G. was not able to choose the proper course of
treatment for himself. Although J.G. managed to maintain some improvement in
the structured care of the mental health unit, Dr. Keller believed J.G. remained
“at the disorganized high risk of stopping the medications.” The doctor believed
J.G. would be a danger to himself if left untreated. The doctor opined J.G. is
likely to inflict serious emotional injury on those who are unable to avoid contact
with him if J.G. is left untreated. Finally, the doctor felt commitment was
necessary in order to enable J.G. to continue his medications. Taking all of the
8
above into consideration, we find the evidence sufficient to support the trial
court’s finding that J.G. is likely to injure himself or others if released without
treatment.
IV. Continuance
J.G. argues the district court abused its discretion in denying his request
for a continuance. Denial of a motion to continue is reviewed for an abuse of
discretion. See In re C.W., 554 N.W.2d 279, 281 (Iowa Ct. App. 1996).
Before cross-examining Dr. Keller, J.G. moved to continue the
proceedings “until he can get some further information and documents for his
own benefit.” The court denied the motion and the hearing proceeded. He did
not reveal what “further information and documents” he sought at the hearing and
he does not do so on appeal. Under the circumstances, the district court did not
abuse its discretion in denying the motion to continue.
V. Conclusion
Because there is sufficient evidence to conclude J.G. is mentally ill, lacks
sufficient judgment to make reasonable decisions as to his treatment, and that
without continued involuntary commitment and medical treatment he is likely to
injure himself or others, we agree with the district court that J.G. is “seriously
mentally impaired as defined by section 229.1(17).” Consequently, we affirm the
district court’s ruling on appeal.
AFFIRMED. | 01-03-2023 | 08-19-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2892751/ | NO. 07-04-0583-CR
IN THE COUR T OF APPE ALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMAR ILLO
PANEL B
FEBRUA RY 16, 2005
______________________________
THE STATE OF TEXAS, APPELLANT
V.
MARY FRANCIS APPIO, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 48,994-A; HONORABLE H. BRYAN POFF, JUDGE
_______________________________
Before JOHNS ON, C.J., and QUINN and C AMP BELL, JJ.
MEMORANDUM OPINION
Appellant, T he State of Texas , filed a Motion to Dismiss A ppeal on February 9, 2005.
Without passing on the merits of the case, appellant’s motion for volu ntary dismissa l is
granted and the appeal is hereby dismissed. Tex. R. App. P. 42.2. Having dismissed the appeal
at appellant’s personal request, no motion for rehearing will be entertained and our m andate will
issu e forthw ith.
Phil Johnson
Chief Justice
Do not publish. | 01-03-2023 | 09-07-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3813661/ | The parties hereto will be designated as in the lower court.
Plaintiff's petition in the lower court contained four counts, each complete within itself, all of them growing out of and connected with the same subject-matter. The trial court sustained a demurrer to the second and third counts; the plaintiff refused to amend, and announced that he would stand upon these two counts. Thereupon the court entered an order dismissing the two counts, or, more properly, the two causes of action. Plaintiff reserved exceptions and has brought the matter here upon appeal. The demurrer to the first and fourth counts was overruled; and, while the record does not show, it is presumed that the cause went to trial on these two counts.
Defendant contends that this appeal is premature and should be dismissed, insisting that plaintiff should have awaited the final action of the court upon the other two causes of action. Even though, as in this case, all the causes of action are interwoven and grew out of the same transaction, we are of the opinion that, when each count or cause of action declares upon a different cause of action, and the pleading in each is complete within itself, as in the case at bar, an appeal will lie upon the sustaining of a demurrer to any one of the causes of action, and trial may be proceeded with upon the other counts or causes of action. *Page 149
The pleadings in this case show that on the 24th of February, 1911, W. H. Ladnier owned an oil lease on 40 acres of land in Creek county, and on that date assigned to W. E. Broach an undivided one-half interest in said lease. The terms of the assignment and the consideration therefor were that he should drill a well thereon as soon as practicable. It was further provided in this assignment that if the first well should produce as much as 150 barrels of oil per day, Broach should proceed within 10 days thereafter to drill a second well. All the expenses of drilling, equipping, and operating the two wells were to be borne by Broach under the contract. On this same day, February 24, 1911, Broach assigned to plaintiff, Cox, the undivided one-half interest which he had obtained from Ladnier, the consideration for this assignment being that Broach was to have an undivided one-eighth interest in the whole lease, and that he was to be carried for that one-eighth interest by Cox, and he was to be at no expense whatever in the drilling of the wells, etc. Cox assumed all the burdens and obligations of the assignment from Ladnier to Broach, which were that Cox, owning three-eighths interest in the lease, was to bear the entire expense of drilling, equipping, and operating the two oil wells. On March 21, 1911, Cox sold and assigned to defendant, Butts, an undivided one-eighth interest in said lease, and now Ladnier owned a one-half interest, Broach a one-eighth, Cox one-fourth, and Butts one-eighth. At the time of the assignment of Cox to Butts of the one-eighth interest, two instruments were executed, one being an assignment by Cox to Butts of the one-eighth interest and the other being a memorandum of a contract and agreement between Cox and Butts. *Page 150
The controversy between plaintiff, Cox, and defendant, Butts, from whence this action arose, was this: Plaintiff contends that Butts took the assignment of the one-eighth interest in the lease burdened with one-fourth of the cost of drilling, equipping, and operating the two oil wells, while Butts contends that he was obligated to pay only one-eighth of the expense, as he owned only the one-eighth interest in the lease. In order to arrive at a decision on this point it will be necessary to examine certain clauses in the contracts attached to plaintiff's petition. The assignment from Cox to Butts contains the following clause:
"This assignment is intended to convey and does convey unto the said M. H. Butts, his heirs and assigns, an undivided one-eighth (1/8) interest in the working interest of said lease, without any obligations on the part of the said M. H. Butts, to the said W. E. Broach, by virtue of said contract and assignment dated the 24th day of February, 1911."
"This assignment is and shall be binding upon the parties hereto, their heirs, executors, administrators and assigns, and is made subject to the terms and conditions of said lease."
In the contract between Cox and Butts, the consideration for the assignment for the one-eighth interest is stated to be $1,500 in cash and the further sum of $1000 upon a certain contingency, which is not necessary to set out here.
It is also not necessary to set out the allegations in the two counts of the petition to which the demurrer was sustained, as the legal proposition is the same in each. Plaintiff bases his contention that Butts was obligated to *Page 151
pay one-fourth of the expense in the enterprise upon the clause in the assignment of Cox to Butts, which is as follows:
"This assignment is and shall be binding upon the parties hereto * * * and is made subject to the terms and conditions of said lease."
From the previous wording of this assignment it will be conceded that by the "lease" here referred to is meant the lease from Ladnier to Broach. And so the question squarely arises, Did Butts, in accepting an assignment of an eighth interest in this lease, subject to the terms and conditions of the lease from Ladnier to Broach, thereby become obligated to bear the burden of developing the lease for oil in double proportion to the interest conveyed to him? In other words, the interest in the lease assigned by Ladnier to Broach carried a double burden; for a one-half interest he assumed the whole burden of development. So if Butts, in taking the assignment from Cox, placed himself in Cox's shoes, he became obligated to pay one-fourth of the development expenses. The answer turns upon the construction to be given to the words "subject to," as used by the parties hereto in the assignment from Cox to Butts. We find an almost analogous case in Consolidated Coal Co. v.Peers, 166 Ill. 361, 46 N.E. 1105, 38 L. R. A. 624, the facts being similar to those in the instant case, and the court there says:
" 'Subject to,' as used in an assignment of a lease subject to the agreements therein mentioned to be performed by the said lessee, are words of qualification, and not of contract, and hence the assignee does not, by such agreement, become liable on the covenant to pay rent accruing after he has assigned over." *Page 152
Bredell v. Fair Grounds Real Estate Co., 95 Mo. App. 676, 69 S.W. 635, is a case where an assignment of rents was made to a creditor "subject to" a prior deed of trust, and it was there held that the words "subject to" meant charged with. We find these words "subject to" used very often in the conveyance of property subject to an existing mortgage against the property, and it has been almost invariably held that a person taking such property subject to a mortgage thereon does not personally obligate himself to pay the mortgage debt. The acceptance of a deed subject to a specified mortgage does not imply a promise on the part of the grantee to pay the mortgage. Patton v.Adkins, 42 Ark. 197. Where a deed declares that the grantee takes the land "subject to the mortgage," such phrase does not carry with it an assumption of the debt. Commercial Bank v.Redfield, 122 Cal. 405, 55 P. 160, 772. In Way v. Roth,
58 Ill. App.? 198, it is held that a conveyance of land by A. to B., on which C. holds a mortgage, the conveyance stating therein that the deed was subject to C.'s mortgage, does not render B. personally liable to C. for the mortgage debt. A transfer of property of a firm subject to its debts does not necessarily import an agreement to assume and pay the debts.King v. Isreal, 19 Misc. Rep. 159, 43 N.Y. Supp. 306.
From a consideration of these cases as applied to the proposition at hand, it is plain that when Butts accepted an assignment of the one-eighth interest in the lease subject to the terms and conditions of the lease from Ladnier to Broach, he did not enter into a personal obligation to fulfill any of the terms of the Ladnier-Broach lease. Ladnier could not legally hold him personally liable to carry out the terms of the contract. In other words, there was *Page 153
no personal contractual relation or obligation existing between Ladnier and Butts. He simply took a one-eighth interest assigned to him by Cox, charged with the burden placed upon it by the terms of the Ladnier-Broach lease, and in a proper legal proceeding Ladnier could have had this interest applied to the carrying out of the lease contract with Broach, but he could not hold Butts personally therefor, and that is the test in this case as we see it. If Butts is personally obligated, then he stands charged with the payment of one-fourth of the expenses of drilling, equipping, and operating the wells as plaintiff contends, but if he is not personally obligated to Ladnier, then he can be held for the payment of only one-eighth of such expenses, as he only owned that interest in the lease.
It will have some bearing on the subject under discussion to compare the language used in the assignment of the lease from Broach to Cox with that used in the assignment of Cox to Butts. In the assignment of Broach to Cox the following language is used:
"And the said Theodore Cox hereby assumes the contract agreed upon by W. E. Broach and the owners of said lease and agrees and obligates himself to carry the same out according to the true intent and meaning thereof, and to pay all expenses in reference thereto."
Note the certain, definite, and explicit language there used, and compare that used in the Cox-Butts assignment, wherein appears the following:
"This assignment * * * is made subject to the terms and conditions of said lease."
In the purchase of property incumbered by mortgage, where the purchaser assumes the payment of the mortgage, the instrument of transfer generally notes that the *Page 154
purchaser assumes the payment of the mortgage. In cases where the purchaser assumes to do something which the seller has obligated himself to another to do, the instrument of transfer generally contains the clause that the purchaser "hereby obligates himself and promises," etc.
It is also significant that the consideration stated in the assignment of Broach to Cox is $1, while the consideration stated in the assignment of Cox to Butts is a cash consideration of $1,500 and $1,000 to be paid upon a contingency. While it is not controlling, yet some weight should be given to the inference that a consideration of $1 imports some further consideration, while a consideration of $1,500 does not.
For the foregoing reasons we hold that there was no personal obligation placed upon Butts in the assignment to him, or in the contract agreement between him and Cox, whereby he became liable personally for any more than one-eighth of the expense incurred in development of the oil lease. The actual intent between Cox and Butts might, in fact, have been as plaintiff contends, but we can not look further than the wording of the contract itself. It is the duty of one party who intends to bind another to do a certain thing by covenant in any written instrument to word the contract by the use of distinct and intelligible terms, so that there can be no misunderstanding, and not call upon the courts to infer that the contract was intended to be a certain way, which was probably understood by one party in a sense different from that sought to be ascribed by the other.
The attorneys in this case, both for the plaintiff and defendant, have filed briefs herein, but neither of these briefs contains the citation of a single authority, but both *Page 155
sides have rested their case by a statement of what the law is. If this is as far as they intend to go in their briefs, then it is unnecessary to file briefs at all, because this court will always know, just as soon as we learn which side of the legal question they are on, what, at least, they think the law is, and it is unnecessary to file briefs to apprise the court of that fact. In order for a brief to be of aid to the court there should be contained therein a citation of authorities relied upon to sustain their contention.
The judgment is affirmed with costs.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/130242/ | 539 U.S. 907
Gloverv.Bennett, Superintendent, Elmira Correctional Facility.
No. 02-10304.
Supreme Court of United States.
June 2, 2003.
1
Appeal from the C. A. 2d Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/4007152/ | Lewis H. Young recovered a judgment against the Home Life Insurance Company in the sum of $300.00, which represents disability benefits for the period March 20th to September 20th, 1932. This judgment is challenged on two grounds, namely, that the disability benefit is unenforceable because of fraud in its procurement; and that the verdict is contrary to the law and the evidence.
On December 5, 1929, an agent of defendant company took plaintiff's application for a $5,000.00 life contract, with "disability" and "additional death" benefits. And, on December 16, 1929, a policy, No. 373,419, in the sum of $5,000.00 was issued, the provisions relating to the special benefits being upon separate detached printed forms, which were duly authenticated by the company.
Plaintiff's action is based on the theory that the "disability" feature is, in fact, part and parcel of the life contract, and that the one year incontestability provision in the latter applies with equal force to it. And that by reason thereof the defendant was precluded from raising the question of fraud in procurement after December 16, 1930. Richard's Ins. Law (3d Ed.), sec. 378; 2 Joyce on Ins. (2d Ed.), sec. 8949.
The application was primarily one for life insurance, with blanks in which to indicate by the insertion of an "x" if either, or both, of the special benefits were desired. Each of the special benefit agreements, or riders, refer in their opening paragraph to the life policy, the one declared on reading: "Agreement for total and permanent disability benefit issued in connection with and attached to policy No. 373,419, dated December 16, 1929, on the life of Lewis H. Young"; and the corresponding paragraph in the "additional death benefit" likewise recites that it is "issued in connection with and attached to", etc. The amount recoverable under either of the *Page 718
special features is dependent upon the amount of insurance in the life contract. If there is any question in regard to the meaning of the words "issued in connection with and attached to", when read in connection with the application and the life policy, that construction should be adopted which favors the insured. It would be just as reasonable to deny liability under the "additional death benefit" feature on the ground that the contract was procured by fraud, as to advance such defense in this case. In view of the fact that the "additional death benefit" was taken out at the time of the life policy, and but one application required, we feel that the incontestability feature must apply with like force to both. And, so construing the words heretofore used in one of the special features, a like construction must be placed on the same words used in the "disability" benefit feature.
Being of the opinion that the incontestability clause applies to the disability feature, and it appearing that the one year provided in such clause had elapsed long before the company sought to avail itself of such defense, we need not go into the question of fraud in the procurement of the insurance.Morris v. Missouri State L. Ins. Co., (W.Va.) 171 S.E. 740.
Is the evidence sufficient to support a verdict for the plaintiff for the period March 20th to September 20th, 1932?
It is the contention of the plaintiff that he is suffering with traumatic neurosis, and that, with the exception of a six weeks' period in October and November, 1931, when he acted as timekeeper for Venable Farkas, road contractors, he has been unable to perform any kind of labor for any appreciable period of time, without suffering ill effects therefrom, since the date of his injury, to-wit, March 26, 1929.
The company defended on the theory that plaintiff was a malingerer. And in support thereof called, as witnesses, several neurologists and physicians, who had examined plaintiff prior to September 20, 1932. Each testified in effect that he had failed to discover any physical condition which would render plaintiff incapable of performing manual labor, and that he had found no symptoms of sufficient moment to warrant a diagnosis of traumatic neurosis. The neurologists divided the symptoms of traumatic neurosis into two classes. Those ascertainable only through the statement of the patient, *Page 719
such as the presence of dizziness and headache, were placed in the subjective class; and those open to observation through physical examination and mental tests, in the objective. Excessive sweating, evidenced by cold and clammy hands and feet and tremors of body, fingers, arms and legs, were cited as examples of objective symptoms.
It is admitted that the plaintiff, on March 26, 1929, while engaged in "dumping a truck", was caught under the arm and thrown some twelve feet, lighting on his neck and shoulder on the frozen ground. It appears that he consulted a physician the following day, and within the course of two or three weeks was referred to Dr. E. Bennett Henson with a note from his employer. Dr. Henson upon his initial examination found Young suffering from a "kyphosis" and a "swelling of the muscles" on the left side, and had him put to bed, and later in a cast. As indicated by reports made to the defendant company on June 30th, August 18th, and October 11, 1930, Dr. Henson thought that plaintiff's recovery would be rapid and that he would be able to return to work within a short time. And the company, acting on such information, paid disability benefits for the period July, 1930, to January, 1931.
But Young, according to evidence submitted on his behalf, did not recover as anticipated. Dr. Henson called Dr. Easley, one of the neurologists who testified on behalf of the defendant, for consultation on the case, the latter making his examinations in January and March of 1931. Dr. Henson testified that as a result of such examinations plaintiff's condition was diagnosed as traumatic neurosis. Dr. Easley, however, denied any concurrence in such a diagnosis, as our reference to defendant's evidence indicates. Dr. Henson further stated that in his opinion plaintiff would never be any better. Dr. Roberts, who made examinations and rendered medical services during the latter part of the period for which disability is now claimed, stated that in his opinion plaintiff was suffering from traumatic neurosis. This diagnosis was based on plaintiff's statements concerning his condition, and such objective symptoms as excessive perspiration accompanied by a more or less clammy condition of the skin, especially of the hands and feet, and tremors in the hands. It was also shown by lay witnesses, including former employees, that *Page 720
plaintiff, prior to injury, had been a good worker, and apparently enjoyed good health.
In view of the foregoing the Court is of opinion that there is appreciable evidence to the effect that the plaintiff was suffering from traumatic neurosis, and that the question of the existence or non-existence of such condition was one for the jury to decide.
The jury are the judges of the credibility of the witnesses and weight of evidence, and usually, when a prima facie case has been made out by the plaintiff, as here, the question as to whether it has been rebutted is for the jury. Ross v. Gill,1 Wash. 87; McDowell's Ex'r. v. Crawford, 11 Gratt. 377; State v.Thompson, 21 W. Va. 741.
Perceiving no prejudicial error, we must affirm the judgment.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/4007153/ | The relator T. W. Woodward, as a minority stockholder of the respondent, Black Betsey Consolidated Coal Company, a corporation, seeks by writ of mandamus an inspection of its records, and disclosure of its assets, liabilities and financial condition.
The Black Betsey Consolidated Coal Company is the owner of a large acreage of coal and timber lands in Webster and Nicholas counties, West Virginia. The relator is the owner of 104 shares of its 7500 shares of stock issued and outstanding.
July 22, 1925, the relator addressed and mailed to the officers of the respondent a letter requesting that the president and board of directors meet and declare a dividend "commensurate with the ability of said company to pay the same from the net profits". August 13, 1925, the relator addressed and mailed to certain officers of the company another letter stating: *Page 660
"Please let me have trial balances of the Black Betsey Consolidated Coal Company as of June 30, 1924; December 31, 1924, and June 30, 1925. Also let me have condensed statements of the assets and liabilities of the above mentioned Company on the above dates.
"Also let me have statement showing the distribution and application of the $250,000.00 received by the above mentioned Company from the sale of the Black Betsey property of the Otto Marmet Coal and Mining Company.
"Also let me have statement showing the amount received by the above mentioned Company from the sale of the M-B Coal and Coke Company's improvements to the Indian Run Collieries Company and the application and distribution of the same. Also let me have a statement showing the amount of royalties received by the above mentioned Company from the Indian Run Collieries Company each year, and the application and distribution thereof.
"Also let me have a statement of the monies received from the timber sales of timber sold on the Fayette County, W. Va. lands, the Webster County, W. Va. lands and the extra amount received for the time extension to remove the timber from the last mentioned tract, and the application and distribution of such monies received from such timber sales."
Neither of these letters having been replied to, the relator, after waiting until October 5, 1926, on that date, without further request, filed his petition in this proceeding.
In its answer to the petition, the respondent says it "was ready and willing, and has been at all times, and is now, ready and willing that the relator or his agent examine the books of said company, and obtain therefrom such information as desired for the purpose mentioned in his petition".
At common law a single stockholder of a corporation is entitled to inspect its books and records at reasonable times for reasonable purposes. The principal question presented in oral argument and on brief of counsel is whether or not the common law right has been abrogated by Section 47, Chapter 53, Code, providing: *Page 661
"The property and funds, books, correspondence and papers of the corporation, in the possession or control of any officer or agent thereof, shall at all times be subject to the investigation of the board of directors, or a committee appointed for the purpose by a general meeting of the stockholders. The minutes of the resolutions and proceedings of the board shall for thirty days before the annual meeting of the stockholders, be open to the inspection of any committee appointed, in writing, by the holder or holders of at least one-twentieth part of the total value of outstanding shares, or by the holder or holders of such number of shares. They shall be produced when required by the stockholders at any general meeting."
Counsel for the respondent assert the affirmative, while counsel for relator maintain the negative of the issue.
The opinion written by Judge POFFENBARGER in the case ofLipscomb Admr. v. Condon, 56 W. Va. 416, involving the right of the creditor of a stockholder to inspect the books of a corporation, states:
"Nowhere in our corporation laws does it appear any of the records required to be kept are in any sense public records. Section 43 of chapter 53 requires a list of the stockholders, showing the number of shares and votes to which each is entitled to be hung up in the most public room at the principal office or place of business of the corporation, for one month before every annual meeting of the stockholders. Section 47 of the same chapter declares that the funds, books, correspondence and papers of the corporation shall be at all times subject to the inspection of the board of directors or a committee thereof, appointed for the purpose, or of any committee appointed for the purpose by a general meeting of the stockholders. No provision appears to give to the individual stockholder, much less a creditor of his, a creditor of the corporation, or a wholly disinterested person, the right of inspection at all times, or at any time. The board of directors is required by section 46 of chapter 53 to make a report to the stockholders at the annual meeting, showing the condition of the *Page 662
corporation, and then declares that 'the board shall furnish to each stockholder requiring it, a true copy of such report, together with a list of the stockholders and their places of residence". By section 47 of chapter 53, every stockholder has a limited right of inspection. It is only for thirty days before the annual meeting of stockholders, and extends, not to the 'property and funds, books, correspondence and papers of the corporation', but only to 'the minutes of the resolutions and proceedings' of the board of directors."
Counsel for relator says that this statement is mereobiter and an incorrect pronouncement of the law, in so far as it indicates that statutory regulation of the right of stockholders to inspect the books of a corporation supersedes and abrogates the common law right. It is unnecessary, however, in the decision of this case to determine the question under consideration. No previous demand having been made by the relator therefor, and respondent being willing to accord him the right of inspection, the peremptory writ will be denied.
As a general rule the relator must have demanded performance of the act or duty which he seeks to enforce by mandamus. 38 C. J. 576. "The demand must be express and distinct and not couched in general terms, but should plainly and accurately demand the performance of that which the court is asked to compel the respondent to do." New Martinsville v. TelephoneCompany, 68 W. Va. 726; 38 C. J. 578.
Sufficient reason is neither alleged nor shown by the relator for disclosure by the corporation, if indeed there be such right to a stockholder which may be enforced by writ of mandamus.
Writ denied. *Page 663 | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1106982/ | 981 So.2d 298 (2008)
AUSTIN
v.
AUSTIN.
No. 2006-CT-00766-COA.
Supreme Court of Mississippi.
May 15, 2008.
Petition for writ of certiorari. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1029668/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6434
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS B. FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:96-cr-00005-GCM-DCK)
Submitted: July 30, 2009 Decided: August 5, 2009
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas B. Foster, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas B. Foster appeals the district court’s order
denying his § 18 U.S.C. § 3582(c)(2) (2006) motion for reduction
of sentence. We have reviewed the record and find no reversible
error. Therefore we affirm for the reasons stated by the
district court. United States v. Foster, No. 3:96-cr-00005-GCM-
DCK (W.D.N.C. Feb. 24, 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 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3229002/ | There is no merit in the contention that the before-noted error in the decree was without injury to the appellant Lizzie Wilson who, with her coappellant *Page 189
W. J. Wilson, joined in the assignment of errors; upon which contention the appellee bases his insistence that on joint assignment of errors a reversal will not be accorded unless the error underlying the judgment or decree is prejudicial to all of the joint assignors of errors. The decree denied the reformation of the mortgage prayed by both of the appellants in their cross-bill; and this for the reason that laches precluded the award of the stated relief by reformation. If the reformation sought had been accorded, the immediate result would have been to exempt the 120 acres in which Mrs. Wilson has an undivided half interest from an order of sale for division at the instance of the appellee, who, if the reformation prayed had been effected, would not then have been a tenant in common with Mrs. Wilson in the 120-acre tract. Our opinion is that Mrs. Wilson was not only concerned with and interested in the decree in the aspect indicated, but also that the error intervening was prejudicial to her.
The rehearing is denied.
ANDERSON, C. J., and McCLELLAN, SAYRE, and THOMAS, JJ., concur. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2800329/ | Electronically Filed
Intermediate Court of Appeals
CAAP-12-0000098
12-MAY-2015
08:28 AM | 01-03-2023 | 05-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130271/ | 539 U.S. 909
Paynev.United States.
No. 02-10439.
Supreme Court of United States.
June 2, 2003.
1
Appeal from the C. A. 10th Cir.
2
Certiorari denied. Reported below: 58 Fed. Appx. 397. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3231017/ | With reference to the admission in evidence of testimony as to statements of the deceased as dying declarations, it has been said that:
"On account of the character of this kind of evidence, the rule requires that it be received with very great caution, and that the primary facts upon which its admissibility depends should be closely scrutinized; and although it is not an indispensable prerequisite that deceased should in so many words express his conviction that he was in extremis — that death was impending — that there was no hope of life — yet the judicial mind should be clearly satisfied, after careful consideration of all the circumstances, that, at the time the declarations were made, such was the conviction of the mind of the defendant." Justice v. State, 99 Ala. 180, 13 So. 658.
Applying the above-quoted rule to the testimony of the witness Blalock, as to a statement made to him by the deceased in this case, we are of the opinion, and so hold, that the trial court committed reversible error in overruling defendant's objection to the question calling for said testimony, and in denying his motion to exclude same. The learned court seems to have acted on the theory that Blalock's said testimony was rendered competent and admissible by what had been testified to by the widow of deceased, but an inspection of the bill of exceptions discloses that the time that she said she and Blalock were together in the presence of deceased, which she says was after deceased had expressed his conviction that "he could not live" may not have been the time when the statement was made to Blalock. This, for the reason that she said it was only "about a minute or two before he died," and Blalock said the time he heard the statement he testified to was "something like an hour before he died." For aught that appears, the widow may not have been present when the statement was made to Blalock, and there is nothing to cause it to affirmatively appear that the alleged statement to Blalock was made when deceased was conscious of the fact that he was in extremis. Our conclusion in this regard is fortified from the fact that the "statement" testified to by the widow, which the trial judge evidently apprehended was made in the presence of Blalock, is different in material and important aspects from that testified to by Blalock.
The other questions raised will not likely arise upon another trial, and will not be here considered. They involve none other than well-known principles of law.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2989406/ | July 3, 2012
JUDGMENT
The Fourteenth Court of Appeals
CHARLTON WARD, Appellant
NO. 14-12-00281-CR V.
THE STATE OF TEXAS, Appellee
________________________________
This cause was heard on the motion of the appellant to withdraw notice of appeal.
Having considered the motion the Court orders the appeal DISMISSED.
We further order the mandate be issued immediately.
We further order this decision certified below for observance. | 01-03-2023 | 09-23-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2794484/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 26, 2015
* * * * * * * * * * * * * * UNPUBLISHED
ASHLEY BURKART, * No. 14-581V
*
Petitioner, *
* Special Master Dorsey
v. *
* Attorneys’ Fees and Costs;
SECRETARY OF HEALTH * Reasonable Amount Requested to which
AND HUMAN SERVICES, * Respondent Does not Object.
*
Respondent. *
*
* * * * * * * * * * * * *
Thomas P. Gallagher, Somers Point, NJ, for petitioner.
Jennifer Leigh Reynaud, United States Department of Justice, Washington, DC, for respondent.
ATTORNEYS’ FEES AND COSTS DECISION1
On July 9, 2014, Ashley Burkart (“petitioner”) filed a petition for compensation pursuant
to the National Vaccine Injury Compensation Program,2 42 U.S.C. §§ 300aa-1 to -34 (2006).
Petitioner alleged that she received a tetanus-diphtheria-acellular pertussis (TDaP) vaccination in
her left shoulder on September 2, 2012, and subsequently suffered a shoulder injury related ton
vaccine administration (SIRVA). See Petition at Introduction. On March 9, 2015, the
undersigned entered a decision awarding compensation to petitioner based on a joint stipulation
filed by the parties.
1
Because this decision contains a reasoned explanation for the undersigned’s action in this case,
the undersigned intends to post this decision on the website of the United States Court of Federal
Claims, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). As provided by Vaccine Rule 18(b), each party has 14 days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or
commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted
invasion of privacy.” Vaccine Rule 18(b). Otherwise, the entire decision will be available to the
public. Id.
2
The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-1 to -34 (2006) (Vaccine Act or the Act). All citations in this decision to
individual sections of the Vaccine Act are to 42 U.S.C.A. § 300aa.
1
On March 26, 2015, the parties filed a Stipulation of Facts Concerning Final Attorneys’
Fees and Costs. According to the stipulation, the parties stipulate to a total award to petitioner of
attorneys’ fees and costs in the amount of $16,600.00. In accordance with General Order #9,
petitioner’s counsel states that petitioner advanced $400.00, in reimbursable costs in pursuit of
her claim.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. §
300 aa-15(e). Based on the reasonableness of petitioner’s request and the lack of any objection
by respondent, the undersigned GRANTS the request for approval and payment of attorneys’
fees and costs.
Accordingly, an award should be made as follows:
(1) in the form of a check jointly payable to petitioner and to petitioner’s attorney,
Thomas P. Gallagher, in the amount of $16,600.00, and
(2) in the form of a check payable to petitioner only in the amount of $400.00.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court SHALL ENTER JUDGMENT in accordance with the terms of the parties’
stipulation.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
2 | 01-03-2023 | 04-17-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063033/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15149 MAR 30, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 08-03745-CV-1-WBH
GLENN HENDERSON,
Plaintiff-Appellant,
versus
BOB REID,
SUE REID,
Defendants,
JAVIER DOMINGUEZ,
UNITED STATES GOVERNMENT,
3 JOHN OR JANE DOES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 30, 2010)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Glenn Henderson appeals the dismissal of his pro se civil rights complaint
against the United States, Javier Dominguez, a postal inspector, and Bob and Sue
Reid, two former neighbors, pursuant to Federal Rule of Civil Procedure 12(b)(6).
On appeal, Henderson: (1) reasserts his request for declaratory relief regarding
whether it was permissible for him to write and mail letters about Bob Reid, and
asserts several claims against the various defendants, including intentional
infliction of emotional distress, violation of a California anti-harassment statute,
and violation of the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1962-1964;1 and (2) argues that the statute of limitations
should have been tolled because Dominguez threatened him with arrest. After
thorough review, we affirm.
We review a district court’s ruling on Rule 12(b)(6) motion de novo. Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003). We also review our subject matter
jurisdiction de novo. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.
2005).
1
Henderson also appears to be asserting a claim under the Freedom of Information Act
requesting access to any information the USPS has on him, and a due process violation on the
grounds that Dominguez’s alleged threat amounted to a restraining order imposed without a
hearing. However, because these claims are raised for the first time on appeal, we will not
address them. Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000).
2
First, we are unpersuaded that the district court erred in dismissing the
claims in Henderson’s complaint. A district court may dismiss a complaint under
Rule 12(b)(6) if the facts as pled do not state a claim for relief that is plausible on
its face. Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1950 (2009). In ruling
on a Rule 12(b)(6) motion to dismiss, the court views the complaint in the light
most favorable to the plaintiff, and all of the plaintiff’s well-pleaded facts are
accepted as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th
Cir. 2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Id.
Here, Henderson has failed to concretely and plausibly allege any claims that
show that he is entitled to relief. First, because he did not argue in the district court
that California law should apply to his claims, he is precluded from arguing for
California law as a statutory basis to support his harassment claims. See Daewoo
Motor Am., Inc. v. Gen. Motors Corp., 459 F.3d 1249, 1256-57 (11th Cir. 2006)
3
(holding that choice-of-law arguments, if not properly presented to the district
court, are waived). Second, the alleged behavior of neither Dominguez nor the
Reids even comes close to the level of extreme and outrageous behavior necessary
to state a claim for intentional infliction of emotional distress. See Higdon v.
Jackson, 393 F.3d 1211, 1222 (11th Cir. 2004) (noting that under Georgia law,
“[l]iability has been found only where the defendant’s conduct was ‘so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized society’”). Moreover, Henderson
has not alleged a pattern of racketeering activity that would plausibly state a claim
under RICO. Finally, his request for declaratory relief related to events that
occurred almost ten years ago is both stale and factually implausible. By his own
admission, Dominguez merely asked him to stop sending letters, and failed to
continue the dialogue when Henderson sought to pursue it. Therefore, we have no
basis on which to grant Henderson’s request for declaratory relief.
We likewise reject Henderson’s claim that the statute of limitations should
have been tolled because Dominguez threatened him with arrest.2 “Equitable
2
While we recognize that we would not have jurisdiction over an appeal if the appellant
does not file a timely notice of appeal, Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d
1262, 1272 (11th Cir. 2001), we do have jurisdiction over Henderson’s tolling argument. Federal
Rule of Civil Procedure 54 provides that
[w]hen an action presents more than one claim for relief . . . or when multiple
parties are involved, the court may direct entry of a final judgment as to one or
4
tolling is appropriate when a movant untimely files because of extraordinary
circumstances that are both beyond his control and unavoidable even with
diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
Therefore, the “interests of justice side with the defendant when the plaintiff does
not file [his] action in a timely fashion despite knowing or being in a position
reasonably to know that the limitations period is running.” Justice v. United
States, 6 F.3d 1474, 1479 (11th Cir. 1993).
In this case, the longest statute of limitations applicable to any of the claims
is five years, but Henderson waited almost ten years before filing his complaint in
the district court. As a result, in the absence of equitable tolling, his claims against
more, but fewer than all, claims or parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any order . . . that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties.
Fed.R.Civ.P. 54(b).
Here, Henderson’s claims against the Reids were dismissed as time-barred, and he did
not immediately appeal the entry of judgment against him on those claims or specify in his
notice of appeal that he was appealing the order granting dismissal of those claims. Nonetheless,
because an appeal from the final judgment in a case brings up for review all preceding non-final
orders, if the order granting the Reids’ motion to dismiss was a non-final order, then Henderson
timely appealed that order. See Kirkland v. Nat’l Mortgage Network, Inc., 884 F.2d 1367, 1369-
70 (11th Cir. 1989). Although the district court directed the clerk to enter judgment in favor of
the Reids, the court did not make an express determination that there was no just reason for
delay as required by Rule 54(b). In the absence of such an express determination by the district
court, Henderson could not appeal the order granting summary judgment in favor of the Reids
until the district court entered final judgment in the case. Therefore, we have jurisdiction to
consider Henderson’s appeal of that order.
5
the Reids are stale. However, Henderson has failed to plausibly allege any facts
showing that he is entitled to equitable tolling. See Iqbal, 129 S.Ct. at 1950.
While he argues that he should be entitled to such tolling because Dominguez
threatened him, Henderson’s complaint, when taken as true, does not support that
argument because in his complaint, he states only that Dominguez asked him to
stop sending the letters. Therefore, Henderson’s claims against the Reids are time-
barred.
Moreover, Henderson’s claims against the government and Dominguez are
also time-barred, and equitable tolling would not apply to those claims for the same
reasons that it would not apply to the claims against the Reids. Although the
district court did not dismiss Henderson’s claims against the government and
Dominguez based on the expiration of the statute of limitations, we affirm the
dismissal on this ground. See Glatter v. Mroz, 65 F.3d 1567, 1574 (11th Cir. 1995)
(noting that even if the lower court relied on a wrong ground or wrong reason, if
the decision it reached is correct, it must be affirmed).
Accordingly, all of Henderson’s claims are time-barred, and we affirm the
district court’s orders dismissing them.
AFFIRMED.
6 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063034/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 30, 2010
No. 09-12408
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-60264-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SCOTT A. THOMPSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 30, 2010)
Before CARNES, ANDERSON and STAHL,* Circuit Judges.
PER CURIAM:
*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
Having considered the briefs and heard oral argument in this appeal, we
readily conclude that the conviction and sentence are due to be affirmed. The
record on appeal that is before us does not disclose that the evidence Appellant
Thompson contends should have been suppressed was actually admitted against
him at the trial. The burden is on the appellant to put before this Court a sufficient
record to establish the predicate for his contentions on appeal, and Thompson has
not done that.
We add one more point about the text messages that Thompson contends
were belatedly obtained from the LG cell phone. Even if we were to go beyond
the record and assume that those text messages were admitted at trial, and further
assume that the parties’ representations about the other evidence admitted at trial
are true, it is clear that any error in admitting the LG cell phone text messages was
harmless beyond a reasonable doubt.
AFFIRMED.
2 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3063035/ | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 30, 2010
No. 09-14087 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00034-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL LEVON HILLS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 30, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Levon Hills, a federal prisoner convicted of a crack cocaine offense,
proceeding pro se, appeals the district court’s denial of his motion for a sentence
reduction, pursuant to 18 U.S.C. § 3582(c)(2). While Hills does not dispute that
his original sentence was based on the application of a statutory
mandatory-minimum term, he argues that his mandatory-minimum sentence is
invalid because United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and
Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007), rejected any
mandatory regime, including mandatory-minimum sentences. After review of the
record and the parties’ briefs, we affirm the district court’s denial of Hills’s
§ 3582(c)(2) motion.
In reviewing the district court’s denial of a § 3582(c)(2) motion, we review
the district court’s legal conclusions de novo. United States v. Pringle, 350 F.3d
1172, 1178 (11th Cir. 2003). A district court may modify a sentence “in the case
of a defendant who has been sentenced . . . based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” § 3582(c)(2)
(emphasis added). In such a case, the court may reduce the defendant’s sentence
after considering applicable § 3553(a) factors, but only “if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.” Id. A reduction is not consistent with applicable policy statements
2
and is not authorized if the retroactive amendment does not have the “effect of
lowering the defendant’s applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
Amendment 706, which applies retroactively, amends the Drug Quantity
Table in U.S.S.G. § 2D1.1(c) “to provide a two-level reduction in base offense
levels for crack cocaine offenses.” United States v. Moore, 541 F.3d 1323, 1325
(11th Cir. 2008), cert. denied, McFadden v. United States, 129 S. Ct. 965, and cert.
denied, 129 S. Ct. 1601 (2009). However, a defendant who was originally
sentenced based on a statutory minimum is not eligible for relief under
Amendment 706. See United States v. Williams, 549 F.3d 1337, 1342 (11th Cir.
2008) (per curiam). Furthermore, this Court has held that Booker and Kimbrough
are not applicable to § 3582(c)(2) proceedings. United States v. Melvin, 556 F.3d
1190, 1192–93 (11th Cir. 2009) (per curiam), cert. denied, 129 S. Ct. 2382 (2009).
We have also recognized that proceedings under § 3582(c)(2) do not
constitute de novo resentencings. United States v. Moreno, 421 F.3d 1217, 1220
(11th Cir. 2005) (per curiam) (citation omitted). Therefore, § 3582(c)(2) “does not
grant to the court jurisdiction to consider extraneous resentencing issues.” United
States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000). As such, we cannot review
Hills’s arguments concerning the constitutionality of mandatory-minimum
sentencing, or the court’s imposition of a ten-year mandatory-minimum sentence
3
rather than a five-year sentence.
Because Hills was originally sentenced based on a statutory mandatory
minimum that was not affected by Amendment 706, the district court lacked
authority to grant his § 3582(c)(2) motion. Accordingly, we affirm.
AFFIRMED.
4 | 01-03-2023 | 10-14-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130289/ | 539 U.S. 910
Kellyv.United States.
No. 02-10497.
Supreme Court of United States.
June 2, 2003.
1
Appeal from the C. A. 4th Cir.
2
Certiorari denied. Reported below: 64 Fed. Appx. 361. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1106989/ | 981 So.2d 1207 (2008)
NAVARRO
v.
STATE.
No. 2D07-4220.
District Court of Appeal of Florida, Second District.
March 11, 2008.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2124219/ | 472 F. Supp. 26 (1979)
E. B. MICHAELS and Ralph Michaels, as Agents and Trustees for Evra Corporation, Plaintiffs,
v.
MUTUAL MARINE OFFICE, INC. and American Manufacturers Mutual Insurance Co., Defendants.
No. 78 Civ. 1911.
United States District Court, S. D. New York.
June 4, 1979.
*27 Hill, Betts & Nash, New York City, for plaintiffs; Francis H. McNamara, Robert B. Fougner, New York City, of counsel.
Bigham, Englar, Jones & Houston, New York City, for defendants; Julian S. Gravely, Jr., William G. Tormey, New York City, of counsel.
OPINION
EDWARD WEINFELD, District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs, the successors in interest of an assured in whose favor the defendants issued a charterer's liability insurance policy, seek to recover from them indemnity for damages caused to a vessel during the course of unloading cargo and which they paid to the shipowner following a contested arbitration proceeding. The basic facts are not in dispute; indeed, they have been stipulated in the pretrial order. What is in dispute is whether the claim asserted by plaintiffs is covered by the terms of the policy.
Under the policy the defendants agreed to indemnify the assured for all sums which, as the charterer of the vessel, it would be obligated to pay under the charter party, as well as legal costs and expenses occasioned by the defense of any claim against it for liability covered by the terms of the policy. The insurance contract also provides:
Warranted free from claim (including legal expenses and cost of defense) unless amounting to $10,000 and then only to *28 pay hereunder the excess of $10,000 any one loss, accident or disaster.[1]
The vessel aboard which the damage occurred had a cargo of heavy steel scrap that was unloaded at Birkenhead, England. The cargo was discharged between June 30 and July 8, 1970 by means of "petal" grab buckets, that are multi-planed with tapered claws. The grab buckets were dropped with such force on the unprotected tank tops of the discharging vessel that they inflicted at least 200 holes or dents in the tank tops or floors of the four cargo holds. It is undisputed that the plaintiffs' predecessor in interest, the charterer, was responsible for any resulting damages to the owner of the vessel. Subsequently, in an arbitration proceeding initiated by the shipowner, the charterer was held liable for the damages to the shipowner, which, together with other items, plaintiffs seek to recover under the policy.
The plaintiffs contend that the damages paid to the shipowner and the expenses incurred in connection therewith were the result of a single operation unloading of the cargo and constituted only "one loss, accident or disaster," subject to a single deduction of $10,000. The defendants, contrariwise, contend that each dropping of the grab bucket was a separate act of negligence resulting in separate accidents and accordingly that in each instance the $10,000 deduction is applicable, and since no single dropping of the grab bucket resulted in damage in excess of $10,000, they are not liable under their contract of insurance.
The parties are in accord that New York law governs.[2] New York cases hold that where a policy of insurance is written in such a manner as to be doubtful or uncertain in meaning, all ambiguities are to be resolved against the insurer and in favor of the policyholder.[3] The defendants do not dispute this rule but assert that the language of the policy is clear and that there was "more than one event, occurrence or accident. The grab buckets were dropped repeatedly and intentionally over a period of time 9 days. Each damage was caused by a separate impact. Each damage was a separate contact."[4] Thus the basic issue is whether it is clear and unambiguous that each of the 200 dents and holes is a separate "loss, accident or disaster" under the deductible section of the contract, as defendants contend, or whether the clause may reasonably be construed so that all the 200 holes and dents constitute "one loss, accident or disaster," as plaintiffs contend. The contract of insurance does not define the terms. Thus we turn to New York cases for direction in resolving the issue.
At first blush, some of the New York cases seemingly give support to defendants' position by defining "accident" in a strict and technical manner.[5] However, the New York Court of Appeals, after considering three alternative concepts, adopted a functional *29 approach that is protective of the reasonable expectations of insureds: There is one accident if there has been but one single "`event of an unfortunate character that takes place without one's foresight or expectation,' . . . [t]hat is, an unexpected, unfortunate occurrence."[6] Such an approach has been approved as the most practical by the Court of Appeals "because it corresponds most with what the average person anticipates when he buys insurance and reads the `accident' limitation in the policy";[7] moreover, it is consistent with the principle that courts should construe insurance policies as would the ordinary man in the street when he purchases and pays for insurance,[8] or, phrased somewhat differently, according to "the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract."[9] Accordingly, the issue presented to the Court is whether a purchaser of insurance might reasonably and naturally have expected that damage done to a ship's deck by repetitive grab bucket contacts during the unloading would constitute a single insurable event or occurrence under the policy.
Experience suggests that it was not unreasonable for the charterer as the assured under the marine policy of insurance to assume that it was covered for any damage it was called upon to pay to the shipowner or others resulting from and during the course of loading or unloading the ship's cargo. Here the unloading of the heavy steel scrap obviously could not have been accomplished in a single lifting. The cargo was such that continuous liftings over a period of time, in this instance days, were required to complete the discharge. Unloading the cargo was a unified and continuous function until completion. The "event" or "occurrence" was thus a continuous process which extended over a period of days; the "accident"[10] was the repetitive use of the hoisting machinery that damaged the tank tops of the ship during unloading; the "single loss" was the total charge for repairs. The same negligent act the constant use of the grab buckets during the continuous process of unloading was the proximate cause of all the damage. In the arbitration proceeding, the shipowner and charterer appear to have treated the unloading as a single cause of damage. If it had been the purpose of the insurer to treat each lifting of a portion of the total cargo as a separate operation and a separate insurable occurrence, in the event of damage, then its duty was to express that purpose with precise language in the policy.[11] New *30 York law supports the view that the series of continuous and interrelated actions directed toward lifting the cargo out of the ship was an "event of unfortunate character that takes place without foresight or expectation; a single unexpected unfortunate occurrence."[12]
To be sure, defendants' interpretation is not without support, particularly in light of the fact that the contract of insurance once contained a clause providing that "the deductible shall apply separately to each loading and unloading instead of any other loss, accident or disaster."[13] But again it is not clear whether "loading and unloading" referred to the totality of the cargo or its component parts as each was lifted in the process of unloading. And no probative evidence has been presented indicating the parties' intentions with respect to the change or the circumstances surrounding the deletion of that clause. Indeed, plaintiffs do not dispute that defendants' interpretation of a separate and independent accident may have some validity, but they urge that their interpretation is at least as reasonable and that the issue must be resolved in their favor not only because of the ambiguity but also because their interpretation more nearly reflects what the average person would anticipate upon reading the terms of the policy. The Court is satisfied that although "[t]he interpretation urged by the plaintiff may not be the only reasonable interpretation . . . it is a reasonable one," which is "all plaintiff is required to prove" under New York law.[14] Accordingly plaintiff is entitled to indemnity under the insurance.
With respect to damages, defendants concede that plaintiffs are entitled to $78,990.06, a portion of the award in favor of the shipowner under the arbitration,[15] but resist payment of counsel fees incurred in connection with the arbitration. Under the policy, the assured is entitled to indemnity for legal fees and expenses, provided they "are incurred with the prior written consent of [the insurance] Company." The defendants assert without contradiction they never gave such written consent. However, the evidence establishes that from the time plaintiffs first claimed entitlement to indemnity the defendants disavowed any liability upon the very grounds here advanced. Apart from this disavowal, they declined plaintiffs' invitation to participate in the arbitration and to assume the defense of the matter. Accordingly, plaintiffs contend that the defendants breached their duty to defend and, as plaintiffs notified the defendants, they were "entitled to proceed as a prudent uninsured."[16] They then incurred legal expenses first in attempting to settle the shipowner's claim *31 and later in resisting it in the arbitration. The complete disavowal of liability by defendants and their refusal to participate in the arbitration proceeding, which clearly could have been without prejudice to defendants' denial of liability, justified plaintiffs in engaging counsel without the defendants' consent. If anything, their services in resisting the shipowner's claims served to reduce or to limit, to the extent possible, the award to the shipowner. Accordingly, plaintiffs are also entitled to recover their counsel fees and costs in the sum of $23,807.48, which the trial testimony establishes were necessarily required in meeting the shipowner's contentions and are fair and reasonable. In sum, the damage award is as follows:
Portion of award in favor of the
shipowner under the arbitration: $ 78,990.06
Plaintiffs' share of arbitrators' fees: 2,275.00
Legal fees and costs: 23,807.48
___________
Subtotal $105,072.54
Less deductible 10,000.00
___________
Total $ 95,072.54
Plaintiffs' further claim in the sum of $10,095.57 for loss of hire and expenses incurred in performing temporary repairs at Birkenhead is disallowed for failure of proof.[17]
The foregoing shall constitute the Court's Findings of Fact and Conclusions of Law.
Judgment may be entered accordingly.
NOTES
[1] Exh. 2 (Endorsement # 1, at 2) (emphasis added).
[2] See Wilburn Boat Co. v. Fireman's Ins. Co., 348 U.S. 310, 316-21, 75 S. Ct. 368, 99 L. Ed. 337 (1955) (interpretation of marine insurance contracts is governed by state law unless a well-established federal admiralty rule is applicable); Ahmed v. American S. S. Owners Mut. Protective & Indem. Ass'n, 444 F. Supp. 569 (N.D.Cal. 1978) (applying New York law to interpret marine insurance contract); Navegacion Goya, S. A. V. Mutual Boiler & Mach. Ins. Co., 411 F. Supp. 929, 934 & n. 7 (S.D.N.Y.1975) (same).
[3] American Home Assurance Co. v. Port Auth. of N.Y. & N.J., 66 A.D.2d 269, 412 N.Y.S.2d 605, 609 (1st Dep't 1979); see Thomas J. Lipton, Inc. v. Liberty Mut. Ins. Co., 34 N.Y.2d 356, 357 N.Y.S.2d 705, 314 N.E.2d 37 (1974); Sincoff v. Liberty Mut. Fire Ins. Co., 11 N.Y.2d 386, 230 N.Y.S.2d 13, 183 N.E.2d 899 (1962); Hartol Prods. Corp. v. Prudential Ins. Co., 290 N.Y. 44, 47 N.E.2d 687 (1943); Marine Midland Servs. Corp. v. Samuel Kosoff & Sons, Inc., 60 A.D.2d 767, 400 N.Y.S.2d 959 (4th Dep't 1977).
[4] Defendants' Trial Memorandum, at 3.
[5] Hartford Accid. & Indem. Co. v. Wesolowski, 39 A.D.2d 833, 333 N.Y.S.2d 289 (4th Dep't 1972), rev'd, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907 (1973) (events are separate "accidents" if they are distinguishable in time and space and one event does not cause the other); Rosalia v. Hartford Accid. & Indem. Co., 48 Misc. 2d 862, 266 N.Y.S.2d 3 (Sup.Ct.1965) (accident is "sudden and instant," an event of the moment rather than a condition changing over time).
[6] Arthur A. Johnson Corp. v. Indemnity Ins. Co., 7 N.Y.2d 222, 228, 196 N.Y.S.2d 678, 683, 164 N.E.2d 704, 707 (1959) (quoting Croshier v. Levitt, 5 N.Y.2d 259, 269, 184 N.Y.S.2d 321, 328, 157 N.E.2d 486, 491 (1959)); see Hartford Accid. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 173, 350 N.Y.S.2d 895, 899, 305 N.E.2d 907, 910 (1973) (quoting Johnson Corp.).
[7] Arthur A. Johnson Corp. v. Indemnity Ins. Co., 7 N.Y.2d 222, 229, 196 N.Y.S.2d 678, 684, 164 N.E.2d 704, 708 (1959) (quoted in Hartford Accid. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 173, 350 N.Y.S.2d 895, 899, 305 N.E.2d 907, 910 (1973)); see State Farm Mut. Automobile Ins. Co. v. Bush 46 A.D.2d 958, 362 N.Y. S.2d 220 (3d Dep't 1974) (citing cases).
[8] Johnson v. Travelers Ins. Co., 269 N.Y. 401, 199 N.E. 637 (1936); Abrams v. Great American Ins. Co., 269 N.Y. 90, 199 N.E. 15 (1935).
[9] Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 51, 120 N.E. 86, 87 (1918).
[10] The words "accident" and "occurrence" are deemed synonymous under New York law. So too "event" has been equated with "occurrence." Hartford Accid. & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 172-73 & n. 1, 350 N.Y.S.2d 895, 898-99 & n. 1, 305 N.E.2d 907, 909-910 (1973).
[11] Birnbaum v. Jamestown Mut. Ins. Co., 298 N.Y. 305, 313, 83 N.E.2d 128, 132 (1948) ("If the defendant intended to limit its liability as drastically as it now claims it did, it should have done a more workmanlike job . . . drawn in such `clear and unmistakable terms, so that no one could [may] be misled.'") (quoted in American Home Assurance Co. v. Port Auth. of N.Y. & N.J., 66 A.D.2d 269, 412 N.Y. S.2d 605, 610 (1st Dep't 1979)).
Parenthetically, it is noted that the contentions of the parties are in reverse of those usually adopted by an insured and an insurer no doubt fashioned by the $10,000 deductibility clause and its impact upon each. Cf. Champion Int'l Corp. v. Continental Cas. Co., 546 F.2d 502, 508 (2d Cir. 1976) (Newman, J., dissenting), cert. denied, 434 U.S. 819, 98 S. Ct. 59, 54 L. Ed. 2d 75 (1977). The fact that, as in this instance, experienced parties can so readily shift their positions, not only emphasizes its ambiguity but underscores the need for a clear expression in the policy of what the clause does or does not cover.
[12] See Champion Int'l Corp. v. Continental Cas. Co., 546 F.2d 502 (2d Cir. 1976), cert. denied, 434 U.S. 819, 98 S. Ct. 59, 54 L. Ed. 2d 75 (1977) ("occurrence" in deductible provision could be interpreted to include 1400 different defective installations where underlying circumstances were same); McGroarty v. Great Am. Ins. Co., 36 N.Y.2d 358, 368 N.Y.S.2d 485, 329 N.E.2d 172 (1975) (damage caused by continuing excavation over period of months construed to be "an accident"); Marine Midland Servs. Corp. v. Samuel Kosoff & Sons, Inc., 60 A.D.2d 767, 400 N.Y.S.2d 959 (4th Dep't 1977) (process of defective repairing of roof may be single "occurrence" covered by liability insurance policy).
[13] The deleted provision is quoted in Exh. A.
[14] Champion Int'l Corp. v. Continental Cas. Co., 400 F. Supp. 978, 981 (S.D.N.Y.1975), aff'd, 546 F.2d 502 (2d Cir. 1976), cert. denied, 434 U.S. 819, 98 S. Ct. 59, 54 L. Ed. 2d 75 (1977).
[15] The total award was $88,542.48; however, plaintiffs concede that of this sum they are not entitled to receive $9,552.42.
[16] Exh. 13; see International Paper Co. v. Continental Cas. Co., 35 N.Y.2d 322, 326, 361 N.Y. S.2d 873, 877, 320 N.E.2d 619, 621 (1974) ("An insurer's obligation to furnish its insured with a defense is heavy indeed, and, of course, broader than its duty to pay."); Goldberg v. Lumber Mut. Cas. Ins. Co. of N.Y., 297 N.Y. 148, 154, 77 N.E.2d 131, 133 (1948) (same; insurer is liable for reasonable counsel fees and necessary expenses incurred in defending main action).
[17] Defendant contends that the costs incurred to make the temporary repairs were not necessary losses on the ground that charterer was not obligated to make the repairs under the charter party, while plaintiffs argue that the temporary repairs were practically necessary in order to mitigate damages. Plaintiffs, however, have put forth no evidence to prove their contention, and the fact that the arbitrators disallowed the claim undermines their position. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2124496/ | 472 F. Supp. 1248 (1979)
Roselind GENTRY, Plaintiff,
v.
NORTHEAST MANAGEMENT COMPANY, INC., and Central Village Apartments, Defendants.
Civ. A. No. 3-78-0847-H.
United States District Court, N. D. Texas, Dallas Division.
July 25, 1979.
Edward B. Cloutman, III, Dallas, Tex., for plaintiff.
*1249 David A. White, Goodstein & Starr, Dallas, Tex., for defendants.
OPINION
SANDERS, District Judge.
This is a housing discrimination suit alleging violation of Sections 1981, 1982, and 1988 of Title 42, United States Code. The Court has jurisdiction pursuant to 28 U.S.C. § 1343(3).
Plaintiff Roselind Gentry, a Black American female, contends that defendants Central Village Apartments ("Central") and Northeast Management Company, Inc., ("Northeast") refused to rent her an apartment in the fall of 1976 because of her race. Another defendant, El Presidente Apartments, was dismissed on Plaintiff's motion at the outset of this non-jury trial.
The Court finds that Plaintiff's race was not a factor in the failure of defendants to rent her an apartment; the Court concludes that defendants have not abridged any right of Plaintiff under 42 U.S.C. §§ 1981, 1982, or 1988; and the Court enters judgment for the defendants.
The controlling facts are, in the main, undisputed. Plaintiff, a Black American resident of Dallas County, Texas, visited Central Village Apartments in Grand Prairie, Dallas County, Texas, on one or more occasions in the latter part of September 1976. Plaintiff discussed rental or lease of an apartment with one or more representatives of Central. Northeast manages Central. Plaintiff submitted to Central in the name of her husband, Jessie J. Gentry, a "Tenancy Application" which contained, inter alia, salary information and credit and business references.
Central is subject to a Regulatory Agreement with the Federal Housing Commissioner, pursuant to which Central cannot rent apartments to families with incomes above the limit set by the Secretary of Housing and Urban Development ("HUD") for the Dallas-Fort Worth metropolitan area. At the times material to this litigation the applicable income limit for Central was $10,500.00 per year. The aggregate income of Plaintiff's immediate family as reflected on the (Jessie Gentry) application submitted to Central was in excess of $12,000.00 per year.
After receiving the application, Central's manager made a routine credit check. The manager determined that the credit rating of Jessie J. Gentry was unsatisfactory, based upon a conversation with a creditor (Smart Finance) which had lent money to Mr. Gentry. The manager further found that Mr. Gentry had previously been evicted from Royal Oaks Apartments (also managed by Northeast) for failure to pay his rent. The manager also learned that Plaintiff Roselind Gentry frequently paid her rent late at the apartment complex (St. John's Medallion) where Plaintiff was living at the time she made the application in question here.
The manager testified that the Jessie J. Gentry application was unacceptable on at least three counts poor credit history, poor apartment rental history, and income ($12,000 per year plus) in excess of allowable income limits ($10,500 per year) for Central.
During the period September 1976-May 1977, Central had both black and white tenants, with the heavy preponderance being white. During this same period the "move-in/move-out" figures (which Central is required by HUD to maintain) reflect that almost the same number of whites moved in as moved out of the apartments, while the number of black families dropped from 14 to 8.
Defendants keep all applications for apartments on hand for an indefinite period; such applications do not show race. The number and race of applicants during the September 1976-May 1977 period is not in evidence.
Plaintiff did not submit an application to defendants in her own name; it is disputed whether that alternative was suggested to her. Central's manager and assistant manager testified, in substance, that they retain all applications, that they do not try to call applicants when a vacancy occurs, and that it is the responsibility of applicants to stay in touch with Central.
*1250 The number of visits Plaintiff made to Central in 1976 and what transpired on each visit is in dispute. However, I find that the weight and quality of Plaintiff's evidence falls short of the burden of proof which Plaintiff must sustain in order to prevail. Indeed, defendants' version of events is the more acceptable: that after Plaintiff returned the Jessie Gentry application and after the credit and apartment history check, Plaintiff returned to Central to make a deposit on the apartment; that the manager told plaintiff that the Jessie Gentry application was unacceptable (for the reasons hereinabove set forth); that upon Plaintiff stating that she was separated from Jessie Gentry, Central's manager suggested to Plaintiff that she submit a new application for herself and her children only. It is uncontroverted that Plaintiff did not file an application for herself with Central.
In order to recover Plaintiff must prove that her race was a (but not the sole) factor in the refusal of defendants to rent or lease. Payne v. Bracher, 582 F.2d 17 (5th Cir. 1978). Plaintiff has not provided that proof. The evidence shows that defendants acted upon the basis of nonracial reasons in refusing the application in the name of Jessie Gentry.
The statistical evidence regarding the "move-in/move-out" rate, and the number of white and black families living at Central during the period September 1976-May 1977 is, like the statistical evidence in Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir. 1975), insufficient to show racial discrimination. Of course, statistics are not conclusive per se on the issue of racial discrimination. United States v. West Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir. 1971). Although relevant statistics may show a prima facie case of racial discrimination and thus shift to defendant the burden of persuasion, United States v. Hayes International Corp., 456 F.2d 112 (5th Cir. 1972), the statistics offered here in behalf of plaintiff are only remotely relevant, if at all, and without more are simply inadequate to make out even a prima facie case of racial discrimination by these defendants.
Defendants' request for attorneys fees is not warranted and is refused. In all other respects judgment will be entered for defendants.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2124027/ | 472 F. Supp. 569 (1979)
Simon BRACH, Petitioner,
v.
W. R. NELSON, Warden, FCI, Danbury, Connecticut, Respondent.
Civ. No. B-78-365.
United States District Court, D. Connecticut.
Supplemental Memorandum of Decision January 31, 1979.
April 18, 1979.
*570 Joseph W. Ryan, Jr., Mineola, N.Y., for petitioner.
Cheryl B. Wattley, Asst. U.S. Atty., New Haven, Conn., for respondent.
MEMORANDUM OF DECISION
DALY, District Judge.
Petitioner is presently incarcerated at the F.C.I., in Danbury, Connecticut as a result of a conviction on one count of theft from a foreign shipment in violation of 18 U.S.C. § 659. On December 19, 1975, petitioner was sentenced to a five-year regular adult term of imprisonment and he began service of this sentence on November 4, 1976. Petitioner's initial parole hearing was held on February 6, 1978. The Commission, by Notice of Action dated February 23, 1978, denied petitioner parole and continued him beyond the applicable guideline period until his mandatory release date with a statutory interim hearing during August of 1979.[1]
After exhausting the Commission's administrative remedies, petitioner, with counsel, filed this action under 28 U.S.C. § 2241 seeking a new parole hearing on the grounds that the Commission improperly extended his parole date beyond the guideline period.[2] Specifically, petitioner attacks the reasons given in the Notice of Action for going above the guidelines as the very same reasons used by the Commission to determine the guideline period for his release. This Court is unable to address the merits of petitioner's claim since the Notice of Action, itself, is fatally defective.
II.
The Commission, seeking to quantify objectively the factors involved in the parole determination, has adopted pursuant to 18 U.S.C. § 4203(a) guidelines for the purpose of promoting "a more consistent exercise of discretion, and enabling fairer and more equitable decision making in granting parole." 28 C.F.R. § 2.20(a).[3] Under the guidelines an evaluation sheet must be prepared in each case for computing a salient factor score. This score serves as an aid in determining the parole prognosis (potential risk of parole violation).[4] 28 C.F.R. § 2.20(e). Pursuant to the guidelines, the Commission then applies this score to petitioner's severity offense rating to determine the customary parole release date.
In the ordinary case, where a decision is reached to apply the guideline period after a finding that no special aggravating or mitigating factors are present, a Notice of Action containing the offense severity rating, salient factor score, period of incarceration, and applicable guideline period followed by the conclusion that a decision outside *571 the guidelines is not warranted would constitute an entirely sufficient notice. See Lupo v. Norton, 371 F. Supp. 156, 162 (D.Conn.1974).
Parole within these guidelines is not automatic, however, and the Commission may, upon a showing of good cause, go outside the guidelines. However, in these kinds of cases, the Commission is required to provide the prisoner "with particularity the reasons for its determination, including a summary of the information relied upon." Further, the prisoner "shall receive a specific explanation of the factors which caused the Commission to reach a determination outside the guidelines." [Emphasis added] 18 U.S.C. § 4206(c). Judge Newman in Randaccio v. Wilkinson, 415 F. Supp. 612 (D.Conn.1976), stated that the primary purpose of the requirement is to allow the prisoner and a reviewing court to "determine that the case received individualized consideration, and not simply a pro forma recitation of the pertinent regulation." Id. at 614. Inasmuch as the Commission in the present case went above the guideline period in denying petitioner parole, this Court now focuses on whether the Notice of Action[5] sufficiently sets forth the reasons for the decision of the Commission to permit this Court to render an informed decision concerning petitioner's claim.
In addition to the four elements normally included in the Notice of Action,[6] the Commission, pursuant to the requirement, stated the reason for going beyond the guideline period: "A decision above the guidelines at this consideration appears warranted because you were on reparole at the time of the instant offense; have a history of similar offenses."[7] Petitioner contends that these factors are the same as those that are considered in computing the salient factor score. Under the salient factor score, a numerical value is attached to the number of past offenses and the status of parole at the time of the instant offense.[8]
The government contends, however, that the Notice of Action sufficiently sets forth the factors which justify continuing petitioner beyond the guideline period and that the factors stated are distinguishable from those considered in computing the salient factor score.[9] With respect to the first *572 factor, the government argues that the salient factor score was based only upon whether petitioner's parole was revoked and the Commission's decision was based in part on the additional facts that petitioner was on state probation as well as parole at the time of the offense.
The government's own argument points up the deficiency in the Notice of Action. If the Commission indeed had considered the state probation violation as an additional reason for going above the guidelines, then it should set forth this reason in the Notice of Action pursuant to the guideline Notice requirement.[10] Yet, the Notice of Action in this case made no mention of this factor.
With respect to the second factor, the government argues that because the Notice of Action not only stated a number of past offenses but also that they were similar, the reason given was distinguishable from the salient factor category which concerns only the number of offenses committed. Even assuming that the penalization of a prisoner for similarity of past offenses is permissible under the guidelines, semantic distinctions of this nature without further explanation are inconsistent with the requirement of providing a prisoner and the court with a clear understanding of the reasons for exceeding the guidelines. See Randaccio, supra.
Failure of the Commission to specify clearly the reasons for a parole decision, particularly in cases where the parole date exceeds that delineated under the guidelines, impedes the objectivity for which the guidelines were designed and interferes with the ability of reviewing courts to determine the propriety of the Commission's decision. The present case illustrates these adverse effects. Here, petitioner charges that he illegitimately was penalized twice for being on parole at the time of the offense and for having a history of prior offenses. Based upon the Notice of Action, alone, without the additional information provided to the Court at this juncture of the proceedings, petitioner apparently has a meritorious claim.[11] Had the Commission simply stated the fact of state probation and explained why the similarity of past offenses in this instance adversely affected petitioner's parole date, perhaps the inmate and his counsel would have understood the basis for the Commission's decision and not have pursued this action. And even if suit was filed in any event, this Court would have had an adequate basis to review the Commission's decision to determine whether impermissible doubling of factors had occurred.[12] As the Second Circuit stated, the failure to give sufficient reasons for parole decisions breeds inmate frustration and impedes the development of "a body of rules, principles and precedent . . . which would promote consistency," by the Commission. U. S. ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, 500 F.2d 925, 933 (2d Cir. 1974) vacated as moot sub nom Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974).
For the reasons stated above, this Court finds that the Notice of Action given in the present case was inconsistent with the express mandate to the Commission to state with particularity the reasons for parole decisions above the guideline period. It is hereby ordered that the Commission afford petitioner Brach a proper Notice of Action within thirty days. As to this and other matters raised by petitioner with counsel in his habeas petition and the accompanying memorandum in support of that petition this Court retains jurisdiction.
It is so Ordered.
*573 SUPPLEMENTAL MEMORANDUM OF DECISION
I.
Petitioner filed this habeas corpus action challenging the Parole Commission's decision to extend his parole date beyond the applicable guideline period.[1] He contended that the Commission acted improperly by considering the same factors both in computing the guideline period and in deciding to go above that period.[2] In its initial ruling on the petition, this Court was unable to render an informed decision since the Commission in the Notice of Action, dated February 23, 1978, had failed to state with particularity the reasons for it's decision. The Court ordered the Commission to furnish petitioner within thirty days a proper Notice. Brach v. Nelson, Civil No. B-78-365 (D.Conn. Feb. 1, 1979). The Commission on March 2 of this year sent to petitioner's counsel an amended Notice.[3]
Petitioner, with counsel, now renews his initial challenge. He maintains that the amended Notice merely elaborates on the reasons set forth in the original Notice and that the Commission's decision continues to rest upon petitioner's prior convictions and his parole and probation statustwo factors covered by the salient factor score under Items A and E.[4] Petitioner alternatively contends that regardless of whether the Commission impermissibly doubled factors, it failed to set forth good cause for the decision.
The Commission, however, maintains that Item A only designates points based on the number, not the nature, of past convictions and, therefore, the Commission can consider the similarity of those offenses in determining that petitioner particularly was a poor parole risk. The Commission also contends that since under Item E only one point is lost irrespective of the number of parole and probation violations involved, it can consider petitioner's state probation violation as an additionally aggravating factor.
II.
Pursuant to the Congressional mandate set forth in 18 U.S.C. § 4203(a), the Commission *574 has established guidelines for the purpose of promoting "a more consistent exercise of discretion, . . ." in granting parole. 28 C.F.R. § 2.20(a). Under the guidelines, an inmate's salient factor score is computed to determine the potential risk of parole violation.[5] The Commission then applies this score to the inmate's severity offense rating to determine the customary parole release date.
The Commission, however, pursuant to 18 U.S.C. § 4206(c), may depart from the guideline range in a particular case "if it determines there is good cause for so doing." Id. Good cause has not been defined specifically in either the enabling legislation or the Commission's own regulations.[6] Courts, faced with the task of enunciating the parameters of this standard, give the Commission wide latitude so long as it adequately explains the decision to the inmate and the decision is neither arbitrary nor capricious. Mayo v. Sigler, 428 F. Supp. 1343 (N.D.Ga.1977); Randaccio v. Wilkinson, 415 F. Supp. 612 (D.Conn.1976); See generally, U. S. ex rel. Johnson v. Chairman, N.Y. State Bd. of Parole, 500 F.2d 925, 934 (2d Cir. 1974) vacated as moot sub nom., Regan v. Johnson, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974).
Nevertheless, where a parole applicant is continued above the guideline period, courts have required the Commission to give reasons beyond those covered by the salient factor score and offense severity rating. In Lupo v. Norton, 371 F. Supp. 156 (D.Conn.1974), Judge Newman of this District stated that,
It is simply irrational for seriousness of the offense to be used first to determine the appropriate guideline period and then to be used again as the stated reason for confining a prisoner beyond that guideline.
Id. at 163. Similarly, a reason which merely restates factors already computed in the salient factor score is improper. Hamilton v. Chairman, U. S. Parole Comm'n, Civil No. 78-367 (D.Pa.1978); Westbrook v. Chairman, U. S. Parole Comm'n, Civil No. 77-918 (D.Pa.1977); Jacoby v. Arnold, 442 F. Supp. 144, 148 (M.D.Pa.1977).
III.
In view of the foregoing, the inquiry is twofold: whether a cognizable distinction exists between the reasons set forth in the amended Notice and the factors covered by the salient factor score and whether the Commission has adequately delineated good cause for its decision.
Item A does not cover the nature of a parole applicant's past offenses. This Court rejects petitioner's argument that the Commission, by including only the number of past convictions in the salient factor score, implicitly intended to preclude the Commission from examining the nature of those past offenses. Past criminal activity is accepted as a reliable indicator of future conduct. Thus, considering the broad discretion afforded the Commission in determining good cause, it may rely upon the similarity of petitioner's past convictions in finding that he is a particularly poor parole risk. Roach v. Bd. of Pardons & Parole, 503 *575 F.2d 1367, 1368 (8th Cir. 1974); Scarpa v. U. S. Bd. of Parole, 477 F.2d 278, 281 (5th Cir. 1973). See generally, Billiteri v. U. S. Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976).
This Court finds unpersuasive, however, the Commission's contention that it may rely upon petitioner's state probation violation as an aggravating factor. Item E covers parole revocation, the commission of a new offense while on parole, and violation of probation; an inmate loses one point from his salient factor score irrespective of the number of violations involved or whether they occur at the federal or state level. In formulating the guidelines, the Commission could have adopted the format of Item A and distinguished between state and federal violations if it had intended to penalize more harshly an inmate who had both a parole and state probation violation.[7] Its apparent rejection of this alternative leads this Court to conclude that the Commission had a legitimate reason to restrain reliance on this factor in determining parole prognosis.[8] By continuing petitioner based upon the state probation violation, the Commission circumvents its own guidelines and undercuts the Congressional purpose of bringing predictability and objectivity to the parole decision making process. See 18 U.S.C. § 4203(a)(1); 28 C.F.R. § 2.20(a).[9]
IV.
Even though parole decisions are subject to limited judicial scrutiny, it is established that a decision "cannot stand when it is shown to be based on a reason that is outside the scope of statutory authority." Battle v. Norton, 365 F. Supp. 925, 928 (D.Conn.1973). See also, Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976).[10] Here, the *576 Commission relied upon two reasons, one of which is impermissible. Faced with a similar situation, a Judge of this Court stated,
When an agency is charged with responsibility for making a sensitive decision such as release on parole, involving, as the Board's regulations acknowledge, a variety of factors, . . . reliance on an improper ground of decision must vitiate the Board's action. (cites omitted).
Kohlman v. Norton, 380 F. Supp. 1073, 1075 (D.Conn.1974); Zannino, supra at 691. Although the Commission ultimately may be justified in reaching the same decision in this case, it must act in view of the boundaries which the guidelines, themselves, place upon the Commission's discretion. The Commission must afford petitioner a new hearing and the decision rendered thereafter must be accompanied by adequate and permissible reasons.
Accordingly, it is hereby ordered that a writ will issue discharging petitioner unless the Board grants him a new hearing at the next regularly scheduled visit of the Parole Examiners at the F.C.I., Danbury and, in any event, no later than 60 days from the date hereof.
It is so Ordered.
NOTES
[1] At the time of the hearing, the prison officials at the Federal Correctional Institution recommended that petitioner be paroled through the Federal Treatment Center in New York City.
[2] Petitioner contended as well that the Commission acted improperly by basing its decision on the very same factors which the sentencing judge considered and by failing to consider both his conduct on parole prior to the instant offense and "his fine institutional records." This Court finds no need now to address these claims since relief is granted on other grounds.
[3] Congress has vested the authority to grant or deny parole in the Parole Commission. 18 U.S.C. § 4203. This authority has been judicially interpreted to be exclusively within the discretion of the Commission. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir. 1976). Nevertheless, this Court does have the authority to review a decision by the Commission. The standard of review is limited to whether the decision is arbitrary and capricious or is an abuse of discretion. Billiteri, supra.
[4] The highest and most favorable salient factor score obtainable is eleven points based upon seven categories of "offender characteristics". These seven categories encompass prior convictions, prior incarcerations, age at first commitment, nature of offense, parole violation or revocation, drug dependence, and employment prior to incarceration.
Petitioner had a salient factor score of four and a high severity offense rating. Thus, the applicable guideline period would have been during the 26-34 month period in his sentence.
[5] Notice of Action dated February 23, 1978 states:
Your offense behavior has been rated as high severity because the stolen items were valued at $100,000. You have a salient factor score of 4. You have been in custody a total of 18 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 26-34 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guidelines at this consideration appears warranted because you were on reparole at the time of the instant offense; have a history of similar offenses.
As required by law, you have also been scheduled for a statutory interim hearing during August of 1979.
[6] The Notice of Action included (a) petitioner's classification in the "high severity" category; (b) his salient factor score; (c) the eighteen months petitioner had been incarcerated; and (d) reference to the guideline range of 26-34 months.
[7] The word "reparole" in the original Notice of Action was changed subsequently to "parole" on appeal before the Regional Director.
[8] As set forth in the guidelines, the factors in question are designated as Items A & E and read as follows:
Item A
(No prior convictions adult or juvenile) = 3
1 prior conviction = 2
2 or 3 prior convictions = 1
4 or more prior convictions = 0
Item E
Never had parole revoked or been committed for a new offense while on parole, and not a probation violator this time = 1
Otherwaise = 0
Petitioner received the lowest score, zero, both for Item A, and for Item E.
[9] The government contends that, even if the Notice of Action was incomplete, the Hearing Summary sent to the petitioner shortly after the Commission's final decision remedies the defect. The "Evaluation" section of that document to which this Court believes the government is referring does little more than parrot the Notice of Action and state the Commission's feeling that the petitioner is a poor parole risk. Ironically, this Summary also fails to state that the Commission considered the fact that petitioner was on probation at the time of the offense, although the government now intimates that it was an additional factor upon which the Commission relied.
[10] Perhaps the Commission did not include the factor of state probation because it is covered by Item E. Whatever the reason, the characterization which the government advances that being on state probation and on parole are additional factors to those set forth in Item E is tenuous at best. See n.8 supra.
[11] See Hamilton v. Chairman, U. S. Parole Commission, Civil No. 78-367 (D.Pa.1978); Westbrook v. Chairman, U. S. Parole Commission, Civil No. 77-918 (D.Pa.1977); See also, Lupo v. Norton, 371 F. Supp. 156, 163 (D.Conn. 1974).
[12] Id.
[1] The relevant facts are set forth in Brach v. Nelson, Civil No. B-78-365 (D.Conn. Feb. 1, 1979). Presently, petitioner has served thirty-two months of a five year sentence. The guideline range applicable to his case is twenty-six to thirty-four months.
[2] Petitioner contended as well that the Commission acted improperly by basing its decision on the same factors which the sentencing judge considered and by failing to consider both his conduct on parole prior to the instant offense and his fine institutional record. We do not reach the merits on these claims since relief is granted on other grounds.
[3] The amended Notice of Action reads:
Your offense behavior has been rated as high severity because the stolen items were valued at $100,000. You have a salient factor score of 4. You have been in custody a total of 18 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 26-34 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision above the guideline is warranted because you are a poorer parole risk as indicated by your salient factor score you committed the instant offense while on federal parole and state probation in addition to having your parole revoked previously. You have demonstrated a pattern of committing similar property offenses as evidence [sic] by your two convictions for theft from interstate or foreign shipment perpetrated in a very similar manner, and your two convictions involving possession of stolen motor vehicles. The Commission finds that further criminal activity by you is likely. As required by law, you have also been scheduled for a statutory interim hearing during August of 1979. (Underlining represents the revised portion of this Notice).
[4] As set forth in the guidelines, Items A and E read as follows:
Item A
No prior convictions (adult or juvenile) = 3
1 prior conviction = 2
2 or 3 prior convictions = 1
4 or more prior convictions = 0
Item E
Never had parole revoked or been committed for a new offense while on parole, and not a probation violator this time = 1
Has had parole revoked or been committed for a new offense while on parole, or is a probation violator this time = 0
Petitioner received the lowest score, zero, for both Items.
[5] The salient factor score is determined mechanically on the basis of nine factors such as prior convictions and incarcerations, prior drug or alcohol involvement, family situation, job expectations, age, parole and probation status, and whether the inmate's offense involved auto theft or checks.
[6] The criteria for defining good cause set forth in the guidelines appears at 28 C.F.R. § 2.20(d) and (e) and reads:
(d) The guidelines contain examples of offense behaviors for each severity level. However, especially mitigating or aggravating circumstances in a particular case may justify a decision or a severity rating different from that listed.
(e) An evaluation sheet containing a "salient factor score" serves as an aid in determining the parole prognosis (potential risk of parole violation). However, where circumstances warrant, clinical evaluation of risk may override this predictive aid.
[7] Although the Commission included in the amended Notice of Action that petitioner had previously violated parole it has not in its brief advanced this reason as a distinguishing factor. However, even if the argument were made, the reasoning advanced here with regard to state probation is equally applicable to the previous violation.
[8] Perhaps the Commission formulated the Item in this manner because it recognized that an inmate could have both a state probation and federal parole violation pursuant to the commission of the one offense for which he is presently incarcerated and therefore should not be subject to a harsher penalty in terms of the salient factor score as a result. Whatever the reason, it is within the Commission's discretion to formulate the guidelines in such a manner as it deems appropriate for measuring parole risk. However, once the guidelines are established, it seems to this Court that the Commission should act in conformity with them or, if it feels adjustments are necessary to obtain a more accurate reading of parole risk, amend them accordingly.
[9] The legislative intent regarding the purpose of the establishment of guidelines is clear. In S.Rep.No.94-369 on the Parole Commission and Reorganization Act (1976) U.S.Code Cong. & Admin.News, p. 335 et seq., it is stated,
The legislation recognizes the process by which guidelines for release on parole have been established, and provides, through publication and the opportunity for notice and comment, for an orderly procedure to make and change the guidelines. The guidelines take into account the circumstances of the individual both in his personal life and with respect to the offense which he has committed, as well as measuring the severity of the offense involved so as to significantly reduce the area of discretion which the Parole Commission, in fact, has in any given case. The guidelines give definiteness to the indefinite nature of most federal criminal casesby reducing the opportunity for sentencing disparity and abuse of discretion and by giving to parole an aura of fairness for both victim and offender.
Id. at 340.
[10] In Zannino, the Third Circuit reaffirmed the appropriate standard of review, and made clear that a decision based upon an impermissible reason is an instance which warrants judicial intervention.
The role of judicial review of a Parole Board decision on application for a writ of habeas corpus is to insure that the Board has followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious, nor based on impermissible considerations.
531 F.2d at 690. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/130323/ | 539 U.S. 914
Nemesis Veritas, L. P., fka McMahan & Co., et al.v.Toto.
No. 02-1292.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the C. A. 11th Cir.
2
Certiorari denied. Reported below: 311 F. 3d 1077. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/130331/ | 539 U.S. 915
Brelsford et al.v.Rutter & Wilbanks Corp. et al.
No. 02-1422.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the C. A. 10th Cir.
2
Certiorari denied. below: 314 F. 3d 1180. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3811442/ | On July 27, 1936, the motion for new trial was overruled, and it is sought to review the errors occurring at the trial by the order overruling the same. The petition in error and case-made attached was filed in this court on January 29, 1937, more than six months from the date of the order overruling the motion for new trial.
A motion to dismiss has been filed and same must be sustained. Cannon v. Martin, 174 Okla. 22, 49 P.2d 684.
Appeal dismissed.
OSBORN, C. J., BAYLESS, V. C. J., and CORN, GIBSON, and HURST, JJ., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3245631/ | Reversed and remanded, on authority of Ex parte Priester,212 Ala. 271, 102 So. 376. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3444985/ | Affirming.
Joe Mason was indicted in the Kenton circuit court for the murder of Alma Parks. He was found guilty of manslaughter and his punishment was fixed at twenty years in the penitentiary. He appeals.
Joe Mason and a number of other negroes were living in camp cars on a side track of the Southern Railway Company in Ludlow. Parks and his wife lived in one car, which was divided into three rooms; one was the entry, one the kitchen and the other a sleeping room. The car was thirty feet long. About a hundred feet from this car and on the same sidetrack, was a like car in which Joe Mason lived.
The proof for the Commonwealth showed these facts: On June 2, 1924, about 3:00 p. m., Mason, who had been in another car near the Parks car, went to his own car and then went down to the Parks car, where he found John Parks, the husband of Alma, feeding his chickens ten or fifteen steps from his back door. Parks had erected steps at his front door and had also erected at his back door a shed or porch with steps leading down to the ground from it. Mason walked up to Parks and said, "Say Parks I came down to see about some lies." Parks said he knew nothing about any lies and Mason started away. Alma Parks then came up and laid some packages on the porch; Mason, when he saw her, came up to her and said something to her, she said she did not know anything about it. Then Mason pulled his pistol and as she ran up the steps to the back door he shot at her. Parks, when he heard the conversation between Mason and his wife, approached Mason with the pan in his hand from which he had been feeding the chickens; Mason, as he approached, shot him in the leg, he fell and Mason shot him again in the hip and struck him over the head with his pistol. Mason then went around the Parks car and forced his way in the front door by surging against it until the staple gave away. Alma Parks screamed, begged Mason not to kill her, several shots were fired by Mason in the car, one of which struck her about the left breast and penetrated the heart, another passed through the left arm between the shoulder and the elbow. Mason then left the car, looked for Parks who had crawled behind a shed, and not finding him, went away. Parks was not armed in any way nor was Alma Parks. This was *Page 159
the testimony of John Parks and it was confirmed by several other witnesses. There was also testimony to the effect that Mason had made threats to kill Alma Parks for some months, the last being about a week before the homicide. This threat had been told to John Parks but he said that Mason wouldn't hurt anybody.
On the other hand, the defendant testified that he and the Parks were the best of friends; that he was on his way to the city and as he passed the Parks car spoke to Alma Parks, and while he was talking to her John Parks came running up from the rear and said, "I will kill you." He backed away some eight or ten feet from Parks who then shot at him, shooting him through the finger. Mason had by this time backed to the steps of the car, and Parks was so close to him that he struck Parks over the head with his revolver. Alma Parks in the meantime had run into the car and as Mason backed toward the door she grabbed him by the collar with one hand, jerked him in the doorway and struck him over the head with a glass vase. She then reached for a skillet and in the struggle between them his pistol, which he had in his hand, went off without any intention on his part to shoot her. Mason also proved by a number of witnesses that he was a man of good character and that his general reputation for peace and quiet was good.
The court in addition to the instruction on murder gave the usual instructions on voluntary and involuntary manslaughter and self-defense. It is complained that these instructions should not have been given. But if these instructions had not been given, under the testimony of the defendant, he would have just cause for complaint. If the facts stated by him were true he and Parks and wife were friends; he was simply passing the car casually; was attacked by Parks without cause and in the struggle which ensued, in which the wife participated no less than Parks, the woman was shot without any intention on his part to hurt her. It was clearly a question for the jury under the facts as the defendant stated them, in view of all the other evidence, whether the shooting was murder, voluntary manslaughter, involuntary manslaughter or done in self-defense. The defendant showed that Alma Parks was a large, strong woman, weighing two hundred and fifty pounds, and while his testimony as to the facts is not sustained by the weight of the evidence or the circumstances shown, the question was properly *Page 160
submitted to the jury. Cornett v. Commonwealth, 156 Ky. 795; Vaughn v. Commonwealth, 204 Ky. 229, and cases cited.
It is also complained that the trial court should have instructed the jury during the trial as to the purpose of the testimony relating to threats and should have admonished the jury that it was introduced only to show motive and malice and not as substantive proof of his guilt. Where testimony is offered which is only competent to contradict a witness, the jury should always be instructed that such testimony is only competent for the purpose of impeaching the witness and not as substantive proof of the facts stated. But this rule has never been applied to proof of threats made by the defendant. Such evidence is competent as substantive evidence in the case to show his condition of mind and his intent in what he did. It is substantive proof, for a man's purpose in a transaction may always be considered in determining what he did where the proof is conflicting as to what was done.
On the whole case, we see no error to the prejudice of the defendant's substantial rights.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/130412/ | 539 U.S. 920
Youngv.Vaughn, Superintendent, State Correctional Institution at Graterford, et al.
No. 02-10355.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the C. A. 3d Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/130339/ | 539 U.S. 915
Ptasynski et al.v.Rutter & Wilbanks Corp. et al.Bailey et al.v.Rutter & Wilbanks Corp. et al.
No. 02-1457.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the C. A. 10th Cir.
2
Certiorari denied. Reported below: 55 Fed. Appx. 498 (first judgment) and 501 (second judgment). | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3999556/ | BLAKE, C.J., dissents.
The Washington Recorder Publishing Company publishes, in Olympia, a daily newspaper entitled the "Daily Olympian," which the publishing company distributes in Olympia and vicinity by approximately thirty-nine carriers, each of whom operates *Page 178
under a written contract between the carrier and the publishing company, which contract is in the form designated as "The Little Merchant Plan." The contract which is used by the publishing company with its carriers reads as follows:
"The Daily Olympian Carrier's Agreement
"Route No. ____
"I, _______________________ in consideration of being given the privilege of buying papers from The Daily Olympian and of distributing The Daily Olympian in that section of the city designated on map at The Daily Olympian office as Route No. ____, do hereby agree to the following rules and regulations and to such other rules as The Daily Olympian may from time to time designate, not inconsistent with this agreement:
"(1) In consideration of the privilege of buying papers from The Daily Olympian at its wholesale rate, I agree to pay for the same at the rate of ten cents per week per paper for all papers ordered, which number ordered will correspond with the number of subscribers carried on my route list. I further agree to pay to The Daily Olympian eleven cents per week for all subscribers on my route who pay in advance at The Daily Olympian office. All subscriptions paid in advance are to be credited to carrier at the regular current subscription rate.
"(2) The foregoing schedule of pay for papers is for all Daily Olympian carriers who have carried papers for The Daily Olympian at least six months. All others will pay an additional one cent per week per paper until they have carried The Daily Olympian for a period of six months of satisfactory service, after which the cost of papers will be reduced to the schedule set out in paragraph No. 1 above.
"(3) Statements are rendered Friday of each week, for the week ending the next day, Saturday, and I agree to have same paid in full before 3 o'clock p.m., Saturday, or not later than 5 p.m., the following Tuesday. This bill not to be subject to any discount or returns. All subscriptions paid in advance at The Daily *Page 179
Olympian office will be credited on bill at regular current rate.
"(4) I will deliver the said papers to the subscribers on my route promptly and regularly seven days each week, at the established rate of fifteen cents per week, and will collect each Saturday morning for the week ending that night.
"(5) I agree to keep correct list of subscribers at all times on regular cards issued by The Daily Olympian, such list to be the sole property of The Daily Olympian and to be turned over to my successor or accredited representative of The Daily Olympian upon relinquishment of my route. This list will show to where each and every subscriber is paid, and I will make all collections due me from subscribers at the end of each week.
"(6) I will, at all times keep a satisfactory substitute, familiar with my route, to act in my place in case of absence.
"(7) It is further understood and agreed that this agreement may be cancelled at any time, at the discretion of The Daily Olympian, and that I will go around with my successor without charge a sufficient number of times to enable him to become familiar with the route and that before leaving the route, I will pay to The Daily Olympian all money I have collected from subscribers.
"(8) When contract is terminated at any other date than the first day of the week, I will make collections and pay to the Daily Olympian for papers for the preceding week only. The new carrier will pay a reasonable salary to carrier named in this contract for delivery of papers from first day of that week up to the date of termination of contract. On the termination of this contract The Daily Olympian may, at its option, on notice to the carrier, collect for the carrier the accounts that the carrier may have outstanding against subscribers on said route, and in that event shall account to the carrier for all collections that it shall make of such outstanding accounts.
"(9) I will not take the agency for, nor sell or deliver, any other newspaper while selling The Daily Olympian. *Page 180
"(10) I will deliver free of charge all advertising checking copies required on my route and to any news stands now existing or which may hereafter be established on my route. I will also deliver free of charge complimentries and a reasonable number of sample copies of The Daily Olympian.
"(11) It is clearly understood that I am not an employe of The Daily Olympian. I am to buy from The Daily Olympian and will re-sell to the subscribers on my route, the difference between the wholesale and retail price being my compensation for delivery and collection.
"(12) I agree to deposit into a thrift account with the Circulation Manager of The Daily Olympian as trustee, one cent (1¢) each week during the life of this agreement for each paid subscriber to whom a paper was delivered by said Carrier.
"The Circulation Manager of The Daily Olympian is hereby designated as Trustee, and is hereby authorized to deposit such money as received by him in a local savings and loan association, such deposit to be entered in the name of the Carrier executing this agreement. The deposit books of the savings and loan association will be kept by the said Trustee in his possession.
"It is understood that the deposit shall be made each week until said Carrier has a total sum of $25 on such deposit and that such amount shall not be withdrawn during the life of this agreement. Deposits in excess of $25 may be withdrawn in case of emergency and with the consent of the Trustee.
"The Daily Olympian, in consideration of the making of the deposit by said Carrier, guarantees 2 per cent interest per year to be computed semi-annually, on the money deposited in addition to all interest paid by the local savings and loan association on such deposit, up to the sum of $50.
"It is understood and agreed that whenever said Carrier discontinues the sale of The Daily Olympian, the savings and loan account book will be delivered to him for his own use as soon as all financial obligations to The Daily Olympian are satisfied and it is herein agreed by the carrier and his guardian, that, if the carrier *Page 181
fails to fulfill his financial obligations to The Daily Olympian within 30 days after the discontinuance of his carrier contract, the Circulation Manager is hereby authorized to withdraw from the Carrier's account in the Savings and Loan sufficient amount of money to cover said obligations.
"(13) THIS CONTRACT IS NOT ASSIGNABLE OR TRANSFERABLE.
"EXECUTED in duplicate this ________________ day of _______________ 19__.
"For THE DAILY OLYMPIAN: _____________________________ Carrier ______________________ _____________________________ Circulation Manager Parent or Guardian _____________________________________ Address "
The publishing company also publishes a special advertising paper, called the "Advertiser", once each week, which is distributed to all homes in Olympia. The carriers of the publishing company are offered the right to distribute that paper within their respective routes, but are not required to do so; and if they refuse to make the distribution, the distribution is made by others. The distribution of the Advertiser is independent of the distribution of the Daily Olympian and is entirely independent of the work performed by the carriers under their contract. If the boys deliver the Advertiser, they are paid from fifty cents to one dollar a week for such service. No charge is made to the recipients of the Advertiser. No control is exercised by the publishing company over the manner of delivery of the Advertiser other than to designate the area within which each boy is to make deliveries and the time by which deliveries are to be started.
Under the contract between the publishing company and its carriers for distribution of the Daily Olympian, the carriers purchase the papers from the publishing company at an agreed rate per week per paper and pay *Page 182
therefor weekly. The carriers sell the papers to their customers in the route or territory designated and at the price stipulated in the contract. The money received from the sale of the papers by the carriers belongs to the carriers, who are not required to report to the publishing company the receipts from such sales. If the carriers fail to make collection, the loss falls upon the carriers and not upon the publishing company. No control is exercised by the publishing company over the time and manner of the distribution of the Daily Olympian by the carriers except that the distribution must be made in accordance with the contract, and no control is exercised over the time and method of collections. While there are numerous details of office administration and dealings between the publishing company and its carriers, such dealings are incidental to the contract and do not involve direction or control by the publishing company of the distribution and delivery of the papers or the collection by the carriers from the customers. When the carriers fail to make delivery of a paper and the publishing company makes delivery by Western Union messenger, the carrier is charged ten cents for such delivery as reimbursement to the publishing company. A bonus each month is given to the carrier who, during the preceding month, has had no complaint respecting the delivering of papers and who has paid the publishing company by Tuesday of each week for the papers drawn the preceding week.
As a part of the general plan and scheme of unemployment insurance contained in the Federal social security act, the unemployment compensation act (Laws of 1937, chapter 162, p. 574, Rem. Rev. Stat. (Sup.), § 9998-101 [P.C. § 6233-301] et seq.) of this state was enacted.
The division of unemployment compensation of the *Page 183
department of social security made a ruling that the carriers of the publishing company are within the scope of the unemployment compensation act, for the reason that, under the contract, the carriers are employees, as employee is defined by Laws of 1937, chapter 162, p. 610, § 19, subd. (g), Rem. Rev. Stat. (Sup.), § 9998-119 [P.C. § 6233-317].
On the ground that the relation created by the contract is that of an independent contractor and that it is not under the unemployment compensation act by reason of the exceptions provided in § 19 (g) (5) of chapter 162, supra, reading as follows,
"Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the director that:
"(i) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and
"(ii) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprises for which such service is performed; and
"(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business, of the same nature as that involved in the contract of service,"
the publishing company, on behalf of itself and all others similarly situated, commenced an action in the superior court for Thurston county for the purpose of obtaining a declaratory judgment as to the application of Laws of 1937, chapter 162, to newspaper carriers delivering on routes for the plaintiff. Trial of the cause to the court resulted in findings of fact and entry of a decree to the effect that the carriers of plaintiff are independent contractors, and the relationship *Page 184
between the plaintiff and its carriers is not one of employment as defined by the state unemployment compensation act. Defendants appealed.
[1] At the time of the adoption of our unemployment compensation statute, the weight of authority was to the effect that carriers or distributors of newspapers who operated under contracts similar to the contract between the respondent and its carriers are independent contractors. A typical authority isGall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36, 19 A.L.R. 1164. That was a personal injury case. The carrier was operating an automobile in the delivery of newspapers for the company under a written contract. That contract obligated the carrier to deliver and distribute from the publishing company's building to such persons at such places along such routes on such regular schedule as might be from time to time designated and furnished by the publishing company, the route and schedules and strict adherence thereto being the essence of the contract. The carrier was paid under his contract a stipulated weekly sum, less certain deductions for failures and delays on his part. He was to make the distribution according to his own means and methods of conveyances, which should be his exclusive property and not subject to the control by the newspaper company, except as to the results of the work. The contract might be terminated at any time by either party without notice. The newspaper company retained full control over the routes to be followed and the time schedule to be used, and the compensation was a fixed amount, except as it varied by reason of delays and deliveries by the carrier. It is clear that the newspaper company exercised more control over this carrier than the respondent has over its carriers. After recital of the principal provisions *Page 185
of the contract, the supreme court of Michigan said:
"So far as the terms of the contract are concerned Rebtoy was certainly an independent contractor and not a servant. One whom the employer does not control, and has no right to control, as to the method, or means, by which he produces the result contracted for is an independent contractor. . . .
"Rebtoy did have a contract for a specific piece of work; that is, for the delivery of the papers. And it was none the less specific because the places to which the deliveries were to be made, and the persons to whom the papers were to be delivered, might change from day to day. The right, on the part of the company, to designate the persons and places was but a right to designate the result to be obtained, and did not give the company any control over the method for obtaining that result. Rebtoy was paid by the week, but so was the contractor in Burns v. PaintCo., 152 Mich. 613 (116 N.W. 182, 16 L.R.A. [N.S.] 816). Rebtoy was not a licensed drayman, but that would not prevent his taking an independent contract, so far as the Journal Company was concerned. All of these things might be important in determining the relation of the employer and employed in a doubtful case, but they are not controlling in the face of a definite contract which clearly defines the relation. No reason is seen why a man may not agree, as an independent contractor, to deliver all, or part, of the papers printed by a publisher, of the groceries sold by a groceryman, or of the goods sold by a merchant, if the method and means for doing so are left entirely to him without any right of control by the employer. In the instant case either party had the right to terminate the contract at pleasure. That might be a very important circumstance in some cases, but under this contract any threat by the employer, express or implied, to use the right, for the purpose of controlling Rebtoy as to the method or means of making deliveries, would have been in violation of the terms of the contract. So long as the contract was adhered to, Rebtoy was independent in all of the methods of doing the work." *Page 186
See, also, to the same effect, Oklahoma Pub. Co. v.Greenlee, 150 Okla. 69, 300 P. 684; Bohanon v. JamesMcClatchy Pub. Co., 16 Cal. App. 2d 188, 60 P.2d 510; Battv. San Diego Sun Pub. Co., 21 Cal. App. 2d 429,69 P.2d 216.
Wilson v. Times Printing Co., 158 Wash. 95, 290 P. 691, cited by appellants in support of the contention that the carriers are employees and not independent contractors, is distinguishable on the facts from the case at bar. In that case, we held that a holder of a rural newspaper route was not, as a matter of law, an independent contractor, but that the facts there presented made the question whether the holder of the route was an independent contractor or a servant of the newspaper publishing company, a question of fact for the jury. Femling v.Star Pub. Co., 195 Wash. 395, 81 P.2d 293, also cited by appellants, is not in point. The Departmental opinion in that case is not a precedent, in view of the fact that, on rehearing, same was set aside, the judgment reversed, and the action dismissed on the ground that the carrier was not guilty of actionable negligence.
[2] Subdivisions (i) and (iii) of § 19, (g) (5) of the unemployment compensation act do not differ from the test employed at the common law and by this court in determination of the question whether the relationship is that of employee or independent contractor. In the Restatement of the Law of Agency, nine different items are recited as the principal elements to be considered in determining which relationship exists. In the enactment of the unemployment compensation statute, the legislature selected or picked out three elements to be considered. The legislature did not say, nor is the language capable of that interpretation, that each of those elements must exist one hundred per cent in order to establish the relationship of independent contractor. *Page 187
Surely, the legislature did not intend to establish a different rule than that which has heretofore been employed by this court. To hold otherwise, would be to, in effect, eliminate the relationship of independent contractor. It would be a violent presumption indeed to hold that that was the purpose of the legislature. The definition by the editors of the Restatement of the Law of Agency, Vol. 1, 483-485, § 220, reads as follows:
"(1) A servant is a person employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control.
"(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
"(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
"(b) whether or not the one employed is engaged in a distinct occupation or business;
"(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
"(d) the skill required in the particular occupation;
"(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
"(f) the length of time for which the person is employed;
"(g) the method of payment, whether by the time or by the job;
"(h) whether or not the work is a part of the regular business of the employer; and
"(i) whether or not the parties believe they are creating the relationship of master and servant.
"Comment on Subsection (1):
"a. Servants not performing manual labor. The word `servant' does not exclusively connote a person rendering manual labor, but one who performs continuous *Page 188
service for another and who, as to his physical movements, is subject to the control or to the right to control of the other as to the manner of performing the service. The word indicates the closeness of the relationship between the one giving and the one receiving the service rather than the nature of the service or the importance of the one giving it. Thus, ship captains and managers of great corporations are normally superior servants, differing only in the dignity and importance of their positions from those working under them. The rules for determining the liability of the employer for the conduct of both superior servants and the humblest employees are the same; the application differs with the extent and nature of their duties.
"b. Generality of definition. The relationship of master and servant is one not capable of exact definition. It is an important relationship in that upon it depends the liability of the master to third persons and to his employees under the provisions of various statutes as well as under the common law; the relationship may prevent liability, as in the case of the fellow servant rule. It cannot, however, be defined in general terms with substantial accuracy. The factors stated in Subsection (2) are all considered in determining the question, and it is for the triers of fact to determine whether or not there is a sufficient group of favorable factors to establish the relationship. Where the inference is clear that there is, or is not, a master and servant relationship, it is made by the court; otherwise the jury determines the question after instruction by the court as to the matters of fact to be considered.
"c. Independent contractors. It is important to distinguish between a servant and an agent who is not a servant, since ordinarily a principal is not liable for the incidental acts of negligence in the performance of duties committed by an agent who is not a servant (see § 250). One who is employed to make contracts may, however, be a servant. Thus, a shop girl or a traveling salesman may be a servant and cause the employer to be liable for negligent injuries to a customer or for negligent driving while traveling to visit prospective customers. The important distinction is between *Page 189
service in which the actor's physical activities and his time are surrendered to the control of the master, and service under an agreement to accomplish results or to use care and skill in accomplishing results. Those rendering service but retaining control over the manner of doing it are not servants. They may be agents, agreeing only to use care and skill to accomplish a result and subject to the fiduciary duties of loyalty and obedience to the wishes of the principal; or they may be persons employed to accomplish or to use care to accomplish physical results, without fiduciary obligations, as where a contractor is paid to build a house. An agent who is not subject to control as to the manner in which he performs the acts that constitute the execution of his agency is in a similar relation to the principal as to such conduct as one who agrees only to accomplish mere physical results. For the purpose of determining liability, they are both `independent contractors' and do not cause the person for whom the enterprise is undertaken to be responsible, under the rule stated in § 219."
Subdivisions (i) and (iii) of § 19 (g) (5) read as follows:
"Services performed by an individual for remuneration shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the director that:
"(i) Such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and . . .
"(iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business, of the same nature as that involved in the contract of service."
As suggested by some of the counsel appearing as friends of the court, we read those two subdivisions together as follows:
"Such individual . . . [is] free from control or direction over the performance of such services. *Page 190
. . and is customarily engaged in an independently established. . . occupation . . . or business . . ."
Let us compare the foregoing with the common law test of independent contractors as stated by us in the following cases:
"Among all the circumstances bearing upon the determination of the question whether Jones was an independent contractor or an employee, the right of the appellant to control him is the most decisive.
"`An independent contractor is one who renders service to another in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. If the employer may control the manner of doing the work, the relation of master and servant exists'." Leech v. Sultan R. Timber Co.,161 Wash. 426, 297 P. 203.
"The contract, by its terms, established an independent employment, and the evidence shows that the work was so conducted. In Larson v. American Bridge Co., 40 Wash. 224,82 P. 294, 111 Am. St. 904, we said:
"`The general test which determines the relation of independent contractor is that he shall exercise an independent employment, and represent his employer only as to the results of his work and not as to the means whereby it is to be accomplished. The chief consideration is that the employer has no right of control as to the mode of doing the work'." Amann v.Tacoma, 170 Wash. 296, 16 P.2d 601.
"Whether a person performing work for another is performing it as an independent contractor or as the employe of that other is a question not always easy of solution, but, as we held in Gloverv. Richardson Elmer Co., 64 Wash. 403, 116 P. 861, the authorities agree that the test of the relationship is the right of control on the part of the employer. We there said:
"`Whether a person performing work for another is performing it as an independent contractor or as the servant or employee of that other is a question not *Page 191
always easy of solution, but all of the authorities agree that the test of the relationship is the right of control on the part of the employer. Thus in 26 Cyc. 1546, an independent contractor is defined as follows:
"`"An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work."'" Carlsonv. Collier Son Corp., 190 Wash. 301, 67 P.2d 842.
"According to the accepted definition in this state, an independent contractor is one who, while rendering service in the course of an independent occupation, represents the will of his employer only as to the result of the work, and not as to the manner or means by which it is accomplished. The test by which it is determined whether the relation is that of employer and employee or that of independent contractor is whether or not the employer retained the right, or had the right under the contract, to control the mode or manner in which the work was to be done."Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798.
The language used by us is practically the same as that employed in all jurisdictions of this country as the definition of the relationship of independent contractor. Obviously, the unemployment compensation act was drafted with the common law test as its basis. The right of control under subd. (i), § 19 (g) (5) is the principal consideration in determination of the relationship. Subdivision (iii), which prescribes the test that one is an employee unless he is customarily engaged in an independently established occupation or business, is a corollary of the test prescribed by subd. (i) — the right of control over the work or thing to be done. The language of subd. (iii) cannot reasonably be interpreted to mean that that subdivision requires the showing that the individual under consideration *Page 192
customarily engages in another independently established business. The requirement is that the individual must be engaged in an independently established occupation or business. If one is engaged in his own independently established business, he is not subject to control. If an individual is subject to control or direction, he is pursuing another's business and not an independent business of his own.
In Leech v. Sultan R. Timber Co., 161 Wash. 426,297 P. 203, we adopted the interpretation of the phrase as stated inFidelity Cas. Co. v. Industrial Acc. Commission, 191 Cal. 404,216 P. 578, 43 A.L.R. 1304. That language reads as follows:
"`Respondents emphasize the phrase "in the course of an independent occupation," and argue that the decedent was not pursuing an independent occupation because he was not doing hauling for any one else, and was not permitted so to do under the provisions of his contract for the term thereof. This is nonsequitur. The question whether or not one is pursuing an independent occupation does not depend upon whether he is serving one person or many persons, but whether in the pursuit of his occupation he is acting upon his own behalf or as the servant of another. This is pointed out by the authors last quoted from in the same section: "If he never serves more than one person there is usually a presumption that he has no independent occupation; but this presumption is not conclusive. A single large railroad company, for example, might find work enough for a contractor to occupy his whole lifetime, yet leave him to work in perfect independence, accepting the results of his labor without even interfering with his choice of the mode and instruments of working. On the other hand, one may have many employers within a short space of time, yet be a mere servant to each of them in turn. . . . The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified work and have the right to control the mode and manner of doing it"'." *Page 193
This is a correct interpretation of subd. (iii), in which subdivision there is nothing to disclose that the individual must sell products of, or perform service for, third persons in order to qualify as an independent contractor. The statute states simply that he must be "customarily engaged in an independently established . . . business, of the same nature as that involved in the contract of service" — that is, his "business" is his own, not that of his employer. The courts have never held that, in the determination of the relationship of independent contractor, there must be an absolute and complete freedom from control. The common law test and the statutory test are the same. The statutory language "free from control or direction" does not mean that, if the publishing company has any degree of control over the carrier, that the carrier is an employee and not an independent contractor.
[3] The extension of the term "employment" to include independent contractors and others not within the employer-employee relationship, which is one of the positions taken by the attorney general, invites a challenge to the constitutionality of the act, as the tax exacted of the employer would be a tax upon the naked right to contract. Our disposition of this appeal obviates necessity of discussion of the question whether such a tax would be an arbitrary use of the power of taxation because not predicated upon any reasonable grounds.
The common law test and the statutory test to the extent of subds. (i) and (iii) are the same; hence, it is clear, if there is any difference in the two tests, that difference must be found in subd. (ii), which reads as follows:
"Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places *Page 194
of business of the enterprises for which such service is performed."
Alternative tests are provided by the foregoing subdivision. The first is inapplicable to the facts before us. The second test prescribed by subd. (ii) presents or raises the question of what constitutes the place or places of business of the respondent. We cannot agree with the contention of the attorney general that one who would otherwise be an independent contractor becomes an employee under the unemployment compensation act if he transacts any business related to the work at the office of the employer. It is argued that the carriers get their papers, hold meetings, and turn in their route lists, their subscriptions, and obtain notices of subscriptions or cancellations, at the newspaper office. If the position of the attorney general is correct, one engaged in an independent drayage service would become an employee because he obtained freight at a warehouse, filled out a bill of lading there and received instructions as to the name and address of the person to whom the freight should be delivered. It would be a strained construction to hold that transactions merely incidental to the main purpose of distribution of the papers under the contract, carried on at the office of the respondent publishing company, would bring the carrier within this provision of the statute. If the work covered by the contract of the carriers is to be performed at the place of business of the respondent, if such term is properly construed, that would present a situation intended to be covered by the statute.
[4] One of the several common law tests or elements considered in the determination of the relationship between the parties is the place where the work is to be done. If the work is done upon the premises of the employer, the inference is strong that the workmen *Page 195
are employees and not independent contractors. If a person is employed to work on the premises of another and for that other's benefit, such other person is, presumptively, an employee, and the burden is upon the one engaging the services of such person to establish the independence of the employee. Simila v.Northwestern Imp. Co., 73 Wash. 285, 131 P. 831.
In drafting the statute, the legislators attempted to codify the common law. They intended that the common law test of employment relationship should likewise be the test under the unemployment compensation act. We cannot follow the argument of the attorney general to the effect that, since the respondent desires its newspapers to be distributed to the public, the places at which the newspapers are delivered to the respondent's subscribers all constitute places of business of the publisher. We agree with the argument of counsel for respondent that the specific service under the contract is the actual distribution and delivery of the papers, which necessarily are obtained at respondent's printing plant (which is the only real place of business of the company), but the delivery service is not performed at the place of business. The service covered by the contract, as counsel for respondent argue, commences at the first subscriber's residence or office after leaving respondent's printing plant. This is plain. It is unnecessary to cite authorities to sustain the position that the carriers are not performing any part of the services under their contract at the place of business of the respondent.
[5] The attorney general argues that, in the absence of any charge of abuse of discretion, the court may not substitute its judgment for that of the director of social security in questions arising under the unemployment compensation act. If the statute make the director of the department the sole and exclusive *Page 196
judge of the facts, when the undisputed facts establish as a matter of law that certain individuals are independent contractors and not employees under § 19 (g) (5) of the unemployment compensation act, there is nothing for the director to determine.
There has been no substitution by the court of its discretion for that of the director. The question presented is one of law — there is no room for any exercise of discretion by any administrative officer. We refrain from citation of authorities to sustain the self-evident proposition that the legislature could not deprive the superior court of its constitutional jurisdiction to determine the legality of the tax which the appellants seek to impose upon the respondent, a tax which respondent contends is not valid because respondent, under the act, is exempt from its application.
Any question as to the right to bring this action under the declaratory judgment act is foreclosed by Acme Finance Co. v.Huse, 192 Wash. 96, 73 P.2d 341, 114 A.L.R. 1345; andMcDermott v. State, 196 Wash. 261, 82 P.2d 568.
[6] Finally, appellants contend that the trial court erred in awarding costs against the state.
While this action was necessitated by the view of the law taken by appellants, thereby forcing respondent to litigation to have its rights ascertained, and it would be equitable to impose costs to be paid out of the unemployment compensation administration fund, the action was brought by the respondent against state officers in their official capacities; consequently, the action in effect is one against the state, and the award to the respondent of its costs and disbursements is an award of costs against the state. We have consistently held that, in the absence of statutory authority therefor, costs may not be assessed against the state. We *Page 197
know of no authority for assessing costs against the appellants; and to that extent, the judgment is erroneous.
With the exception of the modification as to the award of costs, the judgment is affirmed.
SIMPSON and BEALS, JJ., concur.
GERAGHTY, J., concurs in the result. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3457326/ | Dismissing appeal.
Appellant was convicted in the Crittenden county court on his plea of guilty under a warrant charging him with the offense of operating a motor vehicle while intoxicated, and was fined $100. He appealed to the Crittenden circuit court and this attempted appeal is from the judgment of the circuit court dismissing his appeal from the county court. He prayed and was granted an appeal in the circuit court. That court was without authority to grant an appeal as a matter of right.
On the authority of Wells v. Commonwealth, 288 Ky. 429,156 S.W.2d 497, Adams v. Commonwealth, 285 Ky. 803,149 S.W.2d 727, and Elkin v. Commonwealth, 269 Ky. 6,106 S.W.2d 83, the appeal is dismissed. *Page 7 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3100160/ | Affirmed as Reformed and Opinion Filed August 7, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01205-CR
No. 05-12-01307-CR
CORNELIUS OYEDAPO COLLIER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F11-54230-U and F12-50565-U
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Bridges
In two issues, appellant Cornelius Oyedapo Collier seeks: (1) to receive back-time credit
for his previous time served on his sentence in cause number F11-54230-U (prostitution with
three or more priors) and (2) to remand cause number F12-50565-U (unauthorized absence from
community correction) to address the lack of specificity in the trial court’s order for his
sentences to run consecutively. As modified, we affirm the judgments of the trial court.
Background
Appellant was charged by indictment for prostitution with three or more prior
convictions. He entered a plea of guilty. In accordance with the plea agreement, the trial court
sentenced appellant to state jail for two years, probated for five years, and assessed a fine of
$1,500. As a condition to his community supervision, appellant was required to obtain treatment
at the Dallas County Judicial Treatment Center (“Treatment Center”).
Appellant subsequently absconded from the Treatment Center and was arrested.
Appellant was later indicted for the offense of unauthorized absence from a community
correctional facility. Based on appellant’s unauthorized absence and failure to participate in
treatment at the Treatment Center, the State filed a motion to revoke community supervision on
appellant’s prostitution case. Appellant entered a plea of true to the State’s motion to revoke and
entered an open plea of guilty to the charge of unauthorized absence from a community
correctional facility.
At the conclusion of the hearing on the State’s motion to revoke, the trial court revoked
appellant’s community supervision. In each case (prostitution and unauthorized absence), the
trial court sentenced appellant to state jail for a period of two years. The trial court further
ordered appellant serve these sentences consecutively, stating the unauthorized absence
conviction “shall run consecutively and shall begin only when the judgment and sentence in the
following case has ceased to operate: F11-54230-U.” Appellant filed a motion for new trial in
each case, both of which were overruled.
Analysis
Issue One–Back-time Credit (Trial Court Cause No. F11-54230-U)
Appellant argues the trial court erred by not crediting back-time for previous time served
on his sentence in cause number F11-54230-U (prostitution with three prior convictions). The
record before us shows the trial court made a notation on its docket sheet, noting that appellant
was to receive “No Backtime.”
In his initial brief, appellant asserts he is entitled to 414 days of back-time credit against
the 2-year state jail sentence assessed by the trial court, which includes both his time in jail and
–2–
his time at the Treatment Center. However, in his reply brief, appellant correctly concedes he is
not entitled to his time spent in the Treatment Center (203 days) when he failed to successfully
complete the treatment program. See TEX. CODE CRIM. PROC. ANN. art. 42.12, §23(b); Stevenson
v. State, No. 05-11-00295, 2012 WL 1606625, at *2-3 (Tex. App.—Dallas May 9, 2012, pet.
ref’d) (not designated for publication). In addition, the State correctly concedes appellant is
entitled to 211 days of back-credit for the time he spent in jail. See Ex parte Harris, 946 S.W.2d
79, 80 (Tex. Crim. App. 1997).
This Court has the power to modify an incorrect judgment to make the record speak the
truth when we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27-8 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30
(Tex. App.—Dallas 1991, pet. ref’d). Therefore, we modify the trial court’s judgment in cause
number F11-54230-U to reflect appellant receives 211 days of back-time credit.
Issue Two–Consecutive Sentences (Trial Court Cause No. F12-50565-U)
Appellant contends “the trial court’s discretionary cumulation order stacking the sentence
in Cause No. F12-50565-U is insufficient regarding specificity of previous conviction.” As
already noted, the trial court stated the unauthorized absence conviction “shall run consecutively
and shall begin only when the judgment and sentence in the following case has ceased to operate:
F11-54230-U.” In particular, appellant argues that because the judgment of the trial court only
contains the cause number of the prostitution case, “the cumulation here is insufficiently specific
to give Appellant and the Department of Criminal Justice notice of the manner in which
Appellant’s sentences should be stacked.”
Under article 42.08 of the Texas Code of Criminal Procedure, a trial judge has the
discretion to cumulate a defendant’s sentences for two or more convictions. TEX. CODE CRIM.
PROC. ANN. art. 42.08. The Texas Court of Criminal Appeals has recommended five
–3–
requirements for cumulation orders: (1) the trial court number of the prior conviction, (2) the
correct name of the court where the prior conviction was taken, (3) the date of the prior
conviction, (4) the term of years of the prior conviction, and (5) the nature of the prior
conviction. Revels v. State, 334 S.W.3d 46, 54 (Tex. App.—Dallas 2008, no pet.) (citing Ward
v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975)). It is well settled that inclusion of all of
the recommended elements is not mandatory. See Banks v. State, 708 S.W.2d 460, 461 (Tex.
Crim. App. 1986); Williams v. State, 675 S.W.2d 754, 764 (Tex.Crim.App.1984) (op. on reh’g).
However, the court of criminal appeals has “generally held that cumulation orders which recite
only one of the above elements (the trial court cause number) are insufficient.” Williams, 675
S.W.2d at 764. But cf. Hamm v. State, 513 S.W.2d 85, 86 (Tex. Crim. App. 1974) (cumulation
order that refers only to a prior cause number is sufficient if order is entered in same court as
sentence to which it is made cumulative); Gaston v. State, 63 S.W.3d 893, 900 (Tex. App.—
Dallas 2001, no pet.) (cumulation order that specified cause number and county of prior Dallas
County conviction was sufficient, where court took judicial notice that Dallas County court
system assigns unique numbers to all causes within system).
To be valid, a cumulation order “should be sufficiently specific to allow the Texas
Department of Criminal Justice—Institutional Division. . .to identify the prior with which the
newer conviction is cumulated.” Ex parte San Migel, 973 S.W.2d 310, 311 (Tex. Crim. App.
1998). The courts of appeals “have the authority to reform and correct cumulation orders when
the necessary data is contained in the record.” Madrigal Rodriguez v. State, 749 S.W.2d 576,
580 (Tex. App.—Corpus Christi 1988, pet. ref’d) (citing Banks, 708 S.W.2d at 462).
Because the judgment at issue only recites the trial court cause number, we agree with
appellant that the cumulative order is insufficient. See Revels v. State, 334 S.W.3d at 56 (citing
Williams, 675 S.W.2d at 764). However, we disagree with appellant’s argument that because the
–4–
judgment lacks the required specificity on cumulation, cause number F12-50565-U must be
reversed and remanded to the trial court for a new hearing on punishment. The courts of appeals
“have the authority to reform and correct cumulation orders when the necessary data is contained
in the record.” Madrigal Rodriguez, 749 S.W.2d at 580 (citing Banks, 708 S.W.2d at 462).
Here, the intent of the trial court as to sentencing is ascertainable from the record before us. See
Revels, 334 S.W.3d at 56, Baltimore v. State, 757 S.W.2d 80, 82 (Tex. App.—Houston [14th
Dist.] 1988, pet. ref’d); see also Banks, 708 S.W.2d at 462; Madrigal Rodriguez, 749 S.W.2d at
580.
In assessing punishment, the trial court stated the unauthorized absence conviction “shall
run consecutively and shall begin only when the judgment and sentence in the following case has
ceased to operate: F11-54230-U.” From the record before us, we can ascertain the following
about cause number F11-54230-U: (1) it resulted in a conviction against appellant in the 291st
Judicial District Court of Dallas County, Texas; (2) the date of the original community
supervision order was July 6, 2011; (3) the judgment revoking community supervision was
entered on May 30, 2012; (4) punishment was set at two years in the state jail division; and (5)
appellant was convicted for prostitution with three or more priors. See Revels v. State, 334
S.W.3d at 54. Thus, it is apparent from the record that it was the intent of the trial court that
appellant’s sentence in cause number F12-50565-U should run consecutively with the two-year
sentence appellant received in cause number F11-54230-U in the 291st Judicial District Court of
Dallas County, Texas for prostitution with three or more priors. Accordingly, we modify the
judgment to reflect the sentence actually imposed by the trial court. See Banks, 708 S.W.2d at
462. The portion of the trial court’s cumulation order that reads, “this conviction shall run
consecutively and shall begin only when the judgment and sentence in the following case has
ceased to operate: F11-54230-U,” is modified to read as follows:
–5–
The Court ORDERS that the sentence in this conviction shall run consecutively
and shall begin only when the May 30, 2012 judgment revoking community
supervision and two-year sentence in the following case has ceased to operate:
F11-54230-U in the 291st Judicial District Court of Dallas County, Texas
involving prostitution with three or more priors.
Conclusion
With the judgments modified in cause numbers F11-54230-U and F12-50565-U, we
affirm the judgments of the trial court. See TEX. R. APP. P. 43.2.
/David L. Bridges/
Do Not Publish DAVID L. BRIDGES
TEX. R. APP. P. 47 JUSTICE
121205F.U05
–6–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CORNELIUS OYEDAPO COLLIER, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F11-54230-U.
No. 05-12-01205-CR V. Opinion delivered by Justice Bridges.
Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We ORDER the trial court to amend the judgment to reflect Collier receives 211
days of back-time credit.
As REFORMED, the judgment is AFFIRMED.
Judgment entered August 7, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
–7–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CORNELIUS OYEDAPO COLLIER, On Appeal from the 291st Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F12-50565-U.
No. 05-12-01307-CR V. Opinion delivered by Justice Bridges.
Justices Moseley and Lang-Miers
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We DELETE that portion of the trial court's judgment which reads, "this
conviction shall run consecutively and shall begin only when the judgment and
sentence in the following case has ceased to operate: F11-54230-U." We
ORDER the trial court to replace the deleted language with the following: “The
Court ORDERS that the sentence in this conviction shall run consecutively and
shall begin only when the May 30, 2012 judgment revoking community
supervision and two-year sentence in the following case has ceased to operate:
F11-54230-U in the 291st Judicial District Court of Dallas County, Texas
involving prostitution with three or more priors.
As REFORMED, the judgment is AFFIRMED.
Judgment entered August 7, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
–8– | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3100181/ | Order entered August 6, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00340-CR
JANINE JOYCE CHARBONEAU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 006-80751-2012
ORDER
The Court DENIES appellant’s July 11, 2013 motion to reconsider our June 13, 2013
order adopting the trial court’s findings that appellant is not indigent and is not entitled to court-
appointed counsel or to proceed without payment for the record.
The Court has before it appellant’s August 2, 2013 motion to extend time to pay for the
record. We have received the reporter’s record from the May 24, 2012 hearing on appellant’s
motion to quash; the November 15, 2012 suppression hearing; and the February 20, 2013 hearing
on appellant’s expert. We have also received a three-volume clerk’s record.
Accordingly, we GRANT appellant’s August 2, 2013 motion to extend time to pay for
the record as follows. We ORDER Jennifer Corley, official court reporter of the County Court
at Law No. 6 to file, within SIXTY DAYS of the date of this order, either: (1) the complete
remaining portions of the reporter’s record; (2) the portions of the reporter’s for which appellant
has paid, with written documentation to that effect; or (3) written verification that appellant has
not paid for the remaining portions of the reporter’s record. No further extensions will be
granted. We notify appellant that if we receive verification of non-payment, we will order the
appeal submitted on the record that has been filed. See TEX. R. APP. P. 37.3(c).
We DIRECT the Clerk to send copies of this order, by electronic transmission, to
Jennifer Corley, official court reporter, County Court at Law No. 6; Joyce Charboneau; and John
Rolater, Collin County District Attorney’s Office.
/s/ DAVID EVANS
JUSTICE | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3110850/ | 02-12-296-CV
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00296-CV
In re Jimmy Dale Luttrell
RELATOR
------------
ORIGINAL PROCEEDING
------------
MEMORANDUM
OPINION[1]
------------
The
court has considered relator’s petition for writ of mandamus. Because relator
is represented by appointed counsel in the trial court, this court is of the
opinion that this petition should be dismissed.[2]
Accordingly, relator’s petition for writ of mandamus is dismissed.
PER CURIAM
PANEL:
DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED:
July 31, 2012
[1]See
Tex. R. App. P. 47.4, 52.8(d).
[2]See Ex
parte Bohannan,
350 S.W.3d 116, 116 n.1 (Tex. Crim. App. 2011); In re Riley, No.
02-11-00052-CV, 2011 WL 1103829, at *1 (Tex. App.—Fort Worth Mar. 24, 2011,
orig. proceeding). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2800259/ | J-S13039-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROWLANDA KENNEY
Appellant No. 1542 WDA 2014
Appeal from the PCRA Order dated August 22, 2014
In the Court of Common Pleas of Blair County
Criminal Division at No: CP-07-CR-0001080-1997
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 12, 2015
Appellant Rowlanda Kenney appeals from the August 22, 2014 order of
the Court of Common Pleas of Blair County (“PCRA court”), which dismissed
as untimely Appellant’s request for collateral relief under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. For the reasons set forth
below, we affirm.
The facts and procedural history underlying this appeal are
undisputed. On June 9, 1998, Appellant was sentenced to life imprisonment
following her jury conviction of first-degree murder and endangering the
welfare of a child in connection with the murder of her boyfriend’s
four-year-old daughter. On February 22, 2000, a panel of this Court
affirmed Appellant’s judgment of sentence. See Commonwealth v.
Kenney, 754 A.2d 19 (Pa. Super. 2000) (unpublished memorandum).
J-S13039-15
Subsequently, our Supreme Court denied Appellant’s petition for allowance
of appeal. See Commonwealth v. Kenney, 764 A.2d 1066 (Pa. 2000).
On December 27, 2000, ninety days following our Supreme Court’s denial of
her petition and the time for Appellant to file a petition for writ of certiorari
with the United States Supreme Court had expired, Appellant’s judgment of
sentence became final. See 42 Pa.C.S.A. § 9545(b)(3); United States
Supreme Court Rule 13.
On January 9, 2001, while represented by the Blair County Public
Defender’s Office, Appellant pro se petitioned the trial court for production of
transcripts concerning preliminary hearing, trial and sentencing. On March
8, 2001, the trial court denied the pro se petition. In so doing, the trial
court noted “It is not the practice of [the trial court] to type transcripts
where there is nothing pending before the [trial court]. In the event of a
request for post conviction relief [the trial court] would reconsider this
request.”1 Trial Court Order, 3/8/01. On March 20, 2001, the Blair County
Public Defender’s Office filed a “Petition to Withdraw as Counsel and for the
Appointment of Counsel,” because Appellant’s wish to file a PCRA petition
was against the public defender’s wishes. On the same day, the trial court
____________________________________________
1
It is settled that “a court is not required to comply with a defendant’s
request for transcripts in order to pursue relief in a PCRA proceeding where
no such action is pending.” Commonwealth v. Crider, 735 A.2d 730,
733 (Pa. Super. 1999) (emphasis added); see also Commonwealth v.
Ballem, 482 A.2d 1322, 1324 (Pa. Super. 1984).
-2-
J-S13039-15
granted the petition filed by the public defender’s office and appointed
Russell Montgomery, Esquire, as counsel.2 On June 28, 2001, Appellant filed
a second pro se petition for production of transcripts, which the trial court
denied, noting that “[t]here are no matters pending.” Trial Court Order,
7/9/01. On May 22, 2002, Appellant filed a third pro se request for
production of transcripts, which the trial court also denied because no issues
were pending. On June 4, 2002, Appellant filed a pro se “Motion for
Withdrawal of Counsel,” arguing that Attorney Montgomery be removed as
counsel of record for failing to file a PCRA petition.3 On June 25, 2002, the
trial court denied the motion.
On October 20, 2010, Appellant filed a pro se PCRA petition, raising
principally claims of ineffectiveness against Attorney Montgomery. Following
____________________________________________
2
Although it is not an issue on appeal, we note a trial court may not appoint
counsel in anticipation of a defendant’s filing of a PCRA petition. Rule 904
of the Pennsylvania Rules of Criminal Procedure provides in pertinent part
“when an unrepresented defendant satisfies the judge that the defendant is
unable to afford or otherwise procure counsel, the judge shall appoint
counsel to represent the defendant on the defendant’s first petition for post-
conviction collateral relief.” Pa.R.Crim.P. 904(c), see also comment to Rule
904 (“[I]t is intended that counsel be appointed in every case in which a
defendant has filed a petition for post-conviction collateral relief for the first
time and is unable to afford counsel or otherwise procure counsel.”)
(emphasis added); see also Commonwealth v. Glacken, 32 A.3d 750,
752 (Pa. Super. 2011) (noting that “Rule 904(C) of the Pennsylvania Rules
of Criminal Procedure provides that an indigent petitioner is entitled to
representation by court-appointed counsel in connection with his first PCRA
petition”).
3
The record indicates a dispute as to whether Attorney Montgomery
received a notice of appointment. See Trial Court Opinion, 8/22/14, at 7.
-3-
J-S13039-15
appointment of new counsel, the Commonwealth moved to dismiss the PCRA
petition on the basis of timeliness on November 30, 2010. On June 7, 2012,
Appellant filed an amended (counseled) PCRA petition, by which she
supplemented her previous pro se petition. In the amended PCRA petition,
Appellant raised only a constitutional claim under Lafler v. Cooper, 132 S.
Ct. 1376 (2012).4 Following several hearings, the PCRA court issued an
opinion and order, dismissing as untimely Appellant’s PCRA petition and
denying relief based on Lafler. In its opinion, the PCRA court concluded
Appellant failed to overcome the timeliness requirement of the PCRA.
Appellant timely appealed.5
On appeal,6 Appellant raises a single issue for our review:
Did the PCRA court err in dismissing [Appellant’s] first Motion for
Post-Conviction Relief as untimely where the Blair County
Administrator’s Office failed to properly serve appointed PCRA
counsel, Attorney Montgomery, with the order of appointment in
March 2001 which interfered with the timely filing and perfection
____________________________________________
4
In Lafler, the Supreme Court of the United States held a defendant must
receive post-conviction relief “when inadequate assistance of counsel caused
nonacceptance of a plea offer and further proceedings led to a less favorable
outcome,” and where the defendant has shown that “the outcome of the
plea process would have been different with competent advice.” Lafler, 132
S. Ct. at 1382-85, 1390-91.
5
The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
6
“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).
-4-
J-S13039-15
of [Appellant’s] first Motion and resulted in a violated of
[Appellant’s] rule-based right to effective collateral review
counsel[.]
Appellant’s Brief at 4.
As a threshold matter, we must determine whether the court erred in
dismissing as untimely Appellant’s PCRA petition. The PCRA contains the
following restrictions governing the timeliness of any PCRA petition.
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with
the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the United
States or the Supreme Court of Pennsylvania after
the time period provided in this section and has been
held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1)
shall be filed within 60 days of the date the claim could have
been presented.
(3) For purposes of this subchapter, a judgment becomes final at
the conclusion of direct review, including discretionary review in
the Supreme Court of the United States and the Supreme Court
of Pennsylvania, or at the expiration of time for seeking the
review.
42 Pa.C.S.A. § 9545(b). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
-5-
J-S13039-15
Here, as stated earlier, the record reflects Appellant’s judgment of
sentence became final on December 27, 2000. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903(a). Because Appellant had one year from
December 27, 2000 to file his PCRA petition, the current filing is untimely on
its face given it was filed on October 20, 2010.
The one-year time limitation, however, can be overcome if a petitioner
alleges and proves one of the three exceptions set forth in Section
9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant argues for relief based on
only governmental interference under Section 9545(b)(1)(i).7 Our review of
Appellant’s pro se and amended PCRA petitions, however, reveals Appellant
failed to raise the governmental interference exception before the trial court.
As such, Appellant waived this claim. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”). We likewise dismiss as waived Appellant’s suggestion that the
after-discovered evidence exception under Section 9545(b)(1)(ii) applies in
____________________________________________
7
Although abandoned on appeal, Appellant raised only one of the Section
9545(b) exceptions before the trial court. In her amended PCRA petition,
Appellant alleged that, under Section 9545(b)(1)(iii), Lafler created a new
constitutional right that retroactively applied to her case. This Court,
however, has rejected an identical argument in Commonwealth v.
Hernandez, 79 A.3d 649 (Pa. Super. 2013). The Hernandez Court
determined that Lafler did not create a newly-recognized constitutional right
and, as such, does not provide a petitioner with an exception to the PCRA’s
timeliness requirements. Id. at 654. We also note Appellant did not file her
amended PCRA petition raising the Lafler issue within 60 days of the
decision in Lafler. The Supreme Court decided Lafler on March 21, 2012
and Appellant filed her amended petition on June 7, 2012.
-6-
J-S13039-15
this case, because she was unaware that Attorney Montgomery had
abandoned her.8
In sum, given the fact that Appellant filed her first PCRA petition
approximately eight years and ten months after the deadline to file the
petition had expired and she does not satisfy any of the timeliness
exceptions under Section 9545(b), the PCRA court did not err in dismissing
her petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015
____________________________________________
8
Even if Appellant properly had preserved her claims under the
governmental interference and after-discovered evidence exceptions, they
still fail. Appellant provides no facts to establish that she raised the claims
within 60 days under Section 9545(b)(2). Specifically, with regard to after-
discovered evidence, Appellant’s suggestion that she recently discovered
Attorney Montgomery abandoned her is belied by the record. As noted
earlier, on June 4, 2002, Appellant pro se moved to have Attorney
Montgomery withdrawn as counsel of record, arguing he failed to file a PCRA
petition.
-7- | 01-03-2023 | 05-12-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3048139/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3424
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Ringling Dan Cohn, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 2, 2009
Filed: December 9, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Pursuant to a written plea agreement, Ringling Dan Cohn (Cohn) pled guilty to
four counts of bank fraud, in violation of 18 U.S.C. § 1344. After finding that Cohn
had breached the agreement, the district court1 sentenced Cohn to concurrent terms of
96 months in prison and 5 years of supervised release on all four counts. On appeal,
counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), in which
he argues (1) the court erred in finding that Cohn breached his plea agreement; and
(2) the 96-month prison sentence is unreasonable. Cohn has filed a pro se
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
supplemental brief disputing many of the facts contained in the presentence report and
arguing that counsel rendered ineffective assistance.
Based on the live witness testimony presented at the sentencing hearing, we
find the district court did not err in concluding Cohn breached the plea agreement.
See United States v. Honken, 541 F.3d 1146, 1166 (8th Cir. 2008) (holding a district
court’s determination as to the credibility of a witness is virtually unreviewable on
appeal), petition for cert. filed, (U.S. May 7, 2009) (No. 08-10252); United States v.
Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005) (stating issues pertaining to
interpretation and enforcement of a plea agreement are reviewed de novo). Further,
Cohn’s claim that counsel rendered ineffective assistance is not properly raised in this
direct criminal appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-
27 (8th Cir. 2006) (concluding ineffective-assistance claims ordinarily should be
raised in 28 U.S.C. § 2255 proceedings).
As to the sentencing issues, we will enforce the appeal waiver. The record
reflects that Cohn understood and voluntarily accepted the terms of the plea
agreement, including the appeal waiver and the provision making the agreement
binding on Cohn if he breached the agreement, and no injustice would result from
enforcing the waiver. See United States v. Sisco, 576 F.3d 791, 798 (8th Cir. 2009)
(enforcing appeal waiver after defendant’s breach where the plea agreement expressly
stated defendant would still be bound by terms of agreement if he breached
agreement); United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc);
United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam)
(enforcing appeal waiver in Anders case).
-2-
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues for appeal beyond the scope of
the appeal waiver. We affirm the district court’s finding that Cohn breached the plea
agreement, and we dismiss the remainder of the appeal based on the appeal waiver.
______________________________
-3- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3124577/ | MEMORANDUM OPINION
No. 04-11-00065-CV
Lloyd MOODY,
Appellant
v.
Lisa JACAMAN, Prestige Development Company, Inc., Robert Jaime Laurel, Jr. and Robert
James Homes, LLC,
Appellees
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CI09285
Honorable Martha Tanner, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 18, 2012
REVERSED AND REMANDED
In this appeal, the parties mediated the unresolved portions of their dispute. On their
joint motion, we abated this appeal for the parties to perform their obligations under their
settlement agreement. Now, the parties have filed a joint motion to dismiss. Their motion states
they have settled and resolved the conflicts between them and have completed mutually
performing on their agreement except for disposing of the trial court’s judgment. They move
this court to set aside the trial court’s judgment without regard to the merits of the case and
04-11-00065-CV
remand the cause to the trial court to render a take-nothing judgment in accordance with the
terms of their settlement agreement. See TEX. R. APP. P. 42.1(a)(2).
Therefore, we reinstate this appeal on the court’s docket and grant the parties’ joint
motion. We reverse the trial court’s judgment without regard to the merits and order the trial
court to render a take-nothing judgment consistent with the parties’ settlement agreement. See
id. Costs of this appeal are taxed against the party that incurred them. See id. R. 42.1(d).
Rebecca Simmons, Justice
-2- | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/130368/ | 539 U.S. 917
Moorev.Texas.
No. 02-9944.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the Ct. App. Tex., 11th Dist.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3445446/ | Reversing.
In the action of Nola Bowles, administratrix of the estate of John C. Bowles, Jr., deceased, and others, plaintiffs, against Malinda Bowles Rutroff, and others, defendants, pending in the Pike circuit court, the chancellor adjudged the sale of an undivided one-fifth interest in a tract of land in that county. Appellants, Mack G. Bowles and C.C. Bowles, became the purchasers. The sale was reported by the commissioner. The purchasers filed exceptions, which the court overruled. The sale was thereupon confirmed, and this appeal has been prosecuted by appellants, the purchasers, from the judgment confirming the sale. *Page 251
The interest in the tract of land appears to have been sold in an action by Nola Bowles, administratrix of the estate of John C. Bowles, Jr., Nola Bowles in her own right, and Joe Mack Bowles, an infant who sued by her mother, Nola Bowles, as next friend, as plaintiffs against the creditors of John C. Bowles, Jr., and certain persons to whom in his lifetime he had conveyed real estate owned by him, as defendants, and the object of the action was to cancel the deeds made by decedent, to settle his estate and to sell enough of his real estate to settle his debts. The only question involved herein is the validity of the sale to appellants of the one-fifth interest in the land purchased by them.
It is insisted for appellants, first, that the evidence discloses that Nola Bowles, who qualified as administratrix of the estate of John C. Bowles, Jr., was a nonresident of the state of Kentucky at the time of her appointment and that, therefore, her appointment was unauthorized and the action was improperly prosecuted by her as administratrix of John C. Bowles, Jr. We find that question to be immaterial, however, in view of the fact that she prosecuted the action not only as administratrix of the estate of John C. Bowles, Jr., but also in her own right. She was the surviving widow of John C. Bowles, Jr. In the very recent case of Allen v. Foth, et al.,210 Ky. 343, it was held that the widow is a distributee of a deceased person within the meaning of section 428 of the Civil Code, which provides:
"A representative, legatee, distributee or creditor of a deceased person may bring an action in equity for the settlement of his estate."
Appellants insist that the infant, Joe Mack Bowles, was not properly before the court in the action and that, therefore, she was not divested of her interest in the land sold herein by the judgment directing its sale and that confirming the same. The infant, Joe Mack Bowles, was made a party plaintiff to the action by her mother, Nola Bowles, suing as her next friend. The infant does not appear to have a guardian, curator or committee. No guardian ad litem was appointed for her. Appellants' objection to the manner in which the infant was made a party to this action was aimed at the nonresidence of both the infant and her next friend. Subsection 3 of section 35 of the Civil Code of Practice provides that the *Page 252
action of an infant who resides in this state who has no guardian, curator or committee residing herein, or whose guardian, curator or committee refuses to sue, or his action against a guardian, curator or committee, may be brought by his next friend. Subsection 4 of the same section provides that the action of an infant who resides in a foreign country and who has a guardian, curator or committee residing therein may be brought by such guardian, curator or committee or by his next friend. Section 37 of the Code provides that no person shall sue as next friend unless he reside in this state. Appellants contend that since the infant herein was a nonresident and the person suing as her next friend was a nonresident, she was without authority to maintain the action as next friend of the infant; that therefore the infant was not before the court and her interest in the land sold herein has not been affected by the sale. We find, however, that the record presents the question of fact whether or not Nola Bowles, who sued as next friend of the infant, and the infant herself, were nonresidents of the state. While the judgment does not indicate such to be the case, we assume that the trial court determined as a matter of fact that both the next friend and the infant were residents of the state of Kentucky. We find, however, a more serious question presented by the record, because of which we deem it unnecessary to review the trial court's conclusion that the next friend and infant were residents of the state of Kentucky. Section 428 of the Civil Code of Practice, provides:
"A representative, legatee, distributee or creditor of a deceased person may bring an action in equity for the settlement of his estate (provided that no such suit shall be brought by any of the parties named except the personal representative until the expiration of six months after the qualification of such representative.)"
That section of the Code considered alone would seem to give authority for an action by an infant who is a legatee or distributee of a deceased person for the settlement of the decedent's estate; provided, of course, the action be instituted in some of the ways otherwise provided by the Code of Practice by which a person under the disability of infancy may institute on action. We find, however, that section 428 of the Code does not stand alone when the action to settle the estate of the decedent *Page 253
involves a sale of all or a portion of the real estate which the decedent owned when he died, which descended to an infant heir or passed to an infant legatee, and which is sought to be sold to pay debts owing by the decedent. When such is the case, section 428 must be read in connection with section 489 of the Code of Practice, which provides:
"A vested estate of an infant or of a person of unsound mind, in real property, may be sold by order of a court of equity:
"1. For the payment of any debt or liability of his ancestor or devisor with which he may be legally chargeable, in an action brought against him pursuant to section 428; or in an action brought against him by a creditor of the ancestor or devisor, unless it be enjoined pursuant to section 436."
Considering the two sections together, it is manifest that the legislature has provided that the real estate of an infant may be sold by a court of equity to pay the debt or liability of the infant's ancestor only in an action brought against the infant pursuant to section 428 of the Code.
It appears herein that the infant, Joe Mack Bowles, less than two years of age, is the only child and heir at law of the deceased person, John C. Bowles, Jr. Upon his death all of his rent estate descended to and became vested in his infant child, subject to the rights of his surviving widow as such therein and subject to the rights of his creditors to subject it to the payment of his debts. Section 489, supra, expressly provides that the latter may be done only by action brought against the infant pursuant to the provisions of section 428. No authority other than that granted by section 489 of the Code exists for the sale of the vested estate of an infant in real property to pay the debts of his ancestor. Inasmuch as this action, in so far as it sought to sell the vested interest of the infant in real estate inherited by her from her father for the payment of his debts, was not an action brought against the infant pursuant to section 428, but was an action by the infant suing by her next friend, it necessarily follows that the action was wholly unauthorized and the judgment directing the sale and the judgment confirming the sale are void and do not affect the interest owned by the infant in the land attempted to be sold. (See Wyatt's Trustee, et al. v. Grider, et al., 158 Ky. 440; Wornack v. *Page 254
Loar, 11 Ky. L. R. 6, 11 S.W. 438; Hartman v. Fast, 145 Ky. 402; Tyler v. Jewell, 10 Ky. L. R. 887, 11 S.W. 25.)
The other objections offered by appellant being peculiar to the condition of the record as presented will doubtless be removed before another sale is had. Upon the return of the case the petition may be amended by making the infant a party defendant and bringing her before the court as the Code provides, and upon a proper showing that it is necessary enough real estate in which she owns a vested interest inherited from her father may be sold to pay his debts.
Wherefore, the judgment herein is reversed and this cause is remanded, with directions that the sale be set aside, and for further proceedings consistent herewith. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3445447/ | Reversing.
Appellants, who were plaintiffs below, are Gross, Mrs. Elmon Middleton, J.R. Howard and Clinton Ball, in the order named respectively, Jailer, County Clerk, Circuit Clerk and Sheriff of Harlan County. Appellees were and are, State Auditor, Treasurer, Commissioner of Revenue and the Commissioner of Finance. All appellants were elected at the general election of 1941, and assumed office in January of 1942, with the exception of Howard, circuit clerk, elected in 1939, assuming office in January, 1940.
Section 106 of our Constitution provides that the fees of county officers shall be regulated by law; that in counties having a population of 75,000 or more the clerks of the respective courts, the sheriff and jailer shall be paid out of the State Treasury by salary to be fixed by law, and the salaries of said officers and their deputies and necessary office expenses, are not to exceed 75 per centum of the fees collected by said officers, respectively, and paid into the Treasury. Section 161 of the Constitution provides that the compensation of certain officers, including those of a county, shall not be changed after election or during the term of office. Section 235 makes like provision in respect of all public officers.
Chapter 64 KRS apparently fixes the fees and compensation of offices of the character involved here. Section 64.040 provides that the circuit and county clerk of each county having a population of 75,000 or more shall be paid an annual salary of $5,000. Subsection (3) requires the clerk on the first of each month to submit to the Finance Department a verified statement showing the amount of money received or collected by him during the *Page 385
preceding month, as fees or compensation for official duties, and make remittance to the department. Subsection (4) provides that the salary of such clerk and deputies, and office expenses, shall be paid monthly by the State Treasurer. If 75 per cent of the amount reported and paid in for any month be not sufficient to pay salaries and expenses, for that month, the deficit may be made up from amounts reported and paid in succeeding months. "In no event shall the amount allowed by the Department of Finance * * * for salaries and expenses exceed 75% of the amount paid * * * by such clerk during his official term." By other sections the same requirements, limitations and procedure are made to apply to other officers involved here.
Appellants filed their petition setting out dates of their several elections and inductions, and other relative matters and allege that a taking of census between April and July of 1940, showed that Harlan County had a population of 75,275 people, as shown by a certificate of the Commerce Bureau of Census filed with the Kentucky Secretary of State. It is alleged that the census enumeration was fraudulent and erroneous, and that instead of a population of the number stated, supra, the total was considerably less than 75,000. The petition then alleges specifically a number of mistakes occurring in the taking, some of which amounted to gross fraud, which if true had the effect of reducing the census figures much below the required 75,000. Since the case went to proof it will not be necessary to set out these allegations more specifically.
It is plead that defendants have wrongfully required plaintiffs to comply with the provisions of the enumerated statutes, and have illegally withheld from the various offices 25 per cent of the moneys received, reported and paid in by them to the State authorities; that since they have learned that the population of Harlan is less than 75,000 they are purposing not to comply with the statutes and that State authorities are threatening to inflict penalties prescribed by sec. 1765, KS. In short their petition sets up under Code requirements a cause of action authorizing injunction against defendants, if the facts are sufficient. This relief was asked of the circuit court.
Defendants answered by general denial, except as to the official status of all parties. Proof was taken and upon submission the Chancellor dismissed the petition. *Page 386
In the judgment the chancellor said that while the proof conclusively showed fraud, perjury and subornation of perjury in the taking of the census, by certain officers and others in Harlan County for the purpose of securing classification advantages in local government, the plaintiffs could not be allowed to come into court and prove fraud and perjury to escape the consequences of the fraud. The chancellor said: "The endless link and implication in this chain of fraud must be broken somewhere, and the place to break it is as near the initial act as possible." The Chancellor realized, as we do, the seriousness of undertaking to upset the results of a census, but if fraud be apparent it makes little difference where the chain be broken. Equity is facile enough to redress fraud whenever and wherever found, within limitations.
As we digest the evidence we find that in one precinct all, or at least some of the residents of the precinct, were listed by the takers twice. It is said that by these actions several hundred duplications resulted. It is shown that in certain mining centers, by persons who kept boarding houses, a number of mine workers were listed who were nonresidents of the county, many being foreigners. The opinion was expressed that all these listed who were not residents of the County added more than 300 names to the census list. The difficulty with this and some other proof showing mistakes and irregularities in the taking is that it is not sufficiently shown that these names were reported to the local supervisor. The proof is worth no more than to indicate mistakes and irregularities, and perhaps a sinister purpose. There was some proof to show that there had been a gradual decrease in population in Harlan County since 1940, particularly by the school records, which showed more than a 2,000 decrease in the number of school children. However there is sufficient proof to show, as found by the chancellor, gross fraud in the taking of the census in the City of Harlan. One witness testified that he was employed by officers of the city to procure additional names for the city census so as the population would show as many as 5000 inhabitants. For this service he was to be and was paid $48. This witness proceeded to make up a fictitious list of 455 names, and said that some man, presumably a district supervisor, came to Harlan and told him to turn them in, and also told the local supervisor to put the names on the census roll. He, the witness, then read the names to the local supervisor, and *Page 387
he wrote them in the census book. Appellants are not shown to have been connected. The testimony of this witness was not impeached. In fact counsel for appellees admit that his testimony "rang true" and that upon investigation following the filing of the petition no one was found to disprove the statements as to the perpetration of the fraud, which it is also admitted resulted ill lowering Harlan's population to less than 75,000.
Realizing the gravity of a determination that the fraud would or could vitiate the certification of the proper census officer, we have turned to the Federal Statutes, Title 13, U.S.C.A. relating to the taking of the decennial census. Our observation leads us to the conclusion that there is nothing in the Act of Congress which lends to the certification of the Federal Supervisor any higher dignity than is given by statutes or decisions of courts to other public documents. We find very few cases dealing with the question as relating to the taking of a census by the National Government, but see no reason why the same general rules should not apply. The certification of the census by the National Supervisor is evidence of the population, and of which the courts may take judicial knowledge. People ex rel. Stoddard v. Williams, 64 Cal. 87,27 P. 939. It is prima facie, or merely the best evidence in cases where the statutes make the act performed to depend upon the last decennial Government census. Com. v. Walter, 274 Pa. 553, 118A. 510; Garrett v. Anderson, County Judge, Tex. Civ. App.,144 S.W.2d 971. However, our statutes with regard to the classification of officers here involved, do not make the national census the criterion. It follows, therefore, that the certificate of the National Supervisor of census is to all intents and purposes only prima facie, or in cases where it is the basis for an act, the best evidence of the fact, which may be overcome by direct and positive evidence of fraud when attacked on that ground.
We have held that when the result of a census taking is challenged, not as here on the ground of admitted fraud, the question as to whether a given territory had the population as determined by the Legislature, presents "a question of fact, and, when disputed, must be determined by evidence, like any other fact that may be the subject of judicial inquiry." Com. v. Chinn, 97 Ky. 730, 735, 31 S.W. 727, 729. In Lancaster v. City of Owensboro, 72 S.W. 731, 24 Ky. Law Rep. 1978, we upheld *Page 388
the validity of a local census taken where irregularities were charged, but rather intimated that the ruling would have been different if the charges had been proven, or if fraud had been charged and proven. In O'Brien v. City of Owensboro, 113 Ky. 680, 68 S.W. 858, 69 S.W. 800, the return of the local census was attacked, but upheld. We held in that case that results obtained by the machinery best adapted to secure accuracy, in the absence of fraud or mistake is to be accepted as final. In the Walters case, supra, in speaking of the effect of a national census it was held that the federal tabulation or return has no extra force in a state except as provided by the Constitution, but is to be treated only as the best evidence of the fact, and should be given the credit accorded by law to other official acts. The only place we note in our Constitution which makes the Federal census a basis for the act to be performed is sec 156, which provides that in the absence of other satisfactory information the Legislature should be governed by the last preceding Federal census. Fraud having been proven and admitted, see 106 of the Constitution and statutes enacted in pursuance did not have the effect of bringing appellants under their terms. It is further shown without question by documentary evidence, which is undisputed, that since the 1940 census was taken the population of the county has decreased by more than two thousand inhabitants. Under the combination of facts shown we are compelled to hold that the appellants are entitled to the relief sought. Hence the judgment is reversed with directions to set aside the former order and grant the prayer of their petition.
Judgment reversed. The whole court sitting except Judge Thomas. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3009551/ | Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
10-27-1994
Hullett v.Towers, Perrin, Forster & Crosby, et al.
Precedential or Non-Precedential:
Docket 94-1517
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation
"Hullett v.Towers, Perrin, Forster & Crosby, et al." (1994). 1994 Decisions. Paper 169.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/169
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NO. 94-1517
____________
JOSEPH W. HULLETT,
Appellee
v.
TOWERS, PERRIN, FORSTER & CROSBY, INC.;
TOWERS, PERRIN RETIREMENT INCOME PLAN;
TOWERS, PERRIN PENSION RESTORATION PLAN;
LESLIE B. TALCOTT
Leslie B. Talcott, Appellant
____________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. No. 92-cv-01184
____________
Argued September 20, 1994
Before: GREENBERG, ROTH, and ROSENN, Circuit Judges
Opinion Filed October 28, 1994
____________
DOUGLAS EVAN RESS, ESQ. (Argued)
MARGARET LOUD CHARENDOFF, ESQ.
Kaufman, Coren, Ress & Weidman
1525 Locust Street - 16th Floor
Philadlephia, PA 19102
Attorneys for Appellant
GERALD F. MCCORMICK, ESQ. (Argued)
Duane Morris & Heckscher
735 Chesterbrook Boulevard - Suite 300
Wayne, PA 19084
Attorneys for Appellee
____________
OPINION OF THE COURT
ROSENN, Circuit Judge.
This case presents an interesting question concerning
the interpretation of a property settlement agreement entered
into by a husband and wife in anticipation of their divorce, and
the application of the Employee Retirement Income Security Act of
1974 (ERISA), 28 U.S.C. § 1001 et seq., to the agreement. On
February 26, 1992, Joseph W. Hullett filed suit against his ex-
wife, Leslie B. Talcott, in the United States District Court for
the Eastern District of Pennsylvania seeking, inter alia, a
declaration that the settlement agreement did not constitute a
qualified domestic relations order (QDRO) within the meaning of
ERISA, and an injunction prohibiting payment of any of Hullett's
pension benefits to Talcott.1
Each of the parties subsequently filed cross-motions
for partial summary judgment. The district court granted in part
Hullett's motion for partial summary judgment and denied
Talcott's motion. The court held that the settlement agreement
constitutes a QDRO, and that Talcott is entitled to receive one-
half of the pension benefits which Hullett has accrued as of
December 31, 1983, the date of the settlement agreement, if she
remains unmarried at the time Hullett actually retires or is
required to begin receiving pension benefits. Talcott timely
appealed to this court. We reverse.
1
. The district court exercised jurisdiction over this case
pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). This
court has jurisdiction over this appeal from a final judgment
pursuant to 28 U.S.C. § 1291.
I.
Hullett and Talcott were married on August 19, 1961.
In 1965, Hullett commenced employment with Towers, Perrin,
Forster & Crosby, Inc. (Towers, Perrin) in its reinsurance
division. He thereafter became a manager, stockholder, vice-
president, senior vice-president, a member of the board of
directors, and a member of the Towers, Perrin executive
committee.
In 1982 or 1983, Hullett and Talcott separated. On
December 31, 1983, they entered into a property settlement
agreement (the Agreement), which William H. Lamb, Esq., drafted.
The parties' subsequent divorce decree incorporated by reference
the Agreement as part of the decree. At the time of the
separation, Hullett was a fully vested member of Towers, Perrin
pension plans which consisted of a Retirement Income Plan
qualified under Section 401(a) of the Internal Revenue Code (Plan
or Pension Plan) and a non-qualified Retirement Income
Restoration Plan which had become effective as of January 1,
1976. The Agreement provided that in the event that Talcott
remained unmarried at the time of Hullett's retirement, Hullett
would pay to her, in the year of his retirement, fifty percent of
all income received pursuant to his fully vested, accrued pension
credit under the Plan.
By letter dated January 22, 1986, Hullett wrote
Talcott, contending that the Agreement contained an error in that
the pension was suppose to be valued as of December 31, 1983, of
which value Talcott was suppose to receive fifty percent.
Talcott responded that the Agreement was correct as written.
Hullett's attorney then wrote Lamb seeking to confirm Hullett's
position and to do the necessary to clarify the Agreement. In
response, Lamb's office disputed Hullett's claim. It emphasized
that on the original drafts, 100% of all income received from the
pension plan was to be payable to Talcott upon Hullett's
retirement and receipt of benefits, but that the valuation date
was deleted in return for Talcott receiving a full 50% of
whatever pension was ultimately payable to Hullett. In December
of 1986, Hullett informed Larry Margel, Chief Actuary at Towers,
Perrin, that he had signed an agreement which dealt with his
whole pension instead of with the pension as valued at December
31, 1983, and Margel provided Hullett with some arguments
regarding the situation.
On February 5, 1990, Towers, Perrin unilaterally
terminated Hullett's employment. As defined in Hullett's Pension
Plan, he had an early retirement date of January 1, 1991, and a
normal retirement date of January 1, 2001. Hullett could receive
pension benefits as of his early retirement date based upon a
reduction of benefits of 5% for each year below the normal
retirement date. Towers, Perrin and Hullett subsequently entered
into a Release and Agreement, whereby the parties agreed that
Hullett would receive a pension equal to the one he would have
earned under the Plan had he remained employed with Towers,
Perrin on his early retirement date.2
2
. This amounted to a pension under the Pension Plan of
$7,258.37 per month commencing January 1, 2001, plus a social
By letter dated August 20, 1991, the administrator for
the plans, Karl W. Lohwater, determined that the Agreement was a
QDRO3 within the meaning of ERISA, and that under the terms of
the Agreement, Talcott was entitled to 50% of all of Hullett's
pension benefits from both plans, with payment to commence when
Talcott elected to receive the pension benefits. Hullett
appealed this initial determination. By letter dated January 15,
1992, the plan administrator made a final determination to
recognize the Agreement as a QDRO and to pay Talcott 50% of
Hullett's pension, without regard to any December 31, 1983
valuation date and without regard to when Hullett decided to
commence receipt of his share of the pension monies.
On February 26, 1992, Hullett filed a complaint against
Talcott in federal court seeking, inter alia, a declaration that
the Agreement did not constitute a QDRO, and an injunction
prohibiting payment of any of Hullett's pension benefits to
Talcott. Talcott filed a motion to dismiss Hullett's complaint,
contending that Hullett had improperly sought de novo review of
(..continued)
security supplement under the Plan of $554.14 per month from
January 1, 2001 through May 31, 2003, plus a supplemental pension
of $3,220.30 per month commencing January 1, 2001.
3
. A QDRO is defined in 29 U.S.C. § 1056(d)(3)(B)(i). Prior to
1984, ERISA's provisions failed to clearly delineate the interest
of a non-employee spouse in pension benefits of the employee
spouse. Under the 1984 amendments to ERISA, if a domestic
relations order provides for distribution of part or all of a
participant's benefits under a qualified pension plan to an
alternate payee and meets the requirements set forth in the
statute, then the creation, recognition, or assignment of these
benefits to the alternate payee is not considered an assignment
or alienation prohibited by ERISA's spendthrift provisions.
the plan administrator's determination, which the district court
denied. Talcott subsequently filed a counterclaim against
Hullett and a crossclaim against Towers, Perrin, Towers Perrin
Retirement Plan, and Towers Perrin Pension Restoration Plan
(collectively, the "Towers, Perrin Defendants"), seeking a
declaration of the rights of the parties. The Towers, Perrin
defendants crossclaimed seeking similar relief. Talcott also
filed a motion in limine seeking the introduction of parol
evidence, which the district court denied.
The parties then filed cross-motions for partial
summary judgment. The district court granted in part Hullett's
motion, and denied Talcott's motion regarding the QDRO
determination but granted relief on other grounds. The court
held that the Agreement constituted a QDRO, and that Talcott was
entitled to receive one-half of the pension benefits which
Hullett had accrued as of December 31, 1983 if she remains
unmarried at the time Hullett actually retires or is required to
begin receiving pension benefits from Towers, Perrin. Talcott
filed a motion to alter or amend the judgment and for
reconsideration, which the district court denied.
II.
This court exercises plenary review over a grant of
summary judgment, and we apply the same test the district court
should have utilized initially. Oritani Sav. and Loan Ass'n v.
Fidelity and Deposit Co., 989 F.2d 635, 637 (3d Cir. 1993).
Summary judgment is appropriate only when it is demonstrated that
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 322-32 (1986); Fed.R.Civ.P. 56(c). An
issue of material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
deciding a motion for summary judgment, all reasonable inferences
must be drawn in favor of the non-movant. Oritani, 989 F.2d at
638.
For purposes of interpretation, a property settlement
agreement is treated the same as any other contract under
Pennsylvania law. See e.g., Lower v. Lower, 584 A.2d 1028, 1030
(Pa.Super. 1991). A court's purpose in examining a contract is
to interpret the intent of the contracting parties, as
objectively manifested by them. Mellon Bank, N.A. v. Aetna
Business Credit, Inc., 619 F.2d 1001, 1009 (3d Cir. 1980). The
process of interpreting a contract requires the court to make a
preliminary inquiry as to whether the contract before it is
ambiguous. Stendardo v. Federal Nat'l Mortgage Ass'n, 991 F.2d
1089, 1094 (3d Cir. 1993). A contract provision is ambiguous if
it is susceptible of two reasonable alternative interpretations.
Mellon, 619 F.2d at 1011. Where the written terms of the
contract are not ambiguous and can only be read one way, the
court will interpret the contract as a matter of law. Stendardo,
991 F.2d at 1094. If the contract is determined to be ambiguous,
then the interpretation of the contract is left to the
factfinder, to resolve the ambiguity in light of extrinsic
evidence. Id.; Mellon, 619 F.2d at 1011.
Pennsylvania courts apply the "plain meaning rule" of
interpretation of contracts which assumes that the intent of the
parties to an instrument is "embodied in the writing itself, and
when the words are clear and unambiguous the intent is to be
discovered only from the express language of the agreement."
County of Dauphin v. Fidelity & Deposit Co., 770 F. Supp. 248,
251 (M.D.Pa.) (quotation omitted), aff'd, 937 F.2d 596 (3d Cir.
1991). Nevertheless, a determination whether the language of an
agreement is unambiguous may not be apparent without examining
the context in which the agreement arose. Steuart v. McChesney,
444 A.2d 659, 662 (Pa. 1982). Thus, a court is not always
confined to the four corners of the written document in
determining whether an ambiguity exists. Mellon, 619 F.2d at
1011. Rather, the judge must "consider the words of the
contract, the alternative meaning suggested by counsel, and the
nature of the objective evidence to be offered in support of that
meaning." Id.
III.
We begin our analysis by examining the language of the
Agreement, which states in relevant part:
The retirement income plan listed in Schedule
"A" is payable to Husband upon his
retirement. The parties agree that in the
event Wife remains unmarried at the time of
Husband's retirement that fifty percent (50%)
of all income received pursuant to said
pension plan shall be paid by Husband to Wife
in the year of his retirement. It is
understood by both parties, that this pension
benefit is payable to Husband only if he
survives to his early retirement date of
January 1, 1991, and Husband, or Husband's
estate, are only bound hereby if Husband does
so survive.
* * *
Schedule "A"
(1) Seventy (70) shares of Towers, Perrin
Common Stock with a total current value of
$63,700.00 on the date of valuation, December
31, 1983.
(2) Two thousand three hundred and ten
(2,310) shares of Towers, Perrin Preferred
Stock with a total current value of
$231,000.00 on the date of valuation,
December 31, 1983.
(3) Fully vested, accrued pension credit
under the Towers, Perrin Retirement Income
Plan (hereinafter referred to as Towers,
Perrin RIP).
The district court found that the above contractual
language was susceptible to only one interpretation. The court
held that Talcott was entitled to 50% of the pension credit
vested and accrued as of December 31, 1983, the date of the
Agreement. In so holding, the court relied on the past tense
form of the words "vested" and "accrued". However, this language
also can be interpreted to refer to the pension credit "vested
and accrued" at the time of Hullett's retirement.
The record in this case shows that the district court
erred in holding that the language of the Agreement was not
ambiguous. The evidence supports as reasonable Talcott's
alternative interpretation that she was to receive 50% of "all"
of Hullett's pension, without being limited to only 50% of the
pension credit vested and accrued at the time of the Agreement.
Schedule A was specific in providing valuation dates for the
other two assets identified on it, Talcott's share of the common
and preferred stock, and the body of the Agreement specifically
states that these assets are valued as of December 31, 1983. In
contrast, the parties did not provide a valuation date for the
Pension Plan. Lamb, the scrivener of the Agreement, testified
that the draft version of the Agreement provided that Talcott was
to receive 100% of the pension valued as of December 31, 1983,
but that the valuation date was deleted in subsequent drafts and
the final Agreement in return for Talcott receiving a full 50% of
whatever pension was ultimately payable to Hullett.
Moreover, unlike the pension language, Talcott's
entitlement to the other assets on Schedule A is in no way
contingent upon her remaining unmarried. Talcott argues that
this is because she was only getting the shares of stock that
were rightfully hers as of the time of the divorce, but that
Hullett did not want to continue increasing her share of his
pension if she then chose to remarry. This interpretation of the
contractual language is a reasonable one.
The district court observed that its interpretation was
further supported by Paragraph 12 of the Agreement, which states
that neither party has any claim to any personal property,
tangible or intangible, thereafter acquired by the other. The
inclusion of Paragraph 12, a standard contractual provision, does
not preclude Talcott's interpretation of the Agreement as a
reasonable one. As testified by the scrivener, Lamb:
[Paragraph 12 is] a standard clause which is
intended to cover the situation where after
this agreement is signed husband goes out and
buys a car or wife goes out and buys an
airplane or a townhouse or whatever, neither
party has any claim on any of those assets
after this agreement is signed.
Similarly, the two contractual provisions cited by Hullett,
concerning the freedom to live apart and engage in any employment
and the release of claims against each other, are standard
contractual provisions which serve separate and distinct
purposes. These provisions are not inherently inconsistent with
Talcott's suggested interpretation of the Agreement.
The extrinsic evidence presented by Talcott shows that
her interpretation is a reasonable alternative one, and thus the
language regarding the amount of pension benefits to which
Talcott is entitled is ambiguous. See e.g., Lower, 584 A.2d at
1032 (holding that failure to define "alimony" and "support"
created ambiguity to be resolved by factfinder); Lohmann v.
Piczon, 487 A.2d 1386, 1389 (Pa.Super. 1985) (finding "net income
after taxes," 25% of which husband was to pay wife, was ambiguous
as to whether it included any of husband's tax deductions); De
Witt v. Kaiser, 484 A.2d 121, 126 (Pa.Super. 1984) (finding term
"income" in context of husband's support obligations to be
ambiguous, thus requiring extrinsic evidence to define term).
Therefore, we must remand this case to allow a factfinder to
resolve the ambiguity in light of the extrinsic evidence.
IV.
The second dispute focuses on the following contractual
language:
The retirement income plan listed in Schedule
"A" is payable to Husband upon his
retirement. The parties agree that in the
event Wife remains unmarried at the time of
Husband's retirement that fifty percent (50%)
of all income received pursuant to said
pension plan shall be paid by Husband to Wife
in the year of his retirement. It is
understood by both parties, that this pension
benefit is payable to Husband only if he
survives to his early retirement date of
January 1, 1991, and Husband, or Husband's
estate, are only bound hereby if Husband does
so survive.
The district court attempted to examine the use of the
word "retirement" as used in the Plan to determine what the
parties meant, but found that the Plan does not provide a single
definition of the word. Rather, the Plan describes three
separate retirement dates, early, normal, and postponed. The
court thus turned back to the Agreement to determine which
definition the parties intended to control. The court concluded
that the parties intended that Talcott be entitled to her
benefits when Hullett elects to and does receive his pension
benefits, or when he is required to commence receipt of his
pension benefits under the terms of the Plan, in the event that
Talcott remains unmarried at that time.
Before the district court, Hullett argued that Talcott
is entitled to 50% of the pension benefits which he accrued prior
to December 31, 1983, only if she remains unmarried at the time
he actually retires from the workplace in general. On appeal,
Hullett now adopts the district court's interpretation of the
Agreement.
Talcott argues that the district court misconstrued the
Agreement, and notes that the use of the term "retirement" in the
Agreement directly follows a sentence in which the parties
defined retirement as that point at which the retirement income
plan was "payable" to Hullett. She contends that "payable" means
the point at which the money may be paid on demand, not the point
at which payment actually commences. See Black's Law Dictionary
(5th ed. 1979) at 1016 (defining payable as "[c]apable of being
paid; suitable to be paid; admitting or demanding payment; justly
due; legally enforceable"). Talcott asserts that this date would
be January 1, 1991, when Hullett reached his early retirement
date under the Plan, and that the court erred in construing the
Agreement to empower Hullett to hold her pension money hostage to
her remaining unmarried until he turns 60, in the year 2001.
Talcott describes various scenarios where the district court's
interpretation of the Agreement could cause her to lose all or
part of her share in the pension benefits. Thus, Talcott argues,
because she remained unmarried at the time of Hullett's
retirement from Towers, Perrin, she is presently entitled to her
50% share of pension benefits, whatever they might be, and she is
free to remarry.
Again, Talcott's interpretation of the contractual
language is a reasonable alternative one. It is clear that the
parties did not foresee or provide for Hullett terminating his
employment with Towers, Perrin prior to when he was entitled to
his pension benefits. Thus, the contractual language is
ambiguous, and its interpretation should be left to the
factfinder to resolve in light of any extrinsic evidence the
parties may present on remand.
V.
The parties' final dispute concerns the district
court's appropriate standard of review of the plan
administrator's determinations. In Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101 (1989), the United States Supreme Court
held that challenges under section 1132(a)(1)(B) of ERISA are to
be reviewed under a de novo standard unless the plan gives the
administrator discretionary authority to determine eligibility
for benefits or to construe the terms of the plan. Id. at 115.
Where a plan administrator is given discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan, the appropriate standard of review of the
administrator's determinations is an arbitrary and capricious
standard. Id. at 114-15. Discretionary powers need not be
expressly granted; they may be implied by the plan's terms. Luby
v. Teamsters Health Welfare & Pension Trust Funds, 944 F.2d 1176,
1181 (3d Cir. 1991).
Neither party has appealed the district court's ruling
that the Agreement constitutes a QDRO, and therefore it is not
necessary for this court to determine whether the district court
erred in reviewing de novo the plan administrator's finding that
the Agreement is a QDRO. The district court did not err in
holding that it should review de novo the plan administrator's
construction of the Agreement, which involved issues of contract
interpretation under the Agreement and not the Plan. However, as
discussed above, the Agreement is ambiguous and thus the issues
of the amount of Talcott's share of pension benefits, the time of
Hullett's retirement, and the effect of Talcott's marital status
are for the factfinder to resolve on remand in light of the
extrinsic evidence.
Additionally, the district court erred in refusing to
give deference to the plan administrator's determination that he
would segregate Talcott's QDRO monies and commence payment at the
time she elects to receive her share. That is, when Talcott
elects to begin her benefit payments, the administrator will
calculate the amount she is entitled to receive by making an
actuarial calculation converting the present value of one half of
Hullett's pension, valued as of the date determined by the
factfinder, to a pension payable over Talcott's lifetime. In
contrast, the court held that Talcott may continue receiving
monthly benefits only as long as Hullett receives them pursuant
to the Plan.
In making his determination regarding the distribution
of payments, the plan administrator exercised his discretionary
authority to construe the terms of the Plan. Section 8.1(h) of
the Plan provides, "If the [plan administer] receives a QDRO with
respect to a Member's divorce from his Spouse, it will comply
with such Order and reduce the benefits otherwise payable to or
on behalf of such Member under this Plan or the Actuarial
Equivalent of any benefits payable to his Spouse under this Plan
pursuant to such QDRO." Additionally, the Plan Procedures for
Domestic Relations Orders provides that any amount that would be
payable to an alternate payee under a QDRO will be separately
accounted for under the Plan and will remain segregated while the
plan participant or alternate payee appeals the administrator's
QDRO determination. At the end of this appeal period, "the
segregated amounts, adjusted for investment results, will be paid
to the plan participant or the alternate payee (or credited to
the account of the plan participant or alternate payee) in
accordance with the determination of the [plan administrator]."
Thus, the district court erred in refusing to give deference to
the administrator's holding that Talcott's pension is payable
over her lifetime, and instead holding that payments to Talcott
will terminate when Hullett's pension payments terminate. The
court was required to uphold the administrator's determination as
to QDRO payments unless it was arbitrary and capricious. It was
not.
In summary, the district court erred by granting in
part Hullett's motion for partial summary judgment. Talcott has
presented reasonable alternative interpretations of the
contractual language regarding the distribution of Hullett's
pension and the provision requiring payment upon Hullett's
retirement if Talcott remains unmarried. Thus, these provisions
are ambiguous and are appropriate for a factfinder's resolution
upon remand. Finally, although the district court properly
reviewed the plan administrator's interpretation of the Agreement
on a de novo basis, it erred in refusing to give deference to the
plan administrator's determination regarding the payment of
benefits under the QDRO.
VI.
Accordingly, the district court's grant of partial
summary judgment in favor of Hullett will be reversed and the
case remanded for proceedings consistent with this opinion. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3051416/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
TAI LOONG HONG MARINE No. 05-56274
PRODUCTS, LIMITED,
Claimant-Appellant, D.C. No.
CV-03-00594-BTM
v.
OPINION
APPROXIMATELY 64,695 POUNDS OF
SHARK FINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
May 14, 2007—Pasadena, California
Filed March 17, 2008
Before: Stephen Reinhardt, Raymond C. Fisher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Reinhardt
2471
2474 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
COUNSEL
Bryan Y.Y. Ho, Esq., Honolulu, Hawaii, for the defendant-
appellant.
Carol C. Lam, Esq., Roger W. Haines, Jr., Esq., Mary C.
Lundberg, Esq., United States Department of Justice, San
Diego, California, for the plaintiff-appellee.
OPINION
REINHARDT, Circuit Judge:
This case arises from a civil complaint brought by the U.S.
Government for the forfeiture of 64,695 pounds of shark fins
found on board the King Diamond II (“KD II”), a United
States vessel. Claimant-Appellant Tai Loong Hong Marine
Products, Ltd. (“TLH”) owned the shark fins. TLH, a Hong
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2475
Kong company, had chartered the KD II and ordered it to
meet foreign fishing vessels on the high seas, purchase shark
fins from those vessels, transport the fins to Guatemala, and
deliver them to TLH. The Government seized the fins pursu-
ant to the Shark Finning Prohibition Act (“SFPA”), which
makes it unlawful for any person aboard a U.S. fishing vessel
to possess shark fins obtained through prohibited “shark fin-
ning.” 16 U.S.C. § 1857(1)(P)(ii). TLH does not contest that,
on its behalf, the KD II purchased the fins at sea from foreign
vessels that engaged in shark finning. Instead, it argues that
the KD II is not a fishing vessel under 16 U.S.C.
§ 1802(18)(B), and for that reason the forfeiture of the shark
fins it possessed would violate due process. We agree that
neither the statute nor the regulations provided fair notice to
TLH that it would be considered a fishing vessel under
§ 1802(18)(B). We therefore reverse the judgment of forfei-
ture and remand for further proceedings consistent with this
opinion.
I. Background
In 1976, Congress passed the Magnuson-Stevens Fishery
Conservation and Management Act (“Magnuson Act”), 16
U.S.C. § 1801 et seq., to conserve and manage fishery
resources. 16 U.S.C. § 1801(b)(1). In 2000, Congress enacted
the Shark Finning Prohibition Act, which amended the
Magnuson Act in an attempt to eliminate the practice of shark
finning. Pub. L. No. 106-557, 114 Stat. 2772 (2000), 16
U.S.C. § 1857(1)(P).
The SFPA makes it unlawful:
(I) to remove any of the fins of a shark (including the
tail) and discard the carcass of the shark at sea;
(ii) to have custody, control, or possession of any
such fin aboard a fishing vessel without the corre-
sponding carcass; or
2476 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
(iii) to land any such fin without the corresponding
carcass.
16 U.S.C. § 1857(1)(P) (emphasis added).1
The Magnuson Act, in turn, defines a fishing vessel to
include
“any vessel, boat, ship, or other craft which is used
for, equipped to be used for, or of a type which is
normally used for —
(A) fishing; or
(B) aiding or assisting one or more vessels at sea in
the performance of any activity relating to fishing,
including, but not limited to, preparation, supply,
storage, refrigeration, transportation, or processing.”
16 U.S.C. § 1802(18).
The question we must resolve is whether TLH had notice
that the KD II’s activities would fall within the definition of
fishing vessel in § 1802(18)(B) and thus render it subject to
the prohibition on possessing shark fins under the SFPA. The
KD II is a United States vessel owned and operated by Tran
& Yu, a Hawaii corporation. Tran & Yu purchased the KD II
in January 2001. Although Tran & Yu initially registered the
vessel with a “Fishery” endorsement,2 the company re-
1
The SFPA establishes a “rebuttable presumption that any shark fins
landed from a fishing vessel or found on board a fishing vessel were taken,
held, or landed in violation of subparagraph (P) if the total weight of shark
fins landed or found on board exceeds 5 percent of the total weight of
shark carcasses landed or found on board.” 16 U.S.C. § 1857(1).
2
A fishery endorsement entitles a vessel to work in fisheries and land
its catch in United States ports. See 46 C.F.R. § 67.21(a). See also 46
C.F.R. § 67.3 (“Fisheries includes processing, storing, transporting (except
in foreign commerce), planting, cultivating, catching, taking, or harvesting
fish, shellfish, marine animals, pearls, shells, or marine vegetation in the
navigable waters of the United States or in the Exclusive Economic
Zone.”).
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2477
documented the vessel with a “Registry” endorsement, which
“entitles a vessel to employment in the foreign trade . . . and
any other employment for which a coastwise, Great Lakes, or
fishery endorsement is not required.” 46 C.F.R. § 67.17(a).
During the time of the transactions at issue in this case, the
KD II operated under this registry endorsement.
TLH is a Hong Kong company that purchases and sells sea-
food products, including shark fins. TLH chartered the KD II
and ordered it to make a voyage in which it would rendezvous
with foreign fishing vessels on the high seas, purchase shark
fins from those vessels, and transport the fins to Guatemala,
where TLH would accept delivery.
In June 2002 the KD II left Honolulu, Hawaii, to begin the
charter trip for TLH. During the next two months, the KD II
met with over 20 vessels on the high seas and purchased
approximately 64,695 pounds of shark fins. On August 14,
2002, United States Coast Guard officials boarded the KD II
approximately 250 miles off the coast of Guatemala. On
board, they discovered the shark fins but no shark carcasses.
The SFPA establishes a rebuttable presumption that shark fins
landed or found on board a fishing vessel without correspond-
ing shark carcasses were obtained through prohibited shark
finning. 16 U.S.C. § 1857(1)(P). Acting on this presumption,
the Coast Guard detained the KD II and escorted it to San
Diego. On August 23, 2002, the Government seized the shark
fins.
On March 26, 2003, the Government filed a civil complaint
for forfeiture of the shark fins. The complaint alleged that the
fins were subject to forfeiture pursuant to the Magnuson Act,
16 U.S.C. § 1860(a), because they were taken or retained in
violation of the SFPA, 16 U.S.C. § 1857(1)(P)(ii), and its
implementing regulations at 50 C.F.R.§ 600.1203(a)(2) (for-
merly 50 C.F.R. § 600.1022(a)(2)). This is referred to herein
as the “possession” prohibition. The landing prohibition, set
forth in the following subsection of the statute, subsection
2478 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
(iii), is not at issue here, because “landing” applies only to
landings at U.S. ports.
The issue in dispute is whether the KD II was a fishing ves-
sel within the meaning of the SFPA and the Magnuson Act.
The district court ruled on two separate arguments advanced
by TLH. It first held that there was a genuine issue of material
fact about whether the KD II was “used for, equipped to be
used for or of a type which is normally used for . . . fishing”
as defined in § 1802(18)(A), and it therefore denied summary
judgment as to that ground. The court then held that the KD
II was a fishing vessel as a matter of law under § 1802(18)(B)
because it aided or assisted fishing vessels at sea in the perfor-
mance of activities related to fishing, including “purchase,
storage, and transportation.” As a result, the court granted the
government’s motion for summary judgment on that basis.
See United States v. Approximately 64,695 Pounds of Shark
Fins, 353 F. Supp. 2d 1095 (S.D. Cal. 2005). The parties then
filed an Amended Stipulated Facts and Legal Conclusion “for
the purpose of saving the time and cost of litigating the fair
market value of the shark fins, as well as to expedite TLH’s
appeal of an order forfeiting the fair market value of the shark
fins to the Ninth Circuit Court of Appeals.” The parties stipu-
lated that the fair market value of the fins at the time of the
seizure was $618,956 and that an order forfeiting this amount
was a legal consequence of the district court’s summary judg-
ment order.
The district court entered a judgment of forfeiture on June
6, 2005. TLH timely appealed.
II. The statutes and regulations did not provide TLH
with notice that the prohibition on possessing shark
fins aboard a fishing vessel as defined in 16 U.S.C.
§ 1802(18)(B) applied to the KD II
TLH challenges the district court’s ruling, arguing both that
the KD II was not a fishing vessel within the meaning of 16
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2479
U.S.C. § 1802(18)(B), and that application of that provision
of the SFPA to the KD II violated due process. Even if the KD
II were a fishing vessel within the meaning of § 1802(18)(B),
we conclude that the provision in question would not provide
fair notice to TLH that it was such a vessel and was subject
to the possession prohibition. As a result, we agree that appli-
cation of that sub-section of the SFPA to the KD II violated
due process.
A. Fair notice
[1] Due process requires that an agency provide “fair notice
of what conduct is prohibited before a sanction can be
imposed.” Stillwater Mining Co. v. Federal Mine Safety &
Health Review Comm’n, 142 F.3d 1179, 1182 (9th Cir. 1998)
(quoting Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996)).
As the D.C. Circuit has explained, “[i]n the absence of notice
— for example, where the regulation is not sufficiently clear
to warn a party about what is expected of it — an agency may
not deprive a party of property by imposing civil or criminal
liability.” Trinity Broadcasting of Florida, Inc. v. Federal
Commc’n Comm’n, 211 F.3d 618, 628 (D.C. Cir. 2000) (quot-
ing General Elec. Co. v. EPA, 53 F.3d 1324, 1328-29 (D.C.
Cir. 1995)) (alteration in original).
[2] To provide sufficient notice, a statute or regulation must
“give the person of ordinary intelligence a reasonable oppor-
tunity to know what is prohibited so that he may act accord-
ingly.” Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). We agree with TLH that a reasonable owner of a
cargo vessel engaged in at-sea purchase and transfer of shark
fins would not anticipate that its ship could be deemed a fish-
ing vessel under § 1802(18)(B).
1. Plain Language of the Statute
In determining the meaning of a statute, we first look to the
language of the statute itself. See Freeman v. DirecTV, Inc.,
2480 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
457 F.3d 1001, 1004 (9th Cir. 2006) (“The starting point for
[the] interpretation of a statute is always its language.”) (quot-
ing Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730,
739 (1989)). In this case, we find nothing in the plain mean-
ing of § 1802(18)(B) that would provide notice to the owners
of the KD II that its activities would render it a fishing vessel
under § 1802(18)(B).
[3] The district court found the KD II in violation of the
SFPA, which prohibits the possession of unlawfully obtained
shark fins aboard a fishing vessel. 16 U.S.C. § 1857(1)(P). As
explained above, the SFPA relies on the Magnuson Act to
define the term “fishing vessel.” The definition includes any
vessel that “aid[s] or assist[s] one or more vessels at sea in the
performance of any activity relating to fishing, including, but
not limited to, preparation, supply, storage, refrigeration,
transportation, or processing.” 16 U.S.C. § 1802(18)(B).
The district court held that the KD II was a fishing vessel
under 16 U.S.C. § 1802(18)(B) because it aided and assisted
vessels at sea in the performance of fishing-related activities.
Specifically, the district court found that the KD II’s “pur-
chase, storage, and transport” of the shark fins aided and
assisted the foreign fishing vessels.
[4] None of these activities would appear to fall within the
plain meaning of “aiding” or “assisting” in the circumstances
of this case. The American Heritage Dictionary of the English
Language defines “to assist” as “[t]o give help or support to,
especially as a subordinate or supplement; aid.” American
Heritage Dictionary of the English Language (4th ed. 2000).
Similarly, it defines “to aid” as “[t]o help or furnish with help,
support, or relief.” Id. As these definitions indicate, “aiding”
and “assisting” generally connote doing an act for the benefit
of another.
[5] In this case, the charterers of the KD II did not pur-
chase, store or transport shark fins for the benefit of the for-
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2481
eign fishing vessels. Instead, they purchased the fins for their
own commercial purposes. The foreign fishing vessels had no
interest in the shark fins after selling them to the KD II. As
a result, the KD II’s subsequent post-purchase storage and
transport of the shark fins did not benefit the foreign vessels
any more than the purchaser of any other product aids and
assists the seller by storing the goods it has acquired in a
warehouse or transporting them to the location at which it
intends to resell them. Nor does the mere act of purchasing
constitute an act of aiding and assisting a seller. Otherwise it
would not be necessary in criminal statutes that are intended
to punish buyers as well as sellers of illegal substances to
specify the former group expressly. It would be enough that
selling is proscribed and that a purchaser bought the illicit
product. Under the district court’s theory, the simple act of
purchasing would make a buyer an aider or abettor. This is
simply incorrect. Moreover, here, unlike storing and trans-
porting, “purchasing” is not listed in the statute as one of the
acts that constitutes aiding and abetting. Under these circum-
stances, the statutory provision that prohibits “aiding or assist-
ing any activity relating to fishing” does not give fair notice
that purchasing fins is prohibited, nor that storing or transport-
ing them after they are acquired is contrary to law.
Similarly, we are not persuaded by the district court’s rea-
soning that purchasing shark fins at particular at-sea locations
designated by the foreign vessels constitutes an act of aiding
or assisting the foreign vessels. As explained above, the acts
of purchasing, and then storing and transporting the shark fins
do not in themselves constitute aiding or assisting the fishing
vessels. Rather, the charterers of the KD II were at all times
acting for their own benefit, not for the benefit of the foreign
fishing vessels. That the foreign vessels chose to conduct the
sales at sea — even at particular locations at sea — and to
transfer possession of the fins at that point, may have been
beneficial or even necessary to those vessels’ business opera-
tions, but the choice did not change the nature of the purchas-
ers’ actions in any respect. They still purchased the fins,
2482 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
stored them and transported them for their own commercial
purposes. From the standpoint of the purchaser, any benefit to
the seller was incidental. In short, the statutory language at
issue here does not support the district court’s conclusion that
the KD II became a fishing vessel because it purchased, trans-
ported and stored the shark fins at a location favorable to the
foreign fishing vessels.
We also reject the district court’s reasoning that the at-sea
purchase of the shark fins constituted aiding and assisting
because it allowed the foreign vessels to continue fishing for
longer than they would have otherwise. The court supported
this conclusion by referring to a letter stating that the KD II
would save time and expense by having one of the foreign
vessels pick up shark fins from other vessels and deliver them
in bulk to the KD II. Although the letter relates the time and
expense that TLH saved by not having to go from vessel to
vessel in each instance, it does not establish that the failure or
inability to make such arrangements with respect to all the
foreign vessels constituted aiding or assisting those to which
the KD II actually went. Surely, purchasing all the shark fins
at the dock would have been preferable for TLH (if the cost
were to remain the same), and surely the sellers benefited
from selling at a particular location, just as they benefited
from making the sale in the first place. Nevertheless, wher-
ever the purchase is made, the purchaser is doing no more
than making a purchase that it desires to make for its own
business reasons. As a result, while the district court’s
assumption that the seller would benefit from the location of
particular sales appears reasonable, it is irrelevant. Thus,
nothing in the district court’s reasoning persuades us that the
plain language of § 1802(18)(B) provides fair notice that a
purchaser of shark fins is aiding or assisting the seller by the
act of purchasing.
We recognize that Congress enacted the SFPA to “elimi-
nate the wasteful and unsportsmanlike practice of shark fin-
ning” and that it explained that “the purpose of this Act is to
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2483
eliminate shark-finning by addressing the problem compre-
hensively at both the national and international levels.” Pub.
L. 106-557, 114 Stat. 2772 (2000). Although this broad state-
ment expresses an intent to prevent shark finning, it says
nothing to suggest that purchasing shark fins or subsequently
transporting or storing them for the purchaser’s benefit consti-
tutes aiding or assisting the seller and, thus, falls within the
ambit of the possession prohibition. Given that the plain lan-
guage of § 1802(18)(B) nowhere suggests that the possession
prohibition extends to the activities of the KD II, the broad
purpose of the Act provides no help to the government with
regard to the issue on appeal.
Although we find nothing in the plain language of
§ 1802(18)(B) that would provide notice to the KD II that the
possession prohibition extended to its activities, we will next
turn to the regulations and to the district court’s alternative
holding that they provide such notice.
2. Implementing Regulations
The district court concluded that the implementing regula-
tions made clear that the actions of the KD II would render it
subject to the possession prohibition. We reject this holding
as well.
Pursuant to the SFPA, the National Marine Fisheries Ser-
vices (NMFS) enacted regulations making it unlawful to:
1) Engage in shark finning as provided in
§ 600.1204(a) and (I).
2) Possess shark fins without the corresponding car-
casses while on board a U.S. fishing vessel, as pro-
vided in § 600.1204(b) and (j).
3) Land shark fins without the corresponding car-
casses, as provided in § 600.1204(c) and (k).
2484 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
50 C.F.R. § 600.1203.
The relevant portion of the possession prohibition is
defined at § 600.1204(b), which provides:
No person aboard a U.S. fishing vessel shall possess
on board shark fins harvested seaward of the inner
boundary of the U.S. EEZ without the corresponding
carcass(es). . . .
The relevant portion of the landing prohibition is defined at
§ 600.1204(c), which provides:
No person aboard a U.S. or foreign fishing vessel
(including any cargo vessel that received shark fins
from a fishing vessel at sea) shall land shark fins har-
vested in waters seaward of the inner boundary of
the U.S. EEZ without corresponding shark carcasses.
...
As the government conceded at oral argument, the landing
provision applies only to fishing vessels (and cargo vessels
that receive fins from a fishing vessel at sea) landing at U.S.
ports. It does not apply to those vessels landing at foreign
ports, such as Guatemala, where the KD II was to land.
To support its conclusion that the regulations make clear
that the KD II was a fishing vessel, the district court looked
exclusively to the agency’s explanation of the regulation pro-
hibiting landing shark fins, the prohibition at 50 C.F.R.
§ 600.1204(c). The agency explained this provision in the pre-
amble:
The prohibition of landing shark fins without corre-
sponding carcasses extends to any vessel (including
a cargo or shipping vessel) that obtained those fins
from another vessel at sea. Any such at-sea transfer
of shark fins effectively would make the receiving
UNITED STATES v. APPROXIMATELY 64,695 POUNDS 2485
vessel a “fishing vessel,” as the receiving vessel is
acting “in support of fishing.” Thus, the receiving
vessel is prohibited from landing shark fins without
corresponding carcasses under this final rule.
67 Fed. Reg. 6194 (2002) (emphasis added).
[6] Far from making clear that the KD II was a fishing ves-
sel for purposes of the possession prohibition — the prohibi-
tion under which the government seized the shark fins aboard
the KD II — the language relied on, in context, suggests the
opposite. As TLH points out, the quoted language relates to
the landing prohibition. While the text of the landing prohibi-
tion, 50 C.F.R. § 600.1204(c), explicitly provides that a cargo
vessel that lands shark fins after an at-sea transfer is consid-
ered a fishing vessel, § 1204(b) — the prohibition on possess-
ing shark fins — includes no such provision. Where an
agency includes language in one section of the regulation and
omits it in another, it is reasonable to presume that the agency
acted intentionally in forgoing the language. Cf. Bates v.
United States, 522 U.S. 23, 29 (1997) (“[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”) (internal citation omitted).
In other words, the text of the landing prohibition specifi-
cally includes cargo or shipping vessels such as the KD II,
while the text of the possession prohibition contains no such
language. The obvious implication is that although the land-
ing prohibition defines vessels that simply engage in at-sea
transfer of shark fins as fishing vessels, the possession provi-
sion does not.
[7] The preamble to the regulation similarly supports the
conclusion that vessels engaged in the at-sea transfer of fins
will be considered fishing vessels only for purposes of the
landing prohibition. Again, the only reference in the preamble
2486 UNITED STATES v. APPROXIMATELY 64,695 POUNDS
to a prohibition on at-sea transfer of shark fins is found in the
discussion of the landing prohibition; no such reference
occurs in the discussion of the possession prohibition.
[8] Taken together, the regulations and the preamble may
be reasonably read to provide notice that vessels that engage
in at-sea transfers of fins are prohibited from landing shark
fins in a U.S. port, but they do not provide notice that such
vessels are prohibited from possessing fins for the purpose of
making a delivery to a foreign port. This reading is further
supported by the agency’s emphasis in the preamble on its
desire not to interfere with international trade. See 67 Fed.
Reg. 6194, 6195 (2002). As TLH pointed out, the KD II’s
purchase and delivery of shark fins to a foreign port for resale
falls within the ambit of international trade. In the absence of
any other indication in the statutes or the regulations, a vessel
engaged in such trade has reason to believe that it is not sub-
ject to the possession prohibition as a fishing vessel under
§ 1802(18)(B).
[9] Under the circumstances, a reasonable person would not
have fair notice that the activities of the KD II would render
it a fishing vessel under § 1802(18)(B). As a result, we hold
that the district court’s application of the possession prohibi-
tion of the SFPA to the KD II as a fishing vessel under
§ 1802(18)(B) violated due process. We therefore reverse its
decision and remand for further proceedings consistent with
this opinion.
REVERSED AND REMANDED. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1029676/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1365
In Re: CHRISTOPHER LEE NEAL,
Petitioner.
On Petition for Writ of Mandamus.
(2:94-cr-00300-JAB-2; 1:08-cv-00458-JAB-WWD)
Submitted: July 21, 2009 Decided: August 5, 2009
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Christopher Lee Neal, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Lee Neal petitions for a writ of mandamus,
alleging the district court has unduly delayed acting on his
habeas petition. He seeks an order from this court directing
the district court to act. We find there has been no undue
delay in the district court. Accordingly, although we grant
leave to proceed in forma pauperis, we deny as moot the motion
to expedite and deny the mandamus petition. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
2 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3812413/ | The principal assignment of error is that the evidence is insufficient to sustain the judgment. Briefly summarized, the evidence is that certain officers searched the residence of plaintiff in error and found a small fruit jar containing a little whisky. Some of the testimony refers to it as a pint jar, and others to a quart jar, and, on a further search of a granary, about 500 yards away from the house on another tract of land belonging to plaintiff in error, a three-gallon jug was found covered up in some kaffir corn and broom corn seed containing some whisky, estimated to be about a third full. One or two of the witnesses for the state testified that they found two barrels with some rye in them; "old mash, probably some had been used," and found "a little piece of wire. I don't know whether you would call it a coil or not," and on cross-examination the witness testified that by "mash" he merely meant that rye and barley had been soaked.
The plaintiff in error testified that he had no knowledge of the whisky found in the jug in the granary. His son testified that his father was gone for some three weeks or longer, serving on the jury and in town, a short time prior thereto, and during that time one McIntyre, who lived near, put the whisky in the granary because his wife would not let him carry it home. Another witness testified that during that time he saw McIntyre going in the direction of this place with a jug. The previous good reputation of the plaintiff in error was not questioned.
Where the evidence is wholly circumstantial, the circumstances should be, not only consistent with the guilt *Page 96
of the accused, but inconsistent with any other reasonable hypothesis. We believe the evidence introduced under the circumstances is not sufficient to sustain the conviction, and the case is reversed.
BESSEY, P.J., and DOYLE, J., concur. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3812420/ | We have carefully read the testimony in the case and the finding of the court in sustaining a demurrer to the evidence, and in our opinion the court was right in sustaining the demurrer to the evidence. Link had no contract whatever with the defendant, Durant Grain Elevator Company. All the contract he did have was with Sowls, the owner of the oats, who told him that the Durant Grain Elevator Company held a mortgage on the oats and would pay for the threshing. Link never notified the Durant Grain Elevator Company that he looked to them for pay for threshing the oats; in fact, never fold them of his contract or understanding with Sowls until after the oats were threshed and delivered, and the Durant Grain Elevator Company had settled with Sowls, taken out what Sowls owed them, and paid him the balance. There is no implied contract in the case. Link had an expressed contract with Sowls to thresh the oats at a given price, but he had no contract of any kind with the Durant Grain Elevator Company, and the mere fact that the elevator company hauled the oats away and collected their mortgage and paid the balance over to Sowls does not make an implied contract on the part of the elevator company to pay for the threshing. If Link had gone to the elevator company before he threshed the oats and told them the arrangements he had made with Sowls about threshing the oats, and the elevator company had agreed to hold out the $100 for threshing and pay it to Link, there would have been no doubt about the elevator company's liability to pay for the threshing. There is absolutely nothing in the record to show any liability on the part of the Durant Grain Elevator Company, and, in our opinion, the judgment of the trial court is correct and the case should be in all things affirmed.
By the Court: It is so ordered. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3110832/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00466-CV
MARK LEE NEWBY APPELLANT
V.
DIANNE MARIE UHL APPELLEE
----------
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
In what we construe as seven issues, Appellant Mark Lee Newby, pro se,
appeals from a divorce decree dissolving his marriage to Appellee Dianne Marie
Uhl. We will affirm.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
Newby and Uhl married in 1999. They had one child together, B.N., born
in September 1999. Newby worked as a land developer and a builder. Uhl
worked for a computer company.
Uhl filed for divorce in the summer of 2009. As part of its temporary
orders, the trial court issued a mutual temporary injunction enjoining Newby and
Uhl from selling community or separate property and ordered that all oil and gas
monies or checks received by Newby be delivered to his then-attorney to be
deposited and held in the attorney’s escrow account. Uhl obtained a protective
order against Newby around the same time; the trial court found that family
violence had occurred and was likely to occur in the future, and the court
prohibited Newby from, among other things, communicating with and committing
family violence against Uhl and B.N. Uhl supplemented her original petition to
allege claims against Newby for forgery, fraud, invasion of privacy, and breach of
fiduciary duty.
During the pendency of the divorce, Uhl filed motions to compel and for
sanctions against Newby for his repeated failure to adequately respond to Uhl’s
discovery requests. The associate judge ultimately struck Newby’s pleadings as
a discovery sanction. At the outset of the final bench trial, the trial court stated
that it had reviewed and approved the associate judge’s recommendation
regarding sanctions.
2
Aside from Uhl’s attorney’s testimony about fees, Uhl and Newby were the
only two witnesses who testified at trial.2 Uhl testified that Newby had treated her
cruelly and that their marriage was unendurable. According to Uhl, Newby
wanted to control her “a hundred percent.” For example, he would take her cell
phone, their cars, her car keys, and her work laptop; he would force her to sign
business documents; he would wake her up in the middle of the night, yelling at
her; and he would say ugly things about her other son to her. Uhl testified that
Newby had a problem with hydrocodone; that he committed adultery; that he
would lunge at her and grab her, get in her face, and yell at her; that he dragged
her to the balcony and threatened to throw her off of it on one occasion; and that
he had harassed and threatened to kill her during the course of the divorce. Uhl
also testified about child support, a possession schedule for B.N, and dividing the
community property and debt. Newby’s testimony is largely highlighted by his
evasive answers and his repeated invocation of his Fifth Amendment privilege
against self-incrimination.
The corrected final decree of divorce granted the divorce on the grounds of
adultery and cruel treatment; appointed Uhl sole managing conservator and
Newby possessory conservatory of B.N.; ordered Newby to pay child support to
Uhl; divided the marital estate, including the debt; pierced the corporate veils of
four business entities owned or controlled by Newby, permitting their assets, if
2
Both Uhl and Newby were represented by counsel at trial.
3
any, to be characterized as community property; found that Newby had
committed fraud by nondisclosure against Uhl, had violated Uhl’s privacy, and
had breached his fiduciary duty owed to Uhl; awarded Uhl actual damages of
$100,000 and exemplary damages of $100,000; ordered Newby to pay attorney’s
fees; extended the protective order for an additional two years; and permanently
enjoined Newby from, among other things, threatening and harassing Uhl. The
trial court later amended the protective order to include within its coverage Uhl’s
attorney, the attorney’s law firm, and the attorney’s paralegal.3
III. SANCTIONS
In what we construe as his first issue, Newby argues that the trial court
abused its discretion by striking his pleadings as a discovery sanction and erred
3
The trial court stated the following at the conclusion of the trial:
Mr. Newby, we’ve talked before. I cannot imagine how
anyone could have done any worse [of a] job tha[n] you’ve done in
this divorce. You’ve had five attorneys. All of them I respect. And I
cannot imagine that they had much of an influence on you because
you wouldn’t have done this.
I don’t know how you could have done any worse, as I’ve said.
And that’s not even to mention what may be occurring in the
bankruptcy court or other criminal courts. I’m just talking about the
things you’ve done in this court which led to your- -to the striking of
you[r] pleadings.
You’ve just- -I was trying to think during this trial of anything
that you’ve done right. There’s almost nothing. You’ve left the Court
with no choice.
4
by failing to conduct a full hearing before approving the associate judge’s
sanctions recommendation.
Trial courts have broad discretion to impose discovery sanctions to secure
compliance with discovery rules, to deter other litigants from similar misconduct,
and to punish violators. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849
(Tex. 1992). We therefore review a trial court’s imposition of discovery sanctions
for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).
A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner,
or if it acts without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied,
476 U.S. 1159 (1986). In reviewing sanctions orders, we are not bound by a trial
court’s findings of fact and conclusions of law; rather, we must independently
review the entire record to determine whether the trial court abused its discretion.
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006).
Texas rule of civil procedure 215.2(b) allows a trial court to sanction a
party for failure to comply with a discovery order or request. Tex. R. Civ.
P. 215.2(b). Sanctions that a trial court may impose include an order refusing to
allow the disobedient party to support or oppose designated claims or defenses
and an order striking pleadings or rendering a judgment by default against the
disobedient party. Tex. R. Civ. P. 215.2(b)(4), (5).
In discovery-sanction cases, a trial court’s discretion is limited by the
requirement that the sanctions be just. TransAmerican Natural Gas Corp. v.
5
Powell, 811 S.W.2d 913, 917–19 (Tex. 1991). A sanction is just if a direct
relationship exists between the offensive conduct and the sanctions imposed. Id.
at 917; see Chrysler Corp., 841 S.W.2d at 849. A direct nexus exists when the
sanction is directed against the true offender and is tailored to remedy any
prejudice the discovery abuse caused. TransAmerican, 811 S.W.2d at 917. To
be just, a sanction must also not be excessive. Id. The record must reflect that
the trial court considered the availability of lesser sanctions. Otis Elevator Co. v.
Parmelee, 850 S.W.2d 179, 181 (Tex. 1993). A sanction imposed for discovery
abuse should be no more severe than necessary to satisfy its legitimate
purposes. Cire, 134 S.W.3d at 839.
Here, Uhl filed her first motion to compel discovery and for sanctions
against Newby in October 2009. The parties passed on the hearing on the
motion to compel, but on November 6, 2009, the trial court ordered Newby to
fully and completely answer all discovery previously propounded by Uhl,
including her interrogatories and requests for disclosure and for production of
documents. In February 2010, Uhl filed a second motion to compel discovery
and for sanctions, indicating that Newby had responded to the interrogatories
and request for production but complaining that the interrogatory responses were
“totally incomplete and evasive” and that the production responses were “evasive
and incomplete,” and requesting that sanctions be imposed against Newby.
Approximately five months later, Newby had still not adequately responded to
Uhl’s discovery requests, so on or about July 15, 2010, the trial court ordered
6
Newby to completely respond to Uhl’s interrogatories and to produce all
documents previously requested of him on or before July 29, 2010, and it
sanctioned Newby $1,500 for filing frivolous objections to Uhl’s discovery
requests. Soon after the July 29, 2010 deadline had passed, Uhl filed a third
motion to compel discovery and for sanctions against Newby, indicating that he
had provided additional responses to Uhl’s discovery requests but complaining
that the responses continued to be evasive. The trial court granted Uhl’s motion
and struck Newby’s pleadings as a sanction for his discovery abuse.
The trial court’s decision to strike Newby’s pleadings was just. See
TransAmerican, 811 S.W.2d at 917–19. The record demonstrates that over the
course of between nine months and one year, Uhl was forced to file numerous
motions to compel and for sanctions against Newby because of his failure to
adequately respond to Uhl’s discovery requests. The trial court initially tested
lesser sanctions against Newby, but when they proved to be ineffective, it struck
his pleadings. A direct relationship exists between Newby’s offensive conduct
and the sanction, and the sanction is not excessive. Accordingly, we hold that
the trial court did not abuse its discretion by striking Newby’s pleadings.
Newby contends that the trial court should have conducted a full hearing
as part of its review of the associate judge’s sanctions recommendation, but
nothing in the record shows that he raised this issue in the trial court, nor does
the record contain a written notice appealing the associate judge’s
recommendation and identifying the associate judge’s findings and conclusions
7
to which Newby objected.4 See Tex. R. App. P. 33.1(a); In re E.M., 54 S.W.3d
849, 852 (Tex. App.—Corpus Christi 2001, no pet.) (holding that “to be entitled to
a de novo hearing on appeal of an associate judge’s recommendations to the
referring court, a party must timely file a written notice of appeal containing the
associate judge’s findings and conclusions to which the party objects”). We
overrule Newby’s first issue.
IV. OIL AND GAS INCOME
In what we construe as his second issue, Newby argues that the associate
judge erroneously divested him of his separate property when, near the
beginning of the case and as part of the temporary orders, she ordered that any
oil and gas income received by Newby or one of his businesses be delivered to
his then-attorney to be held in her escrow account. Newby contends that the
action “forced an unfair burden on [him and that he] was forced Pro-Se early in
the case.”5 Newby’s argument is unpersuasive for several reasons. While a suit
for dissolution of a marriage is pending, the family code specifically authorizes
the trial court to “render an appropriate order . . . for the preservation of the
property and protection of the parties as deemed necessary.” See Tex. Fam.
4
Newby does not assert any argument that he was improperly prohibited
from participating in any portion of the final trial on the merits. See Paradigm Oil,
Inc. v. Retamco Operating, Inc., No. 10-0997, 2012 WL 2361725, at *6–7 (Tex.
June 22, 2012) (holding that sanction of precluding party from damages portion
of trial was excessive).
5
Newby does not challenge the divorce decree’s disposition of separate
property.
8
Code Ann. § 6.502(a) (West 2006). The trial court thus had the authority to direct
that the oil and gas income be “preserved” pending the divorce proceedings; the
temporary order did not “divest” Newby of the oil and gas income. Further, even
if the trial court somehow lacked the authority to preserve Newby’s separate
property pending the divorce, which it did not, the record on appeal contains no
transcript of a temporary-orders hearing at which Newby demonstrated that the
oil and gas income was indeed his separate property. Newby could have
challenged the trial court’s temporary order by filing a petition for writ of
mandamus, but he never did. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex.
1991) (orig. proceeding) (op. on reh’g); In re Russell, 321 S.W.3d 846, 853 (Tex.
App.—Fort Worth, orig. proceeding [mand. denied]). We overrule Newby’s
second issue.
V. RECUSAL
In what we construe as his third issue, Newby argues that the trial judge
abused his discretion by not recusing himself.6
To recuse a judge, a party must comply with the procedural requirements
prescribed by rule of civil procedure 18a. Rammah v. Abdeljaber, 235 S.W.3d
269, 274 (Tex. App.—Dallas 2007, no pet.). A motion to recuse must be verified
and must not be filed after the tenth day before the date set for trial, unless the
6
The presiding judge of the eighth administrative judicial region denied
Newby’s motion to recuse.
9
movant neither knew nor reasonably should have known “that the ground stated
in the motion existed.” Tex. R. Civ. P. 18a(a)(1), (b)(1)(B)(ii).
Here, not only was Newby’s motion to recuse not verified, he filed it two to
three months after the final trial concluded, and the contents of the motion do not
show that he was unaware that the grounds stated therein did not exist. We hold
that there was no abuse of discretion in the denial of Newby’s defective motion to
recuse, and we overrule his third issue.
VI. DIVISION OF COMMUNITY ESTATE
In what we construe as his fourth issue, Newby argues that the trial court
abused its discretion by disproportionately dividing the community estate in favor
of Uhl.
A trial judge is charged with dividing the community estate in a “just and
right” manner, considering the rights of both parties. Tex. Fam. Code Ann.
§ 7.001 (West 2006); Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort
Worth 2009, no pet.). The court has broad discretion in making a just and right
division, and absent a clear abuse of discretion, we will not disturb that division.
Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd v. Boyd, 131 S.W.3d
605, 610 (Tex. App.—Fort Worth 2004, no pet.).
Community property does not have to be divided equally, but the division
must be equitable. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.—El Paso
1998, pet. denied). In determining whether to disproportionately divide the
community estate, the trial court may consider, among other things, a spouse’s
10
dissipation of the community estate, any misuse of community property, and fault
in the breakup of the marriage. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981);
Vannerson v. Vannerson, 857 S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.]
1993, writ denied). When one spouse not only deprives the other of community
assets but does so with dishonesty and intent to deceive, the trial court may
consider such heightened culpability in its division. Schlueter v. Schlueter, 975
S.W.2d 584, 589–90 (Tex. 1998). A disproportionate division must be supported
by some reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App.—
Waco 2004, no pet.).
Uhl testified that Newby forged her name to several checks, causing her to
incur approximately $85,000 in tax liability to the IRS; that Newby routinely
transferred ownership of property (including vehicles) between several business
entities “to protect them or something”; that Newby made her execute several
bank notes (including one so that Newby could get $15,000 cash) that are
presently due and owing; that Newby sold property (mineral rights) during the
pendency of the divorce despite the trial court’s mutual temporary injunction
enjoining the parties from disposing of both community and separate property;
and that Newby pawned her diamond earrings. Newby testified after Uhl, but
instead of contradicting Uhl’s testimony, he repeatedly invoked his Fifth
11
Amendment privilege against self-incrimination and evasively answered Uhl’s
attorney’s questions.7
A reasonable basis exists for the trial court’s decision to disproportionately
divide the community estate in favor of Uhl. Accordingly, we hold that the trial
court did not abuse its discretion in its equitable division of the marital estate, and
we overrule Newby’s fourth issue.
VII. INADEQUATELY BRIEFED ISSUES
In what we construe as his fifth, sixth, and seventh issues, Newby argues
that the trial court abused its discretion by awarding attorney’s fees, damages for
fraud, and custody of B.N. to Uhl. One of our sister courts recently explained,
We construe liberally pro se pleadings and briefs; however,
we hold pro se litigants to the same standards as licensed attorneys
and require them to comply with applicable laws and rules of
procedure. To do otherwise would give a pro se litigant an unfair
advantage over a litigant who is represented by counsel. The law is
well established that, to present an issue to this Court, a party’s brief
shall contain, among other things, a concise, nonargumentative
statement of the facts of the case, supported by record references,
and a clear and concise argument for the contention made with
appropriate citations to authorities and the record. Bare assertions
of error, without argument or authority, waive error. When a party
fails to adequately brief a complaint, he waives the issue on appeal.
Washington v. Bank of New York, 362 S.W.3d 853, 854–55 (Tex. App.—Dallas
2012, no pet.) (citations omitted).
7
At one point, Newby commented, “I plead the fifth. You can’t get that
through your head.” See Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007)
(reasoning that factfinder in civil case may draw negative inference from party’s
assertion of privilege against self-incrimination); see also Tex. R. Evid. 513(c).
12
Here, Newby’s fifth, sixth, and seventh issues consist of these three bullet
points: “•Judgment to pay petitioners absorbent [sic] attorney fees of $93,000”;
“•Judgment of $100,000 . . . regarding alleged business fraud”; and “•‘Sole’
custody of [B.N.], The Child in this matter.” All three issues are waived as
inadequately briefed because they are nothing more than bare assertions of
alleged error that fail to set forth any argument or authorities. See Tex. R. App.
P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284
(Tex. 1994) (discussing “long-standing rule” that issue may be waived due to
inadequate briefing). We overrule Newby’s fifth, sixth, and seventh issues.
VIII. CONCLUSION
Having overruled all of Newby’s issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MEIER, GARDNER, and WALKER, JJ.
DELIVERED: August 2, 2012
13 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3446789/ | Affirming.
On January 10, 1938, Howell Goins, a partnership engaged in building construction, hereinafter referred to as the partnership, entered into a written contract with the Kentucky Carlsbad Mineral Water Company, hereinafter referred to as the corporation, agreeing to furnish labor and material in building a thirty-room hotel at Dry Ridge, Kentucky, to be completed by June 1, 1938, for the contract price of $32,167, of which 90% was to be paid when the structure was under roof. The partnership had the roof on the building by April 1, 1938, and demanded 90% of the contract price, which the corporation was unable to pay, but made promises that it would soon be able to raise some money, hence the partnership continued working with a small force until about the middle of June of that year. Nothing was paid by the corporation, so on November 10, 1938, the partnership filed a verified statement as required by Section 2468, Kentucky Statutes, in the Grant County Court Clerk's office asserting a mechanics' lien for $13,299.81 on the real estate upon which the hotel was constructed, being lots 1 to 8, and 15, which constitute *Page 740
one boundary, and lot 17, which is separated from the hotel by the highway, but as it was to furnish mineral water for the hotel it is alleged to be a necessary apurtenance thereto.
On January 9, 1939, the partnership instituted this action in equity against the corporation, L. Whitaker and wife, and certain nominal parties not necessary to mention, asking that it be adjudged a mechanic's lien upon the property. By the petition as several times amended the partnership alleged that taker and wife and the corporation entered into a contract whereby it was agreed that in consideration of the corporation issuing him 15,000 shares of its stock (one dollar par) and electing him its president, the Whitakers were to pay a purchase-money lien of $3,200 held by one Minick on lot 17, also purchase lots 1 to 4 and 15, known as the Marshall lots, and satisfy the Ben Chandler claim of $450. Under this agreement the Whitakers were to release the $3,200 Minick lien and to convey the Marshall lots to the corporation at any time it demanded. It was further averred the corporation complied with the contract and issued Whitaker the stock and elected him its president, but that he and his wife had the $3,200 lien assigned to her and had the title to the Marshall lots put in her name; that although the corporation has demanded the release of the lien and the conveyance to it of these lots, Whitaker and his wife have refused; that the title to the lots and the lien were accepted by Mrs. Whitaker for the use and benefit of the corporation and were held in trust for it by her; that the Whitakers knew the partnership was constructing the hotel at the time of their deal with the corporation and knew it was claiming a mechanic's lien against the property at the time Mrs. Whitaker purchased the lien and the lots. It is further alleged that the Whitakers jointly entered into a lease contract with the corporation leasing the hotel for ten years and are thereby estopped from claiming title to the property or a lien thereon.
The corporation filed an answer admitting the partnership's lien, and made this pleading a cross-petition against Mr. and Mrs. Whitaker wherein the averments of the partnership's pleadings were reiterated; that the Whitakers were wrongfully refusing to carry out their contract and it prayed personal judgment against them *Page 741
for $450, the Chandler claim, and that they be forced to release the lien and to convey these lots to the corporation. The separate answers of the Whitakers as amended traversed the allegations of the pleadings of the partnership and of the corporation, after which they pleaded affirmatively that Mrs. Whitaker was not a party to any contract with the corporation and that her individual money was invested in obtaining the lien on lot 17 and the title to lots 1 to 4 and 15; that they had no notice the partnership was claiming a lien upon this property and Mrs. Whitaker was an innocent purchaser for value and the partnership was casting a cloud upon her title which should be removed. Several parties filed intervening petitions asserting mechanic's liens against the property, which pleadings were traversed by the Whitakers.
Much proof was taken, most of which was directed at what was the contract entered into between Whitaker and the corporation and as to whether or not Mrs. Whitaker was a party thereto, and whether or not her money, or the money of her husband, went into the property. It might be well to say here there is no controversy as to the partnership's lien on lots 5 to 8. The chancellor adjudged the partnership had a lien on lots 1 to 8 and 15, but that the hotel was not erected on lot 17, therefore it had no lien thereon. The chancellor further found that Whitaker and wife were each the agent of the other and were jointly interested in the contract with the corporation and that the corporation carried out its part thereof, but the Whitakers wrongfully refused to convey lots 1 to 4 and 15 to the corporation and to release the lien on lot 17; therefore, the master commissioner was ordered to release the lien and to execute a conveyance to the corporation for these lots. Personal judgment was rendered against Whitaker for $450, the amount of the Chandler claim, also for $184.18, being the difference between the amount he furnished and the $7,000 he agreed to furnish the corporation. Liens were adjudged to the various intervenors inferior to the partnership's lien. Whitaker and wife appeal. The partnership's brief mentions a cross-appeal on the ground it was not adjudged a lien on lot 17; but we find neither a motion for, nor an order granting, a cross-appeal, hence there is no cross-appeal for our consideration. *Page 742
The Whitakers contend the chancellor erred: 1. In adjudging the partnership a lien since they were not given the 35-day notice required under Section 2463, Kentucky Statutes, and that its statement asserting a lien was not filed in the county court clerk's office within six months after the last work or materials were furnished as required by Section 2468 of the Statutes; 2. in holding that the corporation complied with its contract with Whitaker and in holding Mrs. Whitaker was jointly interested therein with her husband in performing the contract he made with the corporation; 3. in granting personal judgment against Whitaker.
Section 2463, Kentucky Statutes, provides that one who has not contracted directly with the owner or his agent shall not acquire a lien under this section unless he shall notify in writing the owner of the property or his authorized agent, within 35 days after the last item of material or labor is furnished, of his intention to hold the property liable and the amount for which he will assert a lien. This section further provides such lien shall not take precedence over a mortgage or a bona fide conveyance for value without notice, duly recorded or lodged for record, unless the person asserting a mechanic's lien previously recorded in the county court clerk's office a writing showing he expects to furnish labor and material in a given amount on the property. Here the contract for the construction of the hotel was made by the partnership directly with the owner of the property, the corporation, therefore this section has no application and the Whitakers were not entitled to the 35-day notice. Spinks Co. v. Pachoud Bros., 263 Ky. 119,92 S.W.2d 50; Andrews v. Wilson, 253 Ky. 237,69 S.W.2d 343; Hazard Lumber Supply Co. v. South, 224 Ky. 737,7 S.W.2d 206.
While the corporation did not have title to lots 1 to 4 and 15 at the time it contracted with the partnership for the building of the hotel, yet its vice president, Holliday, held an option from Marshall to buy these lots for the corporation. The fact that Holliday assigned his contract to Mrs. Whitaker who exercised this option and bought the lots on May 20, 1938, in compliance of her husband's contract with the corporation, did not entitle Mrs. Whitaker to the 35-day notice of the intention of the partnership to assert a lien on these lots. The very *Page 743
purpose of Mrs. Whitaker in acquiring the $3,200 Minick lien and the title to these lots was to release the lien and to transfer the lots to the corporation so that the partnership would continue building the hotel. This is shown in a letter Whitaker wrote Holliday on May 3, 1938, wherein he said:
"Mr. David Goins (a member of the partnership) stated that they would not complete the building until they had received the first payment as provided by the contract. He indicated however, that in the event the Marshall property was cleared that he felt he would be safe and the money could be raised to complete same. * * * Since investigation I am inclined to pay off and discharge the indebtedness on the Marshall property and also the indebtedness due on the Minix (Minick) note, together with the contractor's (Chandler's $450 account), charge for filling in the front of the hotel, which amounts to approximately $7,000."
In this same letter Whitaker demanded 15,000 shares of the corporation's stock and that he be elected president in consideration of furnishing this $7,000. The corporation accepted Whitaker's proposition contained in this letter and elected him president and ordered 15,000 shares of its stock issued to him, all of which is shown by the corporate records. In the circumstances neither Whitaker, nor Mrs. Whitaker was entitled to the 35-day notice that the partnership was claiming a lien on this property.
There is some conflict in the evidence as to whether or not the partnership furnished any labor or materials on this job after the first of May, 1938. However, the chancellor's finding that the statement required by Section 2468 of the Statutes, which was filed November 10, 1938, was filed within six months from the time the last labor and material was furnished is abundantly supported by the evidence. It is true that the furnishing of trivial labor or material not necessary to the completion of the contract will not extend the time within which the statement asserting the lien may be filed. Henry Koehler Co. v. Hines, 185 Ky. 270, 214 S.W. 906; Vogt v. Cannon Electric Co., 245 Ky. 766, 54 S.W.2d 338. Here the contract was never completed and it cannot *Page 744
be said that the work done in June by the partnership was of a trivial nature.
The documentary evidence in this case consisting of letters written by Whitaker, and others to which his name was signed, and appearing immediately under his name are Mrs. Whitaker's initials, and the minutes of the meetings of the board of directors for the corporation, convinces us that Whitaker agreed with the corporation to clear lot 17 from the $3,200 Minick lien and to put the title to the Marshall lots in the corporation in consideration of it issuing to him 15,000 shares of stock and electing him its president. The corporation strictly performed its part of the contract and when Whitaker was called upon to carry out his end of the bargain, he contended his wife's money went into the property, that she was not a party to the contract and all he obligated himself to the corporation to do was to induce his wife to invest her funds in this property and to hold the same until the corporation was able to buy it from her.
We need cite only two excerpts from the evidence in support of our conclusion. In a letter of July 20, 1938, written to Holliday, vice president of the corporation, signed "L. Whitaker" and immediately thereunder appears "C. W." (Mrs. Whitaker's initials) it is said:
"I will still owe the company the difference between the two leans (liens) I have paid (referring to the $3200 lien on lot 17 and to the balance of $3000 for the purchase price on the Marshall lots), and I will take care of that when I come down."
This letter was written after the minutes of the corporation showed he was elected president and after it had ordered 15,000 shares of stock to be issued to him. Whitaker did not remember the date this stock was issued to him, but testified it was after his wife had invested in the Marshall lots and in the Minick lien. He testified his agreement with the corporation was that if he would get his wife to pay off the Minick lien and take title to the Marshall property and hold same until the corporation was able to redeem them from her, it would issue him 15,000 shares of its stock. We could cite numerous other statements from the record just as damaging to the Whitakers, but it is unnecessary. These two statements plainly show that Whitaker obligated himself to furnish $7,000 to clear the property upon which *Page 745
the hotel was located in consideration of it electing him president and issuing him 15,000 shares of its stock.
Mrs. Whitaker has had considerable experience in operating a boarding house, and Whitaker is a dentist by profession. In his letters written before and during the time he was making this deal, he said he was worth $25,000 or $30,000, with an income from rents of $300 per month. But after the controversy arose, he testified that he did not own property of any considerable value; that his wife held the purse strings and it was her money which went into this transaction. The evidence is not at all convincing that Mrs. Whitaker used her individual funds in this transaction, although the checks expending some $6,400 were signed by her. However that may be, the evidence supports the chancellor's findings that Mrs. Whitaker was jointly interested in the contract with her husband, and that he was her agent in the matter. She inspected the property on numerous occasions with her husband and her initials appear directly under his signature on many of the letters concerning the deal, which indicate she wrote these letters. In order to obtain a loan from the Refunding Finance Corporation it was necessary that the hotel be leased, and she and her husband signed a lease contract agreeing to rent the hotel at $350 per month for a period of ten years upon its completion. Such evidence clearly establishes she was jointly interested with her husband in this business venture, and that he was not only acting for himself, but also as her agent. There is no escape from the conclusion that Mrs. Whitaker in taking title to the Marshall lots and in accepting the assignment of the Minick lien was in law acting as trustee for the corporation. 18 C.J.S., Corporations, 530, Section 127; Friedman v. Janssen, 66 S.W. 752, 23 Ky. Law Rep. 2151; African M. E. Church v. Conover,27 N.J. Eq. 157; New England Mfg. Co. v. Vandyke, 9 N.J. Eq. 498.
Appellants' contention that personal judgment should not have been rendered in favor of the corporation against Mr. Whitaker cannot be sustained. The corporation's cross-petition averred, and the proof showed, that Whitaker personally obligated himself to furnish it $7,000 and he fell short in doing so. Therefore, the chancellor did not err in rendering personal judgment against him for the Chandler item of $450, *Page 746
and $184.18, the difference between the $7,000 Whitaker agreed to furnish the corporation and the sum he actually expended in its behalf.
Judgment affirmed. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/130397/ | 539 U.S. 919
Andersonv.Vaughn, Superintendent, State Correctional Institution at Graterford, et al.
No. 02-10194.
Supreme Court of United States.
June 9, 2003.
1
Appeal from the C. A. 3d Cir.
2
Certiorari denied. | 01-03-2023 | 04-28-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/3446790/ | Affirming.
Irene N. Froman, wife of appellant, Homer Froman, died testate May 29, 1940. By her will she disposed of $25,500 in specific bequests to a brother, a sister, a sister-in-law, and a number of nieces, nephews, and friends. She devised her one-half interest in a house and lot in Louisville to her sister. She left the residue of her estate to her husband, and named him executor without bond. Her personal estate was appraised at $29,608.50, the principal item being 390 shares of Southern Optical Company stock at $75 a share. Homer Froman renounced the provisions of the will and elected to take the distributable share of his wife's estate to which he *Page 2
would be entitled as her surviving husband had she died intestate. Later he brought an action for construction of certain provisions of the will, and also for a determination of his rights in the proceeds of four life insurance policies in which he had been named beneficiary and which had been pledged as collateral on a note executed to the Citizens Union National Bank by Mrs. Froman. The circuit court held that the proceeds of the policies should be applied in satisfaction of Mrs. Froman's debt to the bank, and that the beneficiary was not entitled to be subrogated to the rights of the bank or to be reimbursed from the estate to the extent that the bank had applied the proceeds of the policies in satisfaction of the debt. The facts are these:
Mrs. Froman was a stockholder of the Southern Optical Company. There was a stockholders' agreement whereby the shares of stock of any stockholder who died were to be offered to the surviving stockholders at a price of $75 a share. Shortly before Mrs. Froman's death two stockholders died, and in order to raise the money with which to purchase the proportion of their stock to which she was entitled under the stockholders' agreement, she borrowed from the Citizens Union National Bank $2,618.51 and assigned to the bank to secure the loan four life insurance policies payable to her husband in the event of her death. The assignments constituted the only security furnished the bank. The four assignments are identical, and each was signed by Mrs. Froman and her husband, the beneficiary named in the policy, and was acknowledged before a notary public. Mr. Froman also signed the note. Paragraph 2 of the assignment reads in part:
"The assignment of such policy is made and the policy is to be held as collateral security for all direct and indirect liabilities of the undersigned, or any of them, to the Bank, due, or to become due, or that may hereafter be contracted.
"The Bank shall apply on the indebtedness secured by such assignment all sums paid to it under the said policy; and any balance remaining with the Bank after the payment of all such liabilities in full, shall be paid over to the person or persons who would have been entitled to receive such amount from the Insurance Company if the assignment had not been executed. No person interested in such *Page 3
policy shall, on account of the application of any of the proceeds of such policy on the said liabilities secured by the assignment thereof, have the right to contribution or reimbursement from any other party or to be subrogated to the rights of the Bank in any other collateral."
It appears from the assignments that each of the policies contained a clause reserving to the insured the right to change the beneficiary.
Appellant cites and relies upon Barbin v. Moore, 85 N.H. 362,159 A. 409, 83 A.L.R. 62, in support of his contention that he should be subrogated to the rights of the bank. In Barbin v. Moore the insured pledged as collateral security on a loan a policy in which he reserved the right to change the beneficiary. The loan was also secured by a mortgage on real estate. It was held that there was no language in the policy or the assignment tending to indicate an intention on the part of the insured to assign the policy for the benefit of his estate and to divest the beneficiary of his rights thereunder, and the designated beneficiary was subrogated to the right of the bank against the mortgage security. In Kash's Ex'r v. Kash, 260 Ky. 508, 86 S.W.2d 273, 274, Lee Kash assigned to the Equitable Life Assurance Society an insurance policy on his life for $5,000 to secure the payment of a note for $5,000 executed by him to the Society, and at the same time executed a mortgage on real estate to secure the same debt. Mollie Kash, mother of Lee Kash, was the designated beneficiary in the life insurance policy which contained a provision reserving to the insured the privilege of changing the beneficiary. Upon the death of the insured the Equitable Life Assurance Society credited the proceeds of the policy on its note, and then brought an action to enforce its mortgage to subject a sufficiency of the proceeds of the mortgaged real estate to the payment of the balance of its debt. Mollie Kash, the designated beneficiary, intervened and asked to be subrogated to the rights of the Equitable Life Assurance Society to enforce its mortgage to the extent of the proceeds of the policy which had been applied on the debt. The mortgage recited that the policy of life insurance had been assigned to the mortgagee as collateral security for the payment of the note for $5,000, and clause 9 of the mortgage read:
" 'It is further agreed that the party of the second *Page 4
part may resort for the payment of the said principal moneys, premiums and interest to its several securities therefor in such manner as it may think fit.' "
Clause 11 of the mortgage read:
" 'It is furthermore agreed that if said policy of insurance be still in force, the indebtedness secured hereby shall become immediately due and payable upon the death of the insured, and the party of the second part shall apply toward the payment thereof the amount due from it under the terms of said policy and pay over the balance, if any, to such person or persons as may be legally entitled thereto.' "
The court declined to allow the beneficiary's claim of the right of subrogation, and, after distinguishing the case of Barbin v. Moore, said:
"Plainly, the language of the mortgage herein is broad enough to convey the intention of the insured, and to establish his and the Equitable's agreement that in the event of his death, for the Equitable to utilize the proceeds of the policy for the payment of the latter's debt before resorting to the enforcement of the mortgage on the real estate. And the designated beneficiary is bound thereby even as against the insured's estate. This theory is authorized and sustained by the language of the mortgage and is in harmony with the provisions of the policy and the insured's assignment of it to the Equitable."
The ruling in Kash's Ex'r v. Kash was followed in Berger v. Berger, 264 Ky. 225, 94 S.W.2d 618, where the facts were similar. Cf. Landrum v. Landrum's Adm'x, 186 Ky. 775,218 S.W. 274.
The language of the assignment in the present case is clear and unequivocal, and evinces the intention of the insured to have the proceeds of the policy applied to the payment of the note in the event of her death and that the beneficiary should not "have the right to contribution or reimbursement from any other party or to be subrogated to the rights of the bank in any other collateral." The chancellor in a well-considered opinion distinguished the present case from Barbin v. Moore, supra, and held that appellant was not entitled to be subrogated to the rights of the bank or to be reimbursed by *Page 5
the estate of the insured. We adopt the following from his opinion which aptly expresses our views on the subject:
"* * * both the insured and the beneficiary agreed that in the event the proceeds of the policy were applied to the satisfaction of the note jointly executed by them that the beneficiary of the policy should have no 'right to contribution or reimbursement from any other party * * *.' Here Mr. Froman was the only person interested in the policy. He was the designated beneficiary. The circumstances of the loan from the Bank set out in the petition and the argument of plaintiff's counsel to the effect that the testatrix was purchasing valuable stock to become part of her estate and intended that the note should be paid from her estate in the event of her death I think are squarely met by the express words of the formally executed assignment. She authorized the Bank to apply the proceeds to the satisfaction of the debt and expressly set out that in the event this was done no person interested under the policy, obviously the sole designated beneficiary, would have any right to any contribution or reimbursement from any other party.
"It may be true that she did not expect to die and had the intention to pay off the indebtedness. It may also be true that the beneficiary did not expect the insured to die and that he too thought the indebtedness would be paid off and the proceeds of the policies would be paid in full to him. But it is also true that both the insured and the beneficiary expressly agreed in writing that in the event the insured did die the entire indebtedness should be paid from the proceeds of the policy and in which event the beneficiary had no right to contribution or reimbursement."
By the assignments the insured indicated that the insurance money, not her estate, should be the primary fund from which the note to the bank was to be paid.
The judgment is affirmed. *Page 6 | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3446791/ | Affirming.
This is an action for an alleged violation of the Fair Labor Standards Act of 1938, 29 U.S.C.A. sec. 201 et seq.
Appellee was employed by appellant as a truck driver in October, 1938, and continued in this employment until June, 1941, when he was discharged. His salary was $12 per week and his average work week was from 62 to 70 hours. *Page 204
Judgment was entered for the employee for the minimum prescribed by Section 6 of the Fair Labor Standards Act, but no recovery was granted on account of overtime. This judgment was entered pursuant to the findings of a special commissioner appointed by the court to determine the amount due. In addition to the judgment of $556.10, which included liquidated damages specified in the act, the court allowed the employee's attorney a fee of $150. The employer appeals.
The principal argument for reversal is that the Fair Labor Standards Act does not apply to this company because it operated its trucks as a private carrier in the furtherance of its wholesale grocery business. The company is admittedly engaged in interstate commerce, its trucks being operated in Kentucky, Tennessee, Indiana, and Ohio.
Appellant's argument is grounded on Section 13 (b) of the Fair Labor Standards Act which provides that the provisions of Section 7 of that Act shall not apply with respect to any employee with respect to whom the Interstate Commerce Commission has power to establish maximum hours of service pursuant to the Motor Carrier Act of 1935,49 U.S.C.A. sec. 304.
If recovery had been allowed for overtime, under the provisions of Section 7 of the Act, this provision would be a defense to the action, but, as pointed out above, no recovery was claimed or allowed for overtime under Section 7. Recovery was allowed only for the minimum wages established by Section 6 of the Act.
Since the exemption provision referred to exempts employers engaged in this type of operation only from the provisions of Section 7, and not from the provisions of Section 6, it is at once apparent that this does not affect the employee's right to recover such minimum wages. Therefore, we hold that the employee was entitled to the minimum wages as set forth in Section 6 of the Act. See Plunkett v. Abraham Bros. Packing Company, Inc., 6 Cir., 129 F.2d 419; DeLoach et al. v. Crowley's Inc., 5 Cir., 128 F.2d 378, and Walling v. Mutual Wholesale Food Supply Co., D.C., 46 F. Supp. 939, affirmed, 8 Cir., 141 F.2d 331.
The other ground for reversal is that the oral testimony for the employee will not prevail against the records of the employer. *Page 205
There is ample evidence to support the finding of the special commissioner and the judgment of the lower court.
Some six witnesses were called to support the allegations of the petition, including two officers of the employer. From the testimony of these officers it seems that they are not certain as to the accuracy of their company's records. At any rate, it is sufficient to say that the judgment is supported by substantial evidence, and we are not at liberty to upset it.
The allowance made to the attorney for the employee is reasonable. Indeed no complaint is made as to this item.
The judgment is affirmed. | 01-03-2023 | 07-05-2016 |
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